PIRUBHAI RAMJUBHAI MAMOMEDAN Vs. TRIKAMLAL NANJIBHAI

JUDGEMENT

(1.) In a suit by the respondent as landlord against the petitioner as tenant for eviction of the petitioner from the leased premises on the ground of arrears of rent the learned Civil Judge Junior Division Surendranagar has by an order dated 20-11-1967 made under sec. 11(4) of the Bombay Rents Hotel and Lodging Houses Rates Control Act 1947 (hereinafter called the Act) directed that the petitioner shall not be entitled to appear in to defend the suit henceforth unless otherwise ordered. Against that order the petitioner went in revision to the District Court Surendranagar. The learned District Judge by his order dated 18 dismissed that revision application thereby upholding the order passed by the learned trial Judge. Against the order of the District Judge the petitioner has come in revision to this Court.

(2.) The material facts are not in dispute. On the date the suit was alleged to be in arrears of rent and mesne profits to the tune of Rs. 699-50. The suit was filed on 19-6-1967. After the suit was filed the respondent made an application to the Court on 12-9-1967 requesting the Court to exercise its powers under sec. 11(4) of the Act and to direct the defendant (petitioner) to deposit in the Court all the arrears of rent and further to direct that on failure to make such deposit he shall not be entitled to defend the suit. On that application the learned Judge ordered as under:-

(3.) Mr. Raval who appears for the petitioner submitted that the order in so far as it directs that the defendant was not entitled to appear and defend is in clear violation of the terms of sec. 11(4) of the Act and cannot be sustained. That contention as I shall presently point out must be accepted. But the submission of Mr. Vyas for the respondent is that even if that is so this Court cannot revise that order under sec. 115 of the Civil Procedure Code because the trial Court had jurisdiction to make an order that the defendant shall not be entitled to defend and the fact that the jurisdiction was not exercised strictly in accordance with the terms of sec. 11(4) would only mean that it was wrongly exercised but a wrong exercise of jurisdiction cannot be corrected under the revisional powers under sec. 115 of the Civil Procedure Code (hereinafter referred to as the Code). He argued in the alternative that even if a violation of the provision of sec. 11(4) could be made the subject of revision under sec. 115 of the Code even then this order could be justified on the ground of exercise of inherent power of the Court under sec. 151 of the Code and if the order could be so justified this Court cannot interfere with the said order in exercise of the jurisdiction under sec. 115. Mr. Ravals reply to these two submissions of Mr. Vyas firstly is that sec. 151 of the Code cannot in law be attracted when a provision relating to the procedure has been expressly made in that the procedure relating to the striking off the defence laid-down under sec. 11(4) was such a provision. He next submitted that in following the procedure so laid-down the trial Court has acted illegally or with material irreguiarity and at any rate it has acted arbitrarily and therefore the error committed is a jurisdictional error revisable under sec. 115 of the Code. These are the only submissions required to be considered.