J SATYAVRATA Vs. MOHAMEDBHAI ABDULHUSSEIN SADIQ BAHREINWALLA

JUDGEMENT

(1.) The two petitioners before us are the tenants of flats on the 2nd and 4th floors of New Ready money Building (renamed Alhafiz Building) situate at Clare Road, Byculla, Bombay. The respondents are the present landlords of this building which compromise of a ground and four upper floors and has in all 55 tenants. The tenants were in enjoyment of the service of a lift in this building. It appears that in 1974 the respondents predecessors-in-title had partially withdrawn the lift facility by restricting the working hours of the lift from 10.00 a.m. to 2.00 p.m. and from 4.30 p.m. till 8.30 p.m. in the place of the original working hours viz. from 9.00 a.m. till 9.00 p.m. Original proceedings were thereupon initiated against the respondents predecessors-in-title by the tenants which resulted in the restoration of the lift service to the original hours, viz. from 9.00 a.m. to 9.00 p.m. and the concemitant withdrawal of the criminal proceedings. On 1st April, 1975, the respondents became the owners of New Ready money Building, whereafter, according to the petitioners, the respondents started harassing the tenants in various ways, with the result that the tenants filed proceedings against the landlords in the Court of Small Causes for fixation of standard rent and for a permanent injunction restraining the respondents from cutting off the electric supply. In December 1975, the lift facility was totally withdrawn by the landlords and despite the tenants, requests to them, the same was not restored. Thereupon in March 1976 the present petitioners and another tenant one Mrs. Mendes residing on the 3rd Floor, filed an Application No. 424/BES of 1976 in the Court of Small Causes against the landlords under section 24(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (referred to hereafter as "the Rent Act"), for restoration of the lift facility. In these proceedings, no reply was filed by the landlords themselves. However, their rent Farmer one Sheeb (Shakih) Hashim Contractor filed a reply denying that the landlords had cut off or withheld the lift service either directly or indirectly and urged that if they had done so, it was for just or sufficient cause on the ground that the lift having been installed prior to 1940 had cultived its utility; that the cost of repairs would be in the vicinity of Rs. 20,000/- which the landlords could ill-afford, and that even if repairs were carried out to the lift, no useful purpose would be served as the repairs would not last for any length of time. In these proceedings, the petitioners and other tenants gave evidence. The landlords however did not step into the witness-box but contended themselves by leading the evidence of their Rent Farming Contractor. The trial Court passed its impugned order on 7th December ,1976. Following the decision of the learned Single Judge of this Court in (Dhanrajmal Gobindram & Co. Pvt. Ltd. v. The State of Maharashtra), 75 Bom.L.R. 245, the trial Court upheld the landlords contentions and dismissed the tenants application, holding that it had not been established that the landlord had cut-off or withheld the lift service and that if they had done so, it was for just or sufficient cause. The petitioners thereupon preferred a revision application to the appellate side of the Court of Small Causes. Relying on the decision in Dhanrajmals case, the lower appellate Court held that while it was the landlords case that the repairs required to be carried out by the lift Inspector would come to Rs. 20,000/- (Rupees twenty thousand), the landlords had failed to adduce any reliable evidence that the cost of the repairs would be that much. It was further held that on the showing of the tenants themselves the cost of repairs would come to Rs. 2,000/- (Rupees two thousand) but even that expenditure the landlords could not be asked to incur as rents are controlled by the Rent Act. With the observations that---

(2.) Hence the present Special Civil Application was filed by the present petitioner for setting aside the impugned orders dated 7th December, 1976 and 31st August, 1977 passed by the trial Court and the lower Appellate Court respectively, and for restoration of the lift service from 10.00 a.m. to 2.00 p.m. and from 4.00 p.m. to 8.30 p.m.

(3.) This Special Civil Application came up before our learned Brother Dharmadhikaro, before whom it was urged on behalf of the petitioners that the lower Courts were in error in following the decision of the learned Single Judge in Dhanrajmals case in preference to an earlier decision of another learned Single Judge of this Court in the case of (Bombay Bullion Association Ltd. v. Jivatlal Partapsi), 62 Bom.L.R. 380. To the contrary were the submissions urged on behalf of the respondents. In view of the apparently conflicting decision of the two learned Single Judges of this Court in Dhanrajmals case and the Bombay Bullion case, Dharmadhikari, J., was of the view that the matter should be placed before a Division Bench accordingly reported the matter to the learned Chief Justice. It is in these circumstances that the present Special Civil Application has come up before us.