SHAKUNTALA JETHALAL SHAH Vs. RAJASTHAN COMMERCIAL

JUDGEMENT

(1.) Since common questions of law and facts arise in both these petitions, they were heard together and are being disposed pf by this common judgment.

(2.) Heard Shri Badkar, the learned advocate appearing for the petitioner in Writ petition No. 651 of 1993 and for the respondent in the Writ Petition No. 2723 of 1992. Perused the records.

(3.) The Writ Petition No. 651 of 1993 arises from the order dated 8th September, 1992 passed in the Int. Notice No. 4656 of 1989 in r. A. E. andr. Suit No. 1370/4319 of 1986. By the impugned order, the petitioner's notice was made partly absolute allowing the respondent no. 1 to deposit Rs. 47,450/- towards arrears of rent upto the end of September, 1992 and further permitting to continue to deposit monthly rent at the rate of Rs. 650/- per month from 15th November, 1992 onwards, while rejecting the claim of the petitioner for direction to the respondent to deposit monthly rent of rs. 851/- but permitting the petitioner to reagitate the said point after disposal of the Writ petition No. 2723 of 1992. The only ground on which the contention of the petitioner for direction to deposit the rent at the rate of rs. 851/- per month has been rejected is the pendency of the Writ Petition No. 2723 of 1992. Undisputedly, there was no interim relief passed in the Writ Petition No. 2723 of 1992 on the day when the impugned order was passed. Merely because the writ petition was filed, the Court below proceeded to refuse to issue direction to the respondent to deposit rent at the rate of Rs. 851/- per month, even though the respondent had failed to establish, as on that date, that his liability to pay rent was restricted to Rs. 650/- per month. Once the respondent had not been able to establish his limited liability under Section 11 (3) of the bombay Rents, Hotel Lodging House Rates control Act, 1947, hereinafter called as "the said Act", merely because the respondent had preferred the Writ Petition No. 2723 of 1992 wherein no order of whatsoever nature was passed imposing any restriction upon the Court below from issuing direction for deposit of rent to the extent of Rs. 650/- per month only, as rightly submitted by the learned advocate for the petitioner that the Court below clearly erred in directing the respondent to deposit Rs. 650/-per month only and in rejecting the claim for rs. 851/- per month. Mere filing of a writ petition can, by no stretch of imagination, be held to be a restriction imposed upon the Court below for passing an order in the nature it was requested for. On that count alone, the impugned order cannot be sustained and is liable to be quashed and set aside and the matter will have to be remanded to the Court below to decide the Int. Notice No. 4656 of 1989 in r. A. E. and R. Suit No. 1370/4319 of 1986 afresh in accordance with the provisions of law.