RUPCHAND HEMANDSAR PANJWANI Vs. HEERA JAWAHARLAL MIRCHANDANI

JUDGEMENT

(1.) THESE matters came before me while I was sitting as a single Judge. They raised the question of the applicability of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (which will be hereinafter referred to as the Rent Act) to appeals pending on the date on which the provisions of Parts II and III came to be applied to the premises, which are subject matter of the proceedings. It was pointed out to me that there were two contradicting decisions of the Single Judges Mr. Justice Naik in Second Appeal No. 738 of 1964, decided on December 14, 1965 Bom took the view that the Rent Act did not apply to all appeal if Parts II and III came to be applied during the pendency of the appeal. Mr. Justice Gokhale held otherwise in a group of Civil Revision Applications Nos, 793, 870 and 1122 of 1963 = AIR 1967 Bom 514. He held that it did. Mr. Justice Naik's decision was cited before the learned judge yet the learned Judge held differently. Having regard to the difference of opinion between the two judges I referred the matter to a Division Bench. Before dealing with the question in issue, the short facts of each case may briefly be stated.

(2.) SECOND Appeal No. 111 of 1965:- In this appeal, the appellant was the tenant of the premises in suit. Appellant No. 2 was posted as defendant as he was residing with him. He is his father. The tenement is situated in Ulhas Nagar. The appellant who was originally a licensee was granted tenancy of the suit premises on June 1, 1962 at Rs 35 per month and the original deposit of Rs. 150 which was paid at the time the license was granted, was continued at the time the tenancy was created. The appellant did not pay rent in the months of October to December 1962 and therefore the plaintiff terminated his tenancy by notice to quit dated December 4, 1962. On January 11, 1963, the appellant paid a sum of Rs. 58 on which date the plaintiff instituted the suit for possession of the premises on the ground that the tenancy of the appellant was terminated. This suit was decreed on August 28, 1963. Against this Judgment the appellant filed an appeal on September 27, 1963. On October 31, 1963, the Government issued a Notification Under Sec. 2 applying the provisions of Part II to premises let out for residence, business or trade. Even so the appellant before the appellate Court did not in terms claim the protection of the Act. The only contentions which he raised were whether the Civil Court at Kalyan had jurisdiction to entertain the suit, the suit being entertainable by the Court of Small Causes, whether there was misjoinder of parties and whether the notice was illegal and void. All these questions were answered against the defendant and his appeal was dismissed. The question about the applicability of the Rent Act has been taken up only in this appeal.

(3.) IN Civil Revision Application No. 570 of 1965 the premises were situated in Thakurli. The petitioner was a tenant at Rs. 37 per month since 1962. It appears that at one time Part II was applied to this areas, but later on by a Notification under Section 6 the Government having power to do so, the application the Act was withdrawn. After terminating the tenancy of the petitioner, the plaintiff filed this suit on March 19, 1963, in the Court of Civil Judge at Kalyan. The trial Court decreed the suit against which the petitioner filed an appeal. In the appeal it was contended that the original notification was still in force and was applicable to those premises. Th issue, therefore, was sent down to the trial Court. The trial Court negatived that contention and therefore the District Court dismissed the appeal of the petitioner. In the mean time on February 18, 1965, the Government reapplied the provisions of Part II of the Rent Act under Section 22 of the Act. No. contention in this case was also taken before the learned District Judge that the Petitioner was entitled to the protection the Rent Act, which was then applied. The contention was taken only in the revision application.