NAVNITLAL CHUNILAL Vs. BABURAO (NO2)

JUDGEMENT

(1.) This is an ejectment suit. It originally came for hearing before Blagden J. Having regard to the Bombay Rent Restriction Order, 1942, issued under the Defence of India Rules, 1939, the landlord was bound to obtain a certificate from the Controller, to show that he required the premises reasonably and bona fide for his own use. After obtaining such certificate a notice to quit was given by the plaintiffs. Certain payments were made thereafter. Dispute arose as to whether the same were accepted by the landlord as rent or compensation. The present suit was filed for ejectment and the defences were principally two : (1) that the certificate obtained from the Controller was invalid ; and (2) that the notice to quit was waived. Blagden J. held against the appellant, the tenant, on both the points. When the matter reached hearing on appeal, the second question about the waiver of notice to quit was fully argued. In the interval, a full bench of this Court on April.6, 1944, decided that the proviso to Section 8, giving power to the Controller to determine the question whether the premises were required reasonably and bona fide and the other powers was ultra vires and Section 8 was also bad in law. The result was that when the appeal came for hearing the question whether the certificate of the Controller was valid or not, although in dispute, was not argued, because even if invalid the appellant could not get any relief because of the decision of the full bench. The appeal was decided on April 13, 1944, The Government of Bombay thereafter passed Bombay Act VII of 1944, which was published in the Bombay Government Gazette on May 12, 1944. Under Section 14(3) of the Act the Controller was empowered to decide various questions mentioned in the proviso to Section 9 although it interfered with the jurisdiction of Courts. Section 9(2) of that Act runs as follows : Where an order for the recovery of possession has been made in favour of a landlord on or after the 6 day of April 1944 but not executed before the date of publication of this Act, the Court by which the order was made, if it is of opinion that the order would not have been made if this Part had been in operation at the date of the making of the order, rescind or vary the order in such manner as the Court may think fit for the purpose of giving effect to this Part. The appellant filed an appeal to the Privy Council and during the vacation obtained a rule and interim stay without any returnable date being fixed.

(2.) On June 9, 1944, the appellant took out a notice of motion for the following reliefs : (1) That the decree passed by the Appeal Court on April 13, 1944, be rescinded or set aside; (2) that the above appeal be placed on some board for hearing and final disposal of the first issue raised at the trial of the suit; and (3) that pending the hearing and final disposal of the said appeal the hearing of the petition of the appellant for leave to appeal to His Majesty in Council be stayed. After some discussion about the form of this notice, the Court made the order that the application be set down on board for hearing. It was considered open to the appellant to urge that if Bombay Act VII of 1944 was in operation on April 13, 1944, the Appeal Court would not have passed the order of ejectment against the appellant. Before us, it has now been contended by the Advocate General that it was not open to the appellant to raise that contention. The argument was that the Appeal Court decided the appeal against the appellant on April 13 for a reason extraneous to the present Act and in spite of it. In my opinion that argument is unsound. On a true construction of Section 9(2) of Act VII of 1944 the Court has to place itself in the same position in which it was when the original order was passed, and reconsider the situation on the footing that Act VII of 1944 was in operation on that day. If on that footing the Court considers that the order previously passed should be rescinded or varied, it is open to the aggrieved party to ask the Court to do so.

(3.) On behalf of the appellant four points were .urged before us : (1) that against the order of the Controller refusing to grant a certificate no right of appeal was given under Section 14 (i) of the (new) Act; (2) that Mr. Taylor, who decided the question on appeal by the respondents, was not then the Collector of Bombay and therefore he had not passed a valid order on appeal; (3) that during the hearing, before Mr. Taylor, the rules of natural justice were not observed and therefore the decision was invalidated ; and (4) that the certificate granted by the Controller in fact is in the name of the first respondent only and therefore there is no valid certificate in favour of the landlords within the meaning of the proviso to Section 9 of the Act.