HAVELIRAM SHETTY Vs. MAHARAJA OF MORVI

JUDGEMENT

(1.) The facts pertinent to this appeal lie within a comparatively narrow compass. The respondent is the landlord, and the appellant the tenant of certain premises whereon he conducts the business of a boarding and lodging hotel. The lease of the premises having expired on March 1, 1943, the appellant sought to hold over, but the respondent brought this action for possession. To that claim the appellant set up the Bombay Rent Restriction Order, 1942, which Order, as it then stood, only protected premises let for the purposes of residence. The action originally came before Mr. Justice Blagden on June 29, 1943, when he made an order for possession, on the ground that the premises were not let for the purposes of residence. Against that order the present appellant appealed, and that appeal came before the Chief Justice, Sir John Beaumont, and Mr. Justice Rajadhyaksha, on August 19, 1943. They reversed the judgment of the learned Judge in the Court below, holding that the premises were let for the purposes of residence. There has been no appeal from that judgment, and, therefore, we have to deal with the matter on the footing that the premises in question are residential; but I must not be taken as concurring in that judgment, as I am not at all certain that if the matter had been open to us I should have been of the same opinion.

(2.) The Court of Appeal having held the premises to be let for the purposes of residence, counsel for the respondent contended that the suit ought not to be dismissed, because he might be able to protect himself from! the operation of the Rent Restriction Order by getting a certificate from the Controller under the proviso to Clause 8 thereof. Accordingly, the Court of Appeal sent the matter back to the trial Court to answer the following issue: Whether the plaintiff Is entitled to an order for possession having regard to the proviso to Clause 8 of the Rent Restriction Order, 1942? When the issue so sent back came before Mr. Justice Blagden, the respondent produced a certificate dated September 25, 1943, which is in the following terms :- For the purposes of the proviso to Clause 8 of the Bombay Rent Restriction Order, 1942, I hereby certify that the premises " (therein specified) " are reasonably and bona fide required by the landlord, His Highness the Maharaja of Morvi, for his own occupation. In the face, of that certificate the appellant's counsel, Mr. Taraporewalla, argued, a he has done on this appeal, that whilst the main portion of Clause 8 of the Order is valid, the proviso to it, which provides for a certificate, is invalid. That point having been raised, the learned Judge, in his judgment delivered on December 3, 1943, gave his opinion upon it, which was in favour of the validity of the whole of Clause 8 including the proviso. But Mr. Taraporewalla took a further point, namely, that the Controller in granting the certificate had acted contrary to natural justice. The learned Judge answered that submission in the negative, and accordingly answered the issue referred to Him in the affirmative. From that decision the appellant now appeals to this full bench.

(3.) Mr. Taraporewalla is in this difficulty : that he dare not challenge the validity of Clause 8 as a whole : since, if he were to do so successfully, the whole substratum of his defence would be gone, and there would be no escape from an order for possession being made against his client under the law relative to landlords and tenants unaffected by; any emergency regulation. He has, therefore, to maintain that, whilst the main portion of Clause 8 is operative, the proviso to it is ultra vires.