GOPALJI UMERSEY Vs. DEVJI NARANJI THAKKAR

JUDGEMENT

(1.) In this case the plaintiff landlord brought a suit against the defendant for ejectment in the Court of Small Causes. The defendant was occupying a room on the second floor the rent of which was Rs. 7 which was subsequently raised to Rs. 17. The defendant contended that the suit could not be proceeded with as the plaintiff had not annexed to the plaint a copy of the order in force determining that the premises were not small premises or fixing their standard rent under Section 17 of Bombay Act VII of 1918. The plaintiff contended that structural alterations had been effected in the building in 1926 and 1927 with the result that the identity of the building was changed and the premises became new premises exempt from the operation of the Rent Act. The trial Judge was of opinion that the Controller under Section 4 had no power to determine whether the premises were old or new though he may have to do so incidentally. The question as to whether the premises were old or new w&s referred by consent to Mr. B.S. Sanjana as commissioner. The commissoner visited the premises, took evidence and held that the premises in question were new. The Small Cause Court Judge who tried the case, accepted the report and ordered the defendant to vacate by October 31.

(2.) It is urged on behalf of the defendant that the lower Court had no jurisdiction to decide the case but ought to have rejected the plaint under Section 17, Clause (2), on the ground that the plaintiff had not annexed to the plaint a copy of the order in force determining that. the premises were not small premises or fixing their Standard rent. It is urged on the other hand that the defendant consented to the appointment of Mr. Sanjana as commissioner to decide the question whether the premises were old or new, that the Small Cause Court had jurisdiction to entertain the suit for ejectment, and that as there was no order passed by the controller under Section 4, there was no order in force a copy of which could be produced with the plaint under Section 17.

(3.) Under Section 4 of the Rent Act, VII of 1918, the controller has the power, after such enquiry as he may think fit, (a) to determine whether any premises are or are not small premises, and (b) from time to time to fix the standard rent of the premises. "Small premises" have been defined by Section 2, Clause (b), as any premises the standard rent of which does not exceed twenty rupees a month. Under Section 17 of the Bombay Rent Act, VII of 1918, in every suit for rent or ejectment in respect of any premises of which the monthly rent does not exceed thirty rupees, the plaintiff shall annex to the plaint a copy of the order in force determining that the premises are not small premises or fixing their standard rent, and under Sub-section (2) if the plaintiff fails to comply with the terms of Sub-section (1) the plaint shall be rejected. The monthly rent in Sub-section (1)(a) of Section 17 does not mean standard rent. See Krishnarao V/s. Virji . If the premises in suit were governed by the Rent Act, the monthly rent of the premises being Rs. 17 it would be necessary for the plaintiff to annex to the plaint a copy of the order in force determining that the premises were not small premises or fixing their standard rent.