Shakuntala Jethalal Shah And Anr. vs Rajasthan Commercial And Anr.
2005 Latest Caselaw 1352 Bom

JUDGMENT

Khandeparkar R.M.S., J.

1. Since common questions of law and facts arise in both these petitions, they were heard together and are being disposed of 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. & R. 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 re-agitate 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.& R. Suit No. 1370/4319 of 1986 afresh in accordance with the provisions of law.

4. As regards the Writ Petition No. 2723 of 1992 is concerned, the same arises against the order passed by the trial Court dismissing the application for recall of the order passed under Section 11(3) of the said Act. The application for recall of the said order has been rejected on the ground that the order passed under Section 11(3) of the said Act is an appealable order and there is no provision under the Bombay Rent Act which empowers the Court below to recall the order passed under Section 11(3) thereof.

5. The finding of the Court below in this regard, though sought to be justified on behalf of the respondent, cannot be sustained as far as it holds that the order passed under Section 11(3) of the said Act is an appealable one. Provision of Section 11(5) thereof clearly provides that no appeal shall lie against any order passed by the Court under Sub-section (3) or (4) of Section 11 of the said Act.

6. Undisputedly, the application has been rejected merely on the ground that the order passed under Section 11(3) of the said Act is an appealable one and that there is no power of recall of the order. The Court below however has not considered as to whether there is a power of review to the Court below and whether there is any error apparent on the face of record which would justify review of the order passed under Section 11(3) of the said Act since the matter relates to the rights of the tenant to deposit rent within the specified period in the eviction proceedings initiated on the ground of default in payment of rent and the provision being of a penal nature, it was necessary for the Court below to apply its mind to the issue as to whether there was any error apparent on the face of record which would warrant review of an order under Section 11(3) of the said Act, and more particularly in view of the fact that such order is not an appealable order. It is made clear that this Court has not expressed any opinion that any such order is subject to the power of review. It is primarily necessary for the Court below to apply its mind and ascertain as to whether such order is an appealable order and then to pass appropriate order.

7. In the circumstances, therefore, the impugned orders cannot be sustained and are liable to be quashed and set aside and the matter will have to be remanded to the Court below to pass an appropriate order bearing in mind the observations made hereinabove.

8. In the result, therefore, the Writ Petition No. 651 of 1993 succeeds. The impugned order is hereby quashed and set aside and the matter is remanded to the Court below for passing an appropriate order bearing in mind the observations made hereinabove. The Writ Petition No. 2723 of 1992 also succeeds for the reasons stated above, and the impugned order is hereby quashed and set aside and the matter is remanded to the Court below for disposal of the application in accordance with the provisions of law bearing in mind the observations hereinabove. Rule is made absolute in above terms in both the petitions. No order as to costs.