Shantaben Rajubhai Marwadi Bhil vs Munir Yogeshkumar Upadhyay
2022 Latest Caselaw 6782 Guj

     C/SA/340/2022                                JUDGMENT DATED: 01/08/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/SECOND APPEAL NO. 340 of 2022

                                   With
                CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
                    In R/SECOND APPEAL NO. 340 of 2022

FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE NISHA M. THAKORE
==========================================================

1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

==========================================================
                     SHANTABEN RAJUBHAI MARWADI BHIL
                                 Versus
                      MUNIR YOGESHKUMAR UPADHYAY
==========================================================
Appearance:
MR SAURABH M PATEL(5019) for the Appellant(s) No. 1
MR DEEP B KOTHARI(12220) for the Respondent(s) No. 1
==========================================================

    CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE

                              Date : 01/08/2022

                             ORAL JUDGMENT

1. The present Second Appeal under section 100 of the Code

of Civil Procedure,1908, has been filed against the impugned

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judgment and decree dated 20.04.2022, passed by the Learned

Additional District Judge, Aravalli in Regular Civil Appeal no. 23 of

2021. ( In short, "impugned order").

2. This matter was listed for admission hearing and Mr. D.B.

Kothari learned counsel appearing for the respondent has raised

preliminary objection as regards the maintainability of the present

Second Appeal on the ground that the impugned judgment and

decree challenged by the appellant - original defendant arises out

of the appeal filed by the present appellant under Section 29 of the

Gujarat Rents, Hotel and Lodging House Rates Control Act, 1947.

( in short, "the Rent Act, 1947").

3. Learned counsel for the respondent submitted that the

respondent being the original plaintiff had filed Regular Civil Suit

No.79 of 2014 for recovery of possession of the rented premise as

well as for arrears of rent against the appellant. He also drew the

attention of this Court that the Suit was filed on 26.12.2014. The

said Suit filed by the original plaintiff - respondent herein, came to

be decreed in favor of the respondent.

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4. In support of his submissions, learned counsel appearing for

the respondent had relied upon the decision of this Court in

Second Appeal No.22 of 2010 and submitted that a similar order

can be passed in the present case.

5. Aforesaid objections of the respondent have been

vehemently objected by Mr. Saurabh Patel, learned counsel

appearing for the appellant. He invited the attention of this Court to

the facts of the case and submitted that the rent premise is a shop

situated on non-agricultural land of Mouje: Modasa, Ta. Modasa,

Dist. Arvalli. He further submitted that the land bearing Revenue

Survey No.512 was owned by one Mahendrabhai Manilal Gor, who

had purchased the aforesaid land in the year 2002 as reflected in

the mutation entry No.14060 dated 19.07.2002. He further

submitted that said Mahendrabhai Manilal Gor had applied for

revised non-agricultural permission vide application dated

09.03.2004, whereby the District collector vide order dated

22.04.2004 was pleased to grant such revised non-agricultural

permission. He further submitted that necessary permission for

construction was availed by said Mahendrabhai Gor and same

came to be granted by Modasa Nagarpalika vide order dated

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24.02.2003.

6. He referred to and relied upon the Notification dated

30.10.2001 issued by the State of Gujarat, whereby vide Gujarat

Act No.27 of 2001 amendment was made after subsection 1A of

Section 4 of the principal Act, which is reproduced as under:

"1(A) This Act shall not apply to -

(a) any premises constructed on or after the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Gujarat Second Amendment) Act, 2001 (hereinafter referred to as "the amending Act")

(b) any existing premises which is self-occupied by the owner of vacant on or after the commencement of the amending Act, and is let after such commencement.

For a period of ten years from the date of the commencement of the amending Act.

Explanation: For the purpose of this section "existing premises" means any premises which exists on the date of the commencement of the amending Act."

7. He further relied upon second Notification dated 31.03.2011

issued by the State of Gujarat, whereby vide Gujarat Act No.6 of

2011, the amendment was made in sub-section 1A in Section 4 in

the principal Act. The same reads as under:

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"1. (1) This Act may be called the Bombay Rents, Hotel and Lodging House Rates Control (Gujarat Amendment) Act, 2011 (2) It shall come into force from the 1st April, 2011.

2. In the Bombay Rents Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the principal Act") in Section 3 in sub-section (2) for the figures, letters and words "31st day of March, 2011", the figures, letters and words "31st day of March, 2021" shall be substituted.

3. In the principal Act in Section 4 in sub-section (1A), the words "for a period of ten years from the date of the commencement of the amending Act" shall be deleted."

8. By relying upon the aforesaid Notifications, Mr. Patel submitted

that the Gujarat Act No.27 of 2001 came into effect from

05.09.2001 and remained in force for a period of 10 years i.e.

31.03.2011. He further referred to Notification dated 31.03.2011,

more particularly, by referring sub-section 2 of Section 3 of the

principal Act whereby the Gujarat Rent Act, 1947 has been

extended upto 31.03.2011. He therefore, submitted that on

conjoint reading of sub-section 2 of Section 3(2) and Section 4-

1(A) of the principal Act what transpires is that initially from the

year 2001 to 2011, the Rent Act was suspended in case of

eventuality mentioned in the earlier Notification dated 30.10.2001

and thereafter, it has been continued till date by virtue of second

notification.

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9. At this stage, Mr. Patel referred to the Notification and

submitted that pursuant to the construction permission being

granted by the Nagarpalika on 24.02.2003, it can safely be

assumed that the construction of the complex in which rented

premise is situated came into existence after the year 2001 and

therefore, submitted that in view of the eventuality mentioned in

sub-section 1-A of Section 4 of the Rent Ac, his case would fall in

exemption. He has drawn attention of this Court to the date of the

rent agreement, which is a registered document dated 02.12.2004

whereby the rented premise came to be leased to the appellant.

He therefore submitted that both the eventualities as provided

under the Notification dated 30.10.2001 would be applicable. He

therefore submitted that the provisions of the Bombay Rent Act

would not apply in case of the appellant.

10. On the second contention of respondent, Mr. Patel,

submitted that though original suit proceedings or appeal under

Section 29 of the Bombay Rent Act, were invoked but ultimately

the nomenclature provisions of the Act may not govern the present

appeal as demonstrated earlier, the provisions of Civil Procedure

Code will govern or hold the jurisdiction. He therefore, submitted

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that as per Sub-Section 3 of Section 29 of the Bombay Rent Act,

the Revision would not be maintainable before this Court against

the impugned judgment and order passed under Section 29 of the

Bombay Rent Act. He, therefore, prays to entertain the present

Second Appeal as it involves the substantial question of law on the

issue of jurisdiction.

11. Mr. Patel further drew attention of this Court to the Schedule

I appended in the Bombay Rent Act, 1947, whereby Modasa city

or any other part of Aravalli District is not forming part of the said

District mentioned in the said Schedule. He referred to and relied

upon Notification dated 13.08.2013 issued by the Revenue

Department, whereby Arvalli District came to be carved out from

original District Sabarkantha. He therefore submitted that though

the appeal was filed under sub-section 2 of Section 29 of the

Bombay Rent Act before the learned Appellate Court in view of the

aforesaid explanation being offered, revision under sub-section 2

of Section 29 would not be maintainable in the facts of the case.

He, therefore, submitted that the present Second Appeal under

section 100 of the Civil Procedure has been rightly invoked and is

maintainable before this Court.

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12. In rejoinder, Mr. Kothari, learned counsel for the respondent

has referred to and relied upon the decision of this Court. He

invited the attention of this Court to the judgment of this Court in

the case of Tohelram Ravaldas Gidwani Vs. Parshottamdas

Chhaganlal Shah reported in 1995(2) GLH 1019. He also relied

upon the decision of this Court in the case of Punamchandra

Revashankar Joshi Vs. Ramjibhai Maganlal reported in 1966

GLR 807. He lastly relied upon the decision of the Supreme Court

in the case of Patel Valmik Himatlal Vs. Patel Mohanlal

Muljibhai (Dead) Through Lrs. Reported in 1998(7) SCC 383.

He further submitted that though the Schedule I appended to the

Bombay Rent Act does not reflect Modasa city or town in the list of

District to which Bombay Rent Act has been made applicable but

by virtue of merger of the Bombay Merged State Act, 1950 would

be attracted which also includes the Bombay Rent Act thereby

Bombay Rent Act provisions stand extended to the merged

Districts including Modasa city of Sabarkantha District. He further

submitted that merely because in the year 2013, Aravalli District

came to be carved out from Sabarkantha District that would not

take away jurisdiction as extended in view of the Bombay Merged

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State Act, 1950. To substantiate his arguments, he urged that

Gandhinagar District came to be carved out from Ahmedabad

District in 1964, Valsad District came to be carved from District

Surat in 1966, Anand District came to be carved out from the

District Kheda in 1997 and those newly constituted Districts are not

mentioned in Schedule I of the Bombay Rent Act and therefore, it

does not mean the Bombay Rent Act would not have any

applicability to those Districts. At this stage, he referred to the

aforesaid decision relied upon and submitted that this Court has

decided the cases arising from the aforesaid Districts under the

provisions of the Bombay Rent Act. He lastly submitted that in any

case assuming for a while by expecting submissions of the learned

counsel for the appellant having chosen the wrong Forum to be the

First Appellate Court, the same cannot be challenged by way of

Second Appeal, which would be over reaching the Revisional

jurisdiction of the Bombay Rent Act.

13. The only question which arises for consideration is whether a

second appeal under section 100 of the Code of Civil procedure,

1908 is maintainable against a Judgment and order passed under

subsection (2) of section 29 of the Rent Act, 1947.

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14. In order to appreciate the controversy raised above, it is

necessary to look into the scope of second appeal as provided

under section 100 of the Code of Civil procedure, 1908 ( In short,

"the code"). The same is reproduced as under :

"Section 100 : Second Appeal

1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed exparte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question :

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.]".

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15. The scope of exercise of the jurisdiction by the High Court in

second appeal under section 100 of the code is limited to the

substantial question of law. There are two material ingredients

which must be satisfied in order to attract the provisions of Section

100 of the code. The first ingredient is that the decree sought to be

challenged under Section 100 of the code must be a decree in

appeal. The second ingredient is that there must not be any other

express provision either in the body of the Civil Procedure Code or

in any other law for the time being in force barring an appeal

against an appellate decree. Clauses (a), (b) and (c) of Section

100 of the code and sub-section (2) of Section 100 of the code are

not relevant for the purpose of this case. Now, the use of the

expression "save where otherwise expressly provided .......... .........

by any other law for the time being in force", used in Section 100 of

the code, in the opinion of this Court, creates such an impediment.

An express provision to the contrary has been made in Section

29(2) of the Rent Act, 1947. It expressly prohibits second appeals.

The material part of sub-section (2) of Section 29 reads as : "No

further appeal shall lie against any decision in appeal under sub-

section (1).......

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16. Now turning to sub-section (1) of Section 29 we find in clause

(b) the following provisions.

"(1) Notwithstanding anything contained in any law, an appeal shall

lie. ...... ..... ...... ... ...

(b) elsewhere, from a decree or order made by a Judge of the

Court of Small Causes established under the Provincial Small

Cause Court Act, 1887, or by the Court of the Civil Judge deemed

to be the Court of Small Causes under clause (c) of sub-section (2)

of Section 2 or by a Civil Judge exercising such jurisdiction, to the

District Court................." The decision contemplated by sub-

section (2) of Section 29 is the appellate decree or order which

may be passed against original decrees and orders made under

Section 28, Clause (b) of sub-section (1) of Section 29

contemplates original decrees and orders made under Section 28

of the Bombay Rent Act. Section 28 refers to 'any suit or

proceeding' between a land-lord and a tenant relating to the

recovery of rent or possession of any premises. This expression

used in sub-section (1) of Section 28 is wide enough to embrace

original suit proceedings of recovery of arrears of rent and eviction

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within its ambit. Thus, there is no competent remedy other than

filing of revision under section 29 of the Rent Act against the

judgment and order passed by the appellate court under

subsection 2 of section 29 of the Rent Act, 1947.

17. The arguments canvassed by the Learned counsel

appearing for the respondent- original Plaintiff as regards

maintainability of second appeal based on the contention raised

before this Court as regards applicability of the Rent Act, 1947, is

concerned goes to the root of matter. The learned counsel for the

respondent has placed heavy reliance on the provisions of the Act

itself read with Schedule-I appended therein which specifies

extension of the said Act to Five Districts of the State of Gujarat

i.e. though the same does not specify District : Sabarkantha or

newly constituted Aravalli in which Modass falls. The Court finds

force in the submission made with regards to the applicability of

said Act by virtue of Bombay Merged State ( Laws) Act, 1950. The

learned counsel has relied upon the meaning of expression

"merged states" and section 3 which provides for extension of laws

prevailing to the merged states as included under First Schedule of

the said Act i.e. the Rent Act, 1947. The submission is made

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therefore that in spite of the absence of Sabarkantha or Aravalli

under Schedule -I of the Rent Act, 1947, the same stands

extended to such areas by virtue of Bombay Merged State

( Laws)Act, 1950. On the other hand, learned Counsel for the

Appellant-Original Defendant has submitted that even if such

contention is accepted then also by reading of section 4(1-A) of the

Bombay Rent Act read with two notifications issued by the

Government of Gujarat, the two eventualities ie. the construction

being put after year 2001 and secondly considering the rent

agreement, the property being let after year 2001 ie. After

amendment Act , 2001, the case will fall under exemption and

hence, would be outside the scope of the provisions of Bombay

Rent Act. Thus, in light of the facts of the case when two

eventualities namely the construction of the premises having come

into existence after 2001 and the rent agreement having been

executed after 2001 , the present case will fall in the exemption

under section 4-1(A)(a) of the Rent Act.

18. At this stage, it would be apt to note the distinction to be

drawn between lack of jurisdiction and a mere error in exercise of

jurisdiction. The former strikes at the very root of the exercise and

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want of jurisdiction which may vitiate the proceedings rendering

them and the orders passed therein a nullity. A mere error in

exercise of jurisdiction does not vitiate the legality and validity of

the proceedings and the order passed thereon unless set aside in

the manner known to law by laying a challenge subject to the law

of limitation. So far as inherent lack of jurisdiction is concerned,

when the subject matter to be decided is wholly outside the

jurisdiction of the court of law to render such a decision, if passed,

has to be considered nullity. This jurisdiction defect is of the

highest degree which cannot be cured by waiver or even consent

of parties and is liable to be set aside at any stage of proceedings.

In such a case the appellate court would interfere with the decree

passed and will set aside it as such decree is Coram non-judice

and void. In cases which are mostly related to a defect in territorial

or pecuniary jurisdiction, the decision of the court does not vitiate

the decree and regard it as a nullity. However, in the latter case,

which is mostly related to defect in subject matter jurisdiction and

decree passed in such case is compulsorily nullity and void ab

initio.

19. In light of the aforesaid legal situation , the moot question

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which arises for consideration is whether this Court in Second

Appeal under section 100 of the Code can examine the legality,

validity or contention of nullity of the Judgment and order passed

by the Appellate Court under section 29(2) of the Rent Act, 1947 ?

20. At this stage, it would be apt to look into section 29 of the

Rent Act, 1947. The same reads as under :

"29. Appeal (1) Notwithstanding anything contained in any law, an appeal shall lie-

(a) in Greater Bombay, from a decree or order made by the Court of Small Causes, Bombay, exercising jurisdiction under Section 28, to a bench of two judges of the Court which shall not include the Judge who made such decree or order;

(b) else where, from a decree or order made by a Judge of the Court of Small Causes established under the Provincial Small Cause Courts Act, 1887 or by the Court of the Civil Judge deemed to be the Court of Small Causes under Clause (c) of Sub-section (2) of Section 28 or by a Civil Judge exercising such jurisdiction, to the District Court.

Provided that no such appeal shall from-

(I) a decree or order made in any suit or proceeding in respect of which no appeal lies under the CPC, 1908;

(II) a decree or order made in any suit or proceeding (other

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than a suit or proceeding relating to possession) in which the plaintiff seeks to recover rent and the amount or value of the subject matter of which does not exceed -

(i) where such suit or proceeding is instituted in Greater Bombay, Rs. 3000/- and

(ii) where such suit or proceeding is instituted elsewhere, the amount up to which the Judge or Court specified in Clause (b) is invested with jurisdiction of a Court of Small Causes, under any law for the time being in force;

(III) an order made upon an application for fixing the standard rent or for determining the permitted increases in respect of any premises except in a suit or proceeding in which an appeal lies;

(IV) an order made upon an application by a tenant for a direction to restore any essential supply or service in respect of the premises let to him.

(1A) Every appeal under Sub-section (1) shall be made within thirty days from the date of the decree or order, as the case may be :

Provided that in computing the period of limitation prescribed by this sub-sec. the provisions contained in Sections 4, 5 and 12 of the Indian Limitation Act, 1908, shall, so far as may be, apply.

(2) No further appeal shall lie against any decision in appeal under Sub-section (1). but the High Court may for the purpose of satisfying itself that any such decision in appeal was according to law call for the case in which such decision was taken and pass such order with respect thereto as it thinks fit.

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(3) Where no appeal lies under this section from a decree or order in any suit or proceeding in Greater Bombay the Bench of two judges specified in Clause (a) of Sub-section (1) and elsewhere the District Court, may for the purpose of satisfying itself that the decree or order made was according to law, call for the case in which such decree or order was made and the bench or court aforesaid or the District Judge or any Judge to whom the case may be referred by the District Judge, shall pass such order with respect thereto as it or he thinks fit."

21. Noticeably the appellate forum was approached by the

Appellate herein himself, invoking jurisdiction under section 29(2)

of the Bombay Rent Act, 1947, and now realizing the error has

choose to directly invoked jurisdiction under section 100 of CPC,

thereby raising the defense of the case being covered under

exemption as provided under section 4(1-A) of the said Act read

with two notifications dated 30.10.2001 and 2011. In my opinion,

this court cannot look into the aspect of decree being nullity while

exercising jurisdiction under section 100 of CPC. Section 9 of the

CPC puts embargo on the applicability of the code itself. Thus, in

view of the aforesaid statutory provision under special enactment

ie. Bombay Rent Act, 1947.

22. Moreover, in the case of Garikapati Veeraya Vs. N. Subbiah

Choudhary, reported in AIR 1957 SCR 488, the Constitution

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Bench of Hon'ble Supreme Court has held that "a right of appeal

is not a mere matter of procedure but is a substantive right and

that the institution of a suit carries with it the implication that all

rights of appeal then in force are preserved. Such a vested right

can only be taken away either expressly or by necessary

implication. Hence, the relevant date is the date of the institution of

the suit and not when the case comes for hearing or for decision."

However, in the case on hand the special enactment was

very much in existence and the provisions of the Act transpired the

actual position of law, which is otherwise not disputed by the

learned Counsel for the Appellant having invoked section 100 of

Code. In fact, the Learned Counsel prayed to this Court to ignore

the label under which appeal was filed before the First Appellate

Court however, the Court finds that even if erroneous, the same

did not estopped the party from praying that the revision may be

dealt with under the proper law applicable to the case and such a

prayer has, as a rule, was required to be made in the court which

is requested to exercise its judicial discretion for that purpose. In

the considered opinion of this Court, once the first appeal was filed

considering the provisions of the Rent Act, 1947, and the Appellate

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Court having exercised such powers, this Court will have no

jurisdiction , under section 100 of Code, to examine such the

legality and validity including the aspect of nullity, in respect of the

impugned Judgment and order of first appellate court. Hence, the

present Second Appeal is held not maintainable.

23. It is needless to clarify that this Court has not opined on

merits of the case and the Appellant is at liberty to avail

appropriate remedy as may be available under law before

appropriate forum.

In view of the disposal of the Second Appeal, Civil

Application is also disposed of.

FURTHER ORDER:

After the order was pronounced, Mr. Saurabh Patel, learned

advocate appearing for the appellant prays for extension of the

stay granted by the learned Additional District Judge, Modasa, vide

order dated 20/04/2022 below Exh10.

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The aforesaid prayer has been objected by Mr. Deep

Kothari, learned advocate for the respondent. He submitted that

since the Second Appeal itself is not found maintainable, the stay

granted by the District Court, Modasa may not be extended any

further. However, Mr. Deep Kothari, fairly stated before this Court

that the execution proceedings of the impugned judgment and

order will not be pressed for further period of 30 days from today.

Considering the statement before this Court by learned

advocate appearing for the respondent, the prayer of Mr. Saurabh

Patel seeking extension of the stay order is not accepted.

(NISHA M. THAKORE,J) Y.N. VYAS