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PETITIONER: KHEMCHAND DAYALJI & CO.

       Vs.

RESPONDENT: MOHAMMEDBHAI CHANDBHAI

DATE OF JUDGMENT: 24/03/1969

BENCH: SHAH, J.C. BENCH: SHAH, J.C. RAMASWAMI, V. GROVER, A.N.

CITATION:  1970 AIR  102            1970 SCR  (1)  80  1969 SCC  (1) 884

ACT: Ahmedabad  City  Courts Act, 1961-Suits under  Bombay  Rents Hotel  A  Lodging  House Rates Control Act  57  of  1947  as applied to the State of Gujarat exclusively triable by court of  Small  Causes Ahmedabad-Rule 5 under Bombay  Act  making procedure  under  Presidency Small Causes Courts Act  15  of 1882  applicable  to such  suits  and  proceedings-Ahmedabad Small  Causes  Court  whether empowered  to  issue  distress warrant  for recovery of municipal taxes by its power  under s. 53 of Act 15 of 1882 Vires of Rule 5.

HEADNOTE: Jurisdiction to try suits and proceedings between  landlords and tenants under the Bombay Rents, Hotel and Lodging  House Rates  Control Act 57 of 1947 was by virtue of s. 28 of  the Act given to Small Cause Courts.  Under s. 49 of the Act the State  Government  was  authorised to  make  rules  for  the purpose of giving effect to the provisions of the Act and in particular  to  make  rules among other  subjects,  for  the procedure  to  be followed in trying or  hearing  suits  and proceedings  including proceedings for execution of  decrees and distress warrants.  For these purposes the Government of Bombay  under r. 5 framed by it provided that the  procedure under  the Presidency Small Cause Courts Act, 1882 would  be followed. By the enactment of the Bombay Reorganization  Act 11  of 1960 a separate State of Gujarat was constituted  out of  the territory which formed the State of Bombay, and  the area within the city limits of Ahmedabad formed part of  the State  of Gujarat.  The Legislature of the State of  Gujarat enacted the Ahmedabad City Courts Act 19 of 1961 which by 17 extended the Presidency Small Cause Courts Act, 1882 (15  of 1882)  as well as the Bombay Rents Hotel and  Lodging  House Rates  Control Act 57 of 1947 to the City of Ahmedabad  with suitable modifications and amendments.  Jurisdiction to  try suits under the Bombay Act was by amendment of s. 28 thereof given to the Court of Small Causes Ahmedabad. The  appellants  were  tenants  of  a  house  owned  by  the respondent   in  Ahmedabad.   Apart  ’from  the   rent   the appellants  had  also  agreed to  pay  municipal  taxes  and electricity charges.  In 1963 the appellants filed a suit in

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the Court of Small Causes Ahmedabad for an order inter  alia determining the standard rent of the premises in exercise of the  power under s. 11 of Bombay Act 57 of 1947.   The  said court  on an application filed by the appellants  fixed  the contractual rent as the ’interim standard rent’ and directed the  appellants to pay rent and municipal taxes,  which  the appellants  accordingly  deposited  in  Court.   The   Court permitted  the respondent to withdraw the rent so  deposited but  not the municipal taxes.  The respondent then  obtained an order for the issues of a distress warrant under s. 53 of the Presidency Small Cause Court-, Act 15 of 1882 read  with r.  5  of the Rules framed under Bombay Act 57 of  1947  for recovery of the amount due as municipal taxes.  Distress was levied and the order was confirmed.  A revision  application in the High Court of Gujarat was rejected.  In their  appeal against  the High Court’s order the appellants urged  :  (i) that r. 5 of the Rules ’framed under s. 49 of the Bombay Act 57  of 1947 was ultra vires the State Government; (ii)  that the  Court of Small Causes Ahmedabad had no jurisdiction  to pass  an  order issuing a distress warrant in  a  proceeding under Bombay Act 57 of 1947 especially                              81 when an application under s. 11 was pending; (iii) that  the municipal  taxes and electricity charges did not  constitute rent  which  could be recovered by the issue of  a  distress warrant. HELD:     (i) Rule 5 was framed under Bombay Act 57 of  1947 in  exercise  of the authority conferred by  s.  49(2)(iii). After the enactment of the Ahmedabad City Courts Act,  1961, r.  5 as originally ’framed by the Government  continued  in force by virtue of s. 87 of the Bombay Reorganization Act 11 of  1960, and applied to the Ahmedabad Small  Causes  Court. When r. 5 was framed under Bombay Act 57 of 1947 it was  not ultra vires and it was not shown to have become ultra  vires after the enactment of the Ahmedabad City Courts Act in  its application to the City of Ahmedabad. [85 F-G] (ii) The  distress  warrant  issued by the  Court  of  Small Causes  Ahmedabad  against  the  appellant  was  within  its powers. By the enactment of the Ahmedabad City Courts Act, 1961, the proceedings  before the Court of Small Causes  at  Ahmedabad were  governed  by that Act and by virtue of  the  amendment made in s. 28 of Bombay Act 57 of 1947 it became a court  of exclusive jurisdiction to try suits, proceedings, claims and questions arising under that Act.  Being a court governed by the Presidency Small Causes Courts Act, the Ahmedabad  Court of  Small Causes was competent to exercise, subject  to  the Ahmedabad City Courts Act, all the powers which a Presidency Small Cause Court could exercise.  Power to issue a distress warrant being expressly conferred by s. 53 of the Presidency Small  Cause Courts Act upon the Courts governed by it,  the Court  of Small Causes Ahmedabad, was competent to  exercise that power. [85 D-E] Section  28 does not make the Court of Small  Causes  trying suit  under the Bombay Act a special Court : it is  a  court which is comptent to exercise all the powers conferred on it under  the  statute which governs it.  Its  power  to  issue distress  warrant  could  therefore  be  exercised  even  in respect  of  suits and proceedings  which  were  exclusively triable by it by virtue of the Bombay Act 57 of 1947. [85 H] Pendency  of  an application for fixation of  standard  rent does  not  suspend  the  court’s  power  to  issue  distress warrant, for until standard rent is determined or an interim order  is made, rent at the contractual rate is payable  and process  for  recovery  by distress warrant  may  always  be

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adopted.  In the present case the amount of municipal  taxes was  due  and  it was payable  by  the  appellants.   Though deposited  in  Court  it  could  not  be  withdrawn  by  the respondent.  The municipal taxes were therefore ill  arrears and  a distress warrant could be applied for under s. 53  of the Presidency Small Cause Court by the respondent.  It  was not necessary for the respondent to approach a higher  court against  the  erroneous  order  of  the  Small  Cause  Court preventing  him  from  recovering the  amount  of  municipal taxes. [86 B-G] (iii)     By the express terms of the tenancy the appellants had  undertaken to pay the municipal taxes  and  electricity charges  as  part of the rent : it was not open to  them  to contend   that  these  taxes  and  charger  were  not   rent recoverable by the issue of a distress warrant. [83 H-84 A]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 808 of 1966. Appeal  by special leave from the judgment and  order  dated September  3,  1965  of  the Gujarat  High  Court  in  Civil Revision Application No. 244 of 1965. 82 Arun H. Mehta and I. N. Shroff, for the appellant. S.T.  Desai,  P.  C. Bhartari, J. B. Dadachanji  and  O.  C. Mathur, for the respondent. The Judgment of the Court was delivered by Shah, J. The respondent is the owner of- a house in the town of Ahmedabad.  The appellants are the tenants of that  house at a monthly rental of Rs. 2,171/-.  Under the agreement  of lease the -appellants were to pay out of the agreed rent Rs. 810/-  per  month, and the balance was  to  be  appropriated towards  a  loan  advanced by them  to  the  respondent  for constructing  the house.  The appellants had also agreed  to pay municipal taxes and electricity charges. The  appellants filed suit No. 1308 of 1963 in the Court  of the  Small  Causes, Ahammadabad, for an order,  inter  alia, determining the standard rent of the premises in exercise of the power under s. 11 of the Bombay Rents, Hotel and Lodging House  Rates  Control Act 57 of 1947.  The  Court  of  Small Causes,   Ahamadabad,  on  an  application  filed   by   the appellants  fixed the contractual rent as "interim  standard rent"  and  directed  the appellants to  pay  the  rent  and municipal  taxes.   Pursuant to this order,  the  appellants deposited  Rs.  2,403/-  as rent and  Rs.  8,921.25  due  as municipal taxes for the year 1964-65.  An application by the respondent  to  withdraw the amount deposited in  Court  was resisted  by  the  appellants.   The  Court  permitted   the respondent  to  withdraw Rs. 2,403/- but not  the  municipal taxes.  The respondent then obtained an order for the  issue of  a distress warrant under S. 53 of the  Presidency  Small Cause  Courts  Act 15 of 1882 read with r. 5  of  the  Rules framed under the Bombay Rents, Hotel and Lodging House Rates Control  Act,  1947,  for  recovery of  the  amount  due  as municipal  taxes.   Distress was levied, and the  order  was confirmed.  A revision application moved in the High Court of   Gujarat against that order was rejected. In  support of this appeal counsel for the appellants  urges that r.   5  of the Rules framed under S. 49 of  the  Bombay Rents, Hotel and Lodging House Rates Control Act 57 of 1947, is ultra vires the State Government; that the Court of Small Causes Ahmedabad has in any event no jurisdiction to pass an order  issuing  a  distress warrant when trying  a  suit  or proceeding  under Bombay Act 57 of 1947 especially  when  an

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application for determination of standard rent under s. 1  1 of  the  Act is pending; and that the  municipal  taxes  and electricity  charges  do not constitute rent  which  may  be recovered by the issue of a distress warrant. By  the  express  terms of the tenancy  the  appellants  had undertaken  to  pay  the  municipal  taxes  and  electricity charges as part of  83 the rent it is not open to them to contend that they are not rent  recoverable by the issue of a distress  warrant.   The last branch of the argument has, therefore, no force. The  relevant  provisions  of the Bombay  Rents,  Hotel  and Lodging  House  Rates  Control  Act 57  of  1947  and  other statutes which have a bearing may first be noticed.   Bombay Act  57 of 1947 was intended to control rents and to  confer protection  against  eviction upon tenants  of  premises  in certain urban -areas in the Province of Bombay.  By s. 28 of the  Act  certain  courts  were  designated  as  courts   of exclusive  jurisdiction  to  entertain  and  try  suits  and proceedings  between  a  landlord and  tenant,  relating  to recovery  of rent or possession to which the  provisions  of the  Act  applied, and also to decide  claims  or  questions arising under the Act.  Section 28 as originally enacted and later  amended  by Bombay Acts 58 of 1949 and  15  of  1952, insofar as it is material reads :               "(1)  Notwithstanding  anything  contained  in               any law and notwithstanding that by reason  of               the  amount  of  the claim or  for  any  other               reason, the suit or "proceeding would not, but               for    this   provision,   be    within    its               jurisdiction,               (a)   in  Greater Bombay, the Court  of  Small               Causes, Bombay;               (aa)  in any area for which, a Court of  Small               Causes  is  established under  the  Provincial               Small Cause Courts, Act, 1887, such Court and               (b).            .              .               shall  have jurisdiction to entertain and  try               -any suit or proceeding between a landlord and               a  tenant relating to the recovery of rent  or               possession of any premises to which any of the               provisions  of this Part apply and  to  decide               any  application  made under this Act  and  to               deal with any claim or question arising out of               this Act or any of its provisions and  subject               to the provisions of subsection (2), no  other               court shall have jurisdiction to entertain any               such  suit,  proceeding or application  or  to               deal with such claim or question. Section  28  did  not  set up new Courts  to  try  suits  or proceedings  between  landlords and tenants  :  it  invested existing courts with exclusive jurisdiction to try suits and proceedings  of the nature set out and claims  or  questions arising  under  the Act.  Section 31 of  the  Act  provides, inter alia, that the courts specified in s. 28 shall  follow the  prescribed  procedure  in  trying  and  hearing  suits, proceedings,  applications  and  appeals  and  in  executing orders 84 made by them.  Section 49 authorises the State Government to make  rules  for  the  purpose  of  giving  effect  to   the provisions of the Act and in particular to make rules, among other  subjects, for the procedure to be followed in  trying or  hearing  suits, proceedings (including  proceedings  for execution  of decrees and distress warrants),  applications,

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appeals and execution of orders.  Pursuant to the  authority conferred, rules were framed by the Government of Bombay and r.  5  which deal with the procedure to be followed  by  the Court  of  Small  Causes, Bombay,  for  suits,  proceedings, appeals, etc. provided insofar as it is material :               "In   such   of  the  following   suits   -and               proceedings as are cognizable by the Court  of               Small  Causes,  Bombay,  on the  date  of  the               coming into force of these Rules, namely               (2)   proceedings  under Chapter VII and  VIII               of  the  Presidency Small  Cause  Courts  Act,               1882, and               (3)   proceedings for execution of any  decree               or   order   passed  in  any  such   suit   or               proceedings,               the  Court  of  Small  Causes,  Bombay,  shall               follow the practice and procedure provided for               the  time  being (a) in the said  Act,  except               Chapter VI thereof, and (b) in the rules  made               under section 9 of the said Act." By the enactment of the Bombay Reorganization Act 11 of 1960 a  separate  State  of Gujarat was constituted  out  of  the territory  which  formed the State of Bombay, and  the  area within the city limits of Ahmedabad formed part of the State of  Gujarat.  By the Gujarat Adaptation of Laws  (State  and Concurrent  Subjects) Order, 1960, cl. (a) of sub-s. (1)  of S. 28 of Bombay Act 57 of 1947 as it was originally  enacted was  deleted.   The  Legislature of  the  State  of  Gujarat enacted the Ahmedabad City Courts Act 19 of 1961 which by s. 17 provided that the Presidency Small Cause Courts Act, 1882 (XV  of  1882), shall extend to and come into force  in  the City  of Ahmedabad on and from the appointed day.  By s.  18 it was provided :               "The  Presidency Small Cause Courts Act,  1882               (XV) of 1882), and the Bombay Rents, Hotel and               Lodging  House Rates Control Act,  1947  (Bom.               LVII  of 1947), shall in their application  to               the  City  of Ahmedabad stand amended  in  the               manner  and  to the extent  specified  in  the               Schedule."               By s. 19 it was provided :               "With   effect  on  and  from  the   appointed               day......  the Provincial Small  Cause  Courts               Act, 1887 (IX of               85               1887), and all rules, notifications and orders               made thereunder shall cease to apply to, or be               in force, in the City of Ahmedabad, By  the  Schedule  certain  amendments  were  made  in   the Presidency Small Cause Courts Act, 1882, in its  application to  the City of Ahmedabad  By cl. 13 of the Schedule, s.  50 of  the  Presidency Small Cause Courts Act was to  apply  to every   place  within  the  City  of   Ahmedabad.    Certain amendments  were  also made in s. 28 of  the  Bombay  Rents, Hotel and Lodging House Rates Control Act, 1947, and in sub- s.  (1) of s. 28, before cl. (aa) the following  clause  was inserted : "(a) in the City of Ahmedabad, the Court of Small Causes  of Ahmedabad," By the enactment of the Ahmedabad City Courts Act, 1961, the proceedings  before the Court of Small Causes  at  Ahmedabad were  governed  by that Act and by virtue of  the  amendment made in s. 28 of Bombay Act 57 of 1947 it became a Court  of exclusive jurisdiction to try suits, proceedings, claims and questions arising under that Act.  Being a Court governed by

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the  Presidency Small Cause Courts Act, the Ahmedabad  Court of  Small Causes was competent to exercise, subject  to  the Ahmedabad City Courts Act, all the powers which a Presidency Small Causes Court may exercise.  Power to issue a  distress warrant being expressly conferred by s. 53 of the Presidency Small  Cause Courts Act upon the Courts governed by it,  the Court of Small Causes, Ahmedabad, was competent to  exercise that power. Rule  5  was  framed  under the Bombay Act  57  of  1947  in exercise  of  the authority conferred by s.  49  (2)  (iii). After the enactment of the Ahmedabad City Courts Act,  1961, r.  5  as  originally framed by  the  Government  of  Bombay continued  in  force  by  virtue of  s.  87  of  the  Bombay Reorganization Act 11 of 1960, and applied to the  Ahmedabad Small  Causes Court.  When r. 5 was framed under Bombay  Act 57  of 1947 it was not ultra vires, and it is not  shown  to have become ultra vires after the enactment of the Ahmedabad City Courts Act in its application to the City of Ahmedabad. The  argument that s. 28 sets up a new set of  Courts,  with special  powers  and  jurisdiction  is  without   substance. Section 28 merely confers upon the existing Courts exclusive jurisdiction in respect of matters relating to possession of premises  and recovery of rent and to determine  claims  and questions  arising under that Act.  On that account it  does not  become  a  Special  Court : it  is  a  court  which  is competent  to  exercise all the powers which  are  conferred upon  it  by virtue of its constitution  under  the  statute which  governs it.  The Court of Small Causes  at  Ahmedabad had, 86 therefore,  power to issue distress warrant and  that  power could be exercised even in respect of suits and  proceedings which were exclusively triable by it by virtue of the Bombay Act 57 of 1947. We  are also unable to hold that so long as an  -application for  fixation  of  standard rent  is  pending,  the  Court’s jurisdiction to issue a distress warrant remains  suspended. Until  standard rent is determined, or an interim  order  is made,  rent -at the contractual rate is payable and  process for  recovery  by distress warrant may  always  be  adopted. Section  II of Bombay Act 57 of 1947 confers upon the  Court power  to  fix  standard rent  and  permitted  increases  in certain  cases.   The Court is also competent  to  determine interim  standard  rent, and direct  payment  pending  final determination of standard rent. The  appellants  applied for fixation of standard  rent  and invited the Court to pass -an order fixing interim  standard rent  and  the Court of Small Causes proceeded to  pass  the order  for  payment  of rent and municipal  taxes.   In  the present  case  there  was  an express  order  of  the  Court requiring  the appellants to deposit in Court Rs. 810/-  per month  and  also to deposit municipal taxes.  The  Court  of Small  Causes  ordered  that the  amount  deposited  by  the appellants towards municipal taxes shall not be paid over to the landlord.  The amount was on that account not  available to  the  respondent.  The respondent was unable to  pay  the taxes   and  the  Municipality  threatened  to  attach   the property.  The amount of municipal taxes was due and it  was payable  by the appellants.  Though deposited in  Court,  it could  not  be withdrawn by the respondent.   The  municipal taxes  were,  therefore, in arrears and a  distress  warrant could  be  applied for under s. 53 of the  Presidency  Small Cause Courts Act by the respondent. It  was urged that the appellants had to pay the  amount  of interim standard rent twice over : once when they  deposited

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it in the Court and again when they satisfied the demand  to avoid  execution  of  the distress  warrant.   The  landlord undoubtedly  cannot obtain the amount twice over.  But  that does  not mean that when the tenant has not made the  amount available  to the landlord the application for distress  was not maintainable. The argument that the erroneous order passed by the Court of Small  Causes  preventing the landlord from  recovering  the amount  of municipal taxes could have been got corrected  by approaching  the superior courts and so long as  that  order stood,  no distress could be levied, ignores the  fact  that the  appellants had persuaded the Court of Small  Causes  to pass  that order.  In our judgment, there was no bar to  the respondent maintaining the application for distress. The appeal fails and is dismissed with costs. G.C. Appeal dismissed. 87