Bapusaheb Abdulsaheb Mutawali v. Mohiddin Gulam Dastagir Mumtaj and others
1997-07-24
F.I.REBELLO
body1997
DigiLaw.ai
JUDGMENT - F.I. REBELLO, J.:---This petition is directed against the order dated 15th July, 1995 whereby the Additional District Judge, Kolhapur in Civil Revision Application No. 5 of 1993 allowed the Revision Application and set aside the order of the IInd Joint Civil Judge, Senior Division, Kolhapur, dated 8th April 1993. The IInd Joint Civil Judge, Senior Division, Kolhapur, dated by his order had fixed the interim standard rent of the suit premises at Rs. 200/- per month. In appeal the Additional District Judge reversed the said finding and based on the Municipal records arrived at and fixed the figure of interim standard rent at Rs. 75/- per month. 2.Counsel for the petitioner contends that the order of the Additional District Judge, Kolhapur is totally without jurisdiction in as much as the Additional District Judge could not have exercised the jurisdiction under section 29(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. For that purpose the learned Counsel has taken me through the provisions of section 11(1), (3), (4) and (5) and also the provisions of section 29(1) and (3). Counsel for the petitioner relies on the judgment of this Court in the case of (Mrs. Juliana Margarida Coelho v. Makarand Shankar Parnaik)1, reported in 1979 Bom.C.R. 587 and another judgment of another Single Judge of this Court in the case of (Dhausubi Mohamed Pasha Saheb v. Smt. Shahjanhan Mustaque Dhole)2, reported in 1980 Bom.C.R. 759. 3.Learned Counsel for the respondents on the other hand contends that the Appellate Court could have called for the records to satisfy itself as to the legality of the proceedings and at any rate if the order of the trial Court is seen it is totally non-speaking order and as such it ought not to have been sustained. He, therefore, contends that there is no error of jurisdiction committed by the Appellate Court in interfering with the order of the trial Court. The learned Counsel sought to rely upon some authorities. On perusal of the said authorities it is seen that they do not deal with the question which has been raised on behalf of the petitioner. The questions decided in those matters are different namely as to whether the Additional District Judge was conferred with powers to hear a Revision under section 29(3) of the Act.
On perusal of the said authorities it is seen that they do not deal with the question which has been raised on behalf of the petitioner. The questions decided in those matters are different namely as to whether the Additional District Judge was conferred with powers to hear a Revision under section 29(3) of the Act. That is not an issue in so far as the present petition is concerned. 4.After going through the provisions of section 11 read with section 29 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, I have no hesitation in holding that the order passed under section 11(3) in view of the bar created by section 11(5) could not be revisable by the Appellate Court in view of section 29(3) of the Act. A plain reading of section 29(1) would show as to which orders are appealable. The provisions of the said sub-section excludes certain decrees and orders which otherwise would have been appealable. Sub-section (3) starts with the words "where no appeal lies under this section". Therefore, what is material is that no appeal will lie in terms of sub-section (1) of section 29 and not under the Act. If no appeal lies in terms of sub-section (1) of section 29 then in terms of sub-section (3) of section 29 the Court is empowered under the said sub-section would have authority to call for the papers and satisfy itself that the order is according to law in the exercise of the powers of revision. An order under section 11(3) is non-appealable in view of the provisions of sub-section (5), which reads as follows:--- "(5) No appeal shall lie from any order of the Court under sub-sections (3) or (4)." As such it is clear that the order passed under sub-section (3) or (4) is not appealable. In so far as sub-section (4) is concerned the matter came up for consideration before the learned Single Judge of this Court in the case of Dhausubi Mohamed Pasha Saheb (supra). The learned Judge relying on the judgment of another Single Judge of this Court in the case of Mrs. Juliana Margarida Coelho (supra) has held that no Revision would lie against an order passed under sub-section (4) of section 11 or under section 29(3) of the Act.
The learned Judge relying on the judgment of another Single Judge of this Court in the case of Mrs. Juliana Margarida Coelho (supra) has held that no Revision would lie against an order passed under sub-section (4) of section 11 or under section 29(3) of the Act. I have no hesitation in holding that the said analogy must follow in so far as sub-section (3) of section 11 is concerned. The language of the section is clear. Therefore, there is no scope for interpreting otherwise. A learned Single Judge of the Gujarat High has taken a contrary view in the case of (Harbhajansingh Dunasingh Sarary v. Suryakant Mulshanker Kaka)3, reported in A.I.R. 1982 Gujarat 296. I am unable to subscribe to the view taken by the learned Single Judge of the Gujarat High Court. As pointed out on a reading of the sections itself, it is not possible to hold that the bar under section 29(3) created by the language namely 'where no appeal lies under this section' is capable of any other view. In view of that the contention on behalf of the petitioner must be upheld. 5.However, the learned Counsel for the respondents has pointed out that the order of the trial Court is non-speaking order. The Court has given no reasons as to why standard rent is fixed at Rs. 200/- per month and as such the said order should be set aside. This matter has been filed under Article 227 of the Constitution of India. In the course of exercise of the extra ordinary jurisdiction of this Court under Article 227 of the Constitution this Court can always call for the record and proceedings of subordinate courts and tribunals and enquire into the legality of the orders. As the proceedings are before this Court and in the exercise of the extra ordinary jurisdiction under Article 227 of the Constitution of India there is no reason why this Court should not interfere with the order of the trial Court. The order of the trial Court discloses no reasons as to why interim standard rent has been fixed at Rs. 200/-. No Court can pass an order which would affect the rights of the parties before it without giving some reasons even at the interim stage. The order of a Court must indicate some reason as to why it has arrived at the conclusion and the reasons thereof.
200/-. No Court can pass an order which would affect the rights of the parties before it without giving some reasons even at the interim stage. The order of a Court must indicate some reason as to why it has arrived at the conclusion and the reasons thereof. At interim stage it may not give detailed any reasons as to why the order is being passed. However, the material on which the Court is relying on for that purpose at least ought to be referred to. The order of the trial Court discloses no reasons whatsoever and is accordingly quashed and set aside. 6.For the aforesaid reasons the order of the Appellate Court dated 15-7-1995 is quashed and set aside so also the order of the trial Court dated 5-4-1993. This Court by interim order dated 10th September, 1996 had directed to deposit the interim standard rent as fixed by the Additional District Judge. The petitioner to continue to deposit the interim standard rent at the rate of Rs. 75/- per month as an interim arrangement till the hearing and final disposal of the Standard Rent Application. Considering that much time has elapsed since the filing of the injunction application the trial Court is directed to dispose of the application for fixation of standard Rent expeditiously. 7.Rule made absolute in the aforesaid terms. In the circumstances of the case, there shall be no order as to costs.