Suresh vs Kachrulal and Others

Z.A. Haq, J.—The dispute is in between petitioner-tenant and the respondents-landlords.

The petitioner has challenged the judgment and decree passed by the subordinate Court in favour of the original respondent no.1 on the ground that the petitioner was in arrears of rent for the period from 1st February 1999 till 31st July 2001.

Though the judgment and decree passed by subordinate Court under the provisions of Maharashtra Rent Control Act, 1999 are challenged in this petition and there is controversy whether a petition can be entertained or revision would lie against judgment and decree passed by the subordinate Court, in my view, writ petition having been admitted in 2003 and now it is to be considered for final hearing, I would not like to delve into this issue. In my view, the petition has to be considered on its merits.

Shri Deshpande, learned Advocate for the petitioner has submitted that agreed rent in respect of the property was Rs.400/- per month and in support of his submission, he relies on the rent receipt dated 5th April 1989 which shows that the respondent no.1 had issued receipt in token of having received rent for Rs. 400/- for the month of March 1988. It is submitted that the document i.e. rent receipt filed on record show that the original respondent no.1-landlord had issued receipt in token of having received rent of Rs.440/- for the month of March 1990, Rs. 485/- as rent for the month of June 1990, Rs. 535/- as rent for the month of April 1991 and Rs. 590/- for the month of April 1992 and in view of this, the notice issued by the respondent no.1 demanding arrears of rent at the rate of Rs. 950/- per month was illegal and he could not have sought decree for eviction on the basis that the petitioner was in arrears of rent payable @ Rs. 950/- per month. The submission on behalf of the petitioner is that, under Section 15 of the Maharashtra Rent Control Act 1999, a landlord is not entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay the amount of the standard rent and permitted increases, if any. The submission on behalf of the petitioner is that the petitioner was always ready and willing to pay the arrears of rent as per the standard rent and the demand of arrears of rent @ Rs. 950/- per month being illegal, the decree passed by the subordinate Court for possession is unsustainable in law.

Shri Deshpande, the learned Advocate for the petitioner has relied on the definition of "standard rent" as given in Section 7(14) of the Maharashtra Rent Control Act, 1999 and has submitted that if the standard rent or fair rent is not so fixed, then the tenant is liable to pay the rent at which the premises were let on the 1st of October 1987 and if the premises were not let on the 1st day of October 1987, additional increase of 5% in the rent of the premises let before the 1st day of October 1987. It is submitted that in view of this, the demand of rent @ Rs. 950/- per month is unjustified and cannot entitle the original respondent no.1- landlord for the decree for possession.

Shri Deshpande, the learned Advocate for the petitioner has submitted that the civil suit filed by the respondent no.1-landlord is tried as Regular Civil Suit, which is not permissible in view of the provisions of Section 33(1)(b) of the Maharashtra Rent Control Act, 1999 which lays down that the civil suit should have been tried by the Court of Small Causes established under the Provincial Small Causes Courts Act, 1887.

Shri C.A. Joshi, the learned Advocate for the respondent nos. 1(a) to 1(g) has submitted that original respondent no.1- landlord was required to file Special Civil Suit No. 155/1997 for recovery of the arrears of rent, in which decree was passed on 15th December, 1998 and the judgment given in this Civil Suit specifically records that the monthly rent of suit shop is Rs. 950/- per month. The learned Advocate for the respondent nos. 1(a) to 1(g) has submitted that the original respondent no.1-landlord was again required to file Regular Civil Suit No. 42/1992 for the recovery of the arrears of rent for the period from July 1997 till 1999 and this suit is also decreed on 29th January 2001 and in the judgment specific finding is recorded that the monthly rent of premises is Rs. 950/- per month. The learned Advocate for the respondent nos. 1(a) to 1(g) has submitted that the petitioner accepted these decrees and these decrees are also executed and the decretal amount has been recovered from the petitioner. The learned Advocate for the respondent nos. 1(a) to 1(g) has submitted that the petitioner can not now raise the challenge based on Section 15 of the Maharashtra Rent Control Act 1999 and submit that the original respondent no.1-landlord had claimed the arrears of rent at the rate more than the standard rent. The learned Advocate for respondent nos. 1(a) to 1(g) prays for dismissal of the writ petition.

Shri Joshi, the learned Advocate for respondent nos. 1 (a) to 1(g) has submitted that the Court of Civil Judge, Senior Division, Washim is vested with the powers of the Small Cause Court and as per Section 28(1) of the Bombay Civil Courts Act, 1869, the High Court can invest any Civil Judge with the powers of the Small Cause Court for trying the civil suits valued up to Rs.12,000/- in case of Civil Judge (Senior Division) and the valuation of the civil suit being Rs. 46,000/-, the learned Civil Judge has rightly tried it as the Regular Civil Suit. In support of this submission, he relies on the judgment given in the case of Radheshyam Chandak Vs. The District Judge and Sou. Medha Popalkar, .

Shri N.S. Rao, the learned Assistant Government Pleader for the respondent nos. 2 and 3 has submitted that they are formal parties and no submission is required to be made on their behalf.

After considering the submissions made on behalf of the petitioner as regards the first point, it is undisputed that the petitioner has suffered two decrees for arrears of rent in which the Court has given specific finding that the rent of suit shop is Rs. 950/- per month. The petitioner has not challenged these decrees and the decrees are executed. Admittedly, these decrees have been passed for recovery of amount for the period prior to Maharashtra Rent Control Act, 1999 came into force. It is not the case of the petitioner that the rent of premises could not have been considered as Rs. 950/- per month while passing the earlier decrees. The petitioner has not placed any material on the record to justify as to why the rent of Rs. 950/- per month as found by the Courts while passing the earlier decrees cannot be said to be standard rent. In view of the provisions of Section 10(1) of the Maharashtra Rent Control Act, 1999 the original respondent no.1- landlord is entitled to make the claim for the recovery of the arrears of rent considering the rent of Rs. 950/- per month. Moreover, the submission based on Sections 15 and 7(14) of the Maharashtra Rent Control Act, 1999 are not raised either before the Trial Court or before the District Court. This submission cannot be considered for the first time in the writ jurisdiction without there being any pleadings before the subordinate Courts.

The submission made on behalf of the petitioner about the procedure adopted by the learned Trial Judge while deciding the civil suit as Regular Civil Suit also cannot be considered at this stage. The petitioner had not raised any objection before the learned Trial Judge and no ground is raised before the District Court in the appeal. In this writ petition, the petitioner has stated that Court of Small Causes are functioning, and except for this bare statement on the record, no material is placed on record to substantiate the challenge as sought to be made. The respondent nos. 1(a) to 1(g) have specifically stated in their additional affidavit that the Court of Civil Judge (Senior Division) at Washim was vested with the powers of the Small Causes Court and consequently he could have tried the civil suit as small cause civil suit valued up to Rs. 12,000/- for the purposes of pecuniary jurisdiction. It is submitted that as the valuation of the suit is Rs. 46,000/- that is more than Rs. 12,000/-, the learned Civil Judge (Senior Division) has rightly tried it as the Regular Civil Suit. Shri C.A. Joshi, the learned Advocate for the respondent nos. 1(a) to 1(g) has relied on the Division Bench Judgment of this Court given in the case of Radheshyam Zumbarlal Chandak Vs. District Judge, Amravati and another (supra). In paragraph Nos. 35 and 36, it is recorded as follows:-

"The question is about a Civil Judge exercising jurisdiction of a Court of Small Causes for trial of such suits cognizable by such Court, invested in it by the High Court in exercise of its powers under Section 28(1) of the Civil Courts Act. Section 28(1) authorizes the High Court to invest any Civil Judge with the jurisdiction of a Court of Small Causes not exceeding rupees twelve thousand in case of a Civil Judge, Senior Division, and in case of a Civil Judge, Junior Division, rupees six thousand. We have already held that a Civil Judge invested with the jurisdiction of a Court of Small Causes under Section 28(1) of the Civil Courts Act shall have jurisdiction to entertain, try and decide the civil Suits contemplated by section 26(1) of the Small Cause Courts Act to the extent of the pecuniary limits prescribed under section 28(1) of the Civil Courts Act. Section 32 of the Small Cause Courts Act states that so much of Chapters III, VI and IV-A1, as relate to the practice and procedure of the Courts of Small Causes, shall apply to the courts invested by or under any enactment for the time being in force with the jurisdiction of a Court of Small Causes so far as regards the exercise of that jurisdiction by those courts. Similarly, the provisions of section 7, read with the provisions of Order 50 of the Code of Civil Procedure, exclude the application of certain provisions of the Code of Civil Procedure to a Court invested with the jurisdiction of a Court of Small Causes. In view of this, the procedure to be followed for deciding such suits by a Civil Judge would be summary in nature and not as a regular civil suit to be tried in accordance with the provisions of the Code of Civil Procedure".

36."If the value of the subject-matter of the suit covered by section 26(1) of the Small Cause Courts Act exceeds the pecuniary limits specified under section 28(1) of the Civil Courts Act, then a Civil Judge invested with the jurisdiction of a Court of Small Causes shall not have jurisdiction to entertain, try and decide such suit, as a small cause suit of a summary nature, but it will have to be decided as a regular suit and the procedure for deciding such suit will be governed by the Code of Civil Procedure and not by the procedure prescribed under the Small Cause Courts Act. The reason for this is that the High Court is not competent under section 28(1) of the Civil Courts Act to invest any Civil Judge with the jurisdiction of a Court of Small Causes beyond the pecuniary limits specified in that section."

The submission made on behalf of the petitioner that the civil suit was required to be tried by the Court of Civil Judge, Junior Division, in view of Section 33(1)(c) of the Maharashtra Rent Control Act, 1999 is also de hors of any factual material on the record. The petitioner has not pleaded that the Court of Civil Judge, Junior Division was available at Washim. It is the specific case of the respondent nos. 1(a) to 1(g) that the Court of Civil Judge (Junior Division) is not available at Washim and along with the Court of Civil Judge (Senior Division), Joint Civil Judge (Senior Division) are available at Washim and in this factual background, the civil suit is rightly decided by the Civil Judge (Senior Division). In support of his submission, the learned Advocate for the respondents 1(a) to 1(g) has relied on the Division Bench judgment in the case of Savitribai w/o Ramchandra Malavade and another Vs. Vithal Hari Patakar reported in 1981 Bom. C.R. 654.

In paragraph 6, the Court has recorded as follows:-

"In most taluka towns, we have courts presided over by the Civil Judge (Junior Division), while at District places, there is a Court presided over by the Civil Judge (Senior Division). Under Section 28(1)(b), where there is a Court of the Civil Judge (Junior Division), that Court alone has jurisdiction but where there is no such Court, the Court of the Civil Judge (Senior Division), will have jurisdiction to try suit under the Rent Act. Though may be one Court of Civil Judge (Senior Division) at a particular place, Joint Civil Judges may be either Joint Civil Judges (Senior Division), or Joint Civil Judges (Junior Division), and under ordinary circumstances, such Joint Judges can dispose of civil business as may be referred to him by the Judge i.e. the Principal Judge of that Court within the limits of his pecuniary jurisdiction. Besides the Principal Judge, who is a Civil Judge (Senior Division), there may also be Joint Civil Judges appointed under para 5 of Section 23 to assist the Principal Judge. Such Joint Civil Judges have to dispose of only such work as has been referred to them either by the Principal Judge of the Court to which they are joint or as has been referred to them by the District Judge of the District in which such courts are situate. This would show as the Joint Civil Judge (Junior Division), who has been appointed to assist the Principal Judge of the Court has no jurisdiction to receive any suit directly nor has he jurisdiction to dispose of any civil business which has not been referred to him. "

Shri Deshpande, the learned Advocate for the petitioner has prayed that the proceedings should be remitted to the Trial Court with a direction to decide the Civil Suit as Small Cause suit. The submission is that as the Civil Suit is tried as Regular Civil Suit, it has materially affected the entitlement of the petitioner to challenge the impugned judgment and decree by filing revision in which the challenges can be considered more elaborately than in the extraordinary jurisdiction. This submission cannot be accepted for two reasons. The petitioner has not pointed out as to what prevented the petitioner from filing revision instead of filing the petition. I have already observed that the issue as to whether the judgment and decree passed under the Maharashtra Rent Control Act, 1999 can be challenged in revision or not requires consideration and the petition is being now considered on merits only because it is of 2003 and it would not be proper to relegate the parties to the revisional jurisdiction at this stage. Moreover, the petitioner has not raised this ground either before the Trial Court or in the appeal filed before the District Court.

In view of the above, I find no substance in the challenges raised in the petition. The writ petition is dismissed. Rule is discharged. In the circumstances, the parties to bear their own costs.