Gurappa Basappa Byakod and Others Vs. Sunita Subhash Chandra Bubane

Gurappa Basappa Byakod and Others vs Sunita Subhash Chandra Bubane

Type Court Judgment Court Mumbai Decided Feb 11, 1998

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Citation: sooperkanoon.com/359088
Court: Mumbai High Court
Judge: D.K. Deshmukh, J.
Decided On: Feb 11, 1998
Case Number: Writ Petition No. 6044 of 1986
Subject: Tenancy

Case Summary

AI-generated summary - not the official court judgment text.

- CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of ...

Key legal issue: Tenancy
Acts & sections: Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 12(3)

Parties & Advocates

Appellant / Petitioner

Gurappa Basappa Byakod and Others

Advocate P.M. Mengane, Adv.

Respondent

Sunita Subhash Chandra Bubane

Advocate A.A. Kumbhakoni, Adv.

Legal References

Acts: Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 12(3)
Reported In: 1998(5)BomCR895

Excerpt

.....desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not ..........and willing to pay the rent. the suit was, however, dismissed by the trial court. in the appeal filed by the landlady, the appellate court reversed the findings recorded by the trial court and passed a decree of eviction against the tenant under section 12(3)(b) of the act. it is this decree passed by the appellate court, which is challenged by the tenant in the present petition. 2. the learned counsel appearing for the petitioners urged before me that the appellate court has passed a decree under section 12(3)(b) of the act against the tenant after finding that the tenant had not complied with the requirement of section 12(3)(b) of the act during the pendency of the suit. the appellate court has passed a decree under section 12(3)(b) of the act because during the pendency of the appeal filed by the landlady, the tenant did not deposit the arrears of rent regularly. the learned counsel for the petitioner relied on judgment of this court in the case of hasan alam beg jamdar v. sardari begum usman dabir and another, : 1997(2)bomcr573 , submitted that the question of tenant abiding with the conditions of section 12(3)(b) would not arise during the pendency of the appeal and therefore, the appellate court, was not justified in passing decree against the tenant. the learned counsel appearing for the respondent, however, relying on the judgment of the division bench of this court in the case of venkatrao anant pai v. narayanlal bansilal 1971 blr 609, submitted that even during the pendency of the appeal a tenant is liable to deposit the amount of standard rent and failure of the tenant to do so makes him liable for a decree of eviction under section 12(3)(b) of the act. 3. now in the light of the rival submissions if the record is perused it appears that the appellate court has passed decree against the tenant for non compliance of the provisions of section 12(3)(b) of the bombay rent act because the tenant has not complied with the requirement of section 12(3)(b).....

Full Judgment

ORDER

D.K. Deshmukh, J.

1. By this petition filed under Article 227 of the Constitution of India, the petitioners challenge the order dated 22-9-1986, passed by the 4th Addl. District Judge, Solapur in Civil Appeal No. 662/1984. That appeal was filed by the respondent, challenging the order dated 27-3-1984, passed by the 5th Joint Civil Judge, J.D., Solapur in Reg. Civil Suit No. 328/1979. That civil suit was filed by the respondent claiming that she is owner of the suit premises, Municipal House No. 13-B situated at Railway Lines at Sholapur and that the petitioner is tenant of one room in the suit house. The landlady sought decree of eviction against tenant on the ground that the tenant is not ready and willing to pay the rent. The suit was, however, dismissed by the trial Court. In the appeal filed by the landlady, the Appellate Court reversed the findings recorded by the trial Court and passed a decree of eviction against the tenant under section 12(3)(b) of the Act. It is this decree passed by the Appellate Court, which is challenged by the tenant in the present petition.

2. The learned Counsel appearing for the petitioners urged before me that the Appellate Court has passed a decree under section 12(3)(b) of the Act against the tenant after finding that the tenant had not complied with the requirement of section 12(3)(b) of the Act during the pendency of the suit. The Appellate Court has passed a decree under section 12(3)(b) of the Act because during the pendency of the appeal filed by the landlady, the tenant did not deposit the arrears of rent regularly. The learned Counsel for the petitioner relied on judgment of this Court in the case of Hasan Alam Beg Jamdar v. Sardari Begum Usman Dabir and another, : 1997(2)BomCR573 , submitted that the question of tenant abiding with the conditions of section 12(3)(b) would not arise during the pendency of the appeal and therefore, the Appellate Court, was not justified in passing decree against the tenant. The learned Counsel appearing for the respondent, however, relying on the judgment of the Division Bench of this Court in the case of Venkatrao Anant Pai v. Narayanlal Bansilal 1971 BLR 609, submitted that even during the pendency of the appeal a tenant is liable to deposit the amount of standard rent and failure of the tenant to do so makes him liable for a decree of eviction under section 12(3)(b) of the Act.

3. Now in the light of the rival submissions if the record is perused it appears that the Appellate Court has passed decree against the tenant for non compliance of the provisions of section 12(3)(b) of the Bombay Rent Act because the tenant has not complied with the requirement of section 12(3)(b) during the pendency of the suit. However, it appears that a finding is recorded that the tenant has deposited excess amount during the pendency of the suit. The decree is passed against the tenant for non-compliance of provisions under section 12(3)(b) during the pendency of the appeal filed by the landlady. The same question has been considered by this Court in its judgment in Hasan AlamBeg's case, referred to above. This Court has held in paragraph 8 of that judgment that 'when in such circumstances, the landlady prefers an appeal, there is no question of the tenant abiding by any conditions of section 12(3)(b) in as much as the tenant was already held not to be a default and the suit on that count was dismissed. If there is any further default during the pendency of the appeal, obviously, the landlady would get a fresh cause of action for which she ought to serve a notice of demand as contemplated and proceed against the tenant, according to law.'

4. Thus it is clear that not complying with the requirement of section 12(3)(b) of the Act during the pendency of the appeal filed by the landlady, a decree cannot be passed against the tenant. In so far as the judgment of this Court in the case of Venkatrao Anant Pai, relied on by the learned Counsel for the respondent is concerned, perusal of that judgment shows that the Division Bench of this Court has ruled that in a standard rent application filed by the tenant if standard rent is fixed by the trial Court during the pendency of a challenge to that order in higher Court, then also a tenant continues to be under a liability to pay rent at the rate fixed by the trial Court in the standard application. However, this judgment of the Division Bench has no relevance for deciding the controversy raised in the present petition. Therefore, it is clear that the Appellate Court was justified in passing the decree of eviction against the tenant.

5. In the result, therefore, the petition succeeds as is allowed. Rule is made absolute in terms of prayer Clause (b) with no order as to costs.

6. Petition allowed.

Same Court & Year Mumbai · 1998 Same Parties Gurappa Basappa Byakod and Others vs Sunita Subhash Chandra B... Same Subject Tenancy Same Judge D.K. Deshmukh, J. Acts & Sections Bombay Rents, Hotel and Lodging House Rates Control Act, 1947...

Tenancy