Balasaheb Anantrao Bahirat Vs. Rohidas Bapusaheb Tupe - Court Judgment

Excerpt:
- section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - 4. the petitioner challenges the judgment and decree of eviction passed against the petitioner by the trial court and confirmed by the lower appellate court as well as the order of fixation of standard rent passed by the trial court and up-held by the lower appellate court. the second ground of challenge is that the lower appellate court while confirming the decree for eviction failed to take into consideration the additional evidence which was produced by the petitioner pursuant to the leave granted during the pendency of the appeal. but at the same time, it is well settled law that the jurisdiction of the court depend upon the facts pleaded in the application and not on the basis of the provisions of law cited by the party in the application. if the facts disclosed in the plaint or the application for eviction of a tenant sufficiently make out a case which could fall within the parameters of provisions of law under the new rent act, merely because the respondent had referred to the provisions of the old rent act, the proceedings can be held to be bad in law or not maintainable. 5 of the said decision clearly disclose that the suit was initially filed on 4th march, 1999 i. besides merely because the respondent had made statement that the application was filed under the old rent act, it is well settled that there is no estoppel against law. as regards the default in payment of rent, both the courts have arrived at concurrent finding regarding failure on the part of the petitioner to discharge the burden regarding payment of the arrears of rent being established by the petitioner and further failure on the part of the petitioner to deposit the rent in terms of order passed by the trial court in relation to the interim standard rent. once the eviction order can be sustained on one of the grounds, failure on the part of the landlord to establish the case, on other grounds would not make any difference an far as the decree for eviction is concerned. merely because the statement regarding remote possibility of availability of premises at different places to the land-lord has not been considered while dealing with the issue regarding the need of the suit premises for personal occupation of the land-lord, that by itself cannot be a jurisdiction for interference in the impugned order and much less when the decree of eviction is clearly sustainable on the ground of default in payment of rent.r.m.s. khandeparkar, j.1. heard.2. rule by consent, the rule is made returnable forthwith.3. since common question of law and facts arises in both the petitions and it pertain to the same premises, they were heard together and are being disposed of by this common judgment.4. the petitioner challenges the judgment and decree of eviction passed against the petitioner by the trial court and confirmed by the lower appellate court as well as the order of fixation of standard rent passed by the trial court and up-held by the lower appellate court. the eviction has been ordered on two grounds. firstly on account of default in payment of rent and secondly on the ground of bonafide need of the premises to the land-lord.5. the challenge to the decree of eviction is two fold. firstly that the proceedings initiated by the respondent land-lord were admittedly under old rent act namely. the bombay rent, hotel and lodging rates control act, 1947, however, the same were initiated after the commencement of the maharashtra rent control act, 1999 (new rent act) and, therefore, the proceedings for eviction were not maintainable ab-initio. reliance is sought to be placed in the decision of the learned single judge in pacific engineering company pvt. ltd. v. east hotels limited in : 2005(1)bomcr427 in support of the said contention. the second ground of challenge is that the lower appellate court while confirming the decree for eviction failed to take into consideration the additional evidence which was produced by the petitioner pursuant to the leave granted during the pendency of the appeal.6. as regards the order regarding fixation of standard rent, the challenge is confined to the rejection of the appeal by the lower appellate court in that regard by referring to the provisions of section 15(3) of the maharashtra rent control act inasmuch as that since the proceedings themselves were initiated under the old rant act, the appeal could not have been rejected by referring to the provisions of new rent act. attention was also sought to be drawn to section 58(2) of new rent act while canvassing the contention about non-maintainability of the proceedings. it is the contention on behalf of the petitioner that since the old rent act was already repealed, no proceedings could have been initiated thereunder.7. it is not in dispute that the proceedings for eviction were filed on two grounds, namely, default in payment of rent and bonafide need of the suit premises for personal occupation of the land-lord. it is not in dispute, nor can be disputed that both these grounds were available for eviction of the tenant under the old rent act and are also available under the new rent act. it is also matter of record that during the pendency of the proceedings and nearly three years after instituting the proceedings, the respondent herein moved an application for amendment seeking deletion to the pleadings which refer to the provisions of the old rent act and in place of those pleadings by referring to the provisions of new rent act and the said amendment was allowed by the trial court.8. section 58(1) of the new rent act provides that on commencement of the new rent act, old rent act shall stand repealed. the new rent act came into force with effect from 31st march, 2000. consequently, old rent act stood repealed from the said day in terms of the provisions comprised under section 58(1) of the new rent act. sub-section (2) clause (a) of section 58 provides that notwithstanding such repeal, all applications, suits or other proceedings which were instituted under the old rent act and were pending on the date of the commencement of the new rent act, shall be continued and disposed of in accordance with the provisions of the old rent act, as if old rent act had continued in force and the new rent act had not been passed. obviously, the provisions of section 58(2)(a) of the new rent act would apply to those proceedings which were pending on 31st march, 2000. undoubtedly, the provisions of section 58(2)(a) of the new rent act would apply to the proceedings for eviction of a tenant of a building instituted on or after 31st march, 2000 as in terms of section 58(1) of the new rent act. the provisions of new rent act would apply to all such proceedings.9. it is, however, sought to be contended on behalf of the petitioner that there was a clear admission on the part of the respondent that the proceedings though were initiated after 31st march, 2000, they were initiated under the old rent act, and, therefore, the proceedings should be considered as not maintainable and should be dismissed accordingly. indeed, it cannot be disputed that when the claim or application for eviction was filed by the respondent, it did disclose the same was filed in terms of provisions of old rent act. but at the same time, it is well settled law that the jurisdiction of the court depend upon the facts pleaded in the application and not on the basis of the provisions of law cited by the party in the application. if the facts disclosed in the plaint or the application for eviction of a tenant sufficiently make out a case which could fall within the parameters of provisions of law under the new rent act, merely because the respondent had referred to the provisions of the old rent act, the proceedings can be held to be bad in law or not maintainable. once it was clear that the proceedings were initiated on or after 31st march, 2000, and it was relating to the subject of eviction of tenant from a building, it could not have been tried as one under the old rent act which was already repeated on 31st march, 2000 and was replaced by the new rent act. on the contrary, irrespective of the provisions of law under the old rent act having been referred to in such application or plaint, the court will have to consider the same in terms of the provisions of the new rent act. of course, if the facts are not sufficient to disclose cause of action for initiating proceedings in terms of the provisions of new rent act the same could be rejected. the jurisdiction of the court does not depend upon the consent or the concession made by the party in relation thereto. it depends upon the statutory provisions which give jurisdiction to a court to entertain the particular application or the proceedings. once the pleadings in the application filed by the respondent disclosed necessary facts which revealed the cause of action in terms of the provisions of the new rent act, nothing prevented the small clause court, which is the court duly empowered to entertain the applications for eviction under the new rent act, to entertain the application filed by the respondent irrespective of the fact that the application referred to the provisions of the old rent act.10. the decision of the learned single judge in pacific engineering co. pvt. ltd. (supra) has absolutely no application to the case in hand. the said decision was delivered in the case where the proceedings were undisputedly initiated prior to 31st march, 2000. the contents of para no. 5 of the said decision clearly disclose that the suit was initially filed on 4th march, 1999 i.e. much prior to the enforcement of the new rent act and when the old rent act was in force.obviously, therefore, the learned single judge had observed that --while exercising jurisdiction under section 28 of the bombay rent control act, the small causes court functions as a special court under that act and does not exercise its ordinary civil jurisdiction under the presidency small causes court, 1882.11. the said ruling therefore, is of no help to the petitioners in the matter in hand. besides merely because the respondent had made statement that the application was filed under the old rent act, it is well settled that there is no estoppel against law. if the law permit the land-lord to initiate the proceedings for eviction of the tenant on the ground of default in payment of rent and/or on the ground of bonafide need of the premises for personal occupation under the new rant act on or after 31st march, 2000 and the proceedings were in fact initiated in january, 2001, obviously it could have been only under the new rent act.12. once the applicant disclosed necessary facts to reveal cause of action in terms of provisions of new rent act irrespective of the fact that there was also reference to the old rent act, it would not divest the small causes court from entertaining the application filed by the applicant against the opponent party. the trial court, therefore, was justified in considering the application to be under the new rent act and deciding it accordingly. the contention against the same sought to be raised on behalf of the petitioner, therefore, is devoid of substance.13. as regards the second ground of challenge, it is pertinent to note that the decree of eviction is based on two grounds. one on account of the default in payment of rent and the second on account of bona fide need of the premises. as regards the default in payment of rent, both the courts have arrived at concurrent finding regarding failure on the part of the petitioner to discharge the burden regarding payment of the arrears of rent being established by the petitioner and further failure on the part of the petitioner to deposit the rent in terms of order passed by the trial court in relation to the interim standard rent. obviously, therefore, the petitioner has not been able to challenge the said finding in this petition. no sufficient ground is disclosed to interfere in the concurrent finding arrived at by the courts below on the issue of default in payment of rent which has been answered in favour of the respondent. once a tenant is unable to assail the decree of eviction on one of the grounds on which the same is passed merely because on some other ground the findings arrived at by the lower court are not sustainable, that would not be a justification for interference in the impugned order in writ jurisdiction under article 227 of the constitution. once the eviction order can be sustained on one of the grounds, failure on the part of the landlord to establish the case, on other grounds would not make any difference an far as the decree for eviction is concerned. viewed from this angle, in fact contentions which are sought to be raised in relation to the ground of eviction on the basis of bona fide need of the premises need not be considered at all. nevertheless even in relation to the said challenge the same is to be held devoid of substance.14. the said challenge is on the ground that additional evidence which was permitted to be recorded pursuant to the leave granted in that regard at the belated stage was not considered by the lower appellate court. to the specific query as to what was the additional evidence that was led by the petitioner consequent to the permission in that regard being granted, attention was sought to be drawn to the affidavit filed by sunil balasaheb bahirat, the son of the petitioner, and in particular the statement made in para no. 4 of the said affidavit the statement relates to possibility of the availing various other places for the personal use of the land-lord as one of the sons of the land lord is in the business of construction of buildings. the petitioner, however, is unable to point out what was the cross-examination in relation to the said affidavit. inspite of repeated query in that regard the petitioner has not been able to produce for my perusal the cross-examination in relation to the said affidavit. it is pertinent to note that the additional affidavit is filed by none other than the son of the petitioner who is a practising advocate. in order to analyse the testimony of a witness, it is not sufficient to peruse the examination-in-chief of the deponent but it is also necessary to peruse the cross-examination of such a deponent. it is pertinent to note that statement in examination-in chief in para no. 4 of the deponent on behalf of the petitioner merely stated that it was possible for the land-lord to get the premises at different places which are being developed by the respondent's son. the possibility of getting premises at different places from the areas which are being developed by the son of the land-lord is different from availability of the premises for the personal use claimed by the respondent. beside in the absence of perusal of the cross-examination on this aspect, no court can arrive at any finding merely on the basis of the testimony in examination-in-chief of a deponent. it is not understood why the petitioner has suppressed the cross-examination of the said deponent from this court while contending that the lower appellate court erred in failing to take note of the said testimony. in fact, perusal of the impugned judgment discloses consideration of all the relevant materials which were placed before the court. merely because the statement regarding remote possibility of availability of premises at different places to the land-lord has not been considered while dealing with the issue regarding the need of the suit premises for personal occupation of the land-lord, that by itself cannot be a jurisdiction for interference in the impugned order and much less when the decree of eviction is clearly sustainable on the ground of default in payment of rent.15. an regards the challenge to the order of fixation of the standard rent, as already stated above, the question of applying old rent act could not arise as it was already repealed on 31st march, 2000 much prior to the initiating of the present proceeding and, therefore, no fault can he found with the lower appellate court's order referring to the provisions of new rent act while dealing with the matter regarding fixation of the standard rent. for the reasons stated above, therefore, the petitions do not survive and are liable to be dismissed and accordingly are hereby dismissed with no order as to costs.16. at the request of the learned advocate for the petitioner, the execution of the eviction order, however, shall remain suspended till 31st march, 2007 subject to the petitioner and all the major members of the family of the petitioner filing undertaking in this court within a period of four weeks to the effect that they shall not induct any third party in the suit premises nor will create any third party interest therein and will deliver vacant peaceful possession of the premises to the respondent on or before 31st march, 2007.