Mohammad Ishak S/O Mohammad Kasam Vs. Hariram Gulabchand Mahajan - 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - my attention was invited to the order dated 6th june, 2008 whereby this court had directed appellant as well as respondent to pay costs of rs. hence forfeiture of tenancy also bad in law.a.p. bhangale, j.1. this second appeal is filed against judgment and order dated 19-10-2001 passed by the additional district judge, akola in regular civil appeal no. 78 of 1998 confirming the judgment and order dated 26-2-1998 passed by the civil judge, junior division, murtizapur in regular civil suit no. 129 of 96 whereby the suit of present respondent-plaintiff came to be decreed.2. it was averred that appellant-defendant was lessee of plaintiff in respect of open site bearing nazul plot no. 120/3 and 121/3, admeasuring 12 x 65 feet on monthly rent of rs. 100/- excluding municipal taxes. earlier small causes suit no. 25 of 1992 was filed by respondent-plaintiff against appellant-defendant for recovery of arrears of rent and that suit was decreed on 10-11-1995. another suit viz. regular civil suit no. 117 of 95 was filed for similar purpose and it was also decreed. respondent-plaintiff filed application before the rent controller, murtizapur for grant of permission to determine the tenancy of appellant-defendant. rent controller, murtizapur rejected the application of respondent-plaintiff for grant of permission to issue quit notice, but he directed appellant-plaintiff to pay arrears of rent to the respondent-plaintiff for the period from march, 1992 to october, 1993 at the rate of rs. 100/- per month. appellant-defendant along with others then filed regular civil suit no. 29 of 1996 for declaration that respondent-plaintiff is not the owner of suit plot and it is the defendant no. 2 therein viz. collector, akola who is owner thereof. on noticing the fact that appellant-defendant disclaimed the tenancy and renounced his character as such by setting up a title in a third person. respondent-plaintiff issued notice dated 9-5-1996 under section 111(g) of the transfer of property act for determination of lease of appellant-defendant by forfeiture. in reply to the notice, appellant-defendant re-affirmed that respondent-plaintiff is not the owner of suit plot and expressed inability to comply with the notice. it is thereafter that the respondent-plaintiff filed regular civil suit no. 129 of 96 before the civil judge, jd, murtizapur for possession and for recovery of rent/damages.3. appellant-defendant filed his written statement and denied the claim of respondent-plaintiff. he maintained his stand that respondent-plaintiff is not owner of the suit plot. he prayed for dismissal of suit also on the ground that notice under section 111(g) of the transfer of property act and suit filed by respondent-plaintiff were premature inasmuch as regular civil suit no. 29 of 1996 filed by him along with others was pending.4. after hearing the parties, learned trial court decreed the suit of respondent-plaintiff, as aforesaid, and thereby directed appellant-defendant to deliver peaceful and vacant possession of suit property to the respondent-plaintiff and also directed him to pay damages; arrears of municipal taxes and notice charges amounting to rs. 1925/- together with interest at the rate of 9% per annum from the date of filing of suit till realisation. appeal filed by appellant-defendant came to be dismissed, as aforesaid. hence this second appeal.5. before adverting to the substantial questions of law, i must deal with civil application no. 1441 of 2005 filed by appellant for amendment of written statement filed in regular civil suit no. 129 of 1996. he relied upon bakshish singh v. prithi pal and ors. reported in in order to contend that amendment application can be allowed at the stage of second appeal. i have perused the said ruling. in that case, right of pre-emption was agitated and an application for amendment of plaint was made to claim preemption on the basis of admitted fact that plaintiff was also co-sharer of a vendor. the apex court expressed opinion in the facts and circumstances of that case that rejection of the amendment application was erroneous in view of the prayer based upon the admitted fact. hence, it was observed that the amendment ought to have been allowed. in the present case, by the proposed amendment, the tenant-applicant is trying to claim that the plaintiff had no right, title or interest in the suit plot. such amendment intending to continue to deny title of the landlord and to prolong litigation unnecessarily cannot be allowed. amendment to the pleadings is allowed only with a view to settle real controversy between the parties and the facts and circumstances revealed from the record of this case, applicant-tenant is not all entitled to amend his written statement at this stage. hence, application is rejected.6. it is next contended on behalf of appellant-tenant that suit of the plaintiff is liable to be dismissed under order 39, rule 11 of the code of civil procedure as costs in the sum of rs. 500/- was not paid. my attention was invited to the order dated 6th june, 2008 whereby this court had directed appellant as well as respondent to pay costs of rs. 500/- each to high court legal services, subcommittee at nagpur. learned counsel for appellant submits that since order of payment of costs is not complied with, suit is liable to be dismissed. on the other hand, learned counsel for respondent points out that payment of costs is made on 16-6-2008 and he has filed copy of receipt issued by the concerned establishment. thus, it is evident that there is no defiance to the court's order or breach of undertaking. even if it is taken for granted that the costs were to be paid on or before 10th june, 2008, respondent has made amends for the default and compliance is to the satisfaction this court. hence, contention of the appellant that suit is liable to be dismissed on this count is rejected.7. the present second appeal was initially dismissed in limine vide order dated 18-3-2002. that order was assailed before the apex court and the apex court has remanded the matter vide its order dated 2-4-2004 to this court for decision on merit after formulating questions of law. accordingly, following questions of law have been framed in the present second appeal:(1) whether the respondent is entitled for a decree of possession under clause 13-a of the c.p. and berar letting of premises and rent control order, 1949 in view of the decision and the issue framed in small cause civil suit no. 25/1992 that the respondent is the landlord and the appellant is tenant of the suit premises?(2) whether the respondent is estopped from contending that the appellant is not his tenant?(3) whether the suit for eviction is tenable without obtaining prior permission of the rent controller as required under the provisions of c.p. and berar rent control order, 1949 and in view of section 111(g) of the transfer of property act, 1882?8. i have perused the judgments of the courts below and i have heard learned counsel appearing for parties at length in the light of above substantial questions of law formulated in this appeal.9. learned counsel for appellant has invited my attention to division bench judgment of this court in ashwinikumar govardhandas gandhi and anr. v. gangadhar dattatraya gadgil reported in 1990 m.l.j. 18. in this case, it is held that where the tenant renounces his character as such by setting up title in third person or by claiming title in himself as mentioned in section 111(g) of the transfer of property act, permission under clause 13 of the c.p. and berar letting of houses and rent control order, 1949 is not necessary for giving notice determining the lease contemplated by clause (g) of section 111 of the transfer of property act. a suit therefore for ejectment of such tenant without obtaining the permission of the controller is maintainable. the division bench while answering the reference made by the learned single judge of this court, however, held that the provisions of clause 13(1)(a) of the c.p. and berar letting of houses and rent control order, 1949 would come in the way of giving a notice without obtaining the permission of the controller only in respect of classes covered by conditions (1) and (3) of clause (g) of section 111 of the transfer of property act and that prohibition will not apply to cases covered by condition (2) of clause (g) of section 111 of the act. needless to say, present case does not fall under any of classes covered by conditions (1) and (2) and it squarely falls in a class covered by condition (3) of clause (g) of section 111 of the transfer of property act.10. section 116 of the evidence act, 1872 also prohibits the tenant to deny title of his landlord howsoever it may be defective. in joginder singh and anr. v. smt. joginderro and ors. reported in , particularly in paragraph 6, the apex court has held that the tenant cannot permitted to deny or dispute the title of the owner. the apex court held that this is a settled view that having regard to the provisions of section 116 of the evidence act, no tenant of immovable property or person claiming through such tenant shall during the continuance of the tenancy, be permitted to deny the title of the owner of such property. the apex court referred to its earlier decision in eerraju v. venkanna reported in : [1966]1scr831 wherein it is held that a tenant who has been let into possession cannot deny his landlord's title, however, defective it may be, so long as he has not openly restored possession by surrender to his landlord.11. in kashinath gosavi patil v. govla reported in 1995(1) m.l.j. 861, learned single judge was dealing with similar question and relevant observation made by the court is thus-.in view of this peculiar position, the question is as to whether the defendant can get the protection of the provisions of the bombay rent act which was made applicable to the suit premises when the suit was pending i.e. on august 10, 1983. according to me, where the relationship of landlord and tenant between plaintiff and defendant was not in existence at the time of or even prior to the suit for eviction as a result of disclaimer of the title, the bar of jurisdiction of civil court does not apply. the relationship of landlord and tenant is a sine qua non for the attractibility of the provisions of section 28. if such a condition is not fulfilled it is open to the owner of the property to recover possession of the premises de hors the provisions of the rent act. by the disclaimer of the title not only the contractual tenancy of the defendant comes to an end and the defendant becomes a statutory tenant so as to claim protection of the bombay rent act, but the disclaimer under section 111 of the transfer of property act is an act of renunciation by a lessee of his title as a tenant. the effect of such a disclaimer is that it brings to an end the relationship of landlord and tenant: the cessation being by operation of law resulting from proprio motu (a voluntary act) of the tenant. there is no reason to imply in favour of such a tenant the sprouting of a statutory tenancy or the operation of the restrictive provisions of the rent act in his favour. the voluntary action of the tenant takes the case out of the pale of section 5(11). statutory protection under the act is to a tenant who claims to be a tenant and who is ready and willing to abide by the terms of the tenancy. a tenant who disclaims his tenancy does not fulfil the aforesaid qualification. in such cases the dispute between the claimant owner and occupant ceases to be a dispute between a landlord and a tenant in regard to any matter covered by the rent act and it falls outside the purview of section 28....in other words, denial of title is tantamount to disclaimer.12. in lalabi v. dhelullakhan reported in : 2004(2)bomcr332 following the ratio laid down in ashwinikumar gandhi's case (supra), it has been held that where defendant claimed to be owner of premises and had renounced title of plaintiff, no permission of rent controller in the circumstances would be required. thus, learned counsel for respondent-plaintiff rightly contended that permission from the rent controller was not required to file suit for possession by forfeiture of tenancy.13. it is the specific contention of respondent that appellant-tenant had denied title of the respondent-landlord and disclaimed tenancy within the meaning of section 111(g) of the transfer of property act and permission of the house rent controller to file suit was not required. this contention is fortified by the above rulings. therefore, the contention of learned counsel for appellant that suit was not maintainable in view of clause 13(3)(i) of the rent controller order, 1949 cannot be accepted.14. learned counsel for the appellant further contended that merely because the defendant has disclaimed title of the plaintiff, it does not follow that decree for possession should be automatically passed. he pressed into service judgment of this court rendered by learned single judge in lena pereira and ors. v. mary boracho and ors. reported in : air1992bom93 . a bare perusal of the said judgment would reveal that facts therein and facts involved in the present case are totally distinguishable. in that case defendant had denied title by amending written statement, but plaintiff did not carry any amendment in the plaint and for the first time in the appeal ground of forfeiture of tenancy was sought to be raised. it is in this view of the matter that the learned single judge made observation that section 116 of the evidence act does not furnish a ground for eviction and it merely enumerates the principle of estoppel meaning thereby that a defence of such nature ought to be shut out and rejected by the court. it is, therefore, evident that judgment in the case of lena pereira and ors. v. mary and ors. (supra) is not applicable in the present case. this judgment would not come to the rescue of appellant-defendant in view of the ratio laid down by the division bench of this court in ashwinikumar gandhi's case (supra).15. learned counsel for the appellant also contended that denial was not carried into conduct by the appellant because regular civil suit no. 29 of 1996 challenging title of the landlord was withdrawn on 14-8-1998. further, according to learned counsel for the appellant, the appellant did not deny title of the landlord in respect of plot no. 121/3 but in respect of plot no. 120/3.16. it is evident that all these contentions were considered in the light of facts and circumstances brought on record. the courts below have considered that notice under section 111(g) of the transfer of property act was issued to tenant-appellant whereby tenancy was forfeited and possession was prayed for and forfeiture of tenancy by landlord was upheld by both the courts below. the conduct of tenant was revealed in reply to notice dated 9-5-1996 (exhibit 43) whereby tenancy was forfeited and tenant was called upon to deliver possession of the tenanted plot. the tenant by reply dated 1-6-1996 (exhibit 32) responded thus:question of admitting your title and withdrawing adverse allegation does not arise at all, as you are not the owner of the suit land. you have no right to forfeit my client's tenancy, as you are not the owner and my client is not your tenant. hence forfeiture of tenancy also bad in law. question of delivery of vacant possession of the premises does not arise at all your notice is illegal and against the provisions of law and not binding upon my client.17. thus, the appellant-tenant denied ownership again leading respondent-plaintiff to file regular civil suit no. 129 of 96 on 16-10-1996 for possession and damages. in his written statement (exhibit 14) filed by appellant-defendant in the said suit, he denied that he is in occupation of property as a lessee of the plaintiff and in para 3 he did not dispute that he denied title of plaintiff and also filed regular civil suit no. 29 of 1996. in para 5 of written statement, appellant submitted that plaintiff is not the owner of plot no. 120/3 and 121/3. during the course of oral evidence also, the appellant-tenant continued to deny title of the landlord as owner of the property and claimed that it is the state of maharashtra who is owner of the suit plot. the trial court, therefore, rightly held that notice of forfeiture was legal and valid. the 1st appellate court also correctly concluded that the tenancy of defendant was forfeited under section 111(g) of the transfer of property act and plaintiff is entitled to possession of the suit premises.18. in view of the aforesaid discussion, i hold that there is no substantial question of law involved in the present appeal. appeal deserves to be dismissed and is accordingly dismissed with costs.