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Bai Hiragauri v. Abdul Kadar Mamadji And Another
Factual and Procedural Background
Bai Hiragauri (landlady) let out two separate shops in Ahmedabad—Shop No. 1155 to Abdul Kadar Mamadji for a monthly rent of Rs 23 and Shop No. 1155/2-3 to Abdul Rahim Musaji for Rs 40 per month. The tenants were also responsible for municipal taxes and electricity charges. Abdul Kadar fell into arrears from 1 November 1956 to 31 August 1957, and Abdul Rahim from 1 February 1957 to 31 August 1957. After issuing notices of demand and termination on 12 September 1957, the landlady filed two eviction suits (Civil Suits Nos. 4613/1957 and 2612/1957).
The trial court (17 November 1960) held that the tenants were in arrears for more than six months, fixed the claimed rents as the standard rent, found the tenants liable for municipal tax, and decreed eviction under Section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (“Bombay Rent Act”).
On appeal, the City Civil Court affirmed these findings on 31 January 1962. The tenants then filed Civil Revision Applications Nos. 446/1962 and 569/1962 before the Gujarat High Court. A learned Single Judge, relying on an earlier High Court decision, ruled that because the tenants had to pay municipal tax in addition to rent, the rent was not “payable by the month”; consequently Section 12(3)(b) applied and eviction could not be ordered. The High Court therefore set aside the eviction decrees (18 October 1966). The landlady obtained special leave and appealed to the Supreme Court.
Legal Issues Presented
- Whether the Gujarat High Court had jurisdiction, in revisions filed against appellate decrees that had become final under the unamended Section 29(2) of the Bombay Rent Act, to reopen those decrees by invoking the wider powers conferred by Section 29(2) as amended by Gujarat Act 18 of 1965.
- Consequent upon the jurisdictional question, whether the findings of the trial court and the City Civil Court that the suits fell under Section 12(3)(a) (rent “payable by the month”) could be disturbed in revision.
Arguments of the Parties
Appellant (Landlady)
- Raised a preliminary objection before the High Court that, under the unamended Section 29(2) of the Bombay Rent Act, the City Civil Court’s appellate decree was final and no revision lay; therefore the High Court lacked jurisdiction.
- Contended before the Supreme Court that the High Court exceeded its revisional powers and that the concurrent findings on Section 12(3)(a) could not be interfered with under Section 115 of the Code of Civil Procedure (CPC).
Respondents (Tenants)
- Successfully persuaded the High Court that, because rent was not “payable by the month” owing to the additional liability for municipal tax, Section 12(3)(b) applied and eviction could not be granted.
- Before the Supreme Court, conceded that the High Court’s jurisdiction was limited to Section 115 CPC and requested that the matters be remanded for consideration under that provision.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Keshavlal Jethalal Shah v. Mohanlal Bhagwands, AIR 1968 SC 1336; (1968) 3 SCR 623 | An appellate decree that became final under the unamended Section 29(2) of the Bombay Rent Act cannot be set aside by relying on the subsequently amended Section 29(2). | Used to hold that the High Court had no power to reopen the City Civil Court’s appellate decrees, as those decrees had attained finality long before the 1965 amendment. |
| Ratilal v. Ranchhodhai, AIR 1966 SC 439; (1966) 1 SCJ 212 | An erroneous construction of a statute by a court of competent jurisdiction does not amount to exercising jurisdiction illegally or with material irregularity under Section 115 CPC. | Invoked to show that, even if the lower courts mis-construed Section 12(3)(a)/(b), such error would not justify interference in revision under Section 115 CPC. |
| Vora Abbasbhai Alimahomed v. Haji Gulamnabi Haji Safibhai, AIR 1964 SC 1341; (1964) 5 SCR 157 | Supports the principle that mere legal error is insufficient ground for revisional interference where the court had jurisdiction. | Cited together with Ratilal to reinforce that the High Court could not disturb the concurrent findings merely on an alleged misinterpretation of Section 12(3)(a). |
Court's Reasoning and Analysis
The Supreme Court observed that the High Court’s interference was predicated on the broader powers conferred by Section 29(2) after its amendment in 1965. Because the eviction suits were instituted in 1957 and the City Civil Court’s appellate decrees had become final before the amendment, the amended provision could not be applied. Relying on its own ruling in Keshavlal Jethalal Shah, the Court held that those decrees were immune from reopening.
The Court further reasoned that the only possible supervisory jurisdiction available to the High Court was under Section 115 CPC. Under that provision, interference is permissible only where the subordinate court either lacks jurisdiction or exercises it illegally or with material irregularity. Citing Ratilal v. Ranchhodhai and Vora Abbasbhai, the Court emphasised that even a mistaken interpretation of Section 12(3)(a)/(b) would constitute a mere legal error, not a jurisdictional defect. Therefore, no ground for revisional interference existed.
Given that the High Court’s decision rested entirely on a jurisdiction it did not possess, the Supreme Court declined the tenants’ request for remand, holding that such a course would serve no useful purpose. The eviction decrees of the City Civil Court were thus restored.
Holding and Implications
Appeals Allowed; High Court order set aside; eviction decrees of the City Civil Court restored. The tenants are granted three months to vacate the premises and must bear the landlady’s costs in the High Court and the Supreme Court.
Implications: The decision re-affirms the finality of appellate decrees rendered under the unamended Section 29(2) of the Bombay Rent Act and limits the Gujarat High Court’s revisional powers to those conferred by Section 115 CPC for pre-amendment cases. It underscores that legal error, without jurisdictional defect, does not warrant interference in revision.
D.G Palekar, J.— These are appeals by special leave from the judgment and order, dated October 18, 1966 of the High Court of Gujarat at Ahmedabad in Civil Revision Applications Nos. 446 of 1962 and 569 of 1962 respectively.
2. Bai Hiragauri — the appellant, is the aggrieved landlady and the respondents Abdul Kadar Mamadji and Abdul Rahim Musaji respectively are the tenants. The suits were for their eviction. Abdul Kadar was let out the premises bearing No. 1155 on a monthly rent of Rs 23 and Abdul Rahim was let out another shop bearing No. 1155/2-3 and the monthly rent was Rs 40. The tenants had agreed to bear the dues in respect of municipal taxes and consumption of electricity. Abdul Kadar did not pay the rent from November 1, 1956 to August 31, 1957 and similarly Abdul Rahim was in arrears of rent from February 1,1957 to August 31, 1957. Under the law, they were liable to be enicted for being in arrears for more than six months. As required by law the landlady gave them notice of eviction on September 12, 1957 calling upon them to pay the arrears of rent and to quit and deliver up vacant possession of the shops in their possession on or before September 30, 1957. The tenants did not pay up nor did they send a reply to the notice. So the landlady filed two separate suits — one being Civil Suit No. 4613/1957 and the other being 2612/1957. The suits were contested. Both the suits were consolidated and disposed of together. The trial court by its judgment, dated November 17, 1960 held that the tenants were in arrears for more than the statutory six months; that the standard rent was the same as claimed by the landlady; that the tenants were liable to pay the municipal tax in addition and that in view of Section 12(3)(a) of the Bombay Rent Act, as applied to the Gujarat area, both the tenants were liable to be evicted.
3. The tenants went in appeal to the City Civil Court. The appeals were heard together and the learned City Civil Judge who heard the appeals confirmed the findings and the decrees of the trial court. The appeals were disposed of on January 31, 1962. From this judgment the two tenants filed Civil Revision Applications to the High Court. The learned Single Judge, who heard the Revision applications, relying upon a previous judgment of that court, held that since the rent was not “payable by the month” as required by Section 12(3)(a) referred to above the cases fell within Section 12(3)(b) of the Act and, therefore, decrees for eviction could not be passed. It from that Order that the present appeals have been filed by the landlady by special leave.
4. A preliminary objection seems to have been raised before the High Court on behalf of the landlady that a revision did not lie and under Section 29 of the Bombay Rent Act in its application to Gujarat, the Order passed by the City Civil Court was final and since no question under Section 115 of the Civil Procedure Code arose the revision was not maintainable. This objection was rejected by the learned Judge who pointed out that under Section 29(2) as it stood amended by Gujarat Act 18 of 1965 the High Court had jurisdiction. Before that amendment the sub-section read, “No further appeal shall lie against any decision in appeal under sub-section (1)”. But by the amendment the following was substituted therefor. “No further appeal shall lie against any decision in appeal under sub-section (1) but the High Court may, for the purpose of satisfying himself that any such decision in appeal was according to law, call for the case in which such decision was taken and pass such order with respect thereto as it thinks fit”. In the opinion of the learned Judge having regard to the amended Section 29(2) he could examine the decision as a whole and enquire as to whether the decision arrived at as a whole was according to law or not and the High Court was not confined merely to the authority to see whether there were any errors of law. Thus the learned Judge came to the conclusion that decisions were not in accordance with law because, in his opinion, though the monthly rent was admittedly as claimed by the landlady, since the tenants were also liable to pay the municipal tax in addition, it could not be said that these were cases where the “rent was payable by the month” within the meaning of Section 12(3)(a). It is not necessary to consider whether this view is correct because the present appeals must succeed on other points.
5. It is obvious from the judgment of the High Court that it interfered with the concurrent findings of the lower courts on the ground that it had jurisdiction to deal with the cases under Section 29(2). It seems to have escaped the learned Judge's notice that the revisions before him arose out ofsuits which had been filed in 1957. Therefore, though the revisions were heard after the 1965 amendment referred to above the revisions were not liable to be disposed of under the changed law. It has been held by this court in Keshavlal Jethalal Shah v. Mohanlal Bhagwands AIR 1968 SC 1336, (1968) 3 SCR 623, (1969) 1 SCJ 147 that in a case like this in which the appellate decree had become final under the unamended Section 29(2) of the Bombay Rent Act, it could not be set aside in exercise of the jurisdiction under the amended Section 29(2) the amendment having been made long after the appellate decree had become final. The High Court could deal with the cases only under its revisional powers under Section 115 of the CPC. The learned Counsel for the tenants appearing before us conceded the position and requested that the cases may, therefore, be remanded to the High Court for being disposed of under Section 115 of the CPC.
6. We do not think any useful purpose will be served by sending the cases back to the High Court. As already pointed out the learned Judge interfered in these cases only because he thought that he had jurisdiction to do so under Section 29(2) as amended. It is obvious that he had recourse to that section because in view of the decided cases, he could not have interfered with the final decision of the City Civil Court under Section 115 of the CPC. The court in which the suits had been filed had jurisdiction to consider whether the suits fell within Section 12(3)(a) or Section 12(3)(b). Both the courts held on the facts that the cases fell under Section 12(3)(a). Even if that finding was erroneous in law — and we do not want to suggest that it was — the courts had jurisdiction, and it cannot be said that that jurisdiction was exercised illegally or with material irregularity. The worst that could be said is that they had placed an erroneous construction on the relevant provisions. It has been held by this Court in Ratilal v. Ranchhodhai AIR 1966 SC 439, (1966) 1 SCJ 212 which was also a case under the same Rent Act that an erroneous construction placed upon a statute does not amount to exercising jurisdiction illegally or with material irregularity and would not furnish a ground for interference under Section 115 of the CPC See also Abbasbhai v. Gulamnabi AIR 1964 SC 1341, (1964) 5 SCR 157.
7. In the result, therefore, the appeals are allowed. The order passed by the High Court is set aside and the decrees passed by the City Civil Court are confirmed. The tenant respondents are given three months' time to vacate the premises. The respondents shall pay the costs of the appellant before the High Court and this Court.
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