Bhagwati, J.:—
The petitioners are the owners of an immoveable property known as “Bhadran Bhuvan” situate at Tardeo Junction, which they purchased on May 10, 1940. The immoveable property consists inter alia of several shops, shops Nos. 10 to 14 whereof are the subject-matter of these proceedings. It is not stated in the petition what was the position of these shops after May 10, 1940, up to the time that the same came to be occupied by the respective parties, the only averments in the petition in this behalf which were considered relevant by the draftsman of the petition being that shop No. 10 was let out to one Sakhavat Hussein on or about June 1, 1943, at a rental of Rs. 80 per month, that the front portion of shop No. 11 was given to one Tukaram Tavde for occupation by leave and license of the petitioners on or about June 1, 1943, Tukaram Tavde paying a compensation for such use and occupation at the rate of Rs. 35 per month, that shop No. 12 was let out to one Ramchandra & Co. on or about November 1, 1944, at a rental of Rs. 80 per month, that shop No. 13 was let out to Messrs Friendly Stores on or about May 1, 1943, on a rental of Rs. 80 per month, and that shop No. 14 was let out to one Khodadad R. Irani on or about September 1, 1943, at a rental of Rs. 115 per month. The petition does not state who were the tenants, if at all, between May 10, 1940, and the various dates above mentioned when the occupation of these various parties commenced. After setting out the parties in occupation of the several shops and when they came to occupy the same as aforesaid the petition proceeds to state that in about December, 1943, a joint application was made by Messrs Khodadad R. Irani, Messrs Friendly Stores, Tukaram Tavde and one P.D Yajnik, who was the then occupant of shop No. 12, to the respondent for fixing the standard rent of the premises respectively occupied by them but that the application was dismissed by the respondent on or about January 3, 1944, on the ground that he had no jurisdiction to decide the same. Nothing further appears to have transpired until November 21, 1945, when the present occupants of the shops Nos. 10 to 14 abovementioned made a joint application to the respondent, the terms whereof are relevant to note. They stated that they were occupying a shop galas Nos. 10, 11, 12, 13 and 14 of a big shop situate in “Bhandran Bhuvan” and belonging to the petitioners, that the said shops which were numbered by the petitioners conveniently as shops Nos. 10, 11, 12, 13 and 14 formed a single tenement in September, 1940, and prior to that the rent charged for that single tenement which was let out to one Sorab B. Tata was Rs. 120 per month which was the standard rent of the tenement, that the petitioners had, with a view to circumvent the provisions of the law, got that tenement divided by temporary (kutcha) wooden partitions into five tenements and had let out the same to them charging them respectively Rs. 80, Rs. 35, Rs. 80, Rs. 80 and Rs. 115 making in all Rs. 390, and that according to them the standard rent of the galas in their occupation came to Rs. 30, Rs. 10, Rs. 20, Rs. 20 and Rs. 30, respectively making in all Rs. 110. They, therefore, requested the respondent to institute necessary inquiries in the matter and fix up the standard rent of the tenements according to law.
On receipt of the application dated November 21, 1945, the respondent wrote to the first petitioner on December 6, 1945, Requesting him to see him on any working day with all relevant documents, as he would inquire into the charges being made as rents for the shops in the said building. The first petitioner did not appear before the respondent by December 31, 1945, and the respondent wrote to him inter alia on the said date intimating to him that as he had not complied with his request to see him in the matter of the charges being made as rents for the shops in the said building, he, the respondent, proposed to fix the standard rents as noted therein and would do so unless definite information regarding the rent at which the premises were let in September, 1940, was produced by him before January 15, 1946.
The petitioners thereafter appeared before, the respondent on or about April 3, 1946, when the application came up for hearing. Certain preliminary objections were then raised by the petitioners objecting to the jurisdiction of the respondent to determine the standard rent of the shop and also contending that, the matters comprised in the application had been finally disposed of by the respondent on January 3, 1944. The preliminary objections were overruled by the respondent and the respondent continued proceedings to determine the standard rent of the shops. The hearing of the application was postponed from time to time and was finally fixed on June 28, 1946. In the meantime the petitioners filed this petition on June 27, 1946, and obtained a rule from my brother Chagla calling upon the respondent to show cause why a writ of certiorari or a writ of prohibition should not be issued against him or an order and injunction under s. 45 of the Specific Relief Act, 1877, should not be issued against him.
In the petition filed by the petitioners, after setting out the facts hereinbefore set out by me as regards the purchase of the property by them and letting out of the shops to the various parties as also the proceedings before the respondent in about December, 1943, and what had happened on the hearing of the fresh application dated November 21, 1945, before the respondent, the petitioners submitted that the respondent had no jurisdiction to entertain the application inasmuch as admittedly the rent payable by the applicants did not exceed Rs. 80 per month. The petitioners contended that the provisions of the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944, hereinafter referred to as the Act under which alone the respondent had been given jurisdiction to determine the standard rent did not apply to the cases of the said Sakhavat Hussein, Messrs Rameshchandra & Co. and Messrs Friendly Stores. They further submitted that as regards the applications made by Messrs Khodadad R. Irani and Messrs Friendly Stores the respondent had no jurisdiction to entertain the same as they had in December, 1943, made a similar application to the respondent for determination of the amount of the standard rent which the respondent had dismissed, that they had not proceeded in appeal against the decision of the respondent dismissing the application and that the matter had therefore become final under the provisions of the Act, and there was no provision in law entitling the respondent to entertain a fresh application in respect of the same subject-matter. They therefore submitted that having regard to the law for the time being in force the respondent was barred from entertaining any application from the said persons and exercise jurisdiction over it. They further submitted that in so far as Tukaram Tavde was concerned there was an additional ground that he was not a tenant at all but was merely a licensee in occupation of the premises by leave and license of the petitioners and without any rent, that to such a person the provisions of the Act did not apply and the respondent had no jurisdiction to entertain any application for determination of any rent at the instance of Tukaram Tavde. Based on these averments and submissions the petitioners asked for various reliefs:
(1) by way of a writ of certiorari,
(2) by way of a writ of prohibition, and
(3) by way of an order under s. 45 of the Specific Relief Act against the respondent.
The respondent filed his affidavit dated July 25, 1946, wherein after raising certain preliminary objections he proceeded to state that during the proceedings before him he gathered that the whole premises, parts of which were now occupied by the applicants, were originally let to one S.B Tata by the previous owners of the property, that S.B Tata continued to be the tenant of the premises even after the petitioners purchased the property, such tenancy continuing up to February, 1942, and that the rent paid by S.B Tata to the petitioners was Rs. 120 per month in respect of the premises. He proceeded to state that in the course of the hearing he understood that after S.B Tata had vacated the premises the premises were divided into five compartments and one of these compartments was again divided into two parts, one part being occupied by Tukaram Tavde and the other part by the watchman of the petitioners, and that he intimated to the petitioners that he would fix the rents of the premises in question at the next hearing, viz. June 28, 1946, and adjourned the hearing in order to give to the petitioners an opportunity of producing any evidence in their possession as to the standard rent of the premises. As regards the previous application which had been made before him in December, 1943, he stated that he had no sufficient materials to show that the rent of the premises occupied by the then applicants exceeded Rs. 80 per month or that they were parts of larger premises occupied and let as a whole and subsequently sub-divided and that he therefore did not think that he was in a position to proceed with the applications and had therefore dismissed the same.
The first petitioner filed an affidavit in rejoinder on July 31, 1946, wherein, after reiterating his contentions and submissions contained in the petition, he stated that only one shop which is at present occupied by Khodadad R. Irani was let out to S.B Tata, that S.B Tata was the tenant of the previous landlords in respect only of the said shop, but being an old servant of theirs was allowed to use the godown adjoining the said shop by leave and license and as a matter of favour. He stated that after S.B Tata had vacated the premises the same were divided into five compartments, that the shop let out to S.B Tata had always been in the same condition as before but that the godown adjoining the said shop was divided by the petitioners in four compartments. He submitted that the respondent had no jurisdiction to determine the question as to whether the premises were let out as a whole and then let out in parts as now sought to be contended by the applicants occupying the various parts of the premises.
When the petition came on for hearing before me the Advocate General for the respondent urged several preliminary objections. I shall first deal with two preliminary objections which, if valid, would go to show that the petition as framed is not maintainable. The Advocate General contended (1) that the petition disclosed no cause of action, and (2) that there was such suppression or non-statement of material facts as would vitiate the whole petition. In order to appreciate these contentions of the Advocate General, it is necessary to refer to certain provisions of the Act. Part II of the Act refers to “Residential and other premises” and by s. 3 of the Act it is laid down that the provisions of that part should apply to premises the standard rent of which exceeds, Rs. 80 per mensem in areas to which the Bombay Rent Restriction Act, 1939, was applicable. Section 4(4) of the Act defines what is “standard-rent”, and the standard rent in relation to any premises there is laid down as:
(a) the rent at which the premises were let on September 1, 1940, or
(b) where they were not let on September 1, 1940, the rent at which they were last let before that date, or
(c) where they are first let after September 1, 1940, the rent at which they are first let, or
(d) in any of the cases specified in s. 13 the rent fixed by the Controller.
Section 13 lays down in what cases the Controller may fix the standard rent. Under the terms of that section the Controller is empowered to fix the standard rent at such amount having regard to the provisions of Part II of the Act and the circumstances of the case he deems just:
(a) where, any premises are first let after September 1, 1940, and the rent at which they are first let is in the opinion of the Controller excessive;
(b) where, by reason of any premises having been let at one time as a whole and at another time in parts, or by reason of a tenant having sub-let a part of any premises let to him, or for any other reason, any difficulty arises in giving effect to this part; or
(c) where, in the case of any premises let furnished, it is necessary to distinguish, for the purpose of giving effect to this Part, the amount payable as rent from the amount payable as hire of furniture.
These are the relevant provisions of the Act necessary to be referred to in connection with these contentions of the Advocate General. The respondent would have jurisdiction to determine the standard rent of the premises only if the premises were first let after September 1, 1940, and the rent at which they were first let was in his opinion excessive or where the premises were let at one time as a whole and at another time in parts, or the tenant had sub-let any part of the premises let to him, or any difficulty arose in giving effect to Part II of the Act for any other reason, or where the premises had been let furnished and it was necessary to distinguish for the purpose of giving effect to this part the amount payable as rent from the amount payable as hire for the furniture. These provisions, however, are controlled by s. 3 of the Act which lays down that the provisions of this part would apply to premises the standard rent of which exceeded Rs. 80 per mensem. If the standard rent of the premises did not exceed Rs. 80 per mensem, s. 13 of the Act would not invest the respondent with any jurisdiction to fix the standard rent of the premises. The premises which have got to be considered, in this connection are the premises as they were let on September 1, 1940, or before September 1, 1940, in those cases where they had been let in fact on or before September 1, 1940, or the premises as they were first let after September 1, 1940. It may be that in those cases where the premises were first let after September 1, 1940, the rent at which they were first let was in the opinion of the Controller, excessive, he would then be entitled under s. 13(a) of the Act to fix the standard rent of those premises. The premises might be let at one time as a whole and at another time in parts, or the tenant might sub-let a part of the premises let to him. Even in those cases the premises would be those which have been let as a whole or let to the tenant and the Controller would then, by reason of the circumstances mentioned in s. 13(b) of the Act, viz. the premises at one time having been let out in part or a tenant having sub-let a part of the premises let to him, be entitled to determine the standard rent of the smaller premises thus let put either by the landlord to the tenant or by the tenant to the sub-tenant. In the case of these premises, however, it would appear that the premises the standard rent of which would have to be taken into consideration by the Controller would be the larger premises and the Controller would be entitled to determine the standard rent of the smaller premises let out by the landlord to the tenant or by the tenant to the sub-tenant with reference to the same, the standard rent of the larger premises being the rent thereof as laid down in s. 4(4)(a), (b) and (c) of the Act. In all these cases, the respondent would have jurisdiction to determine the standard rent of the premises only if the standard rent exceed Rs. 80 per month, that being the condition of the applicability, of Part II of the Act as laid down in s. 3 thereof. Based on these sections, therefore, the preliminary objections which the Advocate General urged were that it was necessary for the petitioner in his petition to state what was the position of the premises, whether they were let on September 1, 1940, whether, if not so, they were let before September 1, 1940, or they were let first after September 1, 1940, and what were the standard rents of the premises before he could submit that the respondent had no jurisdiction to entertain the application dated November 21, 1945. The petitioners did not state any of these necessary facts, but only stated in paragraph 11 of their petition:
“that the respondent has no jurisdiction to entertain the applications of the said several persons inasmuch as admittedly the rent payable by them except Khodadad R. Irani did not exceed Rs. 80 per month.”
This statement was not a statement that the standard rent of these premises did not exceed Rs. 80 per month. It was only a statement with reference to the rent payable by those parties. The Advocate General therefore contended that the petition did not disclose any cause of action. He further contended that in an application for the issue of a writ of certiorari or prohibition which were high prerogative writs, it was incumbent on the petitioners to state all material facts, and if the petitioners were guilty of suppression or non-statement of material facts, the petition could not be maintained. He submitted that the facts which I have mentioned earlier as necessary to be Stated in order to maintain the petition not having been stated by the petitioners in their petition, it amounted to a suppression or non-statement of material facts, which, apart from his objection that the petition discloses no cause of action, was fatal to the petition on this second ground also. In support of this objection of his the Advocate General relied on the case of Rex v. Kensington Income Tax Commissioners; Princess Edmond de Polignac, ex parte. The headnote in that case runs as under:
“If on the argument showing cause against a rule nisi the Court comes to the conclusion that the rule was granted upon an affidavit which was not candid and did not fairly state the facts, but stated them in such a way as to mislead and deceive the Court, there is power inherent in the Court, in order to protect itself and prevent an abuse of its process, to discharge the rule nisi and refuse to proceed further with the examination of the merits;”
The Advocate General drew my attention to a passage from the judgment of Lord Cozens Hardy M.R (p. 505);
“……on an ex parte application uberrima fides is required, and unless that can be established, if there is anything like deception practised on the Court, the Court ought not to go into the merits of the case, but simply say. ‘We will not listen to your application because of what you have done’”.
He also drew my attention to another passage from the judgment of Scrutton L.J (p. 514):
“……it has been for many years the rule of the Court and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts—facts, not law. He must not mistake the law if he can help it—the Court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the Court will set aside any action which it has taken on the faith of the imperfect statement.”
It is significant to note that it was only when the first petitioner came to make his affidavit in rejoinder that in paragraph 9 thereof he stated when replying to what had been stated by the respondent as regards S.B Tata having occupied the whole of the premises at a rental of Rs. 120 per month, that S.B Tata was only the occupant of one shop, that it had always been in the same condition as before and that the godown adjoining the said shop was divided by the petitioners in four compartments after S.B Tata vacated the premises. Even there the petitioners did not Vouchsafe the full information which was required to be given by them in order to sustain their various contentions and submissions in the petition.
Mr. Banaji for the petitioners recognised the force of these contentions of the Advocate General and the only thing which he could say in defence of what the petitioners had done was that though not expressly but by necessary implication the position could only be that the standard rent of the premises was less than Rs. 80 per month. He submitted that the applicants who were admittedly paying rents at the rate of Rs. 80, Rs. 35, Rs. 80 and Rs. 80 (except Khodadad R. Irani who was paying Rs. 115 per month) could never have gone to the respondent to fix the standard rent of the premises respectively in their occupation unless and until their contention was that the standard rents of the premises were less than Rs. 80 per month. He therefore submitted that admittedly the standard rents of the-premises were less than Rs. 80 even though it was not so expressly stated by the petitioners in their petition. He further submitted that even though the Court came to the conclusion that there was a defect in the petition in so far as these facts were not stated by the petitioners therein the omission to state those facts was not intentional or with a view to mislead or deceive the Court but was merely accidental and unintentional. He therefore applied for leave to amend the petition in terms of the draft, Ex. A, by stating that the standard rent of the premises in the occupation of each of the four occupants Sakhavat Hussein; Messrs Friendly Stores, Rameshchandra & Co. and Tukaram Tavde was less than Rs. 80 per month. The Advocate General opposed this application of Mr. Banaji. He contended that the petition was bad as it stood and was liable to be dismissed and the only effect of the Court granting the amendment would be to put a fresh petition on file with the proper averments contained therein. He therefore submitted that if the Court was inclined to grant the amendment applied for by Mr. Banaji, it should be on terms that all the costs of the petition up to the date of the application for amendment should be ordered to be paid by the petitioners to the respondent.
On a reading of the relevant sections of the Act hereinbefore set out, I am of opinion that the facts which I have mentioned above were material facts which required to be stated by the petitioners in the petition before they could base any contentions or submissions thereon and before they would be entitled to any of the reliefs prayed for by them in their petition. In the absence of those material facts the petition was defective and the preliminary objection urged by the Advocate General that the petition discloses no cause of action was a good one. It was essential for the petitioners to state in their petition what was the position of the premises on September 1, 1940, whether they were let out on September 1, 1940, whether, if not so, they were let out before September 1, 1940, or were first let out after September 1, 1940, and what was the standard, rent of the premises within the meaning of the definition thereof in s. 4(4) of the Act. It was not sufficient merely to state that the rent payable by the applicants was below Rs. 80 per month. That averment kept open the question as to what were the premises of which the standard rent had got to be taken into consideration by the respondent and what was the standard rent of those premises. In the absence of the necessary averments in this behalf, the petition was certainly defective. The amendment, which was applied for by Mr. Banaji did seek to cure that defect to a certain extent, in so far as it stated that the standard rent of the premises in the occupation of each of the said applicants was less than Rs. 80 per month. Even though this amendment did not go as far as it should in the matter of stating the other material facts which I have mentioned above, no further objection was urged by the Advocate General as regards the petition as amended not disclosing a cause of action, and even though I would have been inclined to entertain such an objection if taken by the Advocate General, I do not think it under the circumstances necessary to entertain such objection any further. Mr. Banaji did not dispute the proposition laid down in Rex v. Kensington Income Tax Commissioners, but drew my attention to a passage from the judgment of Low J. therein at p. 498, where the learned Judge observed that “the statements made in the affidavit on which the rule nisi was granted were very far from being honest and candid.” He submitted that whatever may be said of the petitioners, in this petition, it could not be said that the suppression or non-statement of material facts was the result of any deliberate intention on their part to mislead or deceive the Court or that their attitude was “not honest and candid.” I accept that position which was submitted before me by Mr. Banaji. I do not think that the suppression or the non-statement of material facts in the petition was due to any intention on the part of the petitioners to mislead or deceive the Court. It was a result of inadvertence or want of appreciation of the true legal position on the part of their legal advisers, and under the circumstances I am not inclined to inflict on the petitioners the dire consequences which are laid down in the judgment of the Appeal Court in Rex v. Kensington Income Tax Commissioners. I, therefore, grant the amendment which has been applied for by Mr. Banaji. In so far, however, as I am of opinion that the petition but for the amendment is defective and is liable to be dismissed, I would allow the amendment on terms that the petitioners do pay to the respondent the costs of the petition incurred up to November 13, 1946, which is the date on which the application for amendment was made by Mr. Banaji.
The further preliminary objection which was taken by the Advocate General was that the Act provides an appeal from the decision of the respondent, that an adequate remedy therefore exists and that the Court should not grant any writ of certiorari to the petitioners. In my opinion this can hardly be stated to be a preliminary objection. It is an objection on the merits. It amounts to this that even though all the facts which are mentioned in the petition be treated as correct, the Court should not grant a writ of certiorari as prayed for by the petitioners because an adequate remedy being available to the petitioners there is no case for the grant of a writ of certiorari. It may, however, be treated as a demurrer, a sort of preliminary objection which can be urged by the respondent and I shall deal with it as such. In support of this objection of his Advocate General relied upon the provisions of s. 14 of the Act which provided that:
“(1) Any person aggrieved by an order passed by the Controller, under the provisions of this Part (including an order granting a certificate under the proviso to sub-s. (1) of section 9), may, within fifteen days from the date on which the order is communicated to him, present an appeal in writing to the Collector.
(2) The Collector shall then call for the record of the Controller and after examining the record and after making such further inquiry as he thinks fit, either personally or through the Controller, shall decide the appeal.
(3) The decision of the Collector, and subject only to such decision, the order of the Controller shall, for the purposes of this Part, be final; and no Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Part required to be settled, decided or dealt with by the Controller and Collector.”
He submitted that a right of appeal to the Collector was provided against the decision of the respondent, that in the case of an adverse decision being reached by the respondent the petitioners were entitled under the provisions of this section to file an appeal before the Collector, and that was an adequate remedy provided by the Act itself to the petitioners. In this connection he drew my attention to a decision of the Madras High Court in Ranganathan v. Krishnayya, where it is laid down (p. 506):
“It is not the practice of the Madras High Court to issue a prerogative writ where there is another remedy open to the party.”
In that case under the provisions of the Madras Town Planning Act, 1920, there was another remedy open to the owner by way of appeal under s. 29 of the Act which provided a right of appeal from a decision of the arbitrator falling under cl. (d) of s. 27(i) of the Act. That provision as regards the appeal was considered sufficient by the Court to disentitle the applicant to the issue of a prerogative writ by the Court. He also drew my attention to a decision of our Appeal Court in Khurshed Mody v. Rent Controller, Bombay, where it has been held:
“The High Court is ordinarily very loath to issue the high prerogative writ of certiorari, if there is another suitable remedy open to the petitioner, as for instance a right of appeal, unless it is satisfied that the Court or the officer against whom the writ is sought has acted in a manner which is contrary to the fundamental principles of justice.”
In that case the petitioner had asked for the issue of a writ of certiorari to quash the order of the Rent Controller and Kania J. before whom the petition came for hearing had held that under the Act an appeal lay and that merely on the contention that the Controller had no jurisdiction, it was not proper for the Court to issue the writ of certiorari. The Appeal Court consisting of Stone C.J and Chagla J. dismissed the appeal on the ground that the Controller had jurisdiction to make the order complained against. They stated that in view of their decision on that point, it was really unnecessary to consider the other points urged at the Bar, but as the points were of some importance and as they were argued at some length and as they formed the basis of the learned Judge's judgment, they dealt with those points also. The determination of the Appeal Court on these points was therefore, clearly obiter. The appeal Court, however, after reviewing the authorities which were cited before them, expressed their view that (p. 569):
“The true position seems to be that if there is another suitable remedy as, for instance, a right of appeal, then the Court would be very loath to issue the high prerogative writ of certiorari unless it is satisfied that the Court or the officer against whom the writ is sought has acted in a mariner which is contrary to the fundamental principles of justice.”
They disagreed with the view of Kania J. that merely because there was a right of appeal the Court would not issue a writ of certiorari. The Advocate General contended that in the petition before me there was no allegation at all that the Controller was acting in any way which was contrary to the fundamental principles of justice, and therefore even on the basis of this judgment of the Appeal Court there was no case for the issue of a writ of certiorari against the respondent. The Advocate General invited me to go to the length of accepting the statement of the law as laid down in Ranganathan v. Krishnayya and the judgment of Kania J. in Khurshed Mody v. Rent Controller, Bombay, and not to be bound by the obiter of the Appeal Court. I am, however, not inclined at this stage to go into the question in any great detail and discuss on my own the various cases which were reviewed by the Appeal Court in Khurshed Mody v. Rent Controller, Bombay, in arriving at the conclusion which they did.
An obiter of the Appeal Court, even though would attach considerable weight to the same, is not necessarily binding on me, and if the circumstances of the case warranted the same, I would have certainly reviewed the cases all on my own and have come to a definite conclusion one way or the other on this aspect of the case. In so far however as the petitioners have not made any allegations in their petition that the respondent has acted in any way contrary to the fundamental principles of justice, I refrain from considering this aspect of the case in any detail and will content myself with observing that I leave the point open for decision if any future occasion arises. I must, however, observe that even though at one time the opinion was held that although the writ is not of course it will nevertheless be granted ex debito justifies to quash proceedings which the Court has power to quash, where it is shown that the Court below has acted without jurisdiction or in excess of jurisdiction, if the application is made by an aggrieved party and not merely by one of the public, (vide Halsbury's Laws of England, Hailsham Edition, Vol. IX, page 878, art. 1481), the trend of authorities recently has been to hold that the fact of there being a remedy by way of an appeal is no answer to a writ of prohibition where the want of jurisdiction complained of is based upon the breach of fundamental principles of justice. There is plenty of authority for the proposition that in such cases prohibition will lie notwithstanding that there is a right of appeal. This latter proposition is based on the case of Rex v. North: Oakey, Ex parte. To the same effect are also the observations in Note (r) at page 822 of Halsbury's Laws of England, Vol. IX, where it is stated:
“The fact of there being a remedy by way of appeal is no answer to a writ of prohibition, where the want of jurisdiction complained of is based upon the breach of a fundamental principle of justice. But unless the error involves the doing of something which is contrary to the general law of the land, or is so vicious as to violate some fundamental principle of justice, the Court will not, it seems, grant a writ of prohibition, if the applicant has an alternative remedy by way of appeal.”
On principle there is no difference between a writ of certiorari and a writ of prohibition, and these observations hold equally good in the case of a writ of certiorari as in the case of a writ of prohibition. Mr. Banaji for the petitioners did not contest these propositions, but relied upon the passage in Halsbury's Laws of England, Hailsham Edition, Vol. IX, at p. 822:
“The Court, in deciding whether or not to grant a writ of prohibition, will not be fettered by the fact that an alternative remedy exists to correct the absence or excess of jurisdiction, or an appeal lies against such absence or excess.”
He contended that these were immaterial objections to issue of a writ and the Court had jurisdiction nonetheless to issue a writ of certiorari or prohibition if the facts of the particular case warranted the issue of such a writ.
There is no doubt that apart from the trend of recent authorities the position in law as it was conceived at one time was that the writ could be issued to quash proceedings where it was shown that the Court below had acted without jurisdiction or in excess of jurisdiction, irrespective of the fact whether there was a remedy by way of appeal available to the petitioner. As I have already stated, that point is, so far as our Court is concerned, not finally decided. Even if that were the true position in law contrary to the obiter of the Appeal Court in Khurshed Mody v. Rent Controller, Bombay, the petitioners would not necessarily be out of Court. The right of appeal which is granted under s. 14 of the Act is available only in those cases where Part II of the Act applies. If by virtue of the operation of s. 3 of the Act Part II of the Act did not come into operation at all there will be no question of the right of appeal being available to the petitioners, Part II of the Act not applying at all, the provision for appeal made in s. 14 of the Act would not be of any avail to the petitioners nor could it be trotted out against the petitioners as disentitling them to a writ of certiorari or prohibition as the case may be. This to my mind is the real answer to this objection of the Advocate General. No doubt if I accept the obiter of the Appeal Court in Khurshed Mody v. Rent Controller, Bombay, there being no allegation that the respondent has acted in a manner contrary to the fundamental principles of justice, the right of appeal which is provided in s. 14 of the Act would come in their way. Even here the existence of the right of appeal being conditional on Part, II of the Act applying to the facts of this particular case, the petitioners would be entitled to submit that there being no right of appeal there was no question of the writ of certiorari or prohibition as the case may be not being granted to them even in the absence of any averment that respondent had acted in a manner contrary to the fundamental principles of justice. This, in my opinion, would be an answer to the preliminary objection of the Advocate General on either point of view, Whether the position in law as laid down in the passage from Halsbury's Laws of England, Hailsham Edition, Vol. IX, p. 822, sited above and adopted by Kania J. was correct or the position as adopted in the obiter by the Appeal Court in Khurshed Mody v. Rent Controller, Bombay, was correct: This objection of the Advocate General therefore, fails.
A further preliminary objection was taken by the Advocate General that the Court should not interfere by certiorari in matters which the Court itself would have no jurisdiction to try. He relied in this connection on a passage from Halsbury's Laws of England, Hailsham Edn., Vol. IX, p. 854, s. 1446:
“The writ can only be issued in respect of matters which are within the jurisdiction of the High Court of Justice; for proceedings will not be removed into the superior court unless they are capable of being determined there.”
He also relied upon s. 14(3) of the Act where it is laid down:
“And no Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Part required to be settled, decided or dealt with by the Controller and Collector.”
He submitted that in respect of these proceedings the High Court had no jurisdiction to determine the matters in dispute between the petitioners and the applicants and therefore the Court should not interfere by issuing a writ of certiorari. He also relied upon two cases, Longbottom v. Longbottom and Bruce v. Wait, which are cited in support of that proposition in Note (d) in Halsbury's Laws of England, Hailsham Edn., Vol. IX, p. 854. It is to be observed, however, that this passage which is relied upon by the Advocate General is under sub-s. (3) in Halsbury's Laws of England, Vol. IX, page 851, under the caption. “To what Courts the Writ of Certiorari, may issue.” The Writ of certiorari, as I have already held in Juggilal Kamlapat v. Collector of Bombay, issues not only against the inferior Courts as they are styled (p. 1089):
“……whenever any body of persons having legal authority to determine questions affecting the rights of subjects and having a duty to act judicially act in excess of their legal authority, they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs. This jurisdiction to issue writs of certiorari and prohibition was invested in the Supreme Court of Judicature at Bombay, from whom it was inherited by the High Court of Bombay……”
If this contention of the Advocate General was correct, the Court would have no jurisdiction to issue a writ of certiorari against either the Rent Controller or the Collector of Bombay who by no means can be stated to be inferior Courts within the strict meaning of that term. They are, however, tribunals or competent authorities having power by their determination within jurisdiction to impose liability or affect the rights of others. They are persons having legal authority to determine questions affecting rights of subjects and having a duty to act judicially, and therefore are within the category of persons subject to the controlling jurisdiction of the King's Bench Division exercising those rights.
It was also held by me in that case (p. 1088):
“……the tribunal or competent authority should have power by its determination within jurisdiction to impose liability or affect the rights of others,……it must exercise some right or duty to decide, and……the act should be done by it upon consideration of facts and circumstances and imposing liability or affecting the rights of others……the phrase ‘judicial act’ must, therefore, be taken in a very wide sense including many acts that would not ordinarily be termed judicial……the procedure of certiorari applies in many cases in which the bodies whose acts are criticised would not ordinarily be called Courts nor the acts ordinarily be termed judicial acts.”
This is sufficient to deal with this objection of the Advocate General. The cases which were cited by him and which have been mentioned by me above were cases of inferior Courts and there the writs of certiorari which were sought to be issued were to call for the record of the proceedings before the inferior Courts and look into the same which the superior Court could not do if it had no jurisdiction to determine the particular class of cases. The passage which has been cited by the Advocate General has application, if at all, to those cases where the writ of certiorari is sought to be issued against an inferior Court of record. It cannot have any application where the writ of certiorari is sought to be issued against persons or bodies of persons who would not ordinarily be called Courts but have legal authority to determine questions affecting the rights of subjects and have a duty to act judicially. Mr. Banaji drew my attention to the passage in Halsbury's Laws of England, Hailsham Edition, Vol. IX, p. 855, s. 1449, which is the very passage which I relied upon in my judgment in Juggilal Kamlapat v. Collector of Bombay and which has been referred to by me above. On a consideration of this preliminary objection urged by the Advocate General I am of opinion that it has no substance and I overrule the same.
I shall now proceed to discuss the position on the merits of the petition. As I have already stated the applicants sent their application to the respondent on November 21, 1945, in which they contended that the shop galas Nos. 10, 11, 12, 13 and 14 which they were occupying formed one single tenement in September 1940, that the rent charged, for that single tenement which was let to S.B Tata was Rs. 120 per month which was the standard rent of the said tenement, that the landlords, with a view to circumvent the provisions of the law, got the tenement divided by temporary (katcha) wooden partitions into live tenements conveniently and had been charging Rs. 80, Rs. 35, Rs. 80, Rs. 80 and Rs. 115 respectively for the same. This was their complaint. Their contention therefore came to this that there were certain premises which were let at one time as a whole and at another time in parts, that the standard rent of the larger premises which were let at one time as a whole was Rs. 120 per month, that the said premises having been at another time let in parts, it was competent to the respondent to fix the standard rent of those smaller premises at such amount as having regard to the provisions of Part II of the Act and the circumstances of the case he deemed just. The application was thus an application within the purview of s. 13(b) of the Act. If these were the allegations in the application made before him, the larger premises were really premises of which the standard rent exceeded Rs. 80 per month, the standard rent according to the applicants having been Rs. 120 per month, viz. rent at which they were let on September 1, 1940, to S.B Tata. On these allegations I have no doubt that the respondent had jurisdiction to entertain the application. The terms of s. 13(b) were specifically brought into operation and the jurisdiction which is vested in the respondent under s. 13(b) of the Act was invoked. It was open to the petitioners then to appear before the respondent and urge what they had got to say in answer to the application. It was not an application in which all the individual applicants wanted to have the standard rent fixed in respect of certain premises which had been let out on September 1, 1940, or not having been so let out had been let out earlier than September 1, 1940. The petitioners have in fact admitted, apart from the contentions which they raised as regards the premises occupied by S.B Tata on September 1, 1940, being the only premises occupied by him and having been the subject-matter of the rent bills which were issued by the former landlords as also by themselves to S.B Tata, that the godown which was adjoining the shop which had been let out to S.B Tata had been divided by them into compartments which were subsequently let out by them to the occupants of the shops Nos. 10, 11, 12 and 13. Under these circumstances a question did arise for determination by the respondent whether the premises which were let out on September 1, 1940, were the premises which were at that time let out as a whole but were later on sub-divided and let out in parts or whether those were the premises which were the premises let ultimately to Khodadad R. Irani at a rental of Rs. 115 per month. It may be noted in passing that if the contentions of the petitioners in that behalf were correct, and S.B Tata had been paying a sum of Rs. 120 per month for only those premises which are now occupied by Khodadad R. Irani, the petitioners let out those premises to Khodadad R. Irani on September 1, 1943, at a rental of Rs. 115 per month. How the petitioners came to be charitable enough to reduce the standard rent of those premises from Rs. 120 per month to Rs. 115 per month is a mystery which it is not easy to solve in the absence of any materials placed before me in that behalf. If at all this circumstance points to anything, it points to this that the premises which were let to S.B Tata could not have been occupied by Khodadad R. Irani and the premises which were let out to S.B Tata by the previous landlords and by the petitioners thereafter must certainly have been larger in area—how much larger, again, is a mystery which it is not, in the absence of materials before me, easy to solve—than the premises let out now to Khodadad R. Irani. If those were the circumstances, the operation of s. 13(b) of the Act was certainly invited. The respondent had jurisdiction to determine the rent of the premises occupied by the applicants having particular regard to the standard rent of the premises as they had been let at one time as a whole to S.B Tata at a rental of Rs. 120 per month which was the standard rent of those premises and it could not be contended that the respondent had no jurisdiction to entertain the application.
It was sought to be argued on behalf of the petitioners that the respondent had no jurisdiction to determine the question as to whether the premises were at one time let out as a whole and then let out in parts as was sought to be contended by the applicants. This contention reminds one of the contention which is usually urged in the matter of arbitrations, viz. that the arbitrators have no jurisdiction to determine the question as to the factum or the validity of the contract which contains the arbitration clause and thus to assume jurisdiction to arbitrate in the dispute between the parties by a decision arrived at by themselves. It is to be noted however that the arbitrators have no jurisdiction to entertain any disputes between the parties and to enter upon any reference unless there is a valid contract which has been entered into between the parties and which contains an arbitration clause. The factum and the validity of the contract are the essential conditions precedent to the arbitrators having any jurisdiction, and it is a well recognised principle of law that the arbitrators cannot assume jurisdiction unto themselves by adjudicating upon the factum or the validity of the contract where the same is disputed. The jurisdiction of the Rent Controller, on the other hand, is not a jurisdiction which rests merely upon any agreement between the parties. It is a statutory jurisdiction which is vested in the Rent Controller by the terms of the Act itself. A regular tribunal is established by the Act which functions in those cases where the standard rent of the premises as laid down in s. 3 of the Act exceeds Rs. 80 per month. The tribunal owes its existence to the Act and not to any act of the parties, and it has therefore, jurisdiction to determine what are the cases which fall within its jurisdiction. If there is any dispute which arises between the parties as to whether the particular application falls within the jurisdiction of the tribunal, it is the tribunal which is competent to decide that dispute and determine whether the particular matter falls within its jurisdiction. If the tribunal decided it wrongly, there is an appeal provided against its decision. It cannot, therefore, be contended, as the petitioners have done, that the respondent has no jurisdiction to determine the question as to whether the premises were at one time let out as a whole and then let out in parts as contended by the applicants.
Under the circumstances set out above I have come to the conclusion that the respondent had jurisdiction to entertain the application and to determine the various questions which were raised in that application. I, therefore, do not accept the contention of the petitioners that the respondent assumed to himself jurisdiction which in law he did not possess or was otherwise acting illegally and against the express provisions of law which it was incumbent upon him to follow.
The same is my conclusion as regards the other question which has been mooted by the petitioners, viz. that Tukaram Tavde is not their tenant at all but merely a licensee in occupation of the front part of shop No. 11 by leave and license of the petitioners and without any rent. The respondent would certainly have jurisdiction to determine whether Tukaram Tavde was a tenant or was a mere licensee of the petitioners, that question being also a question which would have to be determined by him within the ambit of s. 13(b) of the. Act. It is not only in cases where the parties agree or it is admitted that the premises were at one time let out as a whole and were let out in parts at another time that the respondent would have jurisdiction to entertain the application. The respondent would: have jurisdiction to entertain the application where that was the allegation in the application and had to be determined by him, having regard to the provisions of Part II of the Act. To hold otherwise would be to put a premium on dishonesty. It would merely suffice in that event for the landlord to dispute that the premises were at one time let out as a whole and at another time let out in parts or to dispute that the applicants were the tenants of his and thus oust the jurisdiction of the Rent Controller which otherwise he would have under s. 13(b) of the Act.
There remains only one further point to be determined and it is that the respondent having already dismissed the applications of Khodadad R. Irani and Messrs Friendly Stores on January 3, 1944, and no appeal having been filed by them against the said decision, the respondent was not entitled to entertain a fresh application in respect of the same subject-matter, and that having regard to the law for the time being in force he was barred from entertaining any application on behalf of the applicants and exercise jurisdiction over the same. This is in effect a plea of res judicata. No doubt the principles of res judicata as such have no application to the facts of this case. But the Court would certainly be guided by principles analogous to res judicata in matters of this type. If the respondent had in fact after going into all the matters and evidence before him come to the conclusion in that earlier application of the applicants Khodadad R. Irani and Messrs Friendly Stores that he had no jurisdiction to entertain the applications of those parties, it would certainly not be open to the respondent to go into the same matter over again. The Court should not countenance any harassment of the parties at the instance of litigants who would flood the tribunal with applications one after the other, even though the tribunal had pronounced adversely to them. The facts of this case, however, do not warrant any such position. The respondent has definitely stated in para 12 of his affidavit that at that time he had no sufficient materials to show that the rent, meaning thereby the standard rent, of the premises occupied by the then applicants exceeded Rs. 80 per month or that they were parts of the larger premises occupied and let as a whole and subsequently sub-divided, and therefore did not think that he was in a position to proceed with the said applications. This was an attitude perfectly in consonance with law. The respondent would have had no jurisdiction unless the facts were either alleged or proved that the premises were let out at one time as a whole and were let out at another time in parts or that the standard rent of the premises, meaning thereby larger premises in the sense which I have referred to before, exceeded Rs. 80 per month. The respondent did not go into the merits of that application at all at that time and declined to go into the same in the absence of any materials furnished to him which would enable him to come to any conclusion one way or the other on that application. The application therefore can be stated to have been dismissed not on the merits but by default and that certainly cannot be res judicata even though the principles of res judicata which are enunciated in s. 11 of the Civil Procedure Code be strictly applied to the facts of the case. There is also a further difficulty which the petitioners have to face in this behalf. A point as to res judicata is one which does not go to the root of jurisdiction. The tribunal may have and can have jurisdiction to determine the disputes between the parties. Nonetheless it may be barred from entertaining certain points of dispute or issues between the parties as being barred by res judicata. Whether the particular point in dispute or issue is res judicata or not lies to be determined by the tribunal itself. A wrong decision by the tribunal as to a certain point of dispute or issue being res judicata does not oust the jurisdiction of the tribunal. It only amounts to a wrong decision on a point which falls to be determined by the tribunal itself. A tribunal which has jurisdiction to decide a particular matter is entitled to decide it rightly or wrongly, and if it decides it wrongly, the proper remedy is by way of an appeal against that decision and not by way of challenging the jurisdiction of the tribunal itself. This, in my opinion, is the correct position as regards this point of res judicata which has been urged by the petitioners. As I have already held, the respondent had jurisdiction to entertain this application, and whether the particular dispute or issue between the parties or some of them was res judicata or not fell to be determined by the respondent himself. If he decided the point wrongly, s. 14 of the Act provided an appeal against the decision of the respondent, and it was open, after the whole case was over, to the petitioners to have filed an appeal to the Collector against that decision of the respondent. It was certainly not competent to the petitioners to urge, as they have done before me, that a wrong decision on the point of res judicata, even if it could be conclusively, demonstrated before me to be a wrong decision could ever oust the jurisdiction of the respondent. In my opinion, therefore, this contention of the petitioners also fails.
Under the circumstances mentioned above, I am of opinion that the petition is entirely misconceived, that the contentions of the petitioners that the respondent assumed to himself jurisdiction which in law he did not possess and was otherwise acting illegally and against the express provisions of law which it was incumbent upon him to follow are absolutely unsound, and the petition is liable to be dismissed. I accordingly dismiss the petition with costs. The rule will be discharged.
Attorneys for petitioners: Malvi, Ranchhoddas & Co.
Attorneys for respondent: Little & Co.
A.J.P
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