IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No 720 of 1979 For Approval and Signature: Hon'ble MR.JUSTICE K.M.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : YES Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- HEIRS OF BHIL KANJI BHAGWAN LAXMIBEN KANJI Versus BHIL KARSAN BIJAL -------------------------------------------------------------- Appearance: 1. Civil Revision Application No. 720 of 1979 MR SURESH M SHAH for Petitioner No. 1-3 MR PV HATHI with MR DK MEHTA for Respondent No. 1,3-4 RULE SERVED for Respondent No. 1/1-1/9 DELETED for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE K.M.MEHTA Date of decision:7/08/2003 C.A.V. JUDGEMENT 1. Bhil Kanji Bhagwan, petitioner - original defendant since deceased through his heirs and legal representatives have filed this Civil Revision Application under Section 29 of the Bombay Rent Act, challenging the judgment and decree dated 30th April, 1979, passed by the learned District Judge, Rajkot, in Civil Appeal No.109 of 1978. The learned Judge by his impugned judgment was pleased to allow the appeal and was pleased to quash and set aside the judgment and decree dated 31st August, 1978, passed by the learned Jt.Civil Judge(J.D.), Rajkot, in Regular Civil Suit No.886 of 1975 filed by original plaintiff Karsan Bijal and others respondents herein. 2. The facts giving rise to this Civil Revision Application are as under: 2.1 Karsan Bijal and others - plaintiffs (respondent No.1 in the petition since deceased through his legal heirs and representatives) had given the suit premises situated at Juna Bhilwas, Sheri No.7, Near Jansatta Press at Rajkot (hereinafter referred to as `the suit premises') on lease to the defendant Kanji Bhagwan (since died during the pendency of the proceedings now through his legal heirs and representatives) for monthly rent at Rs.9.00/-. 2.2 It is a case of the plaintiff that plaintiff No.1 is the owner and rent collector of the suit premises. As the defendant had paid the rent only upto 31st December, 1970, and thereafter from 1.1.1971 the defendant failed and neglect to make the payment of rent, the plaintiffs were constrained to address a notice to the defendant dated 16.9.74 (Exh.21). In the said notice it was alleged that the defendant has not paid the rent from 1.1.1971 to 31.8.1974 i.e. for 44 months for which he has not paid the rent of Rs.396/-. The defendant did not reply to the said notice and ultimately the plaintiff Bhil Karsan Bijal filed a suit on 1st September, 1975, on the ground of the arrears of rent and acquiring the suitable premises at Jamnagar. 2.3 The plaintiffs - respondents herein filed a suit against the defendant on the ground of non-user of the premises also. In the said suit also the plaintiffs claimed rent from 1.1.1971 to 31.10.1974 for total 46 months amounting to total Rs.414/-, mesne profits since 1.11.74 to 31.7.75 for 9 months i.e. Rs.81/-. In all Rs.510/- claimed by the plaintiff. 2.4 The defendant replied to the said suit by filing written statement at Exh.9. In the said written statement it was stated that originally the defendant occupying the suit premises since 1954 and at that time the monthly rent was Rs.7/- and thereafter the monthly rent was increased to Rs.9/-. The defendant stated that he was ready and willing to pay the rent but the plaintiffs have not accepted the same. The said written statement was filed on 15th January, 1976. 2.4(A) Thereafter the learned trial Judge has framed the following issues: (1) Whether the plaintiffs prove that the defendant is in arrears of rent for six months or more and that he has neglected or refused to pay the same within one month of receipt of suit notice? (2) What is the standard rent of the suit premises? (3) What is due and whether any part of it is time barred? (4) Whether the suit notice is legal and valid? (5) Whether the defendant has acquired or been allotted? (6) Whether the suit is bad for non-joinder of necessary parties? (7) Whether the plaintiffs are entitled to eviction decree? (8) Whether the plaintiffs are entitled to running mesne profits? (9) What order and decree? 2.5 Before the trial court, the plaintiff examined himself namely Shri Karsan Bijal at Exh.15. In his evidence he has stated that his father had died and from that onwards he is the owner of the premises. the defendants are the tenants of the suit premises at the monthly rent of Rs.9/- p.m. Initially his father was collecting the rent and after the death of his father he is collecting the rent. The plaintiff has stated that defendant has paid the rent upto 31st December 1970, thereafter he has not paid the rent. In this behalf he has also addressed a notice to the defendant. 2.6 On behalf of the plaintiffs, the plaintiffs have produced the following documentary evidence: (1) Heirship Certificate dated 26.12.77 at Exh.16. (2) Counter Foil of rent receipt dated 8.1.71 at Exh.17. (3) Counter Foil of rent receipt dated 2.11.70 at Exh.18. (4) Counter Foil of rent receipt dated 12.11.70 at Exh.19. (5) Postal A.D. receipt dated 18.9.74 at Exh.20. (6) Suit notice dated 16.9.74 at Exh.21 and (7) Empty envelope at Exh.22. 2.7 On behalf of the defendant, the defendant has not produced any documentary evidence. However, he has relied upon the oral evidence namely: (1) The first witness Shri Kanjibhai Bhagwandas at Exh.26, who is the defendant in the suit. He has stated that he is residing in the premises since September 1954 and rent is Rs.9/-p.m. He has admitted that he has paid the rent upto March 1971 and thereafter he has paid the rent before the trial court. (2) The second witness Shri Maganbhai Bhanjibhai at Exh.30 who is the neighbour of the defendant. He has stated that the defendant is residing in the suit premises. (3) The third witness Shri Jagdish Kanjibhai at Exh.31. He has stated that his father has received the suit notice in this behalf. 2.8 After considering the evidence on record the learned trial Judge came to the conclusion that original rent of defendant was Rs.7/- p.m. but the defendant requested to arrange for proper covering of roof tiles, by tiler every year and defendant himself offered to pay the rent of Rs.9/p.m. instead of Rs.7/- which the plaintiff accepted and since then the rent was increased to Rs.9/- from Rs.7/p.m. Even defendant in his evidence also stated that previous rent was Rs.7/- p.m. In view of this fact the learned trial Judge held that the original rent of the suit premises was Rs.7/- p.m. However, so far as house tax and education cess is concerned, the plaintiff has not deposed anything. The learned trial Judge has also held that the the liability of house tax is not on tenant. However, the law imposes the liability upon either landlord or tenant, as the case may be, so far as the education cess is concerned, as per Sec.19 of the Gujarat Education Cess Act 1962, in absence of any contract to contrary, prior to 1.4.70 the full education cess was leviable from occupier i.e. the tenant, and after 1.4.70 half from landlord and half from the tenant. The learned trial Judge has held that the defendant is liable to pay half the leviable education cess and has fixed the standard rent of the suit premises Rs.7/- p.m. exclusive of half leviable education cess. 2.9 After considering evidence on record the learned trial Judge held that the rent was due from 1.1.1971 and it was due upto 31.8.1974. As the notice was duly served and yet the rent was not paid at all the learned trial Judge held that the plaintiffs prove that the defendant is in arrears of rent for six months or more after receipt of the suit notice and that defendant has neglected and refused to pay the same within one month of receipt of suit notice. The learned trial Judge further held that the statutory obligation of the defendant to pay due rent starts since the standard rent is fixed and in view of the same no part of rent is time barred in this behalf. The learned trial Judge has also held that amount of Rs.500/- are due and payable by the tenant to the landlord. The learned trial Judge has further held that the suit notice is legal and valid. 2.10 As regards acquiring suitable premises, the plaintiffs did not press the said issue and therefore the learned trial Judge has not decided the said issue. In view of the provisions of education cess and in view of the fact that the standard rent was fixed by the learned trial Judge in that very judgment, the learned trial Judge has held that the defendant is entitled to protection under Section 12(3)(b) of the Bombay Rent Act and plaintiffs were not entitled to eviction decree in this behalf. 2.11 As regards issue no.8 mesne profit it does not survive. As regards issue no.9 that suit of the plaintiff was partly allowed and partly dismissed namely suit for eviction decree is dismissed with costs. However the defendant to pay to the plaintiff a sum of Rs.500/with proportionate costs. The standard rent of the suit premises fixed at Rs.7/- exclusive of half leviable education cess. 2.12 Being aggrieved and dissatisfied with the said judgment and decree of the learned trial Judge, the original plaintiffs-landlord filed Civil Appeal No.109 of 1978 before the District Court at Rajkot on 28th September, 1978. In the appeal also notice was issued and ultimately matter was heard by the learned Judge. The learned Judge heard the arguments of both the sides and raised following points for determination: (1) Whether the learned trial Judge erred in dismissing the suit for possession? (2) What order? 2.13 The learned Judge thereafter considered the entire evidence on record and also provisions of education cess particularly Section 12(1)(a) of the Act. The learned Judge considered that as the standard rent Rs.7/- per month, the annual letting value of the suit premises would be Rs.84/-. He has stated that as per the provisions of the Education Cess Act, the education cess is required to be paid only if the annual letting value is more than Rs.100/- per annum. As in this case the annual letting value is only Rs.84/- which is less than Rs.100/-, the education cess is not required to be paid by the defendant in this behalf. The learned Judge held that the education cess is a permitted increase and forms part of the rent and is not payable monthly and therefore in case in which statutory liability of the tenant arises to pay education cess, the provisions of sec.12(3)(b) of the Bombay Rent Act are applicable. Even there is no evidence on record to show that original plaintiff had ever paid education cess for the suit premises, nor there was any contention for that and therefore the question of payment of education cess by plaintiff did not arise and, therefore, the provisions of Section 12(3)(a) are applicable as the rent is payable by month and rent was due for more than six months on the day of the notice, no dispute about standard rent was raised within one month from service of notice and legal notice terminating the tenancy was served. In view of the same, the learned Judge held that the learned trial Judge has, therefore, erred in holding that provisions of Section 12(3)(b) of the Bombay Rent Act are applicable. The learned Judge held that in this case the notice was given by the plaintiff for terminating the tenancy and dispute about the standard rent was not raised within the period of one month from the date of service of notice. As the defendant did not raise the said issue and therefore provisions of Section 12(3)(a) are applicable. The learned Judge also held that the amount of rent was not paid within one month from the date of service of the notice and therefore the tenant is liable to be evicted. In view of the same, the learned Judge was pleased to allow the appeal and was pleased to quash and set aside the judgment and decree of the trial court and directed to the respondent to hand over possession of the suit premises and further directed to the respondent to pay entire costs of the suit and bear his own costs. 3. Mr.S.M.Shah, learned counsel for the petitioner has invited my attention to the provisions of Order 41 Rule 31 of the Civil Procedure Code which provides as under: "Order 41 Appeals from Original Decrees : Rule 31. Contents, date and signature of judgment :- The judgment of the Appellate Court shall be in writing and shall state - (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein." 3.1 Thereafter he has invited my attention to the issues framed by the trial court and points for determination prepared by the Appellate Court. He, therefore, submitted that as the learned appellate Judge has not properly framed points for determination and only framed one issue and therefore the entire judgment of the appellate court is bad in law. 3.2 In support of the aforesaid submission, he has relied on the following contentions. First of all he submitted that the provisions of CPC are applicable to the rent act provisions and in support of the said submission he has relied on the Full Bench Judgment of this Court in the case of Prabhashankar Shankarlal Joshi and others Vs. Fulsinhji Kesharisinhji Parmar reported in 1984 GLH 662 particularly para 12 of the said judgment. 3.3 The learned advocate for the petitioner has relied upon judgment of the Bombay High Court in the case of Mhasu Bhauji Vs. Davalat Narayan and others reported in (1904) 7 Bombay Law Reporter 174. In that case if one closely examined the facts of the case it appears that the Bombay High Court has observed "dealing now with the finding of the District Judge on the issue, no doubt it appears at first sight a finding of fact because he holds on the strength of circumstances disclosed, in his opinion, by the evidence that defendant No.3 has been in adverse possession to as to extinguish the plaintiff's right as a mortgagee of defendant No.1. But the question of adverse possession is sometimes a mixed question of law and fact, and that it is so here, the District Judge's grounds for his findings are enough to show. He finds that the land has been held by Sampat, father of defendant No.2, and afterwards by defendant No.3 more than twelve years as owner "to the knowledge and acquiescence of the plaintiff." If by this is meant that the plaintiff stood by and encouraged Sampat in the belief that the land was not subject to his mortgage, there must be some evidence to show that. The District Judge does not refer to that, and the question of acquiescene is one of law. If, on the other hand, the District Judge meant that the plaintiff did nothing to assert his mortgage, then the question is - Did defendant No.3 repudiate the mortgage? That question is important in view of the District Judge's finding that defendant No.3 had notice of the plaintiff's mortgage. We think we must ask the District Judge to raise a distinct issue on the question of adverse possession and record a fresh finding as the present finding does not show that the District Judge clearly appreciated the law as to adverse possession applicable to such cases. 3.3(A) In view of the aforesaid observations, the Bombay High Court held that the issue raised by the learned District Judge was a very vague and general terms in which the District Judge has raised it in the present case and, therefore, the case was remanded back to the learned District Judge in this behalf. In that context the Bombay High Court observed that the appellate court to raise points for determination, is to clear up the pleadings and focus the attention of the Court and of the parties on the specific and rival contentions of the latter. 3.4 Learned counsel for the appellant has relied on the judgment of the Bombay High Court in the case of Smt.Anita M.Harretto vs. Abdul Wahid Sanaullah reported in AIR 1985 Bombay 98. In that case the Bombay High Court has stated the facts in para 16 and thereafter what are the requirements of Order 41 Rule 31 of the CPC and after relying upon the decision of Bombay High Court in the case of Mhasu v. Davalat reported in (1905) 7 Bom.LR 174 the Court observed as under: "The points which must arise for determination by a court of first appeal must cover all important questions involved in the case and they should not be general and vague. It is a matter of almost textbook knowledge that the exact questions which arise in the appeal and require determination must be stated in the judgment. "It is not sufficient to state the point to be determined in appeal whether or not the decision is consistent with the merits of the case." The point so stated is hardly a point for determination as contemplated in Order 41 Rule 31 of the Code." 3.5 He has also relied on the judgment of this Court in the case of Ismail Haji Mohammed Abrahani and Another Vs. The State of Bombay (Now Gujarat) reported in 7 GLR 208. 3.6 It may be noted that in that case i.e. Ismail Haji Mohammed Abrahani (supra), the learned District Judge under Order 41 Rule 11 was pleased to pass the following order: "Heard L.A. Shri Virani; Summarily dismissed under Order 41 Rule 11(1) Civil Procedure Code. L.A. Virani has argued all points raised in memo of appeal. 7th November 1958." 3.7 In that context the learned Judge in that case relied upon Rule 410 of Civil Manual on page 210 which reads as under: "Rule 410 :- When an appeal is dismissed summarily under Order XLI, rule 11 of the Civil Procedure Code, the Court shall record a brief judgment, stating the reasons for dismissal. A formal decree should also be drawn up in such a case." 3.8 In view of the same, it was held in Ismail case (supra) that the High Court has the authority under its powers of superintendence to make rules to be followed by the subordinate judiciary to ensure dispensation of justice in accordance with acknowledged principles of law and natural justice. The subordinate court is bound by such rules unless, as stated above, it is in direct conflict with any statutory provision or any rule made thereunder and in view of the same this Court ultimately allowed the second appeal filed by the appellant in this behalf. 3.8(A) Learned advocate for the petitioner stated that in judgment of Ismail case (supra) the court relied upon Rule 410 of Civil Manual and interpreted the said rule in that context. He has stated that now we have in Civil Manual Rule 414. As per the said rule the power and duties of the appellate court have been mentioned. He submitted that in view of Rule 414 of Civil Manual is concerned, this Court also considered Ismail's case (supra) and state that in this case the learned appellate Judge has not properly considered the facts of the case. Rule 414 of the Civil Manual is reads as follows: "Rule 414 The appellate court should frame suitable points for determination in appeals in accordance with the same principles on which issues are framed in the trial court." 3.9 Learned counsel has also relied on the recent judgment of the Apex Court in the case of Madhukar and others Vs. Sangram and others reported in AIR 2001 SC 2171 in para 8 on page 2172 it has been observed as under: "Our careful perusal of the judgment in the first appeal shows that it hopelessly fails short of considerations which are expected from the Court of first appeal. We, accordingly, set aside the impugned judgment and decree of the High Court and remand the first appeal to the High Court for its fresh disposal in accordance with law." 4. Mr.P.V.Hathi, learned advocate with Mr.D.K.Mehta, learned advocate for the respondents has invited my attention to the facts of the case particularly judgment of the trial court as well as of the appellate court. He has submitted that the trial court has considered all points but ultimately only one point framed as to whether the plaintiffs are entitled for possession or not. The trial court held that the suit falls within section 12(3)(b) of the Act and, therefore, the plaintiffs are not entitled for the possession whereas the appellate court held that when the standard rent of the suit premises fixed at Rs.7/-p.m. when the provisions of the education cess are not applicable and when the notice was issued and within one month from the service of notice the defendant did not reply to the notice and did not pay the amount of rent in question, the finding of the appellate court after considering the entire evidence on record came to the conclusion that Section 12(3)(a) applies and for that purpose the learned appellate Judge framed the issue whether the learned trial Judge has erred in dismissing the suit for possession was perfectly justified in framing the issue which cover the entire case of the plaintiff in this behalf. 4.1 Learned advocate for the respondents has submitted that the contention raised by the learned advocate for the applicant is that the appellate court has not framed proper point for determination as contemplated under Order 41 Rule 31 of the Civil Procedure Code and, therefore, the judgment and decree of the appellate court should be set aside and the matter should be remanded for fresh decision to that court. In support of his contention, the learned advocate has relied upon two judgments of the Bombay High Court in the case of Mhasu Bhanji Vs. Davalt Narayan and others reported in 7 BLR page 174 and in the case of Smt. Anita M.Harretto Vs. Abdul Wahid Sanaullah reported in AIR 1985 Bombay p.98. 4.1(A) As against that the learned advocate appearing for the respondents has stated that the appellate Judge has properly raised the point of determination as well as the scope of the appeal before him and otherwise the learned appellate Judge has considered all relevant questions raised by the parties and has reversed the judgment after considering the admitted position of fact and law and therefore it cannot be said that the appellate court has not followed the Order 41 Rule 31(A) of the Code. He further submitted that at the most it can be said to be an irregularity which does not make the decree void or ineffective. He not only distinguished both the judgments of the Bombay High Court but also further relied upon a recent judgment of the Bombay High Court in the case of Hari Sonar Vs. Shri Premraj Harbhagat Lahoti and others reported in 2001 AIHC 1691 particularly para 11 and 12 of the said judgment which reads as under: "Para 11. As against this position, in the present matter the points for consideration formulated by the learned 6th Additional District Judge