Full Judgment Text
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PETITIONER:
FIRM OF HARBANSLAL JAGMOHANDAS & ANR.
Vs.
RESPONDENT:
PRABHUDAS SHIVLAL
DATE OF JUDGMENT16/04/1971
BENCH:
VAIDYIALINGAM, C.A.
BENCH:
VAIDYIALINGAM, C.A.
RAY, A.N.
CITATION:
1973 AIR 2056 1971 SCR 397
1971 SCC (2) 155
ACT:
Practice and Procedure-Application for special leave to
this Court Averment giving impression that attention of High
Court was drawn to the conflicting decision of another High
Court, when in fact it was not so drawn-Grant of leave-If
may be revoked on the ground that this Court was misled.
HEADNOTE:
The respondent who was the landlord of certain premises in
Surat, filed a suit for the eviction of the petitioners, who
were the tenants, on the ground of non payment of rent.
The petitioners filed a written statement in which they
raised a dispute regarding the standard rent, and also con-
tended that they had raised such a dispute, within the time
allowed by law that is, one month of service of the suit
notice., The trial court as well as the appellate court
found that a dispute regarding standard rent was not raised
within one month of service of the suit notice and held,
following a decision of the Gujarat High Court, that the
respondent was entitled to recover possession under s.
12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates
(Control) Act, 1947. The High Court of Gujarat also
rejected the petitioners’ revision petition. Thereupon, the
petitioners filed an application in this Court, for special
leave, contending that the High Court of Bombay had held
that it was sufficient if the dispute regarding standard
rent was raised in the written statement, and that, in such
a case eviction could not be ordered under s. 12(3) (a); and
since there was a direct conflict between the High Courts of
Gujarat and Bombay an important question of law relating to
the scope and applicability of s. 12(3) (a) arose. This
Court granted special leave and stay.
The respondent filed an application for revocation of the
grant of special leave on the ground that the averments in
the special leave petition gave the impression that the
attention of the Gujarat High Court was drawn to the
decision of the Bombay High Court, while in fact, it was not
so, and that therefore the petitioners had misled this
Court.
HELD: Assuming that the grounds in the special leave
application gave the impression that the attention of
Gujarat High Court was drawn to the decision of the Bombay
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High Court, it could not be stated that there was any
misstatement or untrue averment in the grounds. The
contention raised was a legal contention, and there was no
other manner in which a party could draw the attention of
this Court to the conflict between the two High Courts.
[405E-G].
It is but proper that if a party wants to have a particular
legal position settled in a High Court, reconsidered on the
basis of a different view taken by another High Court, he
should draw the attention of the High Court, when the
question is raised, to the conflicting decisions. Even if
he has omitted to do so it cannot be said that when the
correctness of the judgment so given, is concerned before
this Court he should not be allowed to challenge the
decision on the ground that another High Court has taken a
different view. Such A ground on a legal point should not
be confused
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or mixed up with averments regarding material facts or
matters of importance. [405G-H; 406A-C].
The statements in the special leave petition could not be
considered to be untrue or false on material facts or
matters of importance, and therefore, the prayer for
revoking the special leave would have to be rejected.
[406D].
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Misc. Petition Nos,
854 and 2282 of 1971.
Applications for stay and for amendment of the prayer in
C. M. P. No. 854 of 1971.
Civil Appeal No. 28 2 of 1971.
Appeal by special leave from the judgment and order dated
December 22, 1970 of the Gujarat High Court in Civil
Revision Application No. 1353 of 1970.
S. T. Desai, S. V. Tambwekar for S. K. Dholakia, for the
petitioners and appellants.
I. N. Shroff, for the respondent.
The Judgment of the Court was delivered by
Vaidialingam, J.-The petitioners in both these applications
have taken on lease the ground floor portion of property in
Ward No. V. Nondh No. 1088 of Surat. The respondent became
the owner of the said property by purchasing it from the
previous owner by a registered sale deed dated September 18,
1958. The petitioners who were the tenants of the premises
even prior to the date of purchase by the respondent, have
continued to be his tenants and they are using the premises
for their business purposes. The respondent landlord filed
on February 12, 1967 a civil suit No. 144 of 1967 in the
court of the Third Joint Civil Judge, Junior Division, Surat
for evicting the petitioners.
According to the landlord the petitioners had not paid the
rent for a period of over six months and had also not
complied with the notice issued under Section 12 of the
Bombay Rents Hotel and Lodging House Rates (Control) Act
1947 (Act 57 of 1947) (hereinafter called the Bombay Rent
Act). The respondent had alleged that he had terminated the
tenancy of the petitioners by notice dated November 24,
1966. The respondent sought eviction of the petitioners on
two grounds namely, (1) default in payment of rent, and (2)
premises being required for bonafide personal use and
occupation.
The petitioners contested the suit on various grounds and
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denied that they were in arrears and pleaded that they had
raised a dispute in respect of the standard rent within the
time allowed
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by law They also contended that the landlords requirements
for use of occupation-was not bonafide Both the trial court
as well as the appellate : Court the Extra Assistant Judge,
surat, have concurrently rejected the plea of the
respondent that he required the promises bonafide for
personal use. Both the courts held that the petitioners
have not raised any dispute about the standard rent within
one month of service of suit notice either by preferring a
standard rent application or by sending, a reply to the,
suit: notice raising such a dispute. : On this basis both
the courts hold that the respondent-plaintiff is entitled to
recover possession of the premises on the ground of, non
payment of rent under Section 12 (3) (a) of the Bombay Rent
Act and accordingly passed an order directing eviction of
the petitioners from the suit, premises.
The petitioners filed Civil, Revision Application No. 1353
of 1970 before the Gujarat High. Court challenging the
decision of the two subordinate courts ordering their
eviction. The High Court summarily rejected the said
application by its order dated December 22, 1970.
The petitioners filed Special Leave Petition No. 342 of 1971
seeking special leave to appeal against the decision of the
Gujarat High- Court. In the special, leave petition it has
been stated that the appeal raises important the of law
relating to the scope ,and applicability of Section 12 (33)
(a) of the Bombay Rent Act, which applies in all material
particular& to both the States of Maharashtra and Gujarat.
It has been further stated that there is a direct conflict
regarding the interpretation of this section between the
Full Bench of the Bombay High Court and the Gujarat High
Court.
According to the petitioners, the Bombay High Court has held
that the matter will not fall under. Section 12 (3) (a)
even in those cases where a dispute in respect of standard
rent has been raised in the written statement, whereas the
Gujarat High Court has held to the contrary and, therefore,
there is a direct conflict between the two High Courts on
this point. Along with the special leave petition the
petitioners have filed C. M. P. No. 854 of 1971 praying for
the stay of operation of the order of the Gujarat High Court
in Civil Revision Application No. 1353 of 1970. In view of
the conflict between the Bombay and Gujarat High Courts
regarding the interpretation of the above section, this
Court granted special leave by its order dated February 15,
1971. This Court further granted exparte stay pending
disposal of the notice of motion, which was made returnable
within three weeks.
The respondent entered appearance and filed his counter-
affidavit in C. M. P. No. 854 of 1971. In the counter-
affidavit the respondent has made two prayers, namely, (1)
to revoke the
400
special leave granted to the petitioners and (2) to dissolve
the order of stay granted- exparte. In order to, clarify
the Prayers made in C.M. P. No. 854 of 1971, the petitioners
have filed C. M. P. No, 2282 of 1971 requesting permission
to amend their original application C. M. P. No: 854 of 1971
by stating that the relief asked for is for stay of eviction
of the petitioners from the suit premises and to grant, stay
of operation of the judgments of the trial court as well as
of the Appellate Court. Reading the two applications it is
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clear that the petitioners seek relief from dispossession
pending the disposal of the appeal by this Court. We will
deal with the prayers for grant of stay of dispossession
after disposal of the plea raised by the respondent that the
Special leave granted by this Court should be revoked. The
grounds on which the respondent requests for cancellation of
special leave are that the petitioners have completely
misled this Court in regard to the true facts of the case
and that they are guilty of suppressio veri or suggestio
falsi.
The bone of contention in this regard as pointed out by Mr,
1. N. Shroff, learned counsel for the respondent is that the
Full Bench decision of the Bombay High Court, which is
stated to be in direct conflict with the decision of the
Gujarat High Court has never been placed before the Gujarat
High Court when it dismissed in limine C. R. P. No. 1353 of
1970.
Mr. S. T. Desai, learned counsel for the petitioners,
pointed out by reference to the special leave petition that
there has been no attempt by his clients to mislead this
Court and he further urged that all the facts have been
stated correctly. He admitted that it has been mentioned in
the special leave petition that there is a direct conflict
between the Bombay and Gujarat High Courts in the matter of
interpretation of Section 12 (3) (a) of the Bombay Rent Act.
This plea, being a legal contention was available to the
petitioners and they were perfectly justified in placing
before this Court the conflict so that it may be resolved
one way or the other. The statement regarding the conflict
made in the special leave petition is also true.
At the outset we may clear the ground by stating that Mr. S.
T. Desai, learned counsel for the petitioners, desired us to
proceed on the basis that there is nothing on record to show
that the Full Bench decision of the Bombay High Court was
placed before the Gujarat High Court when C. R. P. No. 1353
of 1970 was being heard.
We Will now refer to the statements made in the special
leave petition, which are relevant for the purpose of
deciding whether there has been any untrue statement made by
the petitioners. In
401
paragraph 2, it is stated that the special leave petition
raises important question of law relating to the scope and
applicability of Section 12 (3) (a) of the Bombay Rent Act,
which applies in all material particulars to both the States
of Maharashtra and Gujarat and that there is a direct
conflict between the Full Bench of the Bombay High Court and
the, Gujarat High Court. It is further stated that the
Bombay High Court has held that a matter will not fall in
Section 12(3)(a) not only in those cases for which a dispute
in respect of standard rent has been raised within one month
of the service of, notice but also in those cases in which a
dispute in respect of standard rent is raised in written
statement filed in reply to the plaint of the landlord.
In paragraph 2 it is further stated
"This important decision given by the Full
Bench of the Bombay High Court, it is
respectfully submitted, is in direct conflict
with the authorities of the Gujarat High
Court, and the present decision of the Gujarat
High Court from which this special leave is
being filed has also proceeded on the basis
which is in direct conflict with the judgment
of the Bombay High Court. This is because the
petitioners who are the tenants had in any
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event and accepting all findings of fact of
the Courts below. raised a dispute regarding
standard rent in the written statement and
therefore on the ratio of the Bombay High
Court judgment the petitioners cannot be
ordered to be evicted from the premises."
Paragraphs 4 to 13 give the facts and
circumstances leading to the filing of the
petition for special leave. In. those
paragraphs facts relating to the tenancy, the
notices that passed between the parties, as
well as the findings of the two subordinate
courts and the dismissal by the High Court of
C. R. P. No. 1353 of 1970 are stated.
Paragraph 14 enumerates the various grounds
which, according to the petitioners, will
enable them to obtain special leave.
Grounds which according to the respondent,
amount to statements of facts and which are
not true are Nos. 2, 3 and 16. They are as
follows :
"II. That the High Court ought to have
examined the aspect as to whether in view of
the judgment of the Full Bench of the Bombay
High Court in Special Civil Application No.
718 of 1968 decided on 17th August, 1970, a
case is made out as to whether Section 12 (3)
(a) of the aforesaid Act applied when a
dispute about standard rent is raised at the
time of written statement.
26-.1 S.C. India/71
402
III. That the High Court ought to ’have
considered the reasons on the basis of which
the judgment of the Full Bench of the Bombay
High Court was delivered, particularly in view
of the fact that there was a clear conflict
between the judgments of the High Court of
Bombay and the High Court of Gujarat on the
question of the scope and applicability of
section 12 (3) (a) of the aforesaid Act.
XVI. It is respectfully submitted that the
petition involves substantial questions of law
of public importance and the decision on which
would affect a large number of pending cases
both in the Maharashtra and Gujarat Courts
which deal with identical section 12 (3) (a)
of the aforesaid Act. In view of the direct
conflict between the Bombay and Gujarat High
Courts it is respectfully submitted that it is
a fit case for this Hon’ble Court or other-
wise the same section would be interpreted by
both the courts in contradictory manner. In
fact if the petitioners had been in
Maharashtra then he would have succeeded in
view of the Full Bench judgment of the Bombay
which squarely applies to the facts of this
case, even accepting all findings of facts
against the petitioners. A true copy of the
Bombay High Court Full Bench judgment is
annexed hereto as Annexure B and a true copy
of the judgment of the lower appellate court
is annexed hereto to as Annexure C."
The true copy of the Full Bench, judgment of the Bombay High
Court, referred to in ground No. XVI is the one in Special
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Civil Application No. 781 of 1968 decided on August 17,
1970. In the counter-affidavit filed by the respondent in
C. M. P. No. 854 of 1971 in paragraph 5, after referring to
the fact that the Petitioners are making a grievance about
the summary dismissal of the C. R. P. No. 1353 of 1970 by
the Gujarat High Court on the ground that the said decision
is in conflict with the Full Bench decision of the Bombay
High Court, referred to above, it is stated :
"The enquiries made by me show that the
Petitioners had not produced before the
Gujarat High Court a Certified or even an
Ordinary copy of the said Full Bench Judgment
of the Bombay High Court nor had the
petitioners at the admission stage of the
Petitioners’ Civil Revision Petition before
the Gujarat High Court cited or referred to
the said Full Bench decision. If the
information received by me is correct and I
believe it to be correct, it is wholly
improper for the Petitioners to approach this
403
Hon’ble Court and to contend that the Gujarat
High Court is in error in not examining and
following the Full Bench decision of the
Bombay High Court."
In Paragraphs 8 and 9 it is stated
"8. The conduct of the Petitioners would
further appear to be improper because they do
not appear to have taken up this point in
their Civil Revision Petition No. 1353 of 1970
filed by them in the Gujarat High Court.
9. It, therefore, appears that the
Petitioners have completely misled this
Hon’ble Court in regard to the true facts and
have thereby obtained from this Hon’ble Court
Special Leave to Appeal, which, in all
probability, this Hon’ble Court would not have
been pleased to grant had the Petitioners
placed before this Hon’ble Court true facts of
the case."
Therefore, it will be seen from the material averments of
the respondent that his bone of contention regarding the
statements of fact by the petitioners is that the statements
contained in the relevant paragraphs of the special leave
petition, adverted to earlier, give the impression that the
Full Bench decision of the Bombay High Court was placed
before the Single Judge of the Gujarat High Court when C. R.
P. No. 1353 of 1970 was being disposed of. That the said
judgment was not brought to the notice of the High Court is
clear from the fact that no grounds were taken in the Civil
Revision Petition regarding any conflict between the Gujarat
and the Bombay High Courts on identical provisions of the
statute.
The petitioners have in their rejoinder affidavit
controverted the allegation that they have in any manner
misled the Court. They have, on the other hand, stated that
the conflict between the two High Courts has been stated in
the special leave petition, which is a fact and it was
mainly on that basis that the special leave was asked for
and granted by this Court. They have further stated that
there has been no suppression of many material facts or
misstatement of facts which misled the Court in granting the
special leave.
Mr. I. N. Shroff has referred us to the decisions of this
Court wherein it has been held that when there has been an
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untrue statement of a matter of importance or when there has
been a misstatement as to valuation so as to mislead the
Count to exercise its discretion in a party’s favour or when
a false statement has been made on material facts. this
Court had revoked the special leave already granted.
404
There can be no- controversy that if the petitioners have
made an untrue averment regarding material statements or
false statement of matters of importance or a deliberate
untrue statement of material facts so as to mislead this
Court or if there, has been any suppression on any point of
importance the special leave granted by this Court will have
to be revoked. But the question is whether in the
circumstances of the case the petitioners have made any such
misstatement or untrue statement of matters of importance.
In S. R. Shetty v. Phirozeshah Nusserwanji Golabawalla
and another (1) special leave was revoked on the ground
that the valuation had been’ deliberately inflated by the
parties with a view to getting over the preliminary hurdle
regarding valuation. In Hari Narain v. Badri Das (2), it
was observed by this Court :
"It is of utmost importance that in making
material statements and setting forth grounds
in applications for special leave, care must
be taken not to make any statements which are
inaccurate, untrue or misleading. In dealing
with applications for special leave, the Court
naturally takes statements of fact and grounds
of fact contained in the petitions at their
face value and it would be unfair to betray
the confidence of the Court by making
statements which are untrue and misleading.
That is why we have come to the conclusion
that in the present case, special leave
granted to the appellant ought to be revoked."
In Rajabhai Abdul Rehman Munshi v. Vasudev
Dhanjibhai Mody (3) this Court after referring
to the previous decision, cited above,
observed as follows :
"Exercise of the jurisdiction of the Court
under Art. 136 of the Constitution is
discretionary : it is exercised sparingly and
in exceptional cases, when a substantial
question of law falls to be determined or
where it appears to the Court that
interference by, this Court is necessary to
remedy serious injustice. A party who
approaches this Court invoking the exercise of
this overriding discretion of the Court must
come with clean hands. If there appears on
his part any attempt to overreach or mislead
the Court by false or untrue statements or by
withholding true information which would have
a bearing on the question of exercise of the
discretion, the Court would be justified in
refusing to exercise the discretion or if the
discretion has been exercised in revoking the
leave to appeal granted even at the time of
hearing of the appeal."
(1) C.A.No. 155 of 1963 decided on 5-4-1963. (2) [1964] 2
S. C. R. 203.
(3) [1964] 3 S. C. R. 480.
405
In Sita Bai (dead by her legal representative and another v.
sonu vanji Warti and others (1) this Court revoked special
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leave on the ground that on matter of importance the,
appellants therein had made untrue statements’ before this
Court. Recently in Shankar Madhoji Nemade v. Chisuji Janaji
Bhadke and others (2) this Court reiterated the principles
laid down in the above decisions. But on facts it was held
that there has been no untrue or false averment regarding
material facts.
Having due regard to the principles laid down above and
applying them to the case on hand, we are of the, opinion
that the request of the respondent for revoking special
leave granted has to be rejected. We are also satisfied
that there has been no false or untrue averment on material
facts made by the petitioners for the purpose of misleading
this Court.
Paragraph No. 2 of the special leave petition refers to the
conflict between the Gujarat and- Bombay High Courts with
regard to the scope and applicability of Section 12 (3) (a)
of the Bombay Rent Act. The contrary view taken by the
Gujarat High Court is the one reported in Chunilal Shivlal
v. Chimanlal Nagindas (3), which has been followed by the
two subordinate courts. No doubt the High Court has
summarily rejected the Civil Revision Petition. Therefore,
what is stated in paragraph No. 2 is a pure statement of the
legal position and factually it is correct. We have also
referred to the grounds Nos. 2, 3 and 16 which are purely
legal contentions. The contention of Mr. Shroff, learned
counsel for respondent is that a reading of these grounds
gives the impression that the attention of the Gujarat High
Court was drawn to the Full Bench decision of the Bombay
High Court when the Civil Revision Petition was disposed of.
Assuming it is so, in our opinion, it cannot be stated that
there is any misstatement or untrue averment contained in
these grounds. It must be remembered that they are legal
contentions taken in the grounds attacking the judgment of
the Gujarat High Court. We fail. to see in what other
manner a party can draw the attention of this Court to a
conflict between two High Courts with regard to the
interpretation of a substantially similar provision of a
statute. It is needless to state that if a party wants to
have a particular legal position settled in a High Court,
reconsidered on the basis of a different decision on
identical point by another High Court and specially with
regard to the same statute, he must draw the attention of
the learned Judge to that decision bearing on the point in
question. This will be a very proper thing for a party to
do. But that is far from saying
(1) C. A. No. 982 of 1965 decided on 25-4-1968.
(2) C. A. No. 85 of 1967 decided on 8-9-1970.
(3) 7 C. L. R. 945.
406
that if he has omitted to place a particular decision of
another High Court on’ an identical matter, but nevertheless
when the judgment so given is before a higher Tribunal, he
should not be allowed to challenge the decision on the
ground that the other High Courts have taken a different
view. For instance, if a matter is disposed of by a
Division Bench of the same High Court and a similar matter
is disposed of by a Single Judge’ on the next day without
being made aware of the decision of the Division Bench in
our opinion, it will be perfectly open to the party
aggrieved by the judgment of the Single Judge, when filing.
an appeal against that judgement to urge that it is contrary
to the Division Bench decision of the same court, though
that judgment was not brought to the notice of the Single
Judge. The grounds taken on legal points should not, in our
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opinion, be confused or mixed up with the averments
regarding material facts or matters of importance.
We are of the opinion that none of the statements in the
special leave petition relied on by Mr. Shroff can be
considered to be untrue or false statements on material
facts or matters of importance. Therefore, the prayer of
the respondent for revoking the special leave granted will
have to be rejected. The C. M. Ps. Nos. 2282 of 1971 is
allowed and the prayer in C. M. P. No. 854 of 1961 will
stand suitably amended.
Regarding the stay application, it is ordered that there
will be a stay of dispossession of the petitioners from the
premises pending disposal of the appeal by this Court
provided, (1) the petitioners deposit in the trial court
within one month from today the entire arrears of rent; and
(2) the petitioners deposit in the trial court rent for
every month on or before the 10th of the succeeding month.
The respondent will be at liberty to withdraw the rents so
deposited unconditionally and without prejudice to his
contentions in the appeal. If the petitioners fail to
deposit the arrears or commit two consecutive defaults in
depositing the monthly rent, the stay granted will stand
vacated and the respondent will be entitled to take delivery
of the properties. It is also recorded that Mr. S. T.
Desai, learned counsel for the petitioners, has undertaken
on behalf of the firm and its partners that they will
deliver possession of the premises within three months from
the date of judgment in the appeal, in case the appeal is
dismissed. There will be no order as to costs.
V.P.S.
Appeal dismissed.
407