# KHEMCHAND DAYAUI & CO v. MOHAMMEDBBAI CHANDBHAI March 2<4, 1969

- **Citation:** [1970] 1 S.C.R. 80
- **Court:** Supreme Court of India
- **Decided:** 1970
- **Case number:** Civil Appeal No. 808 of 1966
- **Bench:** J. C. SHAii, V. Ramaswami Anu A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/khemchand-dayaui-co-v-mohammedbbai-chandbhai-march-2-4-1969-4702
- **Pages:** 7

## Headnote

B
AhmMabad City Courts Act, 1961-Sulu undu Bombay Rentl Hotel
A Lodging llouse Rates Control Act 57 of 1947 aJ applied to the State of
Oujarat u:clasively triable by court of Small Causes Ahmedabad-Rule 5
under Bombay Act making procedure under Presidency
Small
CaU1es
Courts Acl 15 of 1882 applicable to 1uch suits and proceedings-Ahmeda-
._ Small Causes Court whether empowered to issue di.Jtre.u warrant for
recc>ery of municipal taxes by Its power under s. 53 of Act 15 of 1882c
Vires of Rule 5.
Jurisdiction to try suilS and pr~
between landlords and tenanta
under the Bombay Rents, Hotel and Lodging House Rateo Control Act 57
•f 1947 was by virtue elf s. 28 o! the Act given to Small Cause Courll.
Under 1: 49 of the Act the State Government was authorhed to mate
rules for the pdrpose of giving effect to the provisions of the Act and ia
"'1icular to make rules among other subjocts,
for the procedure to be
D
followed in trying or hearing suits and proceedings including proceedin•
for execution of decrees and distr,. warrants.
For these purposes the
Government elf Bombay under r. 5 framed by it provided that the prococlure under the Presidency Small Cause Courts Act, 1882 would be followed.
By the enactment c;f the Bombay Reorganization Act 11 of 1960 a
leparlte State of Gujarat was constiruted out of the territory which formed the State of Bombay, anll the area within the city limits of Ahmcdabad formed part c/f the State of Gujarat The Legislature of the State of
E
Gujarat enacted the Ahmedabad City Courts Act 19 of 1961 which by
~ 17 exteoded the Presidency Small C•use Courts Act, 1882 (IS of I 882)
as well as the Bombay Renb Hotel and Lodging House Rates Control Act
57 of 1947 to the City of Ahmedabad with suitable modifications
and
amendments. Jurisdiction to try suits under the Bombay Act was by amend.
•ent of s. 28 thereof given to the Court of Small Causes Ahmedabad.
The appellants were tenant! of a house owned by the respondent in
t'
Ahmedabad.
Apart from the rent the appellants had also agreed to pay
•unicipal taxes and electricity
charges. In I 963 the appellants filed a
suit in the Court of Small Causes Ahmedabad for an order intu a/ia determining the standard rent of the premise\ io exercise of the power under
s. II of Bombay Act 57 of 1947. The said court on an application flied
by the appellants fixed the contlllctual rent as the 'interim staodard rent'
and directed the appellants to pay rent and municipal
taxes, which the
appellants accordingly deposited in Court. The Court permitted the resG
ponclent to withdraw the rent so deposited but not tho municipal taxeo.
The respondent then obtained an order 'for the issue of a distress warrnt
uader s. 53 of the Presidency Small Cause Courts Act 15 of 1882 reotl
with r. 5 of the Rules framed under Bombay Act 57 of 1947 for recovery
of the amount due as municipal taxes.
Distress was levied aod the order
was confirmed.
A revision application in the High Court of Gujarat was
rejected.
In their appe11I against the High Court's ord.,. the appellanla
ursecl : (i) that r. 5 of the Rules framed under s. 49 of the Bombay Act
H
57 of 1947 was ultra vires the Slate Government; (ii) that the Court of
Small Causes Ahmedabad had no jurisdiction to pus an order issuing a
diotreu warrant in a proceeding under Bombay Act 57 of 1947 especially
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KiiEMCHAND V. MOHAMMEDBHAI
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\\'hen an application under s. 11 was pending; (iii)
tha~ the municipal
taxes and electricity charges did not constitute
rent which could be re·
covered by the issue of a distress warrant.
HELD : (i) Rule 5 was framed under Bombay Act 57 of 1947 in
exercise of the authority conferred by s. ,49(2) (iii). After the enactment
of the Ahmedabad City Courts Act, 1961, r. 5 as originally 'framed by the
trovernment continued in force by virtue of s. 87 of the Bombay Reorga·
nizi1tion Act 1 I of 1960, and applied to the Ahmedabad Small Causes
C'ourt. When r. 5 was framed under Bombay Act 57 of 1947 it was not
ultra

## Text

KHEMCHAND DAYAUI & CO.
v.
MOHAMMEDBBAI CHANDBHAI
March 2<4, 1969
A
[J. C. SHAii, V. RAMASWAMI ANU A. N. GROVER, JJ.]
B
AhmMabad City Courts Act, 1961-Sulu undu Bombay Rentl Hotel
A Lodging llouse Rates Control Act 57 of 1947 aJ applied to the State of
Oujarat u:clasively triable by court of Small Causes Ahmedabad-Rule 5
under Bombay Act making procedure under Presidency
Small
CaU1es
Courts Acl 15 of 1882 applicable to 1uch suits and proceedings-Ahmeda-
._ Small Causes Court whether empowered to issue di.Jtre.u warrant for
recc>ery of municipal taxes by Its power under s. 53 of Act 15 of 1882c
Vires of Rule 5.
Jurisdiction to try suilS and pr~
between landlords and tenanta
under the Bombay Rents, Hotel and Lodging House Rateo Control Act 57
•f 1947 was by virtue elf s. 28 o! the Act given to Small Cause Courll.
Under 1: 49 of the Act the State Government was authorhed to mate
rules for the pdrpose of giving effect to the provisions of the Act and ia
"'1icular to make rules among other subjocts,
for the procedure to be
D
followed in trying or hearing suits and proceedings including proceedin•
for execution of decrees and distr,. warrants.
For these purposes the
Government elf Bombay under r. 5 framed by it provided that the prococlure under the Presidency Small Cause Courts Act, 1882 would be followed.
By the enactment c;f the Bombay Reorganization Act 11 of 1960 a
leparlte State of Gujarat was constiruted out of the territory which formed the State of Bombay, anll the area within the city limits of Ahmcdabad formed part c/f the State of Gujarat The Legislature of the State of
E
Gujarat enacted the Ahmedabad City Courts Act 19 of 1961 which by
~ 17 exteoded the Presidency Small C•use Courts Act, 1882 (IS of I 882)
as well as the Bombay Renb Hotel and Lodging House Rates Control Act
57 of 1947 to the City of Ahmedabad with suitable modifications
and
amendments. Jurisdiction to try suits under the Bombay Act was by amend.
•ent of s. 28 thereof given to the Court of Small Causes Ahmedabad.
The appellants were tenant! of a house owned by the respondent in
t'
Ahmedabad.
Apart from the rent the appellants had also agreed to pay
•unicipal taxes and electricity
charges. In I 963 the appellants filed a
suit in the Court of Small Causes Ahmedabad for an order intu a/ia determining the standard rent of the premise\ io exercise of the power under
s. II of Bombay Act 57 of 1947. The said court on an application flied
by the appellants fixed the contlllctual rent as the 'interim staodard rent'
and directed the appellants to pay rent and municipal
taxes, which the
appellants accordingly deposited in Court. The Court permitted the resG
ponclent to withdraw the rent so deposited but not tho municipal taxeo.
The respondent then obtained an order 'for the issue of a distress warrnt
uader s. 53 of the Presidency Small Cause Courts Act 15 of 1882 reotl
with r. 5 of the Rules framed under Bombay Act 57 of 1947 for recovery
of the amount due as municipal taxes.
Distress was levied aod the order
was confirmed.
A revision application in the High Court of Gujarat was
rejected.
In their appe11I against the High Court's ord.,. the appellanla
ursecl : (i) that r. 5 of the Rules framed under s. 49 of the Bombay Act
H
57 of 1947 was ultra vires the Slate Government; (ii) that the Court of
Small Causes Ahmedabad had no jurisdiction to pus an order issuing a
diotreu warrant in a proceeding under Bombay Act 57 of 1947 especially
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KiiEMCHAND V. MOHAMMEDBHAI
8 I
\\'hen an application under s. 11 was pending; (iii)
tha~ the municipal
taxes and electricity charges did not constitute
rent which could be re·
covered by the issue of a distress warrant.
HELD : (i) Rule 5 was framed under Bombay Act 57 of 1947 in
exercise of the authority conferred by s. ,49(2) (iii). After the enactment
of the Ahmedabad City Courts Act, 1961, r. 5 as originally 'framed by the
trovernment continued in force by virtue of s. 87 of the Bombay Reorga·
nizi1tion Act 1 I of 1960, and applied to the Ahmedabad Small Causes
C'ourt. When r. 5 was framed under Bombay Act 57 of 1947 it was not
ultra vires and it \Vas not shown to have become ultra vires after the enactment of the Ahmcdabad City Courts Act in its application to the City o'f
Ahmcdabad. [85 F·G]
(ii) The distress warrant issued by the Court of Small Causes Ahmedabad against the appellant \Vas within its pov~:ers.
By the enactment of the Ahmedabad City C'.ourts Act, 1961, the proceedings before the Court of Small Causes at Ahmedabad were governed
bv that Mt and by virtue of the amen~ment made in s. 28 of Bombay
Act 57 of 194'7 it became a court of exclusive jurisdiction to try suits,
proceedings, claim3 and questions arising under that Act.
Being a court
governed by the Presidency Small Causes Courts Act, the Ahmedabad
Court of Small Causes was competent to exercise. subject to the Ahmedabad City Courts Act, all the powers which a Presidency
Small Cause
Court could exercise.
Power to issue a distress warrant being expressly
conferred by s. 53 df the Pres;dency Small Cause Courts Act upon the
Courts governed by it, the Court of Small Causes Ahmedabad, was competent to exercise that power. f85 D-EJ
Section 28 does not make the Court of Small Causes trying suit under
the Bombay Ac! a special Court : it is a court which is competent to
exercise all the powers conferred on it under the statute which governs it.
Its po\ver to issue distress warrant could therefore be exercised even in
respect of suits and proceedings \Vhich were exclusively triable by it by
virtue of the Bombay Act 57 of 1947. [85 Hl
?endency of an application for fixation
of standard
rent does not
suspend the court's power to issue distress ~'arrant, for until standard rent
is determined or an interim order is. made, -rent at the contractual rate is
payable and process for recovery by distress
warrant may
always be
adopted. In the present case the amount of municipal tax.es was due and
ii was payable by the appellants.
Though deposited in Court it could not
he \\'ithdrawn by the respondent.
The municipal taxes were therefore in
arrears and a distress warrant could be applied for under s. 53 of 1he Presidency Small Cause Court by the respondent.
It was not necessary for
the respondent to approach a higher court against the erroneous order of
the Sma11 Cause Court preventing him from
recovering the amount of
municipnl tnx:es. f86 B-Gl
(iii) By the express terms of the tenancy the
appellants had undertaken to pay the municipal taxes and electricity charges as part of the
rent : it \vas not open to them to contend that these taxes and charges
~\·ere not rent recoverable by the issue of a distress warrant. [83 H~84 Al
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 808 of
1966.
Appeal by special leave from the judgment and order dated
September 3, 1965 of the Gujarat High Court in Civil Revision
Application No. 244 of 1965.
·
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SUPREME COUllT l.BPOUS
(1970J I S.C.R.
Arun H. Mehta and/. N. Shroff, for the appellant.
S. T. Desai,P. C. Bhartari, J.B. Dadachanji and 0. C. Mathur,
for the respondent.
The Judgment of the Court was delivered by
SllU, J. The respondent is the owner of a house in the tow11
of Ahmedabad. The appellants arc the tenants of that house at
a monthly rental of Rs. 2,171/-.
Under the agreement of leiuc
the appellants were to pay out of the agreed rent Rs. 810/- per
month, and the balance was to be appropriated towards a loan
advanced by them to the respqndent for constructing the house.
The appellants had also agreed to pay municipal wes and electricity charges.
The appellants filed suit No. 1308 of 1963 in the Court of the
Small Causes, Ahmedabad, for an order, inter alia, determini11&
the standard rent of the premises in exercise of the power under
. s . .11 of the Bombay Rents, Hotel and Lodging House Rates Cmtrol Act 57 of 194 7.
The Court of Small Cause., Ahmedabad,
on an awlication filed by the appellants fixed the contractual rent
as "interun standard rent" and directed the appellants to pay the
rent and municipal taxes.
P.ursu~t to this order, the appellants
deposited Rs. 2,403/- as rent and Rs. 8,921.25 due as municipal
· taxea for the year 19(\4-65.
An application by the respondent
to withdraw the amount deposited in Court was resisted by the
appellants.
The Court permitted the respondent
to withdraw
IU. 2,403/- but not the municipal taxes.
The respqndent the11
obtained an order for the issue of a distress warrant under s. 53
of the Presidency Small Cause Courts Act 15 of 1882 read with
r. 5 of the Rules framed under the Bombay Rents, Hotel and
Lodging House Rates Colltrol Act, 1947,
for recovery of the
11mount due as municipal taxes.
Distress was levied, and the order
was confirmed.
A revision application moved in the High Court
ol Gujarat against that order was rejected.
In support of this appeal counsel for the appellants urges that
r. 5 of the Rules framed under s. 49 of the Bombay Rents, Hotel
and Lodging House Rates Control Act 57 of 1947, is ultra vires
the State Government; that the Court of Small Causes Ahmedabad
au in any event no jurisdiction to pass ah order issuing a distrels
'Warrant when trying a suit or proceeding under Bombay Act 57
of 194 7 especially when an application for determination of standard rent under s. 11 of the Act is ~ing; and that the municipal
taxes and electricity charges do not constitute rent which may be
recovered by the issue of a distress warrant.
By the express terms of the tenl\l!Cy the appellants had undcr1akea to pay the municipal taxes and electricity charges as part of
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KHEMCHAND v. MOHAMMBDBHAI (Shah, J.)
a 3
the rent : it is not open to them to contend that they are not
rent reco'tlerable by the issue of a distress warrant.
The last brancll
of the argument has, therefore, no force.
The relevant provisions of the Bombay Ronts, Hotel aad
Lodgllij: House Rates Control Act 57 of 194 7 and other statutes
Yt'hich nave a bearing may first be noticed.
Bombay Act 57 of
194 7 was intended to control rents and to confer protection
against eviction upon tonants of premises in certain urban areas .
in· the Province of Bombay. By s. 28 of the Act certain courts'
1!'ere designated as courts of exclusive jurisdiction to entertain
and try suits and proceedings between a landlord and tenant, relat- •
ing to recovery of. rent or possession to which the provisions Of the
Act applied, ·and ·also to decide claims or questions arising under
the Act.
Section 28 as originally enacted aincl later amended by
Bombay Acts 58 of 1949 and 15 ol f952, insofar as it is material
reads:
" ( 1) Notwithiltandingj anything oontained in ·any
law and notwithstanding that by reason of the amount
of the claim or for any other reason, the suit or "proceeding would not, but for this provision, be within itli
jurisdiction,
(a) in Greater Bombay, the CoUrt of Small Causes,
Bombay;
( aa) in any area for which, a Court of Small Causes .
is established under the Provincial Small Cause
Courts, Act, 1887, such Court and
(b) .
ehall have jurisdictiQn to entertain and try any suit or
proceedhlg between a landlord and a tenant relating to
the recovery of rent or possession of any premises to
which any of the provisions of this Part apply and to
decide any application made under this Act and to deal
with 8ili)' clainI or question· arising out ol this Act or any
of its provisions and subject to the . provisions of subsection (2), no other \:(lurt shali have jurisdiction to
entertain any such suit, proceeding or application or to
deal. with such claim or question.
"
Section 28 did not set up new Courts to try suits . or proceedings
between laincllords and tenants : it invested existing courts with
exclusive jurisdiction to try suits and proceedings of the nature
set out and claims or questions arising under the Act. Section 31
of the Act provides, inter alia, that the courts· specified in s. 28 ·
shall follow the prescribed procedure in trying and hearing suil8,
proceedings, applicatiQDs and appeals and in executing orden
SUPREME COURT REPORTS
( 1970] I S.C.R.
made by them.
Section 49 authorises the State Government to
make rules for the purpose of giving effect to the provisions of
the Act and in particular to mali:e rules, among other subjects,
for the procedure to be followed in trying or hearing suits proceedings (including proceedings for execution of decree; and
distress warrants), applications, appeals and execution of orders.
Pursuant to the authority conferred, rules were framed by the
Government of Bombay and r. 5 which dealt with the procedure
to be followed by the Court of Small Causes, Bombay, for suits,
proceedings, appeals, etc. provided insofar as it is material :
"In such of the following suits and proceedings as
are cognizable by the Court of Small Causes, Bombay,
on the date of the comina into force of these Rules,
namely:-
(1)
( 2) proceedings under Chapter VII and VIII of the
Presidency Small Cause Courts Act, 1882, and
(3) proceedings for execution of any decree or order
passed in any such suit or proceedings,
the Court of Small Causes, Bum bay, shall follow the
practice a.nd procedure provided for the time being (a)
in the said Act, except Chapter VI thereof, and (b) in
the rules made under section 9 of the said Act."
By the enactment of the Bomt>ay Reorganization Act 11 of
1960 a separate Sl'ate ol Gujarat was constituted out of the territory which formed the State of Bombay, and the area within the
city limits of Ahmedabad formed part of the State of Gujarat. By
the Gujarat Adaptation of Laws (State and Concurrent Subjects)
Order, 1960, cl. (a) of sub-s. (1) of s. 28 of Bombay Act 57
of 1947 as it was originally enacted was deleted.
The Legislature
of the State of Gujarat enacted the Ahmedabad City Courts Aet
19 of 1961 which by s. 17 provided that the Presidency Small
Cause Courts Act, 1882 (XV of 1882), shall extend to
and
come into force
in the City of Ahmedabad on and from tke
appointed day.
By s. I 8 it was provided :
"The Presidency Small Cause Courts Act,
1882
(XV) of 1882), and the Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947 (Born, LVII
of 1947), shall in their application to the City of
Ahmedabad stand amended in th~ manner and to the
extent specified in the Schedule."
By s. 19 it was provided :
"With effect on and from the appointed day ..... .
the Provincial Small Cause Courts Act, 1887 (IX of
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KliEMCHAND v. MOHAMMEDBHAI (Shah, J.)
85
1887), and all mles, notifications and orders made
thereunder shall cease to apply to, or be in force, in the
City ol Ahmedabad,
"
By the Schedule certain amendments were made in the Presidency
Small Cause Courts Act, 1882, in its application to the City of
Ahmedabad. By cl. 13 of the Schedule, s. 50 of the Presidency
Small Cause Courts Act was to apply to every prnce within the
City of Ahmedabad.
Certairi amendments were also made in
s. 28 of the Bombay Rents, Hotel and Loclging House Rates Control Act, 1947, and in sub-s. (1) of s. 28, before cl. (aa) the
following clause was inserted :
" (a) in the City of Alunedabad, the Court of Small
Causes of Ahmedabad,"
By the einactment of the Ahmedabad City Courts Act, 1961, the
proceedings before the Court of Small Causes at Ahmedabad were
governed b,Y that Act and by virtue of the amendment made in
s. 28 of Bombay Act 57 of 1947 it became a Court of exclusive
jurisdiction to try suits, proceedings, claims and questions arising
under that Act. Being a Court governed by the Presidency Small
Cause Courts Act, the Ahmedabad Court of Small Causes was
competent to exercise, subject to the Ahmedabad City Courts Act,
all the powers which a Presidency Small Causes Cour.t may exercise.
Power to issue a distress warraint being expressly conferred
by s. 53 of the Presidency Small Cause Courts Act upon the Courts
governed by it, the Court of Small Causes, Ahmedabad, was competent to exercise that power.
Rule 5 was framed under the Bombay Act 57 of 1947 in
exercise of the authority conferred by s. 49(2)(iii). After the
enactment of the Ahmedabad City Courts Act, 1961, r. 5 as originally framed by the Government ol Bombay continued in force
by virtue of s. 87 of the Bombay·Reorganization Act 11 of 1960,
lli!ld applied to the Ahmedabad Small Causes Court.
When r. 5
was framed under Bombay Act 57 of 1947 it was not ultra vir11s,
and it is not shown to have become ultra vir11s after the enactment
of the Ahmedabad City Courts Act in its application to the City
of Ahmedabad.
The argument that s. 28 sets up a new set of Courts with
special powers and jurisdiction is without substance. Section 28
merely confers upon the exis\iiilg Courts exclusive jurisdiction in
respect of matters relating to rossession ol premises and recovery
of reilt and to determine claims and questions arising under that
Act.
On ·that account it does not become a Special Court : it is
a court which is competent to exercise all the powers which are
conferred UpQ!l it by. virtue of its constitution under the statute
which goyern,s it. The Court of Small Causes at Ahmedabad had,
SUPRl!MI! COIJlt.T llBPORTS
[1970] I S.C.R.
therefore, power to issue distress warrant and that power could be
exercised even in respect of suits and proceedings which were
exclusively triable by it by virtue of the Bombay Act 57 of 1947.
We arc also unable to hold that so long as an application for
fixation of standard rent is pending, the Court's jurisdictiqn to
issue a distress warrant remains suspended.
Until standard rent
is determined, or an interim order is made, rent at the contractual
rate is payable and process for recovery by distress warrant may
always be adopted.
Section i 1 ol Bombay Act 57 of 1947 confers upon the Court power to fix standard rent and permitted
increases in certain cases.
The Court is also competent to determine interim standard rent, and direct payment pcmi!ing final
determination of standard rent.
The appellants applied for fixation of standard rent and invited
the Court to pass an order firing interim standard rent and the
Court of Small Causes proceeded to pass the order for payment
of rent and municipal taxe;.
In the present case there was an
express order of the Court requiring the appellants to deposit in
Court Rs. 810 /- per month and also to deposit municipal taxes.
The Court of Small Causes ordered that the amount deposited by
the amiellants towards municipal taxes shall oot be paid over to
the llndlord. The amount was on that account not available to
the respondent.
The respondent wu unable to pay the taxes and
the Municipality threatened to attach the property.
The amount
of muniCipal taxes was due and it was payable by the appellanta.
Though deposited in Court, it could llOt be withdrawn by the
respondent.
The municipal taxes were, therefore, in arrears and
a distress warrant could be applied for under s. 53 ol the Presidency Small Cause Courts Act by the respondent.
It was urged that the appellants had.to pay the amount ol interim staodard rent twice over : once when they deposited it in the
Court and again when they satisfied the demand to avoid execution
of the distress warrant. The landlord undoubtedly cannot obtain
the amount twice over.
But that docs not mean that when the
tenant has not made the amount available to the landlord the
application for distrcss was not maintainable.
1bc argument that the erroneous order passed by the Court of
Small Causes preventing the landlord from recovctjng the amount
of municipal taxes could have been got corrected by approaching
the superior courts and so Jong as that order stood, no dmt.
could be levied, ignores the fact that the appellants had =
the Court of Small Call8CS to pass that order. In our
t,
there was no bar to the respondent maintaining the application for
distress.
The appeal fails and is dismilled with costs.
O.C.
A,,,.al dilrrtmei.
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