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TMI Blog1946 (12) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... on or about November 1, 1944, at a rental of ₹ 80 per month, that shop No. 13 was let out to Messrs, Friendly Stores on or about May 1, 1943, on a rental of ₹ 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 ₹ 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 E. 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 abovement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Section 45 of the Specific Relief Act, 1877, should not be issued against him. 4. 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 applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hased the property, such tenancy continuing up to February, 1942, and that the rent paid by S.B. Tata to the petitioners was ₹ 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 ₹ 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich they are first let, or (d) in any of the cases specified in Section 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 the first day of September 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ises and the Controller would be entitled to determine the standard rent of the smaller premises Jet 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 Section 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 ₹ 80 per month, that being the condition of the applicability of Part II of the Act as laid down in Section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ...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 ₹ 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Section 4(4) of the Act. It was not sufficient merely to state that the rent payable by the applicants was below Its. 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which the application for amendment was made by Mr. Banaji. 10. 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 the Advocate General relied upon the provisions of Section 14 of the Act which provides 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-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 satisfi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 [1927] 1 K.B. 491. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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 ease may be not being granted to them even in the absence of any averment that the 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, cited 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. 13. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmine 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. 14. 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st. The application was thus an application within the purview of Section 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 ₹ 80 per month, the standard rent according to the applicants having been ₹ 120 per month, viz. the 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 Section 13(b) were specifically brought into operation and the jurisdiction which is vested in the respondent under Section 13(6) 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. Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Section 13(b) of the Act. 19. 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 applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 to file an appeal against the decision of the tribunal. The 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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