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TMI Blog2003 (7) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to. It is not, however, necessary to go into the question whether having not taken the plea before the courts below, the High Court should have permitted the question to be raised before it as admittedly, the High Court had permitted the challenge to be made by allowing the application for amendment. The case was disposed of on the date the amendment was allowed, and in fact by the consolidated order which dealt with the prayer for amendment, allowed it and went on to dispose of the writ petition, without dealing with plea of invalidity. In the aforesaid factual background High Court should have considered the challenge to the constitutional validity of Section 3(l)(b) of the Maharashtra Rent Act as raised by the appellant. It can certainly consider the effect of any earlier decision. We do not express any opinion on that aspect The order of the High Court is set aside and the case is remitted back to the High Court for fresh adjudication on merits in accordance with law. The appeal is allowed to the extent indicated. X X X X Extracts X X X X X X X X Extracts X X X X ..... s sought vacant possession of the suit premises and mesne profits at the rate of ₹ 3,00,000 per month. Appellant-bank filed written statement refuting the stands taken that the tenancy had been lawfully terminated and the grounds indicated therefor. Reference was made also to the proceedings in the Bombay High Court under the Bombay Rents Act. It was contended that in view of Section 58 of the said Act, suit was not maintainable. The Small Causes Court, Mumbai passed judgment and decree in favour of the landlord holding that the suit was maintainable, the tenancy had been validly terminated and directed the appellant-bank to hand over possession of the suit premises to the landlord. Aggrieved by the said order the appellant-bank filed appeal no. 718 of 2001 before the Appellate Court which dismissed the same by order dated 12.7.2002. Appellant-bank filed writ petition (civil) No. 209 of 2003 in the Bombay High Court. On 7.1.2003 an application for amendment of the writ petition was filed seeking to challenge validity of provisions contained in Section 3 (l)(b) of the Maharashtra Rent Act. The High Court by the impugned order while allowing the application for amendment held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not have decided the question regarding validity of the provisions, being creatures of the statutes. According to him Section 113 of the Code of Civil Procedure, 1908 (in short 'CPC') to which Mr. Nariman has referred to submit, that the Court could have made a reference to the High Court, have no application, and in any event the High Court having accepted the prayer for amendment ought to have considered the issue which was of vital importance. If it felt bound by the decision of the Division Bench, rendered earlier, at least reference thereto should have been made. The rival contentions need careful consideration. There can be quarrel with the proposition as submitted by Mr. Nariman that if an order reco ds something, a party cannot be permitted to plead to the contrary specially in the matters as to whether there was any concession regarding a point, or whether it was given at the time of hearing. The only course open to a party taking the stand that order does not reflect actual position is to move the High Court in line with what has been said in Slate of Maharashtra v. Ramdas Shrinivas Nayak and Anr [1982] 2 SCC 463. In recent decisions i.e. Bhavnagar Univer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en before Courts below, in case of necessity, the provision could have been resorted to. The said provision reads as follows: "113 Reference to High Court - Subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the High Court, and the High Court nay make such order thereon as it thinks fit. [Provided that where the Court is satisfied that a case pencing before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion ; and the reasons therefor, and refer the same for the opinion of the High Court. Explanation - In this section, "Regulation" means any Regulat on of the Bengal, Bombay or Madras Code or Regulation as defined in the General Clauses Act, 1897 (10 of 1897), or in the General ..... X X X X Extracts X X X X X X X X Extracts X X X X
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