Alagiriswami, J. - (1.) This is an appeal against the judgment of ,the High Court of Bombay in an application under Article 227 of the Constitution by which it not only set aside the ex parte decrees passed by the Court of Small Causes, Bombay in a suit for eviction and rent but dismissed the suit itself. The facts are as follows:
(2.) The appellants-plaintiffs filed a suit against the defendants respondents for recovery of possession of the property leased to them as also rent and mesne profits in March 1968. It was alleged that the defendants were in arrears of rent from 1st March 1966 and that the rent was Rs. 385/- a month. On 30 January 1968 a notice to quit was given to the defendants and the notice was served on 1st February 1968. On 20th February 1968 they filed an application under Sec. 11 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 for fixation of standard rent. It was thereafter that the suit was filed in March 1968. On 23rd November 1968 the suit came up before a Judge of the Small Causes court and after hearing the parties he made an order requiring the defendants to deposit Rs. 13,090/- as rent due up to the end of December 1968 and interim standard rent of Rs. 308/- per month to be paid beginning from February 15, 1969. It was further ordered that in default of the defendants depositing the amount the plaintiffs were at liberty to follow the consequential remedy under Section 11 (4) of the Act. The defendants did not deposit the amount ordered by the Court and on 24th February 1969 the plaintiffs applied to the Court praying for a notice to be issued to the defendants to show cause why they should not deposit the aggregate amount of rent and further rent of Rs. 385/- per month from 1st August 1969 till the disposal of the suit. There was a further prayer that in default of the deposit of the amount the defences of the defendants may be ordered to be struck off. Upon this application a notice was issued to the defendants and on 2nd June 1969 an order was made requiring the defendants to deposit Rs. 14,607/- within one month and to continue to deposit Rs. 308/- per month in accordance with the earlier order. It was further ordered that in default of the deposit the defences of the defendants were to be struck off and that the suit should be placed for ex parte orders on l5th July 1969. The defendants failed to deposit arrears of rent and the suit came up for orders on l5th July 1969. The defendants were absent on that day and the suit was adjourned to 5th August 1969. On the 5th August the suit was again adjourned to 6th and on that day an ex parte decree for possession, recovery of arrears of rent and costs was passed. However, on the 4th August the defendants had made an application stating that on proper calculation the amount of arrears of rent would come to Rs. 7065/- and praying for extension of time for deposit of this amount. The defendants were allowed to deposit the amount without prejudice to the rights and contentions of the parties and notice was ordered to be issued to the plaintiffs. The defendants, deposited the amount but did not take out and serve the notice on the plaintiffs and the notice was ultimately discharged for want of prosecution on 19th September, 1969. An appeal was filed before the Appellate Bench of the Small Causes Court against the ex parte decree and it was dismissed. On an application filed before the High Court a learned single Judge set aside the decree passed by the Small Causes Court on 6th August 1969 as also the decree passed by the Appellate Bench and also dismissed the suit.
(3.) As far as we are able to see the only reason which persuaded the learned Judge to come to this extraordinary conclusion was that under Sec. 11 (4) of the Act the only order that could be passed was, an order directing, after fixing the interim standard rent to be deposited within a particular time, 'that if the tenant fails to comply with any order made as aforesaid, within such time as may be allowed by it, he shall not be entitled to appear in or defend the suit except with leave of the Court, which leave may be granted subject to such terms and conditions as the Court may specify', and the section did not authorise the Court to strike off the defences straightway. The learned Judge found it difficult to understand how the Court could pass an order on June 2, 1969 as follows: "The defendant No. 2 to deposit the balance amount of Rs. 14,607/- in Court within a month and continue to deposit Rs. 308/- per month as per order passed by scrutiny Court in default Notice absolute and defences to be struck off and suit be fixed for ex parte hearing, on l5th July 1969. Defendant No. 2 to pay Rs. 30/- to the plaintiffs." He therefore thought the order passed by the Court on June 2, 1969 was illegal and without jurisdiction and every step that was taken by the Court subsequently must be considered to be without jurisdiction and illegal. However, considering the question as to what was the proper order to be passed in the petition, the learned Judge thought as the defendants had admittedly deposited by then all amounts as ordered by the Court previous to the order of June 2, 1969 and also deposited the monthly rent at the rate of Rs. 308/- per month the matter would fail under Section 12 (3) (b) and the suit should be dismissed.;