AMRATLAL MULJIBHAI THAKKAR Vs. AMBALAL RANCHHODLAL THAKKAR

JUDGEMENT

(1.) The petitioners herein are the owners of S. No. 756 admeasuring 6 acres situated at Kotambi village of Waghodia Taluka of Baroda District. The two petitioners are related in sense that the second petitioner is the widow of the deceased cousin of the first petitioner and the S. No. stands jointly in the name of the two petitioners. The second petitioner was a widow on April 1 1957 The second petitioner obtained and exemption certificate under sec. 88C of the Bombay Tenancy & Agricultural Lands Act (hereinafter referred to as the Act). The respondent herein was an ordinary tenant of the petitioners in respect of this land. The respondent did not pay rent regularly and used to commit defaults in payment of rent. For the years 1960-61 1961 and 1962-63 the respondent committed three defaults in payment of rent. After serving the respondent with due notice for each default a final notice terminating the tenancy was given on July 6 1963 Thereafter the petitioners filed a suit under sec. 29 read with sec. 25(2) of the Act praying for possession of the land on the ground of three defaults. This suit or application for possession was heard by the Mamlatdar Waghodia Taluka who by his order allowed the said application of the petitioners and directed that the respondent be evicted from the suit land. Against the decision of the Mamlatdar there was an appeal which was heard by the Assistant Collector Baroda. The appeal was dismissed by that officer and thereafter there was a Revision Application to the Gujarat Revenue Tribunal. The Revision Application was also dismissed by the Revenue Tribunal and against that decision Special Civil Application No. 643 of 1968 was filed by the respondent. This Special Civil Application came up for admission before Sarela J. That application was withdrawn on July 8 1968 There after the respondent filed against the same order of the Revenue Tribunal another Special Civil Application No. 1014 of 1968 before a Division Bench of the High Court. The Division Bench sent back the matter to Sarela J. and that Special Civil Application No. 1014 of 1968 was ultimately summarily dismissed by Sarela J on August 13 1968 Thereafter the Revenue Tribunal took up the matter in suo motu review and issued notices to the parties. The Tribunal reviewed its own earlier decision and the Revenue Tribunal allowed the review and set aside its earlier order. Consequently at the time of the review the Revenue Tribunal set aside the orders of the Mamlatdar and the Assistant Collector and thus the entire application filed by the landlords for possession came to be dismissed. It is against this order granting suo motu review that the present Special Civil Application has been filed.

(2.) Two main contentions have been urged before me at the hearing of this Special Civil Application and in the view that I take on the first of these contentions it is not necessary for me to refer to the other contentions which were urged by the rival parties and on which it is not necessary for me to express any opinion. The two main contentions urged on behalf of the petitioners are that because the Tribunals earlier order rejecting the Revision Application filed by the tenant was brought before the High Court by filing a petition under Art. 227 of the Constitution and that application was summarily rejected by Sarela J. the order of the Revenue Tribunal became merged in the order of the High Court and therefore there was no order of the Tribunal which could be reviewed by the Revenue Tribunal and since there was no order to be reviewed the decision given by the Revenue Tribunal was bad in law and must be quashed and set aside. On behalf of the tenant the respondent herein Mr. Shah contended that even if the Revenue Tribunals order became merged in the decision of the High Court by reason of the summary dismissal of the Special Civil Application by Sarela J. in view of the special circumstances of this case the High Court should not exercise its discretionary jurisdiction under Art. 227 in favour of the petitioner who are landlords. Besides the point of merger Mr. Majmudar for the petitioners also contended that there was no power of suo motu or any other review with the Tribunal. Secondly that the power of review could not be exercised in order to enable the Tribunal to take into consideration events subsequent to the earlier decision and he also wanted to urge that on merits one of the co-owners being a widow mere cancellation of the certificate under sec. 88C granted in favour Of the first petitioner would not justify the passing of an order for review. Similarly Mr. Shah on behalf of the respondent wanted to contend that the original suit filed by the present petitioners for possession was bad inasmuch as the landlords had accepted the rent in full before they filed the suit for evicting the respondent. Again it is not necessary for me to express any opinion about the rival contentions of the parties because in my opinion the matter can be disposed of only on the ground of doctrine of merger.

(3.) In Ratilal Nazir's case Civil Appeal No. 986 of 1967 decided by the Supreme Court on October 17 1969 the Supreme Court considered the effect of the doctrine of merger. In that case the landlord had filed a suit against his tenant in respect of certain premises governed by the Bombay Rents Hotel & Lodging House Rates Control Act. The suit was for a decree in ejectment on the ground that the tenant was in arrears for more than six months before the date of the notice under sec. 12 of the Rent Act and was on that account liable to be evicted. The tenant denied that he was in arrears. The trial Court dismissed the suit. In appeal the City Civil Court set aside the order of the trial Court and passed a decree in ejectment. Against this order a Revision Application was filed in the High Court of Gujarat and that Revision Application was summarily rejected by the High Court. An appeal against the decision of the High Court summarily rejecting the Civil Revision Application was filed after obtaining special leave of the Supreme Court and that appeal was also dismissed. Thereafter the tenant started proceedings under Art. 227 of the Constitution in the High Court challenging the order of the City Civil Court. That Special Civil Application was rejected by the High Court and against that order the tenant appealed with special leave obtained from the Supreme Court. Dealing with these facts Shah J. delivering the judgment of the Supreme Court observed that once the order of the City Civil Court was challenged in a Civil Revision Application before the High Court and the High Court dismissed the application the order of the City Civil Court got merged into the order of the High Court and when an appeal was filed under an order of the High Court to the Supreme Court the order of the High Court merged into the judgment of the Supreme Court. The High Court thereafter could not be moved by a petition under Art. 227 of the Constitution challenging the order of the City Civil Court. It is clear that the appellant by his petition sought to ignore the orders passed by the High Court and the orders of the Supreme Court and claimed relief on the footing that the order of the City Civil Court was erroneous. According to the Supreme Court such a petition was plainly incompetent.