1. The present Second Appeal u/s.100 of the Code of Civil Procedure has been preferred by the appellant herein – original defendant – District Panchayat, Mahesana to quash and set aside the judgement and decree dated 18/04/1998 passed by learned 5th Joint Civil Judge (S.D.), Mahesana in Regular Civil Suit No.423 of 1993 in decreeing the suit filed by respondent herein – original plaintiff as well as judgement and order dated 29/11/2001 passed by learned 2nd Extra Assistant Judge, Mahesana in Regular Civil Appeal No.89 of 1998, by which, learned Appellate Court has dismissed the said appeal confirming the judgement and decree passed by the learned Trial Court.
2. Facts leading to the present second appeal, in nutshell, are as under:
That the respondent herein – original plaintiff has taken the shop on lease, which is situated in the Shopping Center of the District Panchayat. It was found that the original plaintiff acted contrary to the lease agreement and did not pay the rent as per lease agreement and, therefore, proceedings were initiated by appellant herein – original defendant- District Panchayat to recover possession of the suit premises, arrears of rent as well as penalty under the provisions of the Bombay Public Premises (Eviction of Unauthorised Occupants) Act,1972 [hereinafter referred to “the Act”]. The plaintiff was served with the Notice for eviction, arrears of rent as well as penalty. Having served with the notice, the plaintiff handed over possession of the shop as well as paid arrears of rent and penalty. The proceedings under the Public Premises Act came to be withdrawn by the appellant herein.
That thereafter the respondent herein – original plaintiff instituted Regular Civil Suit No.423 of 1993 before learned Trial Court for recovery of Rs.24,720/- of rent and Rs.251/- of penalty, which was paid by the original plaintiff. It was the case on behalf of the plaintiff that the amount of penalty has been recovered by the appellant herein – original defendant under coercion and that the District Panchayat has no authority to levy the penalty. It is further submitted that under the provisions of Bombay Public Premises Act, there is no provision to levy the penalty. Learned Trial Court by judgement and decree dated 18/04/1998 decreeing the suit by holding that to recover penalty from the plaintiff is illegal as there is no such provisions under the Bombay Public Premises Act to recover the penalty and directed the appellant herein – original defendant to return an amount of Rs.24,971/- with 12% running interest from the date of filing of the suit till realization of the decreetal amount.
Being aggrieved by and dissatisfied with the judgement and decree passed by the learned Trial Court, the appellant herein – original defendant has preferred the Regular Civil Appeal No.89 of 1998 before learned District Court, Mahesana and learned 2nd Extra Assistant Judge, Mahesana by impugned judgement and order dated 29/11/2001 has dismissed the said appeal by confirming the judgement and decree passed by the learned Trial Court. Being aggrieved by and dissatisfied with the judgement and orders passed by both the Courts below, the appellant herein – original defendant has preferred the present Second Appeal under Section 100 of the Code of Civil Procedure.
3. At the time of admission of the present Second Appeal, learned Single Judge has framed the following substantial questions of law for determination on 5/4/2002:
“1. Whether the plaintiff is entitled to get the relief as prayed in the Regular Civil Suit No.423/93, in spite of the fact that during the period for which the plaintiff had held the possession not paid any single amount towards rent?
2. Whether both the courts below are justified in interpreting the provisions of Sections 8, 9 and 16 of Public Premises (Eviction of Unauthorised Occupants) Act,1972?
It is required to be noted that the plaintiff cannot file a civil suit with regard to the disputed suit premises as the proceedings under the provisions of Public Premises (Eviction of Unauthorised Occupants) Act,1972 were already initiated by the defendant before the competent authority;
3. Whether both the courts below are justified in holding that the Civil Court has jurisdiction to try the suit, in spite of the fact that the contention has been clearly raised during the arguments that Civil Court has no jurisdiction as the proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act,1972, were already initiated before the competent authority?
4. Whether both the courts below are justified in holding that the terms and conditions of the Agreement which was executed between the plaintiff and the defendant are void ab initio and, therefore, it cannot be enforced?”
4. Mr.R.M.Chauhan, learned advocate appearing for Mr.Munshaw, learned advocate appearing on behalf of the appellant herein – original defendant has vehemently submitted that learned Trial Court has materially erred in allowing the suit and directing the appellant herein to return the decreetal amount on the ground that under the provisions of the Public Premises Act, there is no such provision to levy the penalty. It is submitted that the penalty was imposed under the Lease Agreement entered into between the parties and the parties were bound by the conditions mentioned in the lease agreement. There was a provision to impose penalty in case of default in paying the rent and not vacating the suit premises, if it is occupied illegally. It is submitted that after receipt of the Notice under the Public Premises Act with respect to possession, arrears of rent as well as penalty, the plaintiff himself voluntarily returned the possession of the suit premises and paid the arrears of rent as well as penalty and, thereafter, the appellant herein withdrew the proceedings under the Public Premises Act. Therefore, as such it was not open for the plaintiff now to make grievance with respect to penalty, which he has earlier paid voluntarily. If the plaintiff was aggrieved by the penalty imposed upon him, he should have contested the proceedings under the Public Premises Act. It is submitted that considering Sections 8, 9 and 16 of the Public Premises Act, learned Single Judge has no jurisdiction to entertain the dispute with respect to penalty, which can be subject matter of the proceedings under the Public Premises Act. Therefore, it is requested to allow the present Second Appeal.
5. The present second appeal is opposed by Mr.Amit Nanavati, learned advocate appearing on behalf of the respondent herein – original plaintiff. It is submitted that as such the appellant herein – original defendant did not file the written statement. It is further submitted that in fact they objected the exhibiting lease agreement, which was produced by the plaintiff, which has now been relied upon by them. Reliance placed upon the lease agreement not exhibited, no reliance can be placed upon that document. Therefore, it is submitted that no illegality has been committed by the learned Trial Court in decreeing the suit. It is further submitted that as such it is specifically found that the imposition of penalty is absolutely illegal and, therefore, it is requested to dismiss the present Second Appeal.
6. Heard learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that as such the proceedings were initiated by the appellant herein – original defendant to recover possession of the shop as well as for arrears of rent and for recovery of the penalty under the provisions of the Public Premises Act. It is not in dispute that after receipt of the notice under the Public Premises Act with respect to possession, arrears of rent as well as penalty, immediately, the respondent herein – original plaintiff handed over the possession of shop and also paid the arrears of rent and penalty as per the notice received by him. Nothing is on record that the plaintiff handed over the possession and/or paid arrears of rent and penalty, under compulsion. The plaintiff instituted the suit to recover the penalty, which was paid by him earlier on receipt of the Notice under the Public Premises Act. Once payment of penalty was made by the plaintiff, thereafter, it was not open for the plaintiff to recover the amount of penalty by submitting that imposition of penalty was illegal. If the plaintiff was of the opinion that the notice for penalty is illegal and/or imposition of penalty is illegal, in that case, he ought to have contested the proceedings under the Public Premises Act, which was already initiated by the appellant herein - original defendant. On payment of entire amount of arrears of rent and penalty and possession was handed over, the proceedings under the Public Premises Act has been withdrawn. If the plaintiff had not paid the amount of penalty, in that case, proceedings under the Public Premises Act would have been continued. Therefore, now it is not open for the plaintiff to raise grievance with respect to imposition of penalty. Even otherwise, it is required to be noted that imposition of penalty is under the lease agreement. Both the Courts below have come to the conclusion that there is no provision with respect to penalty under the Public Premises Act and, therefore, imposition of penalty was illegal, both the Courts below have committed an error. It is required to be noted that the penalty was imposed under the lease agreement executed between the parties and both the parties are bound by the lease agreement. Under the circumstances, findings given by both the Courts below that imposition of penalty is illegal as there is no provisions under the Public Premises Act, is absolutely illegal and cannot be sustained.
Contention on behalf of the plaintiff that no written statement was filed by the defendant and, therefore, it is not open for the defendant to contest the suit, cannot be accepted. From the judgement and orders passed by both the Courts below, it appears that the defendant contested the suit and cross-examined the plaintiff also. In any case, it was for the plaintiff to prove that the penalty was illegal.
Contention on behalf of plaintiff that as agreement is not exhibited and therefore the same cannot be relied upon is concerned, it appears that it was the plaintiff, who produced the lease agreement. Therefore as such now it is not open for the plaintiff to dispute the lease agreement and even otherwise the plaintiff is not disputing the lease agreement as well as terms mentioned in the lease agreement. In view of the aforesaid facts and circumstances of the case, both the Courts below have materially erred in decreeing the suit and directing the appellant herein to return the amount of penalty, which was paid by the plaintiff having served with the notice under the Public Premises Act, cannot be sustained and the same deserves to be quashed and set aside.
7. In view of the above and for the reasons stated hereinabove, the present Second Appeal succeeds and is allowed. The judgement and decree dated 18/04/1998 passed by learned 5th Joint Civil Judge (S.D.), Mahesana in Regular Civil Suit No.423 of 1993 in decreeing the suit filed by respondent herein – original plaintiff as well as judgement and order dated 29/11/2001 passed by learned 2nd Extra Assistant Judge, Mahesana in Regular Civil Appeal No.89 of 1998 are hereby quashed and set aside. No costs.
[M.R.SHAH,J] *dipti