CENTRAL BANK OF INDIA versus VRAJLAL KAPURCHAND GANDHI AND ANR.

Citation: [2003] SUPP. 1 S.C.R. 560 · Decided: 16-07-2003 · Supreme Court of India · Bench: SHIVARAJ V. PATIL · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
CENTRAL BANK OF INDIA 
v. 
VRAJLAL KAPURCHAND GANDHI AND ANR. 
JULY 16,2003 
B 
[SHIVARAJ V. PATIL AND ARJJIT PASA YAT, JJ.] 
Rent Control and Eviction : 
Maharashtra Rent Control Act, 1999-Section 3(/)(b)-Writ petition 
C filed against eviction-Tenant filing amendment application seeking to 
challenge the validity of section 3(/)(b)-High Court allowing the application 
but dismissing the writ petition, declining to examine the validity of the 
provision-On appeal, held: High Court should have considered the 
constitutional validity of the provision-Section 113 CPC not applicable 
D since the question has already been decided by a Division Bench of High 
Court-Maller remitted to High Court for fresh adjudication-Code of Civil 
Procedure, 1908 Section II 3. 
Respondents-landlords filed a suit against appellant-tenant seeking 
vacant possession of the suit premises. Small Causes Court decreed the suit 
E in favour of the landlord. Appellant filed an appeal which was dismissed. 
Appellant-tenant filed a writ petition and also filed an amendment application 
seeking to challenge validity of provisions of Section 3(1)(b) of the 
Maharashtra Rent Control Act, 1999. High Court allowed the amendment 
application holding that section 3(1)(b) was applicable. It however, dismissed 
F the writ petition without dealing with the plea of validity of the section. Also 
the case was disposed of on the same date on which the amendment was allowed. 
Hence the present appeal. 
Appellant-tenant contended that after having allowed the amendment 
relating to validity of Section 3(1)(b), the High Court was not justified in 
G dismissing the writ petition without examining that question; that the case 
was disposed of on the date application for amendment was filed; that it is 
inconceivable that the appellant having taken all pains to get the petition 
amended, would give up; that though a Division Bench of High Court has upheld 
the validity of the provision in question in earlier decision yet several matters 
have been admitted by this Court and validity of the section in question is 
H 
560 
CENTRAL BANK OF INDIA v. V.K. GANDlll 
561 
being examined by this Court; that section 113 CPC under which the Court A 
could have made a reference to the High Court, has no application, and in any 
event the High Court having accepted the prayer for amendment ought to have 
considered the i:;sue which was of vital importance; and that if it felt bound by 
the decision of the Division Bench rendered earlier, at least reference thereto 
should have been made. 
B 
Respondent-landlord contended that the challenge to the constitutional 
validity of Section 3(1)(b) was given up before the High Court as is evident 
from the impugned order and it is not open to the appellant to make a grievance 
that the question was not examined by the High Court; that if the appellant 
takes the stand that the plea was n·ot given up, the proper course is to approach C 
the High Court for clarification, if any; and that had the stand been taken 
before Courts below, in case of necessity, section 113 CPC could have been 
resorted to. 
Allowing the appeal, the Court 
HELD: I.I. Since the Division Bench of the High Court has already 
decided the question in an earlier decision, Section 113 of the Civil Procedure 
Code, 1908 has no application to the present case. [567-AI 
2.1. The High Court had permitted ihe challenge to be made by allowing 
D 
the application for amendment. The case was disposed of on the date the E 
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. Therefore, in the factual background, 
the High Court should have considered the challenge to the constitutional 
validity of Section 3(1)(b) of the Maharashtra Rent Act as raised by the F 
appellant. It can certainly consider the effect ofany earlier decision; however 
no opinion is expressed on that aspect. 1567-B-DI 
State of Maharashtra v. Ramdas Shrinivas Nayak and Anr., 119821 2 
SCC 463; Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd., 120021 AIR 
SCW 4939; Roop Kumar v. Mohan Thedani, 120031 3 SCALE 611; K.S. G 
Venkataraman & Co. v. State of Madras, 119661 2 SCR 229; Dhulabhai v. 
State of Madhya Pradesh and Anr., AIR 119691SC78; Cl. T Madhya Pradesh, 
Nagpur and Bhandara v. Mis. S!raw Products Lid., AIR 119661 SC 1113; l. 
Chandra Kumar v. Uni

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