HASMUKH CHATURBHUJ TRIVEDI v. MOHANLAL RAMJI voraliya
2000-02-14
P.B.MAJMUDAR
body2000
DigiLaw.ai
P. B. MAJMUDAR, J. ( 1 ) PRESENT Revision Application has been filed by the original defendant of Rent Suit No. 86 of 1980. The respondent herein was the original plaintiff of the said suit and he filed the aforesaid suit against the petitioner tenant in the Court of Small Causes at Rajkot on the ground that the defendant is a tenant in arrears of rent for more than 6 months i. e. , from 1-6-1970. The premises was let out to the defendant at a monthly rent of Rs. 100/ -. However, he has not paid the rent for 18 months, and therefore, he was served with a demand notice under Sec. 12 (2) of the Bombay Rent act, still he did not pay the said, rent. Ultimately, therefore, a suit was filed for getting a decree for possession. It was also stated in the suit that the defendant has made permanent construction in the suit premises in contravention of the terms of tenancy. Possession was also demanded on the ground of bona fide requirement of the plaintiff. ( 2 ) THE defendant resisted the suit by filing written statement at Exh. 14. It was contended in the written statement that the plaintiff is not the owner of the suit property and there was no relationship of landlord and tenant between the parties. It was contended that Rs. 100/- is not the standard rent. He also denied other grounds which were pleaded in the plaint for the purpose of getting the decree. On all these grounds, the defendant prayed that the suit of the plaintiff may be dismissed. ( 3 ) THE trial Court framed various issues at Exh. 26. The trial Court came to the conclusion that there is relationship of landlord and tenant between the plaintiff and defendant. The trial Court fixed the standard rent of the suit premises at Rs. 651- plus taxes. The trial Court found that the defendant was in arrears of rent. The trial Court also found that he was ready and willing to pay the rent. The other grounds were not pressed before the trial Court and ultimately the trial Court dismissed the suit of the plaintiff for possession and fixed the standard rent of the suit premises at Rs. 65/- p. m. , plus taxes.
The trial Court also found that he was ready and willing to pay the rent. The other grounds were not pressed before the trial Court and ultimately the trial Court dismissed the suit of the plaintiff for possession and fixed the standard rent of the suit premises at Rs. 65/- p. m. , plus taxes. ( 4 ) THE respondent plaintiff ultimately filed Civil Appeal No. 229 of 1981 before the District Court, Rajkot. The Appellate Court partly allowed the said appeal. Present petitioner who was respondent in the said appeal had also filed cross-objections so far as the finding about standard rent was concerned. According to the tenant the standard rent should not have been fixed at Rs. 65/- p. m. The appeal was heard by the learned Appellate Judge who allowed the appeal partly. The learned Appellate Judge dismissed the appeal insofar as the prayer for possession was concerned by confirming the decree of the trial Court. However, the learned Appellate Judge set aside the finding of the trial Court regarding fixation of standard rent at the rate of Rs. 65/- p. m. , and the standard rent was fixed at Rs. 100/- inclusive of all taxes and accordingly the appeal was partly allowed by the learned Appellate Judge. The tenant was given 3 months time to pay up aforesaid arrears of rent. The original defendant tenant has challenged the aforesaid order of the learned Appellate Judge fixing standard rent by way of this revision application. So far as the prayer for possession is concerned said question has become final. Therefore, the only dispute which is required to be considered in this revision application is fixing of standard rent by the learned Appellate Judge. So far as the decision of the learned Appellate Judge about the standard rent is concerned, the learned appellate Judge has given very cogent reasons for fixing Rs. 100/- as standard rent. Since the appeal before the learned Appellate Judge was a composite appeal on both the questions i. e. , for possession as well as for standard rent, the learned Appellate Judge decided the matter of standard rent also in the appeal. Section 29 of the Bombay Rent Act which is regarding preferring of an appeal. Section 29 reads as under :"29.
Section 29 of the Bombay Rent Act which is regarding preferring of an appeal. Section 29 reads as under :"29. Appeal : (1) Notwithstanding anything contained in any law, an appeal shall lie (a) in the City of Ahmedabad, from a Causes, Ahmedabad, exercising jurisdiction under Sec. 28, to a Bench of two Judges of the said Court which shall not include the Judge who made such decree or order; (b) elsewhere from a decree or order made by a Judge of the Court of Small causes established under the Provincial Small Cause Courts Act, 1887, or by the Court of the Civil Judge deemed to be the Court of Small Cause under clause (c) of sub-sec. (2) of Sec. 28 or by a Civil Judge exercising such jurisdiction to the District Court. Provided that no such appeal shall lie from (I) a decree or order made in any suit or proceeding in respect of which no appeal lies under the Code of Civil Procedure, 1908 : (II) a decree or order made in any suit or proceeding (other than a suit or proceeding relating to possession) in which the plaintiff seeks to recover rent and the amount of value of the subject-matter of which does not exceed- (i) where such suit or proceeding is instituted in the City of Ahmedabad, two thousand rupees (ii) where such suit or proceeding is instituted elsewhere the amount up to which the Judge or Court specified in Clause (b) is invested with jurisdiction of a Court of Small Causes, under any law for time-being in force; (III) an order made upon an application for fixing the standard rent for determining the permitted increases in respect of any premises except in a suit or proceedings in which an appeal lies; (IV) an order made upon an application by a tenant or a direction to restore any essential supply or service in respect of the premises let to him. (1-A) Every appeal under sub-sec. (1) shall be made within thirty days from the date of the decree or order, as the case may be : provided that in computing the period of limitation prescribed, by this sub- section the provisions contained in Secs. 4, 5 and 12 of the Limitation Act, 1908 shall so far as may be apply. (2) No further shall lie against any decision in appeal under sub-sec.
4, 5 and 12 of the Limitation Act, 1908 shall so far as may be apply. (2) No further shall lie against any decision in appeal under sub-sec. (1) but the High Court may, for the purpose of satisfying itself that any such decision in appeal was according to law call for the case in which such decision was taken and pass such order with respect thereto as it thinks fit. (3) Where no appeal lies under this section from a decree or order in suit or proceeding in the City of Ahmedabad the branch of two Judges specified in clause (a) of sub-sec. (1) and elsewhere the District Court, may for the purpose of satisfying itself that the decree or order made was according to law call for the case in which such decree was made and pass such order with respect thereto as it thinks fit. " ( 5 ) AS stated earlier, it was a composite appeal regarding decree for possession as well as for standard rent. The landlord had filed an appeal under sec. 29 (1) (b) of the Bombay Rent Act, but while exercising that jurisdiction so far as standard rent is concerned, the learned Appellate Judge is virtually exercising his revisional power under Sec. 29 (3) of the Bombay Rent Act because if there was only a dispute of standard rent, then no appeal is competent as per Sec. 29 proviso (III ). Since the appeal was also against non-granting of possession decree, naturally the Appellate Court has considered both the questions in the said appeal. Accordingly, so far as the fixation of standard rent is concerned, it can be said that virtually the learned Appellate Judge has exercised his revisional power while deciding the question. The nature of the said dispute is in the nature of revision application under Sec. 29 (3) of the Bombay Rent Act and in view of the judgment of this Court reported in 1996 (1) GLR 606 (Sumanlal Chhotalal Kamdar v. Miss Asha T. Shah) second revision as such would not be competent. Of course, as stated earlier the order under challenge is an order passed in appeal. But so far as the determination of standard rent is concerned, its scope was virtually within the revisional powers as stated above.
Of course, as stated earlier the order under challenge is an order passed in appeal. But so far as the determination of standard rent is concerned, its scope was virtually within the revisional powers as stated above. Simply because in an appeal standard rent issued was also raised, it does not give wider jurisdiction to the Appellate Court for the purpose of deciding standard rent application than the one prescribed under the law. Therefore, I cannot set aside the finding of the learned Appellate Judge regarding fixing of standard rent while exercising my revisional power. Apart from the aforesaid fact, the learned Appellate Judge has given very cogent reasons in paras 10 and 11 of his judgment while fixing the standard rent at Rs. 100/- p. m. Even on merits, the order of the learned Appellate Judge is not required to be interfered with by this Court. ( 6 ) IN view of what is stated above, there is no merit in this revision application. The same is dismissed. Rule discharged with no order as to costs. Interim relief granted earlier stands vacated. No order as to costs. ( 7 ) AT the time of admitting the matter the petitioner was given interim relief by which he was directed to pay the rent at the rate of Rs. 85. 50 per month. In view of the rejection of this revision application the petitioner is required to pay arrears, and therefore, in order to pay the difference of arrears of standard rent fixed by the Appellate Court at Rs. 100/- p. m. , the petitioner is granted time upto 31-5-2000 for the same. If the petitioners fails to comply with the same, it will be open for the respondent-plaintiff to take action in accordance with law. .