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Popatlal Ratansey Vs. Kalidas Bhavan - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. Nos. 1924 and 1925 of 1955
Judge
Reported inAIR1958Bom1; (1957)59BOMLR860; ILR1957Bom688
ActsCode of Civil Procedure (CPC), 1908 - Sections 11 - Order 23, Rule 3; Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 5, 5(10), 7, 11, 11(1), 18, 20, 28 and 29; Bombay Rent Restriction Act, 1939; Punjab Rent Act - Sections 4, 5 and 6; Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 - Sections 1
AppellantPopatlal Ratansey
RespondentKalidas Bhavan
Appellant AdvocateR. Jethmalani and ;Manghanmal Bhojraj, Advs.
Respondent AdvocateD.V. Patel and ;J.N. Shah, Advs.
Excerpt:
bombay rents, hotel and lodging house rates control act (bom. lvii of 1947), sections 11, 28, 29 - standard, rent fixed under consent decree--subsequent application by same tenant for fixing standard rent for same premises--whether consent decree would operate as res judicata--distinction between agreement embodied in lease and decision embodied in consent decree.;a tenant filed an application under the bombay rents, hotel and lodging house rates control act, 1947, for fixation of standard, rent for premises leased to him by his landlord. the landlord filed a cross-suit for possession alleging that the tenant was in arrears of rent and that he had sub-let the promises. the trial court, in the tenant's application, fixed the standard rent at rs. 40 per month and decreed, the landlord's.....vyas, j.1. these revision applications raise a point of jaw whether a consent decree by which the standard lent of certain premises is fixed would operate as res judicata in a subsequent application by the same tenant for fixing the standard rent for the same premises.2. civil revision application no. 1924 of 1955 relates to two shops and civil revision application no. l925 of 1955 is in respect of a cabin. the two shops were leased by the respondent-landlord to the applicant-tenant on the 14th june 1948 and the rent which was fixed under the lease was rs. 136 per month, the tenant filed an application under the bombay rents, hotel and lodging house rates control act, 1947, for fixation of standard rent for the shops. it was application no. 633 of 1949. the landlord filed a cross-suit,.....
Judgment:

Vyas, J.

1. These revision applications raise a point of Jaw whether a consent decree by which the standard lent of certain premises is fixed would operate as res judicata in a subsequent application by the same tenant for fixing the standard rent for the same premises.

2. Civil Revision Application No. 1924 of 1955 relates to two shops and Civil Revision Application No. l925 of 1955 is in respect of a cabin. The two shops were leased by the respondent-landlord to the applicant-tenant on the 14th June 1948 and the rent which was fixed under the lease was Rs. 136 per month, The tenant filed an application under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, for fixation of standard rent for the shops. It was Application No. 633 of 1949. The landlord filed a cross-suit, which was Suit No. 70 of 1950, for possession and the grounds upon which he sought possession were (1) that the tenant was in arrears of rent and (2) that the tenant had sub-let the premises. The trial Court, in the tenant's application for fixation of standard rent, fixed a sum of Rs. 40 per month as being the standard rent for the shops. The landlord's Suit No. 70 of 1950 was decreed by the Court and under the decree the tenant was called upon to deliver possession of the shops to the landlord. Against the above mentioned decisions both the parties went in appeal. The appeal filed by the tenant was Appeal No. 355 of 1951 and the appeal filed by the landlord was Appeal No. 40 of 1951. The tenant's contention in his appeal was that he should not have been called upon to deliver possession of the premises to the landlord and the landlord's grievance in his appeal was that the standard rent, which was fixed at a sum of Rs. 40 per month, was inadequate and that the amount of standard rent should be increased. In the abovementioned Appeals Nos. 355 and 40 of 1951 there was a compromise arrived at between the parties on the 16th November 1951; and as the result of the compromise a consent decree was passed by the appeal Court, setting aside the decree for possession which was passed by the trial Court in landlord's Suit No. 70 of 1950 and modifying the decree which was passed in tenant's Application No. 633 of 1949 by raising the amount of the standard rent from Rs. 40 per month to Rs. 91 per month. It may be noted that, while the above proceedings were pending in the appeal Court, the parties agreed that the 'reasonable and standard rent of the premises' was Rs. 91 per month without electricity. They made a request to the appeal Court that the standard rent of the premises might be fixed at Rs. 91 per month. The landlord gave up his claim to recover possession of the premises and he agreed to accept the applicant as his tenant. The tenant on the other hand abandoned his contention that the proper standard rent of the premises was Rs. 40 per month and accepted the landlord's figure that Rs. 91 per month should be the standard rent for these shops. When this agreement was submitted to the appeal Court, the Court considered that it was a fair and just agreement, was satisfied that there was nothing unlawful about it and accordingly it passed a decree in terms of the agreement. That was the consent decree by which the dispute between the parties was decided and the applicant was accepted By the respondent as his tenant upon his paying standard rent at the rate of Rs. 91 per month. For some time thereafter, for about a year, the tenant went on paying rent to the landlord at the rate of Rs. 91 per month. But thereafter the dispute started again. It was on account of that dispute that the landlord filed Suit No. 302 of 1952 for recovering possession of the shops from the tenant on the ground that the tenant had failed to pay rent and was in arrears of rent. While-defending the suit the tenant contended that he was not in arrears of rent, as the standard rent for the shops was Rs. 40 per month as previously fixed by the Court in his Application-No. 633 of 1949 and as he had paid rent at that rate. According to the tenant Rs. 91 per month was not the standard rent for these premises. In the landlord's Suit No. 302 of 1952 the trial Court, upon the contentions of the parties before it, framed certain issues as preliminary issues and one of these issues was whether the-consent decree which was passed in Appeals Nos. 355 and 40 of 1951 would operate as a bar to the tenant's contention that the standard rent for the shops was Rs. 40 per month and not Rs. 91 per month. The trial Court held-that the consent decree would not estop the tenant from contending that the standard rent for the shops was Rs. 40 per month instead of Rs. 91 per month as fixed under the consent decree and dismissed the suit of the landlord. On the landlord going in appeal, the learned appellate Judge took a contrary view and held that by reason of the consent decree passed by the Court in Appeals Nos. 355 and 40 of 1951, to which both the present parties were parties, the tenant would be estopped from contending that the standard rent of the premises was not Rs. 91 per month; but it was only Rs. 40 per month. It is from this decision of the learned appellate Judge, the District Judge of Thana, that the present applications are filed by the tenant.

3. In support of the view taken by the learned District Judge Mr. Patel for the respondent has invited our attention to a decision of Mr. Justice Gajendragadkar in Civil Revn. Applns. Nos. 833 and 1253 of 1953 and Civil Rcvn. Applns. Nos. 980, 999 and 807 of 1954, which were decided on 11-8-1954 (Bom) (A). Mr. Justice Gajendragadkar examined the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, and observed that he was unable to see how it could be contended that it was not open to the parties at dispute as to the standard rent of premises to compromise the said dispute under the provisions of the Act. Mr. Justice Gajendragadkar pointed out that it was undoubtedly true that the policy of the Act was a benevolent policy and the policy was to help the tenants. But he said that he was unable to accept the argument that the Act either expressly or by necessary implication made it obligatory on the Court to decide the matter. In Mr. Justice Gajendragadkar's view, it would be perfectly competent to the parties to settle the dispute in regard to the standard rent and the mere fact that after the tenant had entered into an agreement in respect of this dispute he had begun to feel that he had been persuaded to enter into an agreement to his prejudice would not justify the argument that the compromise agreement itself was a nullity. He observed that upon a Question arising whether a consent decree would constitute a bar of res judicata or not, it was necessary to make a distinction between orders or decrees which might be contrary to law and those which might be prohibited by law, and he said that in the Act he saw no prohibition, preventing the parties from settling the dispute as to the standard rent by agreement. Then Mr. Justice Gajendragadkar pointed out that even if the consent order fixed the standard rent at an amount which might be higher than the amount which might have been fixed by the controller, that would not make the consent order contrary to law. He summed up his view in these words :

'Therefore, in my opinion, the Courts below were right in coming to the conclusion that the consent order passed in application No. 326 of 1948-49 precludes the Court from trying the same issue over again in the present proceedings.'

The learned District Judge of Thana, in deciding appeal No. 409 of 1954 which arose out of suit No. 302 of 1952, relied upon this decision of Mr. Justice Gajendragadkar and came to the conclusion that the tenant was estopped from contending in a subsequent application under the Act that Rs. 91 per month was not the standard rent for these premises, but that the standard rent was Rs. 40 per month only.

4. At this stage we may also refer to a decision of Mr. Justice Shah in Civil Revn. Appln. No. 1691 of 1955 (Bom) (B). In that case a consent decree was passed in a previous proceeding between the same parties and under it the standard rent of the premises was fixed at Rs. 19 per month. The view which was taken by the Courts below in a subsequent proceeding was that the standard rent should be fixed at Rs. 12-8-0 per month. It was contended on behalf of the landlord before Mr. Justice Shah that the view which was taken by the Courts below was erroneous and that the standard rent should be fixed at Rs. 19 per month as the parties had come to an agreement in a prior proceeding, which was the basis of the consent decree in that proceeding, that that should be the standard rent of the premises. Before Mr. Justice Shah a contention was advanced on behalf of the tenant that an agreement to pay rent in excess of the rent which was found by the Courts below to the proper standard rent could not be regarded as a lawful agreement upon which the Court could pass a decree binding upon the parties. Mr. Justice Shah negatived that contention and took the same view as was taken by Mr. Justice Gajendragadkar.

5. Mr. Jethmalani appearing for the tenant challenges the view taken by Mr. Justice Gajendragadkar and he says that the view which Mr. Justice Gajendragadkar took was contrary to the scheme of the Act. Mr. Jethmalani has taken us through certain provisions of the Act. He has taken us through Section 5, Sub-section (10), Section 7, Section 11, Section 18 and Section 20 of the Act and he has contended that when a dispute arises between a landlord and a tenant as to the standard rent, it is for the Court or the Controller alone under the Bombay Rent Restriction Act, 1939, or the Bombay Rents, Hotel and Lodging House Rates Control Act, 1944, to investigate into the matter, consider the evidence and circumstances of the ease and decide, what should be the standard rent for the particular premises. According to Mr. Jethmalani, the Act does not envisage that the parties to a dispute as to the standard rent should arrogate to themselves the function of the Court or the controller and should assume the duty, which the Act has cast upon the Court or the Controller, of deciding what the just or fair standard rent should be for the particular premises. Mr. Jethmalani says that the jurisdiction to decide a dispute as to the standard rent was intended by the Legislature to vest only in the Court or the controller and that there is nothing in the Act which would suggest that the parties themselves could settle it by an agreement. It is true, says Mr. Jethmalani that the appeal Court under Section 29 of the Act passed a consent decree in appeals Nos. 355 and 40 of 1951 fixing the standard rent for these shops at Rs. 91 per month. But Mr. Jethmalani's contention is that the learned Judge of the appea! Court did not examine the merits or the rival contentions of the parties, that in that sense he did not apply his mind to the subject-matter of the dispute and that accordingly the tenant could not be estopped in a subsequent application made by him under the Act from contending that the decision embodied in the consent decree was not binding upon him. According to Mr. Jethmalani it is not improbable that at times the consent decrees might result from fraud, coercion or collusion and, therefore, if as a general rule a consent decree were to estop the tenant in a subsequent application from contending that the standard rent should not be calculated at the rate fixed by the consent decree, considerable hardship and injustice might be caused to the tenant. Mr. Jethmalani says that a decision of a dispute as to the standard rent under the Act is a decision in rem that it would operate in rem and that since there is a proba-bility that the decision embodied in a consent decree might have been the result of a fraud, coercion, collusion etc., it would cause hardship and injustice not only to the applicant-tenant, but to the succeeding tenants as well, if the consent decree is to constitute a bar of estoppel for all time. We are not impressed by these submissions of Mr. Jethmalani. Standard rent cannot be a constant figure. Standard rent depends upon circumstances, and as circumstances change, the standard rent would also vary. There can be no immutability about it. Besides, the tenant having once given the Court to understand, to the satisfaction of the Court, that he considered the rent proposed by the landlord during trial or appeal to be a just and reasonable standard rent which was acceptable to him and having invited the Court to decide the question accordingly and incorporate the decision in its decree, it would not be open to him to say subsequently, as between the same parties and in respect of the same premises, that the previous decision of the Court would not bind him.

6. To accept Mr. Jethmalani's contention that notwithstanding the consent decree, which was passed by the Court in appeals Nos. 355 and 40 of 1951, deciding that the standard rent for these premises would be Rs. 91 per month, the tenant would not be estopped from contending that the consent decree is not binding upon him and from saying that the standard rent should be calculated not at the rate of Rs. 91 per month but at the rate of Rs. 40 per month, would be to permit the tenant, in the words of the Privy Council in Ambu Nair v. Kelu Nair , to approbate and reprobate, or to permit him, in the words of Mr. Justice Honyman in Smith v. Baker. (1873) 8 C.P. 350 and in the words of Chief Justice Lord Kenyon in Smith v. Hod-son. (1790) 2 Sm L.C. 140, to blow hot and cold at the same time. In Ambu Nair v. Kelu Nair (C), it was held by the Privy Council that the mortgagee's conduct in the proceedings in the suit on the simple mortgage, in which the mortgagee tacitly acknowledged the right of redemption as being still alive, estopped him from subsequently taking up the plea that the mortgagor's only remedy was by execution of the compromise decree. Their Lordships said that a party could not both approbate and reprobate. He could not say at one time that the transaction was valid and thereby obtain some advantage to which he could only be entitled on the footing that it was valid, and at another time say that it was void' for the purpose of securing some further advantage. Here also, during the pendency of appeals Nos. 355 and 40 of 1951, the tenant gave the Court to understand that he was agreeable to its accepting the landlord's figure of Rs. 91 per month as being the proper standard rent. Upon the footing of that understanding which he gave to the Court he obtained a definite advantage. The landlord permitted him to remain in possession. I have stated above that in appeal No. 355 of 1951 the tenant had challenged the decision of the trial Court calling upon him to deliver possession of the premises to the landlord. Upon the tenant accepting the landlord's figure of Rs. 91 per month as standard rent, the landlord gave up his claim to possession and the tenant was permitted to remain in possession. That was clearly a definite advantage which the tenant received by telling the Court that he was agreeable to the fixation of the standard rent at Rs. 91 per month and asking the Court to pass a decree on that footing. Thereafter, he has endeavoured to secure further advantage by seeking to have the standard rent reduced from Rs. 91 per month to Rs. 40 per month, while retaining possession. He does not wish to part with possession and does not also wish to pay Rs. 91 per month as standard rent. He wants to continue in possession not upon payment of Rs. 91 per month, but upon payment of Rs. 40 per month. In this manner, he seeks to gain further advantage by contending that the consent decree is not binding upon him. This he cannot be permitted to do in view of the decision of the Privy Council in Ambu Nair v. Kelu Nair (C).

7. In Smith v. Baker, (D), also Mr. Justice Honyman observed : 'A party at the same time cannot blow hot and cold. He cannot say at one time that the transaction is valid, and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and at another say it is void for the purpose of securing some further advantage.' Chief Justice Lord Kenyon also took the same view in Smith v. Hodson (E). We have thus got ample and, with great respect, eminently weighty authority of judicial decisions to hold that it would not be permissible to the tenant to 'blow hot and cold at the same time' or 'to approbate and reprobate' and contend that the standard rent as fixed by the consent decree which was passed between himself and the landlord in appeals Nos. 355 and 40 of 1951 would not bind him.

8. Mr. Jethmalani says that the Act by implication prohibits the parties from settling disputes as to the standard rent by agreement, since although the rent as mentioned in the lease is fixed by agreement between landlord and tenant, the Act provides that in case of a dispute as to rent, the standard rent shall be determined by the Court or the controller. Mr. Jethmalani overlooks the fact that there is an essential distinction between an agreement of lease and an agreement upon which the Court sets its imprimatur and passes a decree. The former agreement is an agreement upon which a tenant goes into occupation of premises under an obligation to pay certain rent. The Act -contemplates that upon a dispute arising as to the fairness of the Quantum of the rent contracted to be paid under that agreement, the fairness and justness of the agreement would be enquired into by the Court or the controller who will determine the standard rent. The latter agreement is an agreement arrived at between the parties after the dispute is referred to a Court and whose fairness and justness are accepted by the Court as a basis for passing a decree. There is nothing in the provisions of the Act which precludes or prohibits the Court at any stage oi the proceeding (the trial stage or the appeal stage) from accepting such an agreement as being a fair and proper settlement of the dispute and there is nothing unlawful if a decree is passed by the Court upon its considering the Settlement a just settlement. When the tenant agrees during trial or appeal that the standard rent should be as suggested by the landlord and should be made the basis of a decree, he agrees that the evidence tendered by the landlord as to the standard rent to be fixed by the Court should be accepted by the Court, and when the Court considers that the agreement is fair and genuine and passes a decree upon it, the agreement is lifted from the plane of a mere agreement and is transported to the plane of a judicial decision. In short, there is a fundamental distinction, which cannot be overlooked, between an agreement which is embodied in a lease and the decision which is embodied in a consent decree. The agreement which is embodied in a lease is purely and simply an agreement as to rent. On the other hand, what is embodied in a consent decree is the decision of the Court as to standard rent. Such a decision or judgment of the Court would estop the tenant from contending in a subsequent application under the Act that the standard rent to which he had previously agreed was not the fair rent.

9. There is nothing in the provisions of the Bombay Bents, Hotel and Lodging House Rates Control Act, 1947, to show that the Legislature intended that if a dispute as to standard rent between landlord and tenant was settled by agreement between the parties, the settlement could not form the basis of a decree. Mr. Jethmalani contends that the provisions of the Act saying that disputes as to standard rent should be decided by the Court or the Controller are exceptional provisions and that, therefore, the ordinary provisions of Jaw regarding a previous decision on the same point between the same parties constituting a bar of res judicata would not hold good in the case of fixation of standard rent under the Act. Mr. Jethmalani is not right. As observed by a Division Bench of this Court in Gangadhar Sakharam v. Mahadu Santaji ILR 8 Bom 20 , it is a general principle that exceptional provisions are not to receive a development to all their logical consequences contrary to the general principles of the law. Now, the general principle of law is that a compromise which is made with the consent of the Court by parties who are sui juris should be given effect to. As Mr. Justice Gajendragadkar said while deciding a similar point in Civil Revn. Applns. Nos. 833 and 1253 of 1953 (Bom) (A), there was nothing unlawful about the compromise between the landlord and the tenant in appeals Nos. 355 and 40 of 1951. Nothing is shown to us by Mr. Jethmalani to suggest that the compromise was against public policy. Mr. Jethmalani has no doubt arguedthat it would be against public policy to bind down a tenant in a subsequent application made by him under the Act to a consent decree passed in a previous proceeding between himself and the landlord, He has contended, in the words of a decision of this Court in Chapsi Umersi v. Keshavji Damji 23 Bom LR 133: AIR 1921 Bom 224, that

'the standard rent is to be fixed in relation to premises and not in relation to persons and can, therefore, be only one and not varying as between different individuals.'

He has also invited our attention to observations in King v. York (1919) WN KB 59, that 'The Act applied to houses, not to persons. The Act operated in rem, not in personam. It stereotyped the rent of a house.' Mr. Jeth-malani says that as the consent decree might have been the result of fraud, coercion or collusion, it would be against public policy to construe it as constituting estoppel by judgment. How the decision as to the standard rent of these premises, which is embodied in the consent decree in appeals Nos. 355 and 40 oi 1951, would affect the subsequent tenants of the same premises, if and when they wished to object to it, we are not called upon to decide in these applications. If and when such a question arises, it would be decided then. All we are deciding now is that as between the present parties to these applications, who were also parties to appeals Nos. 355 and 40 of 1951, the determination of the standard rent as embodied in the consent decree passed in the above appeals would constitute a bar of res judicata and would estop the tenant from contending that the standard rent should not be Rs. 91 per month as fixed by the conseni decree but it should be Rs. 40 per month.

10. As to Mr. Jethmalani's contention that the determination of the standard rent by agreement is opposed to public policy, we may with respect turn to Lord Davey's observations in Janson v. Driefontein Consolidated Mines Ltd. (1902) A.C. 484 . 'Public policy is always an unsafe and treacherous ground for legal decision.' The argument based on public policy must not be carried too far. The test always is whether the enforcement of the impugned contract leads or is likely to lead to injurious action. In this case no injury is likely to be caused to the tenant by his being estopped from contending that the consent decree is not binding upon him. In appeals Nos. 355 and 40 of 1951, the tenant agreed that the just and fair standard rent for these premises was Rs. 91 per month and he conveyed that agreement to the Court which thereupon proceeded to pass a decree in terms of that agreement. If the payment of the standard rent at the rate of Rs. 91 per month was likely to be injurious to the tenant, he would not have agreed to it. Nothing is shown to our satisfaction that the tenant's agreement to pay standard rent at the rate of Rs. 91 per month was the result of any fraud practised upon him or coercion to which he was subjected.

Therefore, the test to which I have referred, namely, whether the enforcement of the agreement upon which the consent decree was based is likely to lead to injurious action, does not help the tenant. Upon the application of the test the tenant would be bound by the consent decree.

11. Mr. Patel for the landlord has invited our attention to a decision of this Court in Piraji v. Ganapati ILR 34 Bom 502, where Mr. Justice Chandavarkar who delivered the judgment of the Bench observed :

'What the Court was asked to do was not indeed to pass a decree on any admission of the defendant, but to make one in terms of the compromise which, after trial commenced, had been deliberately entered into by the parties. A compromise means the settlement of a disputed claim.'

In the present case also the consent decree -was not based on a mere admission of the tenant. The Court was informed by both the parties, the landlord and the tenant, that they had agreed that the fair and just standard rent for these premises was Rs. 91 per month. It was upon that understanding which was conveyed to the Court that the Court passed a consent decree. That being so, in the light of the decision in Piraji v. Ganapati (J), the compromise meant the settlement of the dispute in regard to the standard rent. The dispute having once been settled between the parties, it would not be open to the same tenant to contend in respect of the same premises subsequently by way of another application under the Act that the previous settlement was not binding upon him.

12. It is true that under the Act if a dispute arises between a landlord and a tenant regarding standard rent, it is the Court or the Controller under the Bombay Rent Restriction Act, 1939, or the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, who is to determine that dispute. But, there is nothing in the Act which prevents a tenant from abandoning the dispute at any stage of a proceeding and agreeing that the rent proposed by the landlord should be decided to be the proper standard rent. If the tenant says at any stage of the proceeding that the landlord's figure might be accepted as the fair figure of the standard rent, there is no prohibition imposed by the Act forbidding the Court from passing a decree upon that footing. It is always open under the law to the parties at dispute to settle the dispute by an agreement, and if they do so settle it and if it appears to the Court that the settlement is fair and just and not against law nor against the provisions of a statute, the Court accepts the settlement and passes a decree upon it. It may here be significant to point out that, although it is competent to the Court or the controller under Section 11 of the Act to set aside the agreement upon which the lease is based, the question of approbation and reprobation does not arise under Section 11 and it was the party's conduct of approbation and reprobation which was discouraged by the Privy Council in Ambu Nair v. Kelu Nair (C). The principle of Ambu Nair v. Kelu Wair (C), was in effect followed by Mr. Justice Gajendragadkar in deciding Civil Revn. Applns. Nos. 833 and 1253 of 1953 (Bom) (A) and by Mr. Justice Shah in deciding Civil Revn. Appln. No. 1691 of 1955 (Born) (B).

13. If the Legislature, in enacting the Act, had intended to prevent effect being given to a previous judgment as to standard rent based upon an agreement between the same parties, it would have stated so in terms. For instance, let us turn to Section 28 of the Act which refers to exclusion of jurisdiction. Section 28 expressly provides : 'No other Court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question.' If the jurisdiction of the Court or the controller under the Act to determine the dispute as to standard rent was intended to be irrespective of any agreement arrived at between the parties during trial or appeal or was intended to be in disregard of the principle that a party should not approbate and reprobate, the Legislature would have used the words 'notwithstanding any agreement to the contrary', but we do not find such words in Section 11 or anywhere else in the Act. This, in our view, would show that the Legislature did not intend to exclude settlement of a dispute as to standard rent by an agreement between the parties at any stage of the proceeding.

14. In support of the view which Mr. Jethmalani has pressed before us, he has referred us to a decision of the Calcutta High Court in Punamchand Mohta v. Section Mukherjee 56 Cal WN 15. In this case Mr. Justice Base said that the scheme of the West Bengal Premises Rent Control Act in the matter of fixation of standard rent appeared to be that the Rent Controller alone had jurisdiction and power to ascertain or fix the standard rent in the manner laid down in the Act and the landlord and tenant could not by agreement between themselves fix the standard rent for the purposes of the Rent Control Act. According to Mr. Justice Bose, an agreement embodied in a consent decree passed by the Rent Controller fixing the standard rent could not create an estoppel against the subsequent contention of a tenant that the rent embodied in the consent decree was not the proper standard rent. Mr. Jethmalani has also invited our attention to a decision of the Punjab High Court in Niranjan Singh v. Shri Bhagwan Ram, (S) (L). In this case it was held that when a Rent Controller proceeded to determine the fair rent of premises, not on the basis of an inquiry under the provisions of Section 4, but on the basis of an agreement between the landlord and tenant, and where in a subsequent proceeding an objection was taken that the rent as determined originally was excessive, it was open to the Rent Controller to refuse to be constrained by the previous consent decree if he was satisfied that the said consent decree was contrary to the provisions of the Rent Restriction Act. The learned Chief Justice, in the course of his judgment in that case, referred to Sections. 4, 5 and 6 of the Punjab Rent Act and said that these sections imposed a statutory obligation on the Court to refrain from making an order which was contrary to the provisions of the Act. The learned Chief Justice then observed that a consent decree involved no judicial inquiry into the facts or law and must for all practical purposes be regarded as a contract. Then he said that if an agreement for payment of rent, which was in excess of fair rent, contravened the provisions of the Act of 1949 and if the Controller's order which was based upon the consent of the parties and not on the judgment of the Court embodied that agreement, it was obvious that the order itself contravened the provisions of the Act. The learned Chief Justice observed that it might be that a consent decree was based upon an agreement to which the tenant himself was a party; but then he said that even a party for whose benefit a measure had been enacted was not competent to contract out of the protection of the Act. It was for these reasons that the learned Chief Justice came to the conclusion that a tenant would not be estopped by reason o the consent decree in a previous proceeding from contending in a subsequent application made by him under the Act that the standard rent as fixed by the consent decree was not the proper standard rent, but that the figure arrived at by the Controller or the Court was the proper standard rent.

15. Before I proceed further I may pointout that the reason which weighed with the learned Chief Justice, in coming to the con-clusion to which he did come in Niranjan Singh v. Shri Bhagwan Ram (L), was that if there was a provision in the Punjab Rent Restriction Act and it the consent decree was contrary to that provision then the Rent Controller could legitimately refuse to be constrained by the terms of the consent decree. In the present case, however, it is not shown on behalf of the tenant that the consent decree, which was passed in appeals Nos. 355 and 40 of 1951, offended in any manner against any of the provisions of the Bombay Rent Control Act.

16. Then Mr. Jethmalani has invited our attention to an English case of Griffiths v. Davies (1943) 1 KB 618. It was a case of an action by the landlord of a dwelling house to which the English Rent Restriction Acts applied. In that action, the landlord claimed possession for non-payment of rent. The tenant did not take the point that the rent was in excess of the standard rent plus the permitted increases and judgment was given for possession. The judgment was, however, suspended so long as the current rent and 2 Section 6 d. a month off the arrears was paid. The tenant paid the current rent and instalments of the arrears, but later he applied to the county Court under Section 11, Sub-section (1) of the Rent and Mortgage Interest Restrictions Act, 1923, to determine the standard rent and the current lawful rent. It was held by Lord Greene, the Master of the Rolls, that the tenant was not estopped from pursuing his application by the judgment in the possession action, since the doctrine of estoppel by judgment did not apply where the result would be to compel the Court to give a judgment which it was by statute prohibited from giving. Lord Justice Du Parcq, who delivered a concurring judgment, also observed in the course of his judgment,

'These Acts of Parliament were passed in the general interests of the public. The standard rent is a sum which it is possible to fix by a calculation made in accordance with the Acts, and that standard rent cannot be altered by any admission or omission on the part of the tenant.'

Mr. Jethmalani strongly relies upon these observations of Lord Justice Du Parcq and says that just as in that case the standard rent which was fixed by a competent forum could not be altered by any admission on the part of a party to the proceeding, so also in this case the standard rent, which was fixed by the Court, which was a competent forum under the Act, at Rs. 40 per month, could not by reason of any agreement between the parties be enhanced to Rs. 91 per month. Mr. Jethmalani, however, overlooks a patiently obvious fact that this English decision, upon which he relies, is a decision under the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, of England, Section 1 whereof provides:

'Subject to the provisions of this Act, where the rent of any dwelling-house to which: this Act applies....has been, since March 25, 1920, or is hereafter, increased, then, if the increased rent....exceeds by more than the amount permitted under this Act the standard, rent....the amount of such excess shall, notwithstanding any agreement to the contrary, be irrecoverable from the tenant.'

The important words, indeed the crucial words, so far as the point in issue is concerned are the words 'notwithstanding any agreement to the contrary'. Having regard to these words, Lord Justice Du Parq rightly observed, with respect, that the standard rent could not be altered by any admission or omission on the part of the tenant. The alteration of the standard rent by an agreement between the parties would, in the language of Section 1 of the Increase of Rent and Mortgage Interest (Restrictions) Act, be contrary to the provisions of the statute itself, as it was expressly prohibited by the words of the statute 'notwithstanding any agreement to the contrary'. That being so, this English decision would be of no avail to Mr. Jethmalani's client, as no such words as would correspond to the words 'notwithstanding any agreement to the contrary' which occurred in Section 1 of the English Act are to be found in any of the provisions of the Act which we are construing here. So far as the Punjab decision and the Calcutta decision to which our attention Is invited by Mr. Jeth-malani are concerned, we do not know the provisions of the Punjab Rent Control Act or the Bengal Rent Control Act and without knowing what those provisions are, we are of the view that those decisions cannot assist Mr. Jeth-malani's client. In any case, as between the views of the learned Judges who, sitting as single Judges, decided the case of Punamchand Mohta v. Section Mukherjee (K), and the case of Niranjan Singh v. Shri Bhagwan Ram (L), we prefer with respect, to accept the view of the learned Judges of this High Court who also, sitting singly, decided Civil Revn. Applns. Nos. 833 and 1253 of 1953, 980, 999 and 807 of 1954 (Bom) (A) and Civil Revn. Appln. No. 1691 of 1955 (Bom) (B), and whose view as to the effect of a consent decree is supported, again with respect, by the weighty pronouncements of the learned Judges who decided Ambu Nair v. Kelu Nair (C); Smith v. Baker (D) and Smith v. Hodson (E).

17. If the appeal Court which decided appeals Nos. 355 and 40 of 1951 had examined the evidence led by the parties and had considered the contentions advanced by the parties and had thereupon come to the conclusion that Rs. 91 per month was the proper standard rent, Mr. Jethmalani concedes that his client, the tenant, would have been bound by that decision. We do not see what difference it should make if the tenant, by agreeing that the proper standard rent of these premises was Rs. 91 per month, conveyed to the Court that' the evidence led by the landlord on this point was acceptable to him and that, therefore, the Court should pronounce its decision that the proper rent for these premises was Rs. 91 per month. In our view, therefore, so far as the point of the settlement of the dispute between the parties is concerned, in the particular circumstances of this case we have no doubt that the dispute was settled by reason of the consent decree which was passed in the above-mentioned appeals between the parties.

18. In Civil Revision Application No. 1925 of 1955 also, the same point as the one with which we have dealt in Civil Revision Application No. 1924 of 1955 arises and, therefore, the observations which we have made would hold good in the case of that application also.

19. It is to be noted that in the case of the shops, which are the subject-matter of Civil Revision Application No. 1924 of 1955, the landlord has agreed that the standard rent shall be not Rs. 91 per month, but Rs. 81 per month. Taking account of this fact, we would direct that in the result both the Civil Revision Applications do fail and must be dismissed with costs, except with the modification that in the case of the premises which are the subject-matter of Civil Revision Application No. 1924 of 1955, the standard rent payable by the tenant to the landlord would be Rs. 81 per month. In the light of the consequent deduction to be 'made from the standard rent, we direct that the figure of Rs. 3219 referred to by the learned Judge in his order dated 18thAugust 1955 be substituted by the figure of Rs. 2809/-.

20. Order accordingly.


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