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Jayantilal Keshavlal Patel Vs. Devshi Chakubhai - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 158 of 1972
Judge
Reported inAIR1976Guj51; (1975)GLR603
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 5(10); Code of Civil Procedure (CPC), 1908 - Sections 115
AppellantJayantilal Keshavlal Patel
RespondentDevshi Chakubhai
Appellant Advocate M.M. Dave, Adv.
Respondent Advocate Suresh M. Shah, Adv.
Excerpt:
- - it is well settled that a tenant on the first floor always days a little more then a tenant on the ground floor.order1. the plaintiff filed the present suit for recovering possession of the suit premises from the defendant on the grounds that the defendant had unlawful1y sub-let the suit premises and that the defendant had been in arrears of rent. the defendant in his turn pleaded that the statutory notice served upon him was not valid and that standard rent of the suit premises should be fixed.2. the learned trial judge upheld the plaintiff's plea as to unlawful subletting of the suit premises by the defendant but held that the suit notice served by they plaintiff upon the defendant was invalid. in that view of the matter he dismissed the plaintiff's claim for possession. however he fixed at the instance of the defendant the standard rent of the suit premises at rs. 95/- per month.3. the plaintiff.....
Judgment:
ORDER

1. The plaintiff filed the present suit for recovering possession of the suit premises from the defendant on the grounds that the defendant had unlawful1y sub-let the suit premises and that the defendant had been in arrears of rent. The defendant in his turn pleaded that the statutory notice served upon him was not valid and that standard rent of the suit premises should be fixed.

2. The learned trial Judge upheld the plaintiff's plea as to unlawful subletting of the suit premises by the defendant but held that the suit notice served by they plaintiff upon the defendant was invalid. In that view of the matter he dismissed the plaintiff's claim for possession. However he fixed at the instance of the defendant the standard rent of the suit premises at Rs. 95/- per month.

3. The plaintiff appealed to the District Court against the decree passed by the learned trial Judge. The learned Appellate Judge recorded no finding on the controversy relating to arrears of rent but held that the plaintiff had proved that the defendant had unlawful1y sub-let the suit premises to someone else. He reversed the finding recorded by the learned trial Judge that the standard rent of the suit premises should be Rs. 95/P. M. He fixed the standard rent at Rs. 150/- P. M. which wag the contractual rent because in his opinion the defendant had not shown that it was excessive. He however upheld the finding recorded by the learned trial Judge that the statutory notice served by the plaintiff upon the defendant was invalid, He therefore dismissed the appeal.

4. It is that appellate decree which is challenged by the defendant in this Civil Revision Application in so far as it relates to fixation of standard rent of the suit premises by the learned District Judge. Mr. Dave who appears for the defendant has therefore raised on1y one contention before me According to him the learned District Judge was in error in fixing standard rent of suit premises at Rs. 150 P. M which was the contractual rent.

5. I have perused the relevant part of the appellate judgment written by the learned District Judge. He has held that the defendant has not proved that the contractual rent which the plaintiff has been charging the defendant in respect of the Suit premises is excessive whether the contractual rent which a landlord charges his tenant is excessive or not can only be determined after arriving at the conclusion as to what would be the standard rent of the premises in the possession of the tenant. If the difference between the standard rent which the Court arrives at and the contractual rent which a landlord charges his tenant is small and insignificant it can be said that it is not excessive. Therefore if there is evidence on record to show as to what would be the standard rent of the premises in the possession of a tenant that evidence must be considered and the amount of standard rent should be fixed. Thus if it is found that the contractual rent is not excessive in relation to the standard rent which the Court has fixed a tenant's application for fixation of standard rent or his prayer in that behalf in a suit for possession filed by a landlord can be rejected. I do not know any other method of finding out the excessive nature or character of the contractual rent. Unless the contractual rent is compared with the amount of standard rent and for doing so the Court must find out standard rent no finding can be recorded that the, contractual rent is not excessive. The learned District Judge bas not followed this course and has therefore committed a very serious error of law.

6. There is evidence on record to enable the Court to determine the standard rent of the suit premises. The plaintiff Devshi Chakubhai in his deposition Ex. 10 has stated that he had purchased the building in which the suit premises are situate for a sum of Rs. 24.500/- and had paid a sum of Rs. 500/- for brokerage. Therefore the total investment which he made in the building in question was Rs. 25.000/-. He purchased it sometime in 1968 and let out the suit premises at or about that time that is to say in June 1968. There is no evidence on record to how in separate figures the value of the structure and the value of the land. If the value of the building and the value of the land were separately shown in evidence appropriate return could have been allowed on the investment in the structure and on the investment in the land. It need not be said that the investment which a landlord makes in the land as distinct from the structure is always less remunerative than the investment made by him in the structure. Since the plaintiff does not show the break-up of Rs. 25.000/- so as to separately indicate the value of the structure and the value of the land. I assume in favour of the plaintiff that he is entitled to a fair return on Rs. 25.000/- as if that amount represented the value of the structure alone. The net fair return which a landlord is entitled on the investment made by him in the structure is 6 per cent per annum. That in my opinion is a reasonable basis for fixing the standard rent. It is therefore clear that on the total investment of Rs. 25.000/- made by the plaintiff in the property in question he is entitled at the rate of 6 per cent per annum to Rs. 1.5001- per year. He is therefore entitled per month to Rs. 125/as and by wav of fair return on the investment made by him in the property in, question. Therefore. Rs. 125/- per month should be the standard rent of the entire property exclusive of all taxes.

7. The evidence further shows that the ground floor of the building in question has been let out to one Jayaben and that the first floor is in the possession of the defendant. The evidence also shows that there are no other tenants in the building and that the plaintiff has not been occupying any part thereof. There, is no evidence to show the actual extent of the accommodation available to Jayaben and to the defendant in their respective premises. Now the defendant has been in possession of the first floor. The first floor can never be bigger than the ground floor. It can be equal to the ground floor or smaller than the ground floor. In absence of any evidence to give me comparative idea of the extent of accommodation available on the ground floor and the first floor I am assuming in favour of the plaintiff-landlord that the first floor is equal in area and accommodation to the ground floor. That is the maximum to which the plaintiff-landlord is entitled. If I divide Rs. 125/- which in my opinion will represent the standard rent of the property in question between Javaben and the defendant the standard rent of the suit premises will ordinarily be Rs. 62.50. However. it is well settled that a tenant on the first floor always days a little more then a tenant on the ground floor. That is the doctrine of weightage. Applying that doctrine to the instant case I am of the Opinion that exclusive of all taxes the standard rent of the suit premises shall be Rs. 70/- per month, I. Therefore set aside the finding recorded by the learned District Judge on this aspect of the case and substitute the aforesaid finding for it.

(Paras 8 to 10 x x x x)

11. (His Lordship after dealing with certain other arguments observed:) It may be noted that there is no evidence on record to show what rent was earlier charged in respect of the suit premises. There is also no evidence to show that they were let out at any earlier point of time. The very fact that the plaintiff purchased it in 1968 shows that it is not a newly constructed building. In absence of any evidence on record to show whether the suit premises were let out earlier to any other tenant and if so what rent that tenant was charged. I think it will be just and proper to fix the standard rent on the basis of fair return on the investment made by the plaintiff in the suit premises.

12. In the result. I allow this Revision Application set aside the order made by the learned District Judge in relation to the standard rent of the suit premises and fix the standard rent of the Suit premises at Rs. 70/- per month. In addition to this standard rent the defendant shall be liable to pay to the Plaintiff all the taxes and permitted increases in respect of the suit premises.

13. Mr. Shah has drawn my attention to the fact that the learned trial Judge had fixed Rs. 95/- as standard rent of the suit premises and that I should not fix it at a lesser figure. The learned trial Judge had fixed Rs. 95/- as standard rent of the suit premises inclusive of taxes and other outgoings. I am fixing the net amount of standard rent exclusive of all taxes and outgoings. Therefore if in actual terms the standard rent of the suit premises is worked out inclusive of taxes and outgoings which the defendant is liable to pay. it is likely to be in the, neighbourhood of Rs.95/- p.m. It may be a little more or a little less. To fix the standard rent of any premises inclusive of taxes is in my opinion a very unscientific method of fixing it.

14. Rule is made absolute to the aforesaid extent with no order as to costs in the circumstances of the case.

15. Petition allowed


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