Skip to content


Barkatali Abdulrahim Kasamwalini Vs. Sohiniben Jethalal Parikh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 495 of 1977
Judge
Reported inAIR1978Guj27; (1977)GLR913
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 11(3) and 12; Code of Civil Procedure (CPC), 1908 - Order 9, Rules 8 and 9
AppellantBarkatali Abdulrahim Kasamwalini
RespondentSohiniben Jethalal Parikh
Appellant Advocate B.J. Shelat, Adv.
Respondent Advocate C.K. Patel, Adv.
Cases ReferredHarkisondas Chunilal Chokshi v. Prabhavatiben
Excerpt:
.....of relevant considerations or by taking into account irrelevant considerations, it would always be open to the party aggrieved to seek relief in appropriate proceedings as indicated earlier'.it will be, therefore, perfectly open to the present applicant-tenant to prod his earlier application for restoration or review of the order dismissing his application or to move the district court in revision against the said order, if it is open to him to do so, and to seek the reversal of that order of dismissal of that earlier application......standard rent, it is an admitted position to-day that the said application for restoration of the earlier application is lying in the archives of the court, but the learned judge had proceeded to decide this new application no. 312 of 1976 and ultimatelv dismissed the same on the ground that the earlier order dismissing the application under s. 11(3) operated as a res judicata. before the learned 2nd extra assistant judge, the tenant filed a revision application no. 26 of 1976 against the dismissal of his application no. 312 of 1976 and the learned judge, as said above, upheld the order of the trial court, not on the ground of res judicata, but on the ground of nonmaintainability of the revision application and also on the ground of estoppels arising out of the dismissal of the earlier.....
Judgment:
ORDER

1. This is a revision application by the original tenant, whose application, being Misc. Application no. 208 of 1976 for fixation of standard rent under Section 11 of the Bombay Rent Act had come to be dismissed by the Additional Judge of the Court of Small Causes, Baroda, on the ground that the prayer sought for by the tenant was barred under the principles of res judicata. This tenant's -civil revision application no. 26 of 1976 also came to be rejected by the 2nd Extra Assistant Judge Baroda, on the ground of estoppel. It is these orders of the two authorities below that are sought to be irnpugned, by this revision application.

2. A few facts are necessary to be stated ' in order to appreciate the various contentions and submissions raised and made in this case. The applicant tanant had filed an application No. 836 of 1975 in the Court of the Civil judge (J. D) Baroda on 19-1-75 for fixation of standard rent * The landlord, I am told at the,Bar, had, before that, served a notice on the tenant calling upon him to pay up arrears and so the tenant had filed that application No. 836 of 1975 in the court of the Civil Judge (J. D.), which was the court then competent to deal with these mat. ters, there being not established the court of Small Causes then in the City of Baroda. The contractual rent was Rs. 500/- per month and the tenant disputed the reasonableness of that amount as the monthly rate of rent. After filing of the said application, the court had passed an order for interim rate of rent and the court had fixed the interim rent at the rate of Rs. 300/-. The court had directed the tenant to pay up the arrear s at the rate of Rs. 300/- and had also directed the tenant to go on paying the rent at that rate, pending the final decision of the application; On 15-3-1976 the tenant's advocate requested the.court that as his client was out of station,,some time should be given to him, presumably to deposit the amount. Mr. Shelat the learned advocate appearing -for the applicant be fore me stated that by that time only, three months' rent had remained undeposited, though he hastened to add that the 'fault did not lie with the tenant. But lay with the clerk of the advocate engag ed by him, who, though entrusted with the money. had either failed or neglected to deposit the amount. The learned Judge then dismissed that application on 17-3-76 presumably under S. 11(3) of the Rent Act on the ground that the tenant had failed to deposit the amount. The present applicant thereafter filed a Misc. Application No, 203 of 1976 before the learned Judge for restoration of the dismissed application no. 336 of 1975. Almost simultaneously he filed the Misc. Application no. 312 of 1916 as a fresh application for fixation of standard rent, It is an admitted position to-day that the said application for restoration of the earlier application is lying in the archives of the court, but the learned Judge had proceeded to decide this new application no. 312 of 1976 and ultimatelv dismissed the same on the ground that the earlier order dismissing the application under S. 11(3) operated as a res judicata. Before the learned 2nd Extra Assistant Judge, the tenant filed a revision application no. 26 of 1976 against the dismissal of his application no. 312 of 1976 and the learned Judge, as said above, upheld the order of the trial court, not on the ground of res judicata, but on the ground of nonmaintainability of the revision application and also on the ground of estoppels arising out of the dismissal of the earlier application for fixation of standard rent.

3. Mr. Shelat, the learned advocate appearing for the applicant-tenant, urged that the earlier application having been dismissed, for default so to say, that dismissal cannot operate as a bar. He firstly submitted that in order to operate as a bar of res judicata. there must be a decision on merits. With respect to the alleged bar of estoppel, he urged that the plea of estoppel resting on facts should have been raised specifically and for want of any such specific plea, the learned Judge should not have entertain_ ed that plea. Lastly, Mr. Shelat submitted that for want of any prohibition against the entertainment of a fresh application, after the dismissal of the earlier application except on merits, a fresh application and as a matter of fact a number of applications in succession, would never be barred.

4. In order to assay the strength of the various submissions advanced by Mr. Shelat, the scheme of the Act deserves to be closely examined. The Bombay Rent Act, popularly so called, is on the statute book since 1947 and it has been often said that it is the woe of the litigants and a joy of lawyers. Though expected to be a simple and small affair, it has become the subject-matter of the legal labyrinths. The primary object of the law is to hold an umbrella above the heads of tenants, who may not be victimised by landlords, who are proverbially said to be out to exploit the needs of the people 'in stress. At the same time, the Legislature wanted to strike a fair balance and that is why it has provided in S. 12(1) that a tenant in order to earn the protection of the statute must be ready and willing to pay the standard rent and permitted increases and must observe and perform other conditions of the tenancy in so far as they are ~consistent with the provisions of the Bombay Rent Act. If a tenant is in arrears, the first thing that a landlord has to do is to call upon him to pay up the arrears, If he does so within the period of one month of the receipt of the notice, the -landlord's right to file a suit for possession does not arise. However, instances are, common in which there is a dispute as to' the amount of standard rent. There may. be a genuine dispute and sometimes' there may be a dispute raised for the sake of a dispute in order to delay the devil's day. However, in order to protect the tenants who have a genuine dispute regarding the rate of standard rent, a special procedural machinery is envisaged by the legislature. A tenant, who has been served with a notice of demand followed by a threat of eviction, is given an opportunity to vindicate his bona fides. He is given the right to approach the court and raise a dispute about' the standard rent. Lest the landlord should be in two minds, to sue or not to sue, a special provision has been made. The court in such cases on an application filed by a tenant who has been served with a notice under S. 12(2) of the Rent Act has to make an order directing the tenant to deposit in court forthwith or thereafter monthly or periodically such amount of rent as the court considers to be reasonably due to the landlord, pending the final disposal of the application and a copy of such interim order is provided to be served upon the landlord. The idea is that the landlord should get notice of the fact that the tenant has raised a dispute of standard rent before the court and that he has deposited the arrears and has agreed to go on depositing at the rate deemed reasonable by the court. If this situation arises. the landlord has to deter himself from filing the suit because the explanation appended to S. 12 of the Act says that if an application to the court is made under S. 11(3) and 'the amounts are paid and tendered as specified in the order of the court, there would arise a presumption that the tenant is ready and wfllmg to pay the rent and the embargo placed on the landlord's right to sue by S, 12(1) would at once be attracted. In other words, S, 11(3) read with explanation appended to S. 12 makes it clear that an application under S. 11(3) for fixation of standard rent followed by the court's direction to deposit the arrears and go on depositing the future rent till the final disposal of the application is not a simple application for fixation of standard rent, but it is an application that debars the landlord in effect from filing a suit for possession on the ground of non-payment of rent.

5. If the plea advanced by Mr. Shelat is entertained, and it is to be held that the tenant can, go on filing the applications under S. 11 for fixation of the standard rent in succession, the landlord's important right would always be defeated and now and then a tenant making an application and seeking the court's direction would deposit nothing and would still attempt to thwart the landlord's right to seek possession. Once an application under S. 11(3) of the Act comes to be dismissed, the embargo placed on the landlord's right to move the court for non-payment of rent will be lifted. if the tenants- right to go on making successive applications is recognised, an invidious situation is sure to &rise.; So, as per the scheme of S. 11(3) and the explanation appended to S, 12 of the Rent Act it is to be held as a matter of inevitable conclusion that the application under S. 11(t) is such' 'an application as cannot be resorted to now and then at the sweet will of the tenant.

6. The, earlier application that was dismissed by the court purported to be one dismissed on merits. When I use the word 'merit', I mean to say that it is because of certain contingency It is not a dismissal for non-appearance simpliciter. It is the legislative mandate necessarily implied in S. 11(3) of the Rent Act that a tenant who files an application and then perform invites court's direction should deposit the arrears of rent and future. rate of rent as the court conElders to be reasonably due to the landlord. If the tenant fails to deposit the amount, he would forfeit not only his claim to be a tenant ready and willing-to pay the rent, but he would also forfeit' his application itself. The dismissal of an application under S. 11(3), therefore. cannot be said to be on Par with the dismissal of an application for default of appearance in terms of Order 9 Rule 8 of the Civil Procedure Code. 0. 9 R. 8 of the Civil P. C. applies toll applications for fixation of standard rent it As per Chapter IV-A of the Bombay Rent Control Rules, 1948, a court of Small Causes established under the Pro. Vincial Small Cause Courts Act, 1887, has to follow, as far as may be and with necessary modifications, the procedure applicable to suits or proceedings referred to in R. 9A as if such applicableness, suits of the description referred to there in. As per R 9A the court of Small Causes has to follow the practice and procedure prescribed for the time being by or under the Provincial Small Cause Courts Act. 1887. Going to S. 17 of the Provincial Small Cause Courts Act, we find that the procedure prescribed in the Code of Civil Procedure. 1908, shall save in so far as is otherwise provided by that Code or by this Act be the procedure followed in a court of Small Causes in all suits cognisable by it. In 0. 50 of the Civil Procedure Code, 0. 9 is not shown as one of the provisions not applicable to the courts of Small Causes. The final outcome of all these provisions is that 0. 9 R. 8 and 0. 9 R. 9 of the Civil Procedure Code apply to applications for fixation of standard rent. Even if and application for fixation of standard rent is dismissed for default of appearance under 0. 9 R. 8 of the Civil P. C., no fresh application would be competent. If it be so, can it be said that an application, which is dismissed under S, 11(3) of the Act not purely on the ground of nonappearance, of the applicant, but on the ground of alleged non-compliance with the condition imposed by the court, the condition which is highly meaningful as noted above, a tenant would be at I

To go on filing successive applications undeterred*by the dismissal of his earlier application or applications? It runs counter to the spirit of the law as is implicit in S. 11(3) of the Act read with explanation appended to S. 12

7. If a tenant incur the forfeiture of his application for fixation of standard rent under S. 11(3) of the Act. it would be a decision so to say on merits, not the merits of his contention about the standard rent, but in the sense of merits of there being a sort of non-compliance with the mandatory requirement which gives a tenant a right to arrest the landlord is right to sue.

8. When viewed In the light of S. 11(4) of the Act the meaning of the Legislature becomes amply clearer. The policy of the Legislature could be easily gathered from the conjoint reading of S. 11(3) and S. 11(4) of the Rent Act. The Legislature insists that the tenant who is sought to be jealously guarded against exploitation must at least be fair to the landlord and not to create a situation in which the landlord would be deprived of at least a regular return on his property, tentatively thought to be reasonable. If the tenant is not willing to act fairly, the Legislature would have no sympathy for such a tenant. S. 11(4) goes so far as to debar the tenant from appearing in the suit or defending the suit except with the leave of the court - and this debarment includes one from contesting the question of standard rent also - and the Legislature has added that such leave would be granted by the court subject to such terms and conditions as the court may specify. S.,11(5) further lays down that the orders under Ss. 11(3) and 11(4) shall not be appeasable and this also displays the anxiety of the Legislature to see that the tenants do not starve the landlords by resort to technicalities. In view of this scheme of the Act, it is crystal clear that once an application under S. 11(3) of the Act comes to be dismissed, it would preclude the tenant from reagitating the question of standard rent. If that be the policy of the Legislature, it is a matter of necessary corollary to hold that such dismissal under S. 11(3) of the Act puts final stop or estoppels to that agitation of the question of standard rent. The tenant by his act of filing the earlier application, makes the landlord alter his position, viz. constrains him not to file the suit. By incurring the loss of his application under S. 11(3) of the Act, he then automatically again opens the doors for the landlord. By a fresh application, the tenant again would be altering the landlord's position and the landlord who has filed the suit for possession w9uld again be non-suited on the ground of tenant's readiness and willingness to pay the arrears, the readiness and willingness that are to be statutorily presumed under S. 11(3) of the Act. Thus, the tenant would go on making the landlord change his position to his advantage. He would be estopped from doing so. In above view of the matter, the fresh application filed by the applicant-tenant would be required to be held absolutely incompetent, and on this ground. The orders passed by the courts below deserve to be sustained.

9. However. the peculiar feature of the case on hand is that the tenant's application for revival of his earlier application Is not being attended to. The tenant has contended that because of the factors beyond his control. there was non-compliance. The order under S. 11(3) is a very drastic order robbing the tenant of his valuable right of claiming to be a tenant ready and willing to pay the arrears of rent and thereby putting an embargo on the landlord's right to file a suit on the ground of non-paymeni ,of rent. Such a drastic order would be passed by the court obviously after hearing the other side and if such an order is passed without hearing the tenant, it will be open to the tenant to urge that the order is passed behind his back and is, therefore, no order at law. If any help is to be derived on the point of hearing before such a drastic order came to be passed, reference could be made to the judgment of the Division Bench of this Court in the case of Harkisondas Chunilal Chokshi v. Prabhavatiben 14 Guj LR 438 : (AIR 1973 Guj 240). In that case the rigours: of S. 11(4) had come to be examined by the court. While negativing the contention about the unconstitutionality of the provisions of S. 11(4) of the Rent Act, in the context of Art. 14 of the Constitution, the Division Bench held as follows:- (at p. 250)

'This discretion, having been vested in a court of law, has to be exercised judicially on well recognised principles and would be immune from challenge on the ground of arbitrariness or want of guidance. Furthermore, in our opinion. the guidelines are clearly contained in the statute and the discretion being judicial is required to be exercised on general principles guided by rules of reason and justice on the facts of each case and not in any arbitrary or fancifui manner. If, in a given case, the discretion is exercised in an arbitrary or un judicial manner or in total disregard of relevant considerations or by taking into account irrelevant considerations, it would always be open to the party aggrieved to seek relief in appropriate proceedings as indicated earlier'.

It will be, therefore, perfectly open to the present applicant-tenant to prod his earlier application for restoration or review of the order dismissing his application or to move the District Court in revision against the said order, if it is open to him to do so, and to seek the reversal of that order of dismissal of that earlier application. The judgment of this court in this revision application neither takes away nor confers the said right on the tenant, who will be at liberty to move in accordance with law. if so advised. As far as the present revision application is concerned, it is dismissed in the ground that the fresh application was not competent. Rule is accordingly discharged. There will be no order as to costs in the facts and circumstances of this case.

10. Order accordingly.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //