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Jayantilal Chunilal Panchali Vs. Bai Jashoda - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 394 of 1973
Judge
Reported inAIR1975Guj140; (1975)0GLR146
ActsCode of Civil Procedure (CPC), 1908 - Sections 11; Bombay Rents Hotel and Lodging House Rates Control Act, 1947 - Sections 5(10) and 11
AppellantJayantilal Chunilal Panchali
RespondentBai Jashoda
Appellant Advocate U.R. Gandhi, Adv.
Respondent Advocate S. Shelat, Adv.
Cases ReferredShah Rasiklal Chunilal v. Sindhi Shyamlal Mulchand
Excerpt:
.....decree for possession passed by the court is not necessarily a nullity if there is a clear admission in the compromise, incorporated in the decree, of the fundamental facts which constitute a ground for eviction under section 12 and 13, it should be presumed that the court has been satisfied about the existence of such a statutory -around. therefore, unless the court is satisfied that any of the statutory grounds specified in sections 12 and 13 exists, it cannot pass against the tenant decree for possession even though the parties may agree that such a decree be passed. section 11 which empowers the] court to fix the standard rent of the premises does not specify any statutory requirements to be satisfied before the court fixes the standard rent. to permit him to raise such a contention.....1. the tenant who is the petitioner before me filed in the civil court at surat rent application no. 1186 of 1969 against his landlord for fixation of standard rent of the premises let out to him. the premises are situate in the city of surat. the contractual rent of the premises was rs.65. the premises consist of one room admeasuring 12'x15'. it appears that there were at an earlier stage proceedings between the tenant and the landlord for fixation of standard rent of these very premises. those proceedings had led to the consent order by which rs.65 per month which was the contractual rent was fixed as standard rent by the court. the landlord therefore resisted the present application on the ground that it was barred by res judicata. the earlier application for fixation of the standard.....
Judgment:

1. The tenant who is the petitioner before me filed in the Civil Court at Surat Rent Application No. 1186 of 1969 against his landlord for fixation of standard rent of the premises let out to him. The premises are situate in the city of Surat. The contractual rent of the premises was Rs.65. The premises consist of one room admeasuring 12'X15'. It appears that there were at an earlier stage proceedings between the tenant and the landlord for fixation of standard rent of these very premises. Those proceedings had led to the consent order by which Rs.65 per month which was the contractual rent was fixed as standard rent by the Court. The landlord therefore resisted the present application on the ground that it was barred by res judicata. The earlier application for fixation of the standard rent of the premises was rent application No. 487 of 1968 which was decided on 29th July, 1968. The compromise entered into between the parties in that Rent Application is at Ex. 22/1.

2. The trial Court negatived the contention of the landlord that the present application was barred by res Judicata and fixed the standard rent of the premises at Rs. 40 per month. This order made by the trial Court was challenged by the landlord in Revision Application No. 14 of 1971 which he filed in the Court of the District Judge at Surat. The learned District Judge upheld the landlord's contention that the present application was barred by res judicata. He therefore allowed the revision application and dismissed the present Standard Rent Application filed by the tenant.

3. It is that order made by the District Court at Surat in the Revision Application which is challenged before me in the present Revision Application.

4. The Revision Application before the District Court was filed under Section 29(3) of the Bombay Rent Act. This Revision Application has been filed under Section 115 of the Code of Civil Procedure.

5. Mr. Gandhi, who appears for the tenant, has raised before me in this Revision Application the following two contentions:-

1. The consent order made by the Court, in Rent Application No. 487 of 1968 was a nullity and, therefore, the present application is not barred by res judicata.

2. The consent order in rent Application No.487 of 1968 was obtained by the landlord by practicing fraud upon the tenant.

6. In support of his first contention Mr. Gandhi has argued that the Court could not have passed the consent order in Rent Application No. 487 of 1968 without any material on record. In other words, it is his contention that it is not open to the Court to pass any consent order in the matter of fixing the standard rent unless the Court is satisfied on material before it that the consent order which it passes is founded upon evidence.

7. In support of this contention which he has raised before me he has cited the decision of the Supreme Court in Nagindas Ramdas v. Dalpatram Iccharam, AIR 1974 SC 471. This is a decision which has a bearing on the validity or otherwise of the decree for possession Passed by the Court on any of the grounds specified in Section 13 of the Rent Act. Whether the Court had the jurisdiction to pass consent decree for possession against a tenant who was protected by the Rent Act was the question which was agitated for a long time. In Bahadur Singh v. Muni Subrat Dass, (1969) 2 SCR 432: Kausbalya Devi v. K. L. Barisal, (19,69) 2 SCR 1048 = (AIR 1970 SC 838) and Ferozi Lal Jain v. Man Mal, (1970) 3 SCC 181 = (AIR 1970 SC 794), in the context of the provisions of certain Rent Restriction legislations, the Supreme Court took the view that no consent or compromise decree for possession could be passed by the Court. Then came the decision of the Supreme. Court in K. K. Chari v. R. M. Seshadri (1973) 1 SCC 761 = (AIR 1973 SC 1311). It is not necessary to refer in details to all the aforesaid decisions of the Supreme Court because the decision rendered by the Supreme Court in the case of Nagindas Ramdas (supra) is directly under the Bombay Rent Act. The view taken by a Division Bench of this Court in Shah Rasiklal Chunilal v. Sindhi Shyamlal Mulchand, 12 Gui LR 1012 has been confirmed by the Supreme Court in this decision. The principle which the Supreme Court has laid down in this decision is that a Court exercising jurisdiction under the Rent Act is not competent to pass decree for possession either in inviturn or with the consent of the parties on a ground which is de hors the Act or ultra vires the Act. A prohibitory mandate to the Court exercising jurisdiction under the Rent Act that it shall not travel beyond the statutory grounds mentioned in Sections 12 and 13 and to the parties that they shall not contract out of these statutory grounds is inherent in the public policy built into the Bombay Rent Act. It has been further observed by the Supreme Court that the Provisions of Order 23, Rule 3 do not remove the prohibition on the Rent Court nor do they empower it to pass decree for eviction de hors the statute. Having made these general observations the Supreme Court has further I-aid down that the consent decree for possession passed by the Court is not necessarily a nullity if there is a clear admission in the compromise, incorporated in the decree, of the fundamental facts which constitute a ground for eviction under Section 12 and 13, it should be presumed that the Court has been satisfied about the existence of such a statutory -around. In such a case though the decree for eviction may apparently have been passed on the basis of a compromise, it is valid. This decision has been rendered on the basis of the provisions of Sections 12 and 13 of the Bombay Rent Act. Sections 12 and 13 specify grounds on which alone a tenant can be evicted from the premises let out to him. Therefore, unless the Court is satisfied that any of the statutory grounds specified in Sections 12 and 13 exists, it cannot pass against the tenant decree for possession even though the parties may agree that such a decree be passed. The principle laid down by the Supreme Court in the aforesaid decision cannot be applied to a case under Section 11 of the Rent Act. Section 11 which empowers the] Court to fix the standard rent of the premises does not specify any statutory requirements to be satisfied before the Court fixes the standard rent. The scheme of Section 11 is totally different from the scheme of Sections 12 and 13. Whereas Sections 12 and 13 require the satisfaction of any one of the grounds specified therein before a Court passes a decree for possession, Section 11 requires satisfaction of no such statutory grounds. All that Section 11 requires is that the Court may, upon an application made to it for that purpose, or in any suit or proceeding, fix the standard rent at such amount as, having regard to the provisions of the Act and the circumstances of the case, the Court deems just. Therefore, all that the Court is required to do is to pay regard to the provisions of the Act, take circumstances of the case into account and make such an order in the matter of fixing the standard rent as is just. If parties have agreed that a particular amount be fixed as a standard rent I do not see any reason why the Court cannot think that it is just, more particularly when in respect of the premises let out for the first time the contractual rent is the standard rent unless the Court, upon a dispute having been raised by the tenant, fixes a different amount as the standard rent, (see Section 5(10) of the Rent Act). Next in an application instituted for the purpose of fixing the standard rent by a tenant the burden of Proving that the contractual rent which the landlord charges is excessive lies upon him. If he fails to discharge that burden, obviously within the meaning of Section 5(10) of the Bombay Rent Act the contractual rent should be deemed to be the standard rent. Similarly, if he does not make any attempt to discharge that burden and if the parties agree before the Court that a particular amount of rent should be fixed as the standard rent, I see no reason why the tenant should be allowed to contend that such an order obtained by the parties is a nullity. To permit him to raise such a contention is to place a premium on his inability or negligence or failure to discharge the burden of proving that the rent which the landlord charges him is excessive. Next, in my opinion, unless the law otherwise requires, any order which the Court makes in any proceedings by consent of parties is always just and metes out to the parties the best farm of justice. In my opinion, Section 11 read with Section 5(10) does not contain any Provision which runs contrary to, the concept of fixing in respect of a new premises standard rent by consent, I am unable, therefore to up hold the contention raised by Mr. Gandhi that the order made by the Court in Rent Application No. 487 of 1968 is a nullity and that it should be ignored. In my opinion, it was a valid order passed by the Court in those proceedings. Since, in my opinion, it was a valid and lawful order made by the Court, it operates as res judicata and it is not open to the tenant to reagitate that question unless it has been got rid o on the ground of fraud, coercion, misrepresentation, undue influence or on any such legal ground.

8. In Popatlal Ratansey v. K-alidas Bhavan, AIR 1958 Bom 1 it has been held by a Division Bench that in standard rent proceedings under the Bombay Rent Act a consent decree by which standard rent of certain premises is fixed operates as res judicata in a subsequent application by the same tenant for fixing the standard rent of the same premises. It has been observed in that decision that 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 to 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. It has next been observed that there is nothing in the provisions of the Bombay Rent Act which precludes or prohibits the Court at any stage of the proceeding for fixation of standard rent either at the trial stage or the appeal stage-from accepting an agreement arrived at between the parties that a particular rent is a fair and proper settlement of the dispute. There is nothing unlawful if a decree is passed by the Court upon considering that such a settlement is a just settlement. Distinguishing a consent order in the matter of fixation of standard rent from an agreement embodied in a lease as to the contractual rent, it has been observed by the High Court of Bombay that while an agreement which is embodied in a lease is purely and simply an agreement as to rent, the agreement embodied in a consent decree is the decision of the Court as to standard rent. Such a decision or judgment of the Court estops 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, It has also been observed that there is nothing in the Act which prevents a tenant from abandoning the dispute at any stage of the proceeding and agreeing that the rent proposed by the landlord should be decided to be the proper standard rent.

9. Since, in my opinion, the consent order made between the parties in the earlier proceedings is not a nullity, it operates as res judicata in the light of the principles laid down by the High Court of Bombay in the aforesaid case by which I am bound. The first contention raised by Mr. Gandhi, therefore, fails and is rejected.

X X X X X

10. Application dismissed.


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