Skip to content


Dhobi Raheman Pirbhai (Decd.) by His Heirs and Lrs. Pirbhai Raheman and ors. Vs. Taherali Hasanali - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1979)1GLR511
AppellantDhobi Raheman Pirbhai (Decd.) by His Heirs and Lrs. Pirbhai Raheman and ors.
RespondentTaherali Hasanali
Excerpt:
- - therefore, one of the four ingredients required to be satisfied for entitling the plaintiff to decree under section 12(3)(a) was not satisfied. explanation protects a tenant against the rigour of section 12(3)(a). the question of bringing into play the protection offered to the tenant by the explanation arises only if ingredients of section 12(3)(a) are otherwise satisfied. in the instant case, one of the ingredients of section 12(3)(a) was not satisfied. the learned appellate judge, in the facts, and circumstances of this case, ought not to have permitted the plaintiff to raise it because he had failed to raise it before the learned trial judge......more aspect which has been referred to by the learned appellate judge is that earlier a standard rent application for fixation of the standard rent was filed by the defendant and that it was dismissed for default. according to him, therefore, the dispute as to standard rent did not exist. order 9, rule 9 of the code of civil procedure bars a fresh suit in respect of the same cause of action where it has been dismissed for default on his part of the plaintiff. therefore, ordinarily, a fresh standard rent application would not lie unless the circumstances have so changed that the standard rent should be fixed again. in the instant case, the contention arising out of the dismissal of his earlier standard rent application for default was not raised before the learned trial judge. it was.....
Judgment:

S.H. Sheth, J.

1. The plaintiff filed the present suit against the defendant for recovering possession of the suit premises on the ground of arrears of rent. The defendant had been in arrears for about two years. In reply to the statutory notice of demand served upon him, be disputed the standard rent. He denied the plaintiff's claim. The learned trial Judge held that the case was not governed by Section 12(3)(a) of the Bombay Rent Act but that it was governed by Section 12(3)(b), He also held that the terms of Section 12(3)(b) were complied with by the defendant and that, therefore, the plaintiff was not entitled to decree for possession. In that view of the matter, he dismissed the plaintiff's suit.

2. The plaintiff appealed against that decree to the District Court. The learned appellate Judge held that the case was governed by Section 12(3)(a) and that the plaintiff was entitled to decree for possession. He, therefore, reversed the decree passed by the learned trial Judge and passed in favour of the plaintiff decree for possession.

3. It is that decree which is challenged by the defendant in this civil revision application.

4. The first question which has been raised by Mr. Shah for my consideration is whether the case is governed by Section 12(3)(a) or Section 12(3)(b). The plaintiff can obtain a decree under Section 12(3)(a) if the rent is payable by month and there is no dispute regarding the amount of standard rent or permitted increases and if such rent or increases are in arrears for a period of six months or more and if the tenant has neglected to make payment thereof within one month from the service of notice of demand upon him referred to in Section 12(2). There is no dispute about the fact that the rent in the instant case was payable monthly. There is no dispute about the fact that the rent was in arrears for a period of more than six months and that the defendant had neglected to make payment thereof within one month from the service of notice of demand upon him under Section 12(2). However, the tenant had raised in his reply to the notice dispute as to the standard rent. Therefore, one of the four ingredients required to be satisfied for entitling the plaintiff to decree under Section 12(3)(a) was not satisfied. The learned appellate Judge was, therefore, in error in recording the finding that the case was governed by Section 12(3)(a).

5. So far as the Explanation to Section 12 is concerned, it lays down that the tenant shall be deemed to be ready and willing to pay the amount of standard rent or permitted increases if, before the expiry of the period of one month after notice referred to in Sub-section (2), he makes an application to the Court under Sub-section (3) of Section 11 and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court. Explanation protects a tenant against the rigour of Section 12(3)(a). The question of bringing into play the protection offered to the tenant by the Explanation arises only if ingredients of Section 12(3)(a) are otherwise satisfied. In the instant case, one of the ingredients of Section 12(3)(a) was not satisfied. Therefore, the case was not governed by Section 12(3)(a).

6. One more aspect which has been referred to by the learned appellate Judge is that earlier a standard rent application for fixation of the standard rent was filed by the defendant and that it was dismissed for default. According to him, therefore, the dispute as to standard rent did not exist. Order 9, Rule 9 of the Code of Civil Procedure bars a fresh suit in respect of the same cause of action where it has been dismissed for default on his part of the plaintiff. Therefore, ordinarily, a fresh standard rent application would not lie unless the circumstances have so changed that the standard rent should be fixed again. In the instant case, the contention arising out of the dismissal of his earlier standard rent application for default was not raised before the learned trial Judge. It was raised for the first time before the learned appellate Judge. The learned appellate Judge, in the facts, and circumstances of this case, ought not to have permitted the plaintiff to raise it because he had failed to raise it before the learned trial Judge. If it is a pure question of law, then it is altogether a different matter but if it is a question which requires investigation into facts, then, at the appellate stage, a fresh contention cannot be permitted to be raised. In the instant case, it was pleaded by the defendant that he was enjoying, as a part of the terms of his tenancy, the amenity of drawing water by pump and that the plaintiff had deprived him of that amenity. It was his contention that the deprivation of that amenity by the plaintiff ought to lead to reduction in the rent. This contention was not tried by the learned trial Judge. The learned appellate Judge examined the question of law and held that dismissal of the earlier standard rent application for default brought to an end the controversy relating to the standard rent but did not examine the question whether there was material change in the terms of the tenancy inasmuch as the defendant was deprived of an amenity which he had been enjoying as a part of the terms of his tenancy. The learned appellate Judge was, therefore, in error in holding that fresh plea as to standard rent raised by the defendant was barred under Order 9, Rule 9 of the Code of Civil Procedure on account of the earlier standard rent application having been dismissed for default.

7. The cause of action relating to the fixation of standard rent is indeed nut a recurring cause of action Therefore, once the controversy as to standard rent comes to an end on merits or otherwise, it cannot be raised again if the cause of action is the same. But if the terms of tenancy undergo a change or alteration or are varied or broken by the landlord after the standard rent has been fixed, a fresh application for the fixation of standard rent can be made because the change, alteration or variation in or such breach of the terms of the tenancy gives rise to a fresh cause of action. An application for fixation of standard rent which is not founded on the cause of action on which the earlier standard rent application was founded but which is founded on a fresh cause of action arising out of the change, alteration or variation in or such breach of the terms of tenancy is maintainable. The learned appellate Judge was, therefore, in error in holding that the case was governed by Section 12(3)(a) because no dispute as to standard rent existed or could exist in view of dismissal of the earlier standard rent application for default. The finding recorded by the learned appellate Judge, therefore, is liable to be set aside and 1 order accordingly. So far as the terms of Section 12(3)(b) are concerned, there is no dispute about the fact that the defendant had complied with the necessary conditions laid down in Section 12(3)(b) and that, therefore, the plaintiff was not entitled to decree for possession under that provision. In the result, the civil revision application is allowed, decree for possession is set aside and plaintiff's suit is dismissed. Rule is made absolute with no order as to costs in the circumstances of the case.


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