Skip to content


Kesarichand Amrutlal Shah Vs. Sakarchand Manekchand Ghadiali Deaceased by His Heir - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1964)5GLR982
AppellantKesarichand Amrutlal Shah
RespondentSakarchand Manekchand Ghadiali Deaceased by His Heir
Cases ReferredHaji Gulamnabi v. Abbasbhai
Excerpt:
.....is that the grounds which are taken by gay of cross-objections must be such as the respondent could have taken by way of an appeal against the judgment and decree of the trial court. this determination in the suit was clearly appealable under section 29 of the rent act. has not been dealt with by the supreme court and therefore it still remains good law. 9. it may be pointed out that under section 29(3) of the act a revision against the order fixing the standard rent can be entertained only if the decision of the trial court is not according to law and therefore if the tenant in cases like the instant one is compelled to file a revision application the grounds on which he can attack the decision either on law or on fact of the court of the first instance would be on a much narrower and..........1947 (hereinafter referred to as the act) for fixation of the standard rent of the premises being rent application no. 355 of 1957 in the court of the civil judge junior division surat. thereafter the landlord filed a suit being regular civil suit no. 762 of 1958 and this suit came up for hearing before the third joint civil judge junior division surat. at the hearing of the suit the application for fixation of standard rent and the suit were both tried and heard together. in his written statement in the suit which was filed for eviction on the ground of the tenant being in arrears of rent the defendant-tenant had once again raised a contention that rs. 40/- were not the standard rent of the premises; and issue no. 2 was as follows:what is the standard rent?the learned trial judge.....
Judgment:

B.J. Divan, J.

1. The petitioner in this Civil Revision Application is the original defendant and the opponent is the heir of the original plaintiff. The plaintiff is the landlord and the defendant is the tenant in respect of certain premises situated at Gopipura Main Road Surat. The contractual rent of the premises in suit was Rs. 40/- per month. The tenant was contending that this rent was excessive and should be Rs 14/- per month. The tenant had filed an application under Section 11 of the Bombay Rent Hotel and Lodging House Rates Control Act 1947 (hereinafter referred to as the Act) for fixation of the standard rent of the premises being Rent Application No. 355 of 1957 in the Court of the Civil Judge Junior Division Surat. Thereafter the landlord filed a suit being Regular Civil suit No. 762 of 1958 and this suit came up for hearing before the Third Joint Civil judge Junior Division Surat. At the hearing of the suit the application for fixation of standard rent and the suit were both tried and heard together. In his written statement in the suit which was filed for eviction on the ground of the tenant being in arrears of rent the defendant-tenant had once again raised a contention that Rs. 40/- were not the standard rent of the premises; and issue No. 2 was as follows:

What is the standard rent?

The learned trial Judge discussed in his judgment issue No. 2 elaborately pertaining to the question of the standard rent and after considering the materials before him and after taking all the factors into consideration he fixed the standard rent at Rs. 30/- per month plus Rs. 3/- as municipal tax and Rs. 1/- as electricity charges; and the total amount thus payable per month by the tenant to the landlord was fixed at Rs. 34/- inclusive of tax and electricity charges. The learned trial Judge held ultimately that the Plaintiffs suit for possession should be dismissed but he held that the Plaintiff landlord was entitled to recover Rs. 748/- as rent with municipal taxes and electric charges upto September 30, 1959 By this time the defendant had already deposited several amounts in Court and this amount of Rs. 748/- was directed to be paid from the deposit amount in Court and the balance of the amount already deposited was directed to be returned to the tenant. The order of the learned trial Judge then proceeds to say as follows:

The standard rent to the suit premises is fixed at Rs. 30/- as rent per month + Rs. 3/- as municipal taxes + Rs. 1/- as electric chargesThis order disposes off the rent application also.

Against this decision of the learned trial Judge the defendant-tenant preferred an appeal. In that appeal he challenged the finding of the learned trial Judge that the amount of the rent payable by him should be Rs. 34/- per month and the tenants contention in appeal was that it should be about Rs. 18/- per month and he also challenged in appeal the lower Courts decree awarding Rs. 748/- to the landlord for arrears of rent. According to the contention of the tenant the trial court should have fixed the amount of arrears of rent at Rs. 390-8-0 only. The appeal came to be beard and disposed of by the learned Extra Assistant Judge Surat and he held that as the tenant had not preferred a revision application against the order passed in Rent Application No. 355 of 1957 for the fixation of standard rent he could not be allowed to question the same in appeal. The landlord who was the respondent before the lower appellate Court had also filed cross-objections challenging the decree of the trial Court in so far as his claim for possession was rejected. The learned Judge in the lower appellate Court dismissed the cross-objections of the landlord. The present Civil Revision Application has been filed by the original defendant-tenant against the order of the learned Extra Assistant Judge Surat.

2. Under Section 29 of the Act provision has been made for appeals in respect of certain decrees passed by the court of the first instance exercising jurisdiction under Section 28 of the Act. Under Section 29 Sub-section (1) proviso it has been laid down that no such appeal shall lie under certain circumstances. In the instant case we are concerned with proviso Clause (III) and read as a whole the proviso Clause (III) is as under:

Provided that no such appeal shall lie from an order made upon an application for fixing the standard rent or for determining the permitted increases in respect of any premises except in a suit or proceeding in which an appeal lies.

The proviso Clause (III) thus carves out an exception from the appealability of decrees and orders. If an order is made on an application made under Section 11 of the Act for fixation of the standard rent or for determining the permitted increases no appeal can lie against such an order. However if the order fixing the standard rent or permitted increases is passed in a suit or a proceeding in which an appeal lies then an exception to the exception has been further carved out with the result that an appeal against the order fixing the standard rent or determining the permitted increases when such an order is passed in a suit or any proceeding in which an appeal lies is also appealable and the question will have to be decided in each case whether the order fixing the standard rent or determining the permitted increases is passed in the suit or in the application under Section 11 of the Act.

3. A situation similar to the situation arising in the instant case also arose before Gajendragadkar J. (as he then was) in the case of Sinaeen Mohiddin v. Kaushal Kishore 58 Bom. L.R. 339 In that case two Civil Revision Applications were dealt with. As pointed out at page 340 of the report Civil Revision Application No. 1558 of 1955 which was one of the two Civil Revision Applications arose from an ejectment suit filed by the landlord being suit No. 317 of 1954. In that suit the landlord claimed to recover possession of the demised properties and arrears of rent. He claimed rent at the rate of Rs. 90/- per month. Meanwhile an application had been filed by the tenant for fixation of standard rent under Section 11 of the Act this was Application No. 384 of 1952. This application had been filed before the Court of Small Causes at Poona. Subsequently the suit filed by the landlord for ejectment and arrears of rent and the application made by the tenant for the fixation of standard rent were heard together and on November 191954 the standard rent was fixed at Rs. 45/- per month and a decree for payment of arrears was passed against the tenant to the extent of Rs. 420/-. The claim for ejectment made by the landlord was dismissed. Against this decree the landlord preferred an appeal being Appeal No. 68 of 1955 and when the respondent received the notice of this appeal he preferred cross-objections disputing the correctness of the standard rent fixed by the learned trial Judge. An order was passed by the learned District Judge calling upon the tenant-respondent to pay adequate Court-fees and it was that order which was challenged by the tenant in his revisional application before the High Court. Gajendragadkar J. (as he then was) considered the provisions of Section 29 of the Act and he observed as follows:

Section 29 of Act LVII of 1947 provides for appeal and it is common ground that where a landlord claims ejectment and arrears of rent from his tenant and the claim is either wholly or partly decreed an appeal lies against the decree. Section 29(1) Clause (b). provides that in the mofussil an appeal shall lie from a decree or order made by a Judge of the Court of Small Causes established under the Provincial Small Cause Courts Act or by the Court of the Civil Judge deemed to be the Court of Small Causes under Clause (c) of Sub-section (2) of Section 28 or by a Civil Judge exercising such jurisdiction to the District Court. Thus there is no doubt that the landlord was entitled to prefer an appeal against the decree which was passed in the suit filed by him. Under Section 11 of the Act it is open to the tenant to apply for the fixation of standard rent. Proviso (HI) to Section 23(1)(b) however lays down that no appeal shall lie against an order made upon an application for fixing standard rent or for determining the permitted increases in respect of any premises except in a suit or proceeding in which an appeal lies. This proviso has been added by Section 17(1) of Bombay Act LXI of 1953 It would be noticed that the standard rent can be determined either on an application made by the tenant under Section 11 for the purpose of getting the standard rent determined or in a suit or proceeding in which the tenant can make an appropriate pleading and the Court may proceed to deal with the question of the fixation of standard rent. If an order is made determining the standard rent not in a suit or proceeding but on an application made by the tenant for the purpose of getting the standard rent determined no appeal lies against the order made by the learned Judge. Thus it is clear That the decree passed by the learned trial Judge against the landlord was appealable as a decree whereas the order passed by the Civil Judge on the application for the fixation of standard rent which had been made by the tenant in Civil Revision Application No 1558 of 1955 was not appealable as such if it is held that the standard lent had been fixed in the application itself and not in the suit with which it was ultimately consolidated.

Thus it is clear that according to Gajendragadkar J. in this decision when an application under Section 11 made by the tenant for fixation of the standard rent and the suit filed by the landlord for eviction on the ground of rent are consolidated the question which the appellate Court has to ask is whether the standard rent has been fixed in the application itself or whether it has been fixed in the suit with which that application was ultimately consolidated. With respect I agree with the observations of Gajendragadkar J in this judgment.

4. The fact that this result would follow is borne out by the latter part of the judgment in 58 Bom 1 R. 339 because it has been held in that case that the cross-objections filed by the tenant against that part of the judgment of the trial Court which fixed the amount of the standard rent were held to be competent. Under Order 41 Rule 22 Sub-rule (1) any respondent though he himself might not have appealed from any part of the decree may take any cross-objection to the decree which he could have taken by way of appeal provided the other conditions under that Sub-rule are satisfied Therefore one of the pre-requisites of the maintainability of cross-objections under Order 41 Rule 22(1) is that the grounds which are taken by gay of cross-objections must be such as the respondent could have taken by way of an appeal against the judgment and decree of the trial Court. Thus in holding in 58 Bom. L.R 339 that the cross objections were competent as he in terms did Gajendragadkar J. has indicated that if the tenant were to file an appeal against that part of the decree by which the standard rent was fixed such an appeal would also be maintainable. Applying the test which has been mentioned at page 341 viz. whether the standard rent has been fixed in the application itself or whether it is fixed in the suit with which that application was ultimately consolidated in the instant case as the judgment and decree of the Court of the first instance make it clear the standard rent was fixed in the suit itself and so far as the Rent Application was concerned the judgment mentions that the order passed in the suit disposed of the Rent Application and the last sentence of the operative portion of the decree also mentions that the Rent Application No. 355 of 1957 was disposed of by the decree in the suit. Thus on facts of this particular case it is clear that the standard rent was fixed in the suit filed by the landlord against the tenant and not on the standard rent application filed under Section 11 of the Act by the tenant; and in view of the test which I have mentioned above it was competent to the tenant to challenge the correctness of the amount fixed as standard rent in the appeal that he filed.

5. If this interpretation of Section 29 (1)(b) proviso Clause (III) were not to be adopted a very anomalous result would follow. By holding that even when the suit and the application are consolidated and are heard together whenever standard rent comes to be fixed it must be deemed to have been fixed on the standard rent application no effect is being given to the concluding words of proviso Clause (III) viz. except in a suit or proceeding in which an appeal lies. Moreover by adopting any other test or interpretation of this particular clause in the proviso the tenant who has preferred an application under Section 11 for fixation of the standard rent or for determination of the permitted increases would be penalized as against the tenant who has not preferred such an application. It could not have been the intention of the Legislature to penalize the tenant preferring such an application in this manner and that is why the concluding words in the proviso Clause (III) have been laid down and looking at the scheme of that particular clause it is obvious that when the standard rent has been fixed in the suit or a proceeding other than an application made under Section 11 of the Act even though that suit or proceeding is consolidated with the application preferred by the tenant under Section 11 an appeal would lie and the tenant or the landlord as the case may be would not be compelled to prefer a revision application under the provisions of Sub-section (3) of Section 29 of the Act.

6. My attention was drawn to the judgment of Bhagwati J. in the case of Haji Gulamnabi v. Abbasbhai IV G.L.R. 282. From page 298 onwards my learned brother has considered the effect of Section 29 and whether the finding fixing the standard rent would be res judicata or not. In that case also it was pointed out that the trial Court fixed the standard rent of the premises at Rs. 51/- as against the contractual rent of Rs. 70/- per month and this determination of the standard rent was made by the trial Court both in the suit and on the application of the defendant for fixing of the standard rent. The Plaintiff filed an appeal against the decree challenging the determination of the standard rent but did not file any revision application against the determination of the standard rent on the application of the defendant for fixation of the standard rent. It was urged that the determination of the standard rent of the premises by the trial Court on the application for fixation of the standard rent therefore became res judicata and it was not open to the learned Assistant Judge hearing the appeal from the decree in the suit to alter such determination and the learned Assistant Judge therefore acted illegally or with material irregularity in increasing the standard rent from Rs. 51/- per month. Bhagwati J. rejected this contention urged on behalf of the opponent. It was pointed out by Bhagwati J. as follows:

There was an application made by the defendant in the written statement for fixation of standard rent and an issue as regards standard rent therefore arose in the suit. The standard rent was determined by the trial Court at Rs. 51/- per month. Whether this determination also disposed of the application of the defendant for fixation of standard rent is another matter but one thing is clear that the determination was made by the trial Court in the suit. This determination in the suit was clearly appealable under Section 29 of the Rent Act.

7. Thus the test which I have applied following the decision of Gajendragadkar J. in 58 Bom. L.R. 339 was also the test relied upon by my learned brother Bhagwati though he arrived at the same conclusion independently on a pure interpretation of the provision of Section 29 R and without placing any reliance on the decision of Gajendragadkar J. referred to above which decision does not appear to have been cited be fore my learned brother. It may be pointed out that against this decision of Bhagwati J. in IV G.L.R. 282 there was an appeal to the Supreme Court and the decision of the Supreme Court is reported at V G.L.R. 55. This aspect of the judgment of Bhagwati J. has not been dealt with by the Supreme Court and therefore it still remains good law.

8. Applying the test mentioned above it is clear that in the instant case the learned Extra Assistant Judge with respect to him was in error when he held that it was not open to the tenant to challenge the correctness of the amount of the standard rent without preferring a revision application against the order in that application. Under the decree of the trial Court the tenant had been ordered and decreed to pay a sum of Rs. 748/- and that amount had been arrived at by the learned Judge in the trial Court on the footing that the standard rent was Rs. 30/- per month + Rs. 4/- for municipal tax and electricity charges. That decision as I have pointed above was arrived at in the suit and in view of the finding and order passed in the suit the Rent Application of the tenant was disposed of. Thus the standard rent was fixed in the suit the tenant was called upon to pay the amount of Rs. 748/- as a result of the decision arrived at in the suit and therefore it was not necessary for the tenant to file a revision application against the order fixing the standard rent.

9. It may be pointed out that under Section 29(3) of the Act a revision against the order fixing the standard rent can be entertained only if the decision of the trial Court is not according to law and therefore if the tenant in cases like the instant one is compelled to file a revision application the grounds on which he can attack the decision either on law or on fact of the Court of the first instance would be on a much narrower and restricted ground than if an appeal were competent. Unless the clear language of the statute drives the Court to that conclusion the Court would not interpret the provisions of Section 29 (1)(b) proviso Clause (III) so as to deprive a party of a right of appeal and drive him to prefer a revision application. This consideration has also weighed with me in arriving at the above conclusion as regards the interpretation of the provisions of Section 29 (1)(b) proviso Clause (III).

10. An view of the above discussion the order of the learned Extra Assistant Judge irkappeal is set aside and the appeal is remanded back to the District Court Surat for disposal on merits according to law in the light of the observations made in this judgment. In may be pointed out that according to the learned Extra Assistant Judge Surat there was no substance in the cross-objections filed by the landlord challenging the decree of the trial Court for not awarding the possession of the suit premises to him. It is possible that the learned Extra Assistant Judge was influenced in this decision by the view that he took regarding the appeal of the tenant. Therefore it would be open when the appeal is heard after the remand to consider the cross-objections filed by the landlord. In the result I set aside the judgment and decree passed by the learned Extra Assistant Judge Surat and remand the matter back to him for disposal of the appeal and the cross-objections on merits and on facts as well as on law. The costs of this Civil Revision Application will be costs in the appeal in the lower appellate Court. This Civil Revision Application is allowed and the rule is made absolute.


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