A.P. Ravani, J.
1. Defraud the Court. See that the tenant succumbs to the pressure of circumstances and gives consent to enter into an unlawful agreement. Hush up the proceedings in Court and get the contract sealed by a super command of the Court. Then raise a plea of estoppel against tenant when he tries to raise a standard rent dispute. Can such a plea raised by a landlord be countenanced by the Court This, in short, is the question posed in these three revisions applications.
2. Petitioner No. 1 herein, a Public Trust, is the landlord of three different shops situated outside Sarangpur Gate near bridge, Ahmedabad. Respondents herein filed three different Misc. Applications in the Court of Small Causes at Ahmedabad and prayed that the standard rent of the suit shops occupied by them be fixed. The petitioners herein appeared in those proceedings and inter alia contended that earlier in Misc. Application Nos. 1346, 1345 and 1379 of 1974 filed by the respective tenants, the standard rent was fixed and therefore, the applications were not maintainable. The trial Court decided the issue regarding the maintainability of the applications as a preliminary issue and held that the applications were not maintainable and the respondents were estopped from raising the dispute as regards standard rent in view of the decision in previous Misc. Applications referred to hereinabove. The respective tenants filed different civil revision applications, being Civil Revision Application Nos. 36, 37 and 38 of 1981 before the Appellate Bench of the Small Causes Court, Ahmedabad and the Appellate Bench of the Small Causes Court reversed and set aside the judgment and order passed by the Small Causes Court Ahmedabad, and ordered to remand the matters to the trial Court for disposal according to law on merits. All the three civil revision applications were decided by a common judgment dated September 10, 1981. The Appellate Bench of the Small Causes Court followed the decision of this Court in the case of Abdulgani & Co. v. Gulam Hussain reported in 20 G.L.R. 827. According to the Appellate Bench of the Small Causes Court, the trial Court was misled on a question of fact and there was a fraud on Court inasmuch as though there was no dispute with regard to the standard rent, the facts were misrepresented and on the basis of the misrepresentation, the Court was led to believe that there was a 'lis' between the parties and that it was required to be resolved. It is a settled principle of law that fraud would vitiate everything and following that principle, the lower appellate Court held that the decree passed previously in Misc. Civil Application Nos. 1345, 1346 and 1379 of 1974 would not operate as bar against the applicants-tenants and they would not be precluded from filing another application praying that the standard rent of the premises be fixed in accordance with law. The appellate Court came to the conclusion as stated above and ordered to reverse and set aside the judgment and order passed by the trial Court and further directed the trial Court to decide the matter in accordance with law. It is this judgment which is challenged by the original opponent-landlord in these three revision applications.
3. Now the factual position may be looked at which is given hereinbelow in tabular form:
---------------------------------------------------------------------------Misc. Civil Application No. Date of filing Date of disposal---------------------------------------------------------------------------1345 of 1974 4-5-1974 4-5-19741346 of 1974 4-5-1974 4-5-1974 1379 of 1974 10-6-1974 12-6-1974---------------------------------------------------------------------------
The lower appellate Court perused the Rojnama of each case, certified copy of the application, the affidavit filed in respect of the applicants, vakalatnama filed by the parties and the admission purshis filed in each case. On perusal of the record, the Court came to the conclusion, that there was no dispute whatsoever between the parties with regard to the tenancy or with regard to the standard rent. But a fake dispute was created for obtaining a consent decree. It would be interesting to note that the tenants were inducted in the premises from May 1, 1974 as disclosed in the applications. Thus, in the very first week of the tenancy the aforesaid applications were filed in two cases and in the third case, the application was filed after about a month. No exchange of notice appears to have taken place between the parties. The dates of the commencement of the tenancy and the dates of filing of the respective application clearly show that the parties had adopted a device to invoke the jurisdiction of the Court and a show was made that there was dispute between the parties. As in the case of M/s. Abdulgani & Co. (supra), in the instant case also there was no 'Us' between the parties and hence there is nothing to differ from the reasoning given by the lower appellate Court.
4. Relying on a decision of this Court in the case of Jayantilal Chunilal Pancholi v. Bai Jashuda, D/o Madha Dullabh reported in 16 G.L.R. 146, the Counsel for the petitioner has submitted that it was open to the parties to fix the standard rent by consent and if the parties agree that a particular amount be fixed as standard rent, there is no reason why the Court cannot think it as just. Specific reliance is placed on the following passages of the judgment:. 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 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 form 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....
5. As laid down in the aforesaid decision it is true that any order which the Court makes in any proceeding by consent of the parties is always just and metes out to the parties the best form of justice. But the real question is not as to whether the standard rent can be fixed by the Court on the basis of the consent of the parties. In the instant case the question is whether the consent decree passed in earlier proceedings is based on a genuine consent or not Or that the decree passed on the basis of admission is a genuine decree based on free and valid consent, or is it vitiated by fraud There is a clear-cut finding by the lower appellate Court in this case that there was fraud inasmuch as there was no dispute between the parties and a show of dispute was made. The Court was led to believe that a particular fact situation existed and on the basis of the imaginary fact situation, the Court was called upon and requested to exercise jurisdiction to determine the standard rent of the premises. The Court was led to exercise its jurisdiction on the basis of facts non-existing. In this view of the matter the principle laid down in the case of Jayantilal Chunilal Pancholi (supra) would not be applicable to the facts and circumstances of the present case and hence no reliance whatsoever can be placed upon the same.
6. Reference was made to the decision of the Bombay High Court in the case of Popatlat Ratansey v. Kalidas Bhavan reported in : AIR1958Bom1 It was contended that a consent decree by which the standard rent of certain premises is fixed would operate as res judicata in a subsequent application by the same tenant for fixing the standard rent for the same premises. It was further contended on the basis of the aforesaid decision that what is embodied in a consent decree is the decision of the Court as to standard rent. Such a decision of judgment of the Court would estop the tenant from application under the Act, that the standard rent to which he had previously agreed was not the fair rent. The decision is also of no help to the petitioner inasmuch as in the instant case the very basis of the consent decree is disputed. The consent decree is based on an agreement between the parties and the agreement to be valid should be on the basis of free and valid consent of the parties to the agreement. If on facts it is found that in fact there was no dispute and there was no necessity to enter into an agreement and the agreement was arrived at only with a view to mislead the Court so as to circumvent the provisions of the Rent Act, then in that case it would be open to the aggrieved party to contend that the consent decree was obtained by fraud and the same has got to be ignored.
7. Counsel for the petitioner relied upon a decision of this Court in the case of Dhobi Raheman Pirbhai v. Taherali Hasanali reported in 20 G.L.R. 511. In that case the question was as to whether bar of the provisions of Order 9 Rule 9 of the Code of Civil Procedure would operate against a person whose application for determination of standard rent was dismissed for default. The question before the Court in that case was quite different. In the facts and circumstances of that case the Court held that the tenant whose application of fixation of standard rent was dismissed for default would not be entitled to file another application unless he shows some change in the circumstances. In the instant case, the question is as to whether the decision arrived at by the Court in earlier proceedings was a decision based on free and valid consent and was it not obtained by fraud If it is obtained by fraud, then, as stated hereinabove fraud would vitiate everything and the Court would never countenance a fraud having been practised on it. It would be open to any party to the proceedings to show to the Court that the decision was obtained from the Court on the basis of fraud and therefore, the same may be ignored. In the instant case, the applicants-tenants only say that the standard rent which was fixed in earlier proceedings was not just and proper and in the facts and circumstances of the case the decision arrived at in the previous proceedings was tainted by fraud. The lower appellate Court has in fact held that the decision arrived at in earlier proceedings, though based on consent of the parties, was tainted by fraud. In this view of the matter the decision cited by the Counsel for the petitioner is of no help to him.
8. This case has yet another aspect. It must be remembered that the Rent Act is enacted with a view to protect one set of persons, i.e., tenants, from another set of persons, i.e., landlords. The Rent Act severely restricts the rights of the landlords in many respects particularly the action of the landlord to charge the rent in excess of standard rent is made even penal (see Section 18). The contract between the parties by which a landlord is given right to recover rent in excess of standard rent is unlawful and such contract is positively prohibited under the provisions of the Rent Act. In this connection the following passage from Anson's Law of Contract, 25th Edition, at page 393, may be seen:
Where the parties are not in pari delicto the less guilty party may be able to recover money paid, or property transferred, under the contract. This possibility may arise in three situations:
First, the contract may be of a kind made illegal by statute in the interests of a particular class of persons of whom the plaintiff is one. As Lord Mansfield explained in Browning v. Morris (1778), 2 Cowp. 790, at p. 792:
But, where contracts or transactions are prohibited by positive statutes, for the sake of protecting one set of men from another set of men; the one, from their situation and condition, being liable to be oppressed or imposed upon by the other; there, the parties are not in pari delicto; and in furtherance of these statutes, the person injured, after the transaction is finished and completed, may bring his action and defeat the contract.The Rent Acts have furnished an illustration of this type of case. The Rent Act, 1977 provides that, where under any agreement a premium is paid which could not lawfully be required or received, the premium is to be recoverable by the person by whom it is paid. But even, in the absence of any such express statutory provision, it has been held that a tenant or assignee of a lease, though a willing party to the evasion of the Rent Acts may recover an illegal premium paid, since the Acts were passed for the protection of such persons.
9. I must make it clear that I am not deciding this case on the basis of the principle laid down in the aforesaid passage extracted from Anson's Law of Contract. Reference to the same has been made only with a view to emphasise the fact that in a given case the aforesaid principle also may be invoked and a party who is sought to be protected by a statute may invoke the statutory provisions later on and recover the amount paid by him. Therefore, it may be open to such a party to point out to the Court that the consent given by him in earlier proceedings was not free and valid and that the agreement arrived at between the parties was not lawful and therefore, the consent decree passed on the basis of such unlawful agreement should be ignored.
In above view of the matter these revision applications fail and are ordered to be rejected. Rule discharged with no order as to costs.