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Dr. Kiritkumar D. Gor Vs. Trustees of Saraspur Dharmada Trust - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1984)2GLR831
AppellantDr. Kiritkumar D. Gor
RespondentTrustees of Saraspur Dharmada Trust
Excerpt:
.....would not set a good example. it is well settled that the contractual rent always would not be the standard rent. the legislation which is made for social good cannot take into account any admission or any contract because that does not only affect the parties who are contracting but the other parties as well because the standard rent of a particular type of premises in a particular area would affect the reasonable rent of the adjoining premises as well. it may be that the opponents who are trustees are going to utilise the money for social good and a medical practitioner is earning and who had entered into contract should not have resiled from his own admission or from the contract but that is a moral side of the picture. therefore, it would be clearly covered by section 115 of the..........the civil procedure code. the facts as they appear are that the petitioner applied for fixation of standard rent and according to him the standard rent was the contractual rent fixed between the parties which was rs. 150/- and over and above that he was required to pay municipal taxes, education cess, electric charges etc. he averred in the petition that the opponents were demanding rs. 200/- plus tax and, therefore, he had filed the petition. now he wanted by the amendment to change his prayer clause by which he wanted to delete the former prayer which was for the fixation of standard rent at rs. 150/- and now he wanted that his prayer should be that the standard rent of the premises was rs. 10/- per month. the ground stated in the petition is that one shankerlal gaurishanker vyas was a.....
Judgment:

S.L. Talati, J.

1. The petitioner has filed this petition and by this petition he is challenging the order passed by the learned Small Cause Court Judge, dated 4-2-1983 which came to be passed while deciding the application exh. 14 which was submitted by the petitioner for amending his petition under the provisions contained in Order 6, Rule 17 of the Civil Procedure Code. The facts as they appear are that the petitioner applied for fixation of standard rent and according to him the standard rent was the contractual rent fixed between the parties which was Rs. 150/- and over and above that he was required to pay municipal taxes, education cess, electric charges etc. He averred in the petition that the opponents were demanding Rs. 200/- plus tax and, therefore, he had filed the petition. Now he wanted by the amendment to change his prayer clause by which he wanted to delete the former prayer which was for the fixation of standard rent at Rs. 150/- and now he wanted that his prayer should be that the standard rent of the premises was Rs. 10/- per month. The ground stated in the petition is that one Shankerlal Gaurishanker Vyas was a tenant of these premises and he was paying Rs. 10/- per month. The learned Civil Judge after considering the arguments advanced by both the sides came to the conclusion that such an amendment was not required to be allowed and the main ground which weighed with the learned Judge was that this amendment would cause prejudice to the opponents and that by making an application for amendment the petitioner was getting rid of his own admission which he had made in the former application.

2. The learned Advocate Shri Shelat who appeared on behalf of the respondents here submitted that the petitioner is a Doctor, several repairs were carried out and looking to the area in which the premises were situated and looking to the rents paid in the locality the petitioner-Doctor should not be allowed to come out with a totally new plea. He submitted that he himself admitted that the standard rent was Rs. 150/- per month. He himself prayed before the Court that the standard rent should be fixed at Rs. 150/-. Now he is coming out with a totally different plea and inconsistent case and wants the Court to fix the standard rent at Rs. 10/-. He submitted that the learned Small Causes Court Judge exercised the discretion properly and no case is made out for interference and if the amendment is allowed it would be encouraging dishonesty and would not set a good example. Now Order 6, Rule 17 runs as under:

Order 6, Rule 17. - The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.

Now it is an application between the tenant and the landlord. What is the real controversy between the parties The real controversy between the parties is as to what should be the standard rent of the premises. Now this is a pure legal question. That is to be determined in accordance with the Bombay Rent Act which has a social purpose. It is well settled that the contractual rent always would not be the standard rent. Whenever the dispute arises in any court of law between the tenant and the landlord in regard to the standard rent the Court is bound to fix the standard rent. Even by agreement between the parties the Court cannot pass any decree by which anything above the standard rent could be permitted by process of the decree of a Court. Whenever by any contract anything above the standard rent is paid it is an excess amount which under certain circumstances and for a certain period has got to be adjusted. Even the municipal authorities are not permitted to charge any tax considering the contractual rent but they have to charge tax on the standard rent. Now that, therefore, legally no person can pay and no person can receive more than anything which is standard rent. Now that, therefore, the cause of action remains the same. The controversy remains the same. The only thing is that whether the Medical Practitioner should go back upon his word and whether the court should allow such an application which ultimately allows the person to get out of his own admission. That is the only question which is required to be answered. The immediate question that would arise is whether by this admission the opponents meaning thereby the other side derived any advantage which would be lost. In a case where the defendant files the written statement and makes certain admissions certain rights accrue and in those circumstances the defendant may not be allowed to get out of his admissions normally but in rare cases even the amendment of such type could be allowed. Normally such an amendment is not allowed. Here by making a contract or by making admission in the petition that the standard rent should be fixed at Rs. 150/- per month did the opponents derive any right which would be lost In law he had never any right by any admission or by any contract to receive anything more than the standard rent. Therefore, there was no question of any right which could have either accrued, which could either be lost. The controversy persists and remains the same, and the Court has got to fix the standard rent irrespective of the contract or morals of the parties. The Legislation which is made for social good cannot take into account any admission or any contract because that does not only affect the parties who are contracting but the other parties as well because the standard rent of a particular type of premises in a particular area would affect the reasonable rent of the adjoining premises as well. It may be that the opponents who are trustees are going to utilise the money for social good and a medical practitioner is earning and who had entered into contract should not have resiled from his own admission or from the contract but that is a moral side of the picture. The legal side of the picture is that the landlord cannot take anything in excess of the standard rent. He is not permitted by law to do it and if the petitioner desires that he does not desire to pay anything above any amount which he may have to pay legally, the court has got to decide the legal rights between the parties. The question which was posed was whether this could be covered by Section 115 of the Civil Procedure Code. The answer would be simple. When the standard rent is required to be determined and the opponent cannot recover anything above the standard rent and in those circumstances when the petitioner raises the dispute because of a specific name which he has mentioned that a particular gentleman was paying a particular rent and, therefore, it was the standard rent, it may be factually correct, it may be factually incorrect ultimately. But when such a dispute has been raised that dispute has got to be resolved one way or the other and not to resolve it would be failing to exercise the jurisdiction vested in a court of law. Therefore, it would be clearly covered by Section 115 of the Civil Procedure Code and this Court has got to interfere. Under these circumstances the petition is allowed and the petitioner is permitted to amend his petition and the learned trial Judge is directed to allow the petitioner to amend his petition and thereafter decide it in accordance with law.

Rule is made absolute with no order as to costs.


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