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Fatemahomed MahamadhusseIn Barafwalla Vs. Bai Jinatbibi D/O Mahamad Habib Safri - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1962)3GLR1018
AppellantFatemahomed MahamadhusseIn Barafwalla
RespondentBai Jinatbibi D/O Mahamad Habib Safri
Excerpt:
.....which will hereinafter be referred to as the act a landlord is entitled to recover possession of any premises if the court is satisfied that the rent charged by the tenant for the premises or any part thereof which are sublet before the commencement of the bombay rents hotel and lodging house rates control (amendment) ordinance 1959 is in excess of the standard rent and permitted increases in respect of such premises or part or that the tenant has received any fine premium other like sum or consideration in respect of such premises or part. both the courts below have held that the conditions of clause(j) of sub-section (1) of section 13 and sub-section (4) of section 13 have been satisfied and have decreed the opponents suit for eviction of the present petitioner......is liable to be ejected. no doubt the court has to decide that the tenant has charged from the sub-tenant rent in excess of the standard rent of such premises or part. standard rent is defined in sub-section (10) of section 5 of the act. where the standard rent is fixed by the court standard rent is that amount. even if the standard rent is not fixed by the court the concept of standard rent does exist as defined in sub-section (10) of section 5. it is open to the court in a suit for eviction under section 13(1)(j) of the act to ascertain what the standard rent is and then to decide whether the case falls under section 13(1)(j) of the act. in the instant case the small cause court which was the trial court decided that the standard rent was rs. 240/- per month plus taxes. this contention.....
Judgment:

V.B. Raju, J.

1. Holding that the petitioner in this revision application who was admittedly a tenant of the opponent, had sub-let a portion of the premises iet to him and was charging rent from the sub-tenant, which was in excess of the standard rent and permitted increases In respect of the part the Courts below have decreed the suit for ejectment filed by the opponent against the present petitioner. Under Section 13(1)(j) of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 which will hereinafter be referred to as the Act a landlord is entitled to recover possession of any premises if the Court is satisfied that the rent charged by the tenant for the premises or any part thereof which are sublet before the commencement of the Bombay Rents Hotel and Lodging House Rates Control (Amendment) Ordinance 1959 is in excess of the standard rent and permitted increases in respect of such premises or part or that the tenant has received any fine premium other like sum or consideration in respect of such premises or part. In this connection it is also necessary to refer to Sub-section (4) of Section 13 of the Act which reads as follows:

For the purposes of clause (j) of Sub-section (1) the standard rent or petmitted increases in respect of the part sub-let shall be the amounts bearing such proportion to the standard rent or permitted increases in respect of the premises as may be reasonable having regard to the extent of the part sub-let and other relevant considerations. Both the Courts below have held that the conditions of clause(j) of Sub-section (1) of Section 13 and Sub-section (4) of Section 13 have been satisfied and have decreed the opponents suit for eviction of the present petitioner.

2. In revision it is contended that the appellate Court which confirmed the order of the trial Court has committed an illegality in the exercise of its jurisdiction. It is contended that unless the standard rent of the whole house is fixed before the proceedings for eviction clause (j) of Sub-section (1) of Section 13 cannot apply. Under clause (j) if the tenant has sub-let a portion of the premises given to him on lease and recovers rent from the sub-tenant in excess of standard rent and permitted increases in respect of such premises or any part then he is liable to be ejected. No doubt the Court has to decide that the tenant has charged from the sub-tenant rent in excess of the standard rent of such premises or part. Standard rent is defined in Sub-section (10) of Section 5 of the Act. Where the standard rent is fixed by the Court standard rent is that amount. Even if the standard rent is not fixed by the Court the concept of standard rent does exist as defined in Sub-section (10) of Section 5. It is open to the Court in a suit for eviction under Section 13(1)(j) of the Act to ascertain what the standard rent is and then to decide whether the case falls under Section 13(1)(j) of the Act. In the instant case the Small Cause Court which was the trial Court decided that the standard rent was Rs. 240/- per month plus taxes. This contention is therefore rejected.

3. It is next contended that even if the standard rent of the whole house is determined the standard rent of the particular part which was sub-let must be separately determined. But this is not necessary in view of the provisions contained in Section 13(4) of the Act. This Sub-section (4) lays down that for the purposes of clause (j) of Sub-section (1) of Section 13 the standard rent or permitted increases in respect of the part sublet shall be the amount bearing such proportion to the standard rent or permitted increases of the premises as may be reasonable having regard to the extent of the part sub-let and other relevant considerations. The Judge deciding a suit for eviction under Section 13(1)(j) of the Act has therefore to determine by the rule of ratio or proportion what the standard rent of the portion of the premises sub-let must be deemed to be and then decide whether the case falls under Section 13(1)(j) of the Act. This in fact has been done by both the Courts below. They have held that a two-third portion of the whole premises has been sub-let by the opponent that even taking the standard rent of Rs. 240/- per month plus Rs. 86 in respect of taxes per month the standard rent of the portion sublet was much below the amount which the opponent was recovering from his subtenants namely Rs. 277/-. In fact the appellate Court has observed in para 12 of his judgment as follows:

As stated above the defendant-appellant is in actual possession of more than one third portion of the premises. It can therefore be said that the rent that he was receiving from the sub-tenant is in excess of the standard rent even after taking into consideration the amount of the Municipal taxes that the defendant has to pay.

Thus there is a clear finding that even after taking into account the payment of taxes and considering that the defendant-appellant was in actual possession of more than one-third of the premises the rent that he was receiving from the subtenant was in excess of the standard rent of the portion sub-let. This is a clear finding which brings the case within the scope of Section 13(1)(j) of the Act.

It is next contended that appellate Court has not considered the other relevant considerations referred to in Sub-section (4) of Section 13 of the Act. This contention is not correct because the lower appellate Court has referred to other relevant considerations. In fact it has observed that one of the considerations contemplated is that the tenant may have improved the leased premises and that it is not the case here. The Judge has therefore considered the question of other relevant consideration referred to in Sub-section (4) of Section 13 of the Act. There is therefore no merit in this contention.

4. The next contention urged is that Section 13 of the Act in terms is subject to the provisions of Section 15 of the Act. Under Section 15 it is not lawful for any tenant to sub-let a portion of the house after coming into operation of the Act i.e. after 1947. The question under Section 13(1)(j) of the Act is not whether the sub-letting is unlawful but whether the rent recovered from a sub-tenant is in excess of the standard rent of the portion sub-let. Section 15 does not deal with this topic of rent at all. Section 13 is subject to the provisions of Section 15 of the Act but clause (j) of Sub-section (1) of Section 13 is not affected by the provisions of Section 15 which does not deal with the topic dealt with by Section 13(1)(j). There is therefore no merit in this contention.

It is next contended that under Section 13(1)(j) of the Act the tenant cannot charge from a sub-tenant an amount in excess of the standard rent after the standard rent is determined. But as already observed it is not necessary that the standard rent should be determined by the Court before the suit is filed. Even if the standard rent is not fixed by the Court the concept of standard rent exists in Sub-section (10) of Section 5 of the Act.

5. It is next contended that permitted increases must also be determined. It is not necessary that the Court should determine the permitted increases before the suit is filed because permitted increases can either be decided by the landlord himself under Section 5 or the landlord can calculate the permitted increases according to the extent to which the taxes have been increased. It is not therefore necessary that the Court should determine the standard rent and permitted increases before the tenant can be treated to have charged an amount in excess of such permitted increases. There is therefore no error in the orders passed by the Courts below. The revision application is dismissed with costs.


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