MAGANLAL CHHOTABHAI DESAI Vs. CHANDRAKANT MOTILAL

JUDGEMENT

(1.) This appeal arises out of a suit between landlord and tenant.The defendant as a tenant of Moti Villa Bungalow No. 1 in Ahmedabad under the plaintiff. The contractual rent was Rs. 800 per month. Since October 1, 1948 the defendant stopped payment of rent on the ground that it was excessive. The disputes between the parties were referred to the arbitration of one Sankalchand Parikh who made an award fixing the standard rent at Rs. 300 per month and directing the defendant to deliver possession of the premises and to pay arrears of rent and future rent at that rate. A decree was passed according to the award on September 21, 1949. The plaintiff recovered moneys by executing the decree but the defendant continued in possession. On April 20, 1950 the defendant made an application for fixation of standard rent. This application was withdrawn by him on November 11, 1950. On August 1, 1955 the High Court declared that the award decree was null and void on the ground that the claim for fixation of the standard rent and recovery of possession could not be referred to arbitration.

(2.) On September 5, 1955 the plaintiff served a notice upon the defendant demanding payment of arrears of rent and asking him to vacate the premises on the expiry of the month of October next. On December 26, 1955 the plaintiff instituted Suit No. 5092 of 1955 claiming possession on the ground of non-payment of rent and sub-letting and also claiming arrears of rent and mesne profits. The defendant filed his written statement on May 1, 1956 asking for fixation of the standard rent at Rs. 125 per month, denying the sub-letting and alleging that the plaintiff had recovered more than the rent legitimately due to him. On March 14, 1957 he filed Suit No. 34 of 1957 against the plaintiff claiming refund of Rs. 15224 realised in execution of the void decree. The first date of the hearing of Suit No. 5092 of 1955 was December 26, 1957. On June 19, 1958 the Trial Court decreed the suit and directed the defendant to give possession of the premises and to pay Rs. 10750 on account of arrears of rent and mesne profits at the rate of Rs. 500 per month from the date of the suit. The Trial Court held that the defendant sublet the premises, that having withdrawn his application for fixation of the standard rent it was not open to him to ask for fixation of the standard rent, that if the matter were still open the standard rent would be Rs. 125 per month, that a sum of Rupees 14169/2/- was realised from the defendant in execution of the award decree, that the defendant was liable to pay rent at Rs. 300 per month, that the rent was in arrears and that the notice to quit dated September 5, 1955 was valid. The defendant filed an appeal against this decree. During the pendency of the appeal the plaintiff recovered the sum of Rs. 10,750 decreed by the Trial Court. The Assistant Judge Ahmedabad allowed the appeal, set aside the decree of the Trial Court and directed the plaintiff to render an account of the overpayments made to him. He held that the defendant did not sub-let the premises, that the standard rent was Rs. 125 per month, that it was open to the defendant to ask for fixation of standard rent, that in execution of the award decree since 1950 the plaintiff recovered Rs. 14,169/2/- before the institution of the suit and Rs. 10,750 during the pendency of the appeal and that taking into account all the recoveries the rent was not in arrear. The plaintiff filed a revision application against this decree. On November 20, 1962 the High Court allowed the revision application, set aside the decree of the Assistant Judge, restored the decree for eviction passed by the Trial Court and directed the defendant to pay mesne profits at Rs. 125 per month from the date of the suit until recovery of possession. The High Court accepted the findings of the courts below that there was no sub-letting of the premises, that the standard rent was Rs. 125 per month, that it was open to the defendant to ask for fixation of the standard rent and that Rs. 14,169/2/was recovered from him in execution of the award decree before the institution of the suit. The High Court held that the rent was in arrear, that the defendant was not ready and willing to adjust the overpayment against the rent falling due, that the amount recovered from the defendant was less than the standard rent due from him and the cost of the suit and that he was not entitled to the protection of Secs. 12 (1) and 12 (3) (b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bombay Act No. LVII of 1947). The High Court refused to allow the defendant to raise a new contention, viz., that there was no valid notice under Section 12 (2) of the Act. The defendant filed this appeal after obtaining special leave from this Court.

(3.) Mr. M. C. Chagla contended that the High Court had no jurisdiction to interfere with the decree of the Assistant Judge under Section 115 of the of Civil Procedure. We are unable to accept this contention. The decree passed by the Assistant Judge was manifestly illegal. Suit No. 5092 of 1955 was for possession, arrears of rent and mesne profits. In his written statement, the defendant asked for fixation of standard rent and prayed for dismissal of the suit. In that suit the court had no power to pass a decree directing the plaintiff to render an account in respect of any overpayment of rent made to him. In giving the direction that "the landlord do render an account of the overpayments made to him", the Assistant Judge acted illegally and with material irregularity. The High Court had full power to revise this decree under Section 115 and to give such direction in the matter as it though fit.