GULAMHUSSAIN GULAM MOHIUDDIN Vs. PINJARA ISMALLBHAI UMARBHAI

JUDGEMENT

(1.) This is an appeal by special leave against the order of the High Court of Gujarat summarily rejecting an application in revision under Sec. 115 of the Code of Civil Procedure against the order of the District Court, Baroda.

(2.) The landlord who is the appellant filed a suit against the tenant for a decree in ejectment in respect of certain premises, the contractual rent of which was Rs. 20.00 per month. By a proceeding under s. 11 of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947, the standard rent was determined at Rs. 13.50 n.P. After that proceeding was concluded several payments of rent were made by the tenant to the landlord. On Oct. 19, 1962, the landlord served a notice to the tenant terminating the tenancy and claiming that an amount of Rs. 431.75/- n.P. was due till Oct. 31, 1962. The tenant sent an amount of Rs. 351/- to the landlord towards the rent due, by money order. The money order was not accepted by the landlord and he filed a suit on April 4, 1963, for a decree in ejectment. The trial Court decreed the suit. In appeal the District Court held that even though on a strict calculation it may appear that an amount exceeding the standard rent for a period of six months was due by the tenant to the landlord, having regard to the circumstances that the tenant claimed to set off excess payments previously made towards rent accruing due and he bona fide believed that the amount claimed was not due, it was not proved that the tenant neglected to pay the rent due to the landlord. The District Court accordingly reversed the decree passed by the Trial Court and dismissed the claim in ejectment. The High Court of GUJARAT summarily rejected an application under Sec. 115 of the Code of Civil procedure against that order.

(3.) The question whether there was neglect on the part of the tenant to pay the rent is essentially a question of fact, and the High Court excercising jurisdiction under Sec. 115 of the Code of Civil Procedure was not competent to go into that question; and this court will not allow that question to be canvassed in an appeal under Art. 136 of the Constitution against the order of the High Court. The appeal fails and is dismissed. There will be no order as to costs. Appeal dismissed.