KESARICHAND AMRUTLAL SHAH Vs. SAKARCHAND MANEKCHAND CHANDIALI

JUDGEMENT

(1.) The petitioner in this Civil Revision Application is the original defendant and the opponent is the heir of the original plaintiff. The plaintiff is the landlord and the defendant is the tenant in respect of certain premises situated at Gopipura Main Road Surat. The contractual rent of the premises in suit was Rs. 40/per month. The tenant was contending that this rent was excessive and should be Rs 14/per month. The tenant had filed an application under sec. 11 of the Bombay Rent Hotel and Lodging House Rates Control Act 1947 ( hereinafter referred to as the Act ) for fixation of the standard rent of the premises being Rent Application No. 355 of 1957 in the Court of the Civil Judge Junior Division Surat. Thereafter the landlord filed a suit being Regular Civil suit No. 762 of 1958 and this suit came up for hearing before the Third Joint Civil judge Junior Division Surat. At the hearing of the suit the application for fixation of standard rent and the suit were both tried and heard together. In his written statement in the suit which was filed for eviction on the ground of the tenant being in arrears of rent the defendant-tenant had once again raised a contention that Rs. 40/were not the standard rent of the premises; and issue No. 2 was as follows:-- What is the standard rent ? The learned trial Judge discussed in his judgment issue No. 2 elaborately pertaining to the question of the standard rent and after considering the materials before him and after taking all the factors into consideration he fixed the standard rent at Rs. 30/per month plus Rs. 3/as municipal tax and Rs. 1/as electricity charges; and the total amount thus payable per month by the tenant to the landlord was fixed at Rs. 34/inclusive of tax and electricity charges. The learned trial Judge held ultimately that the Plaintiffs suit for possession should be dismissed but he held that the Plaintiff landlord was entitled to recover Rs. 748/as rent with municipal taxes and electric charges upto September 30 1959 By this time the defendant had already deposited several amounts in Court and this amount of Rs. 748/was directed to be paid from the deposit amount in Court and the balance of the amount already deposited was directed to be returned to the tenant. The order of the learned trial Judge then proceeds to say as follows:-- The standard rent to the suit premises is fixed at Rs. 30/as rent per month + Rs. 3/as municipal taxes + Rs. 1/as electric charges.....This order disposes off the rent application also. Against this decision of the learned trial Judge the defendant-tenant preferred an appeal. In that appeal he challenged the finding of the learned trial Judge that the amount of the rent payable by him should be Rs. 34/per month and the tenants contention in appeal was that it should be about Rs. 18/per month and he also challenged in appeal the lower Courts decree awarding Rs. 748/to the landlord for arrears of rent. According to the contention of the tenant the trial court should have fixed the amount of arrears of rent at Rs. 390-8-0 only. The appeal came to be beard and disposed of by the learned Extra Assistant Judge Surat and he held that as the tenant had not preferred a revision application against the order passed in Rent Application No. 355 of 1957 for the fixation of standard rent he could not be allowed to question the same in appeal. The landlord who was the respondent before the lower appellate Court had also filed cross-objections challenging the decree of the trial Court in so far as his claim for possession was rejected. The learned Judge in the lower appellate Court dismissed the cross-objections of the landlord. The present Civil Revision Application has been filed by the original defendant-tenant against the order of the learned Extra Assistant Judge Surat.

(2.) Under sec. 29 of the Act provision has been made for appeals in respect of certain decrees passed by the court of the first instance exercising jurisdiction under section 28 of the Act. Under section 29sub-section (1) proviso it has been laid down that no such appeal shall lie under certain circumstances. In the instant case we are concerned with proviso clause (III) and read as a whole the proviso clause (III) is as under:-- Provided that no such appeal shall lie from an order made upon an application for fixing the standard rent or for determining the permitted increases in respect of any premises except in a suit or proceeding in which an appeal lies. The proviso clause (III) thus carves out an exception from the appealability of decrees and orders. If an order is made on an application made under sec. 11 of the Act for fixation of the standard rent or for determining the permitted increases no appeal can lie against such an order. However if the order fixing the standard rent or permitted increases is passed in a suit or a proceeding in which an appeal lies then an exception to the exception has been further carved out with the result that an appeal against the order fixing the standard rent or determining the permitted increases when such an order is passed in a suit or any proceeding in which an appeal lies is also appealable and the question will have to be decided in each case whether the order fixing the standard rent or determining the permitted increases is passed in the suit or in the application under section 11 of the Act.

(3.) A situation similar to the situation arising in the instant case also arose before Gajendragadkar J. (as he then was) in the case of Sinaeen Mohiddin v. Kaushal Kishore 58 Bom. L. R. 339 In that case two Civil Revision Applications were dealt with. As pointed out at page 340 of the report Civil Revision Application No. 1558 of 1955 which was one of the two Civil Revision Applications arose from an ejectment suit filed by the landlord being suit No. 317 of 1954. In that suit the landlord claimed to recover possession of the demised properties and arrears of rent. He claimed rent at the rate of Rs. 90/per month. Meanwhile an application had been filed by the tenant for fixation of standard rent under section 11 of the Act this was Application No. 384 of 1952. This application had been filed before the Court of Small Causes at Poona. Subsequently the suit filed by the landlord for ejectment and arrears of rent and the application made by the tenant for the fixation of standard rent were heard together and on November 191954 the standard rent was fixed at Rs. 45/per month and a decree for payment of arrears was passed against the tenant to the extent of Rs. 420.00. The claim for ejectment made by the landlord was dismissed. Against this decree the landlord preferred an appeal being Appeal No. 68 of 1955 and when the respondent received the notice of this appeal he preferred cross-objections disputing the correctness of the standard rent fixed by the learned trial Judge. An order was passed by the learned District Judge calling upon the tenant-respondent to pay adequate Court-fees and it was that order which was challenged by the tenant in his revisional application before the High Court. Gajendragadkar J. ( as he then was ) considered the provisions of section 29 of the Act and he observed as follows:-- Section 29 of Act LVII of 1947 provides for appeal and it is common ground that where a landlord claims ejectment and arrears of rent from his tenant and the claim is either wholly or partly decreed an appeal lies against the decree. Section 29(1) clause (b). provides that in the mofussil an appeal shall lie from a decree or order made by a Judge of the Court of Small Causes established under the Provincial Small Cause Courts Act or by the Court of the Civil Judge deemed to be the Court of Small Causes under clause (c) of sub-section (2) of section 28 or by a Civil Judge exercising such jurisdiction to the District Court. IF Thus there is no doubt that the landlord was entitled to prefer an appeal against the decree which was passed in the suit filed by him. Under section 11 of the Act it is open to the tenant to apply for the fixation of standard rent. Proviso (III) to section 23(1)(b) however lays down that no appeal shall lie against an order made upon an application for fixing standard rent or for determining the permitted increases in respect of any premises except in a suit or proceeding in which an appeal lies. This proviso has been added by sec. 17(1) of Bombay Act LXI of 1953 It would be noticed that the standard rent can be determined either on an application made by the tenant under sec 11 for the purpose of getting the standard rent determined or in a suit or proceeding in which the tenant can make an appropriate pleading and the Court may proceed to deal with the question of the fixation of standard rent. If an order is made determining the standard rent not in a suit or proceeding but on an application made by the tenant for the purpose of getting the standard rent determined no appeal lies against the order made by the learned Judge. Thus it is clear That the decree passed by the learned trial Judge against the landlord was appealable as a decree whereas the order passed by the Civil Judge on the application for the fixation of standard rent which had been made by the tenant in Civil Revision Application No 1558 of 1955 was not appealable as such if it is held that the standard lent had been fixed in the application itself and not in the suit with which it was ultimately consolidated. Thus it is clear that according to Gajendragadkar J. in this decision when an application under section 11 made by the tenant for fixation of the standard rent and the suit filed by the landlord for eviction on the ground of rent are consolidated the question which the appellate Court has to ask is whether the standard rent has been fixed in the application itself or whether it has been fixed in the suit with which that application was ultimately consolidated. With respect I agree with the observations of Gajendragadkar J in this judgment.