INDIRABEN RAJARAM JOSHI Vs. GOVINDBHAI CHHIBABHAI PATEL

JUDGEMENT

(1.) The respondents are original plaintiffs and the petitioner is original defendant, in so far as the suit proceeding is concerned. The defendant has brought under challenge the decree for eviction passed by the learned Joint Civil Judge (Jr. Division), Navsari on 31st January, 1979 in Civil Suit No. 227 of 1977, confirmed by the learned District Judge, Valsad at Navsari in Regular Civil Appeal No. 35 of 1979 on 27th April 1981.

(2.) Plaintiffs filed Regular Civil Suit No. 227 of 1977 for obtaining possession of the suit premises inter alia on the ground that defendant had failed to pay arrears of rent agreed to be paid @ Rs. 80.00 per month from 1-7-1969 and that defendant did not comply with notice dated 20th August, 1976. The defendant's case has been that Rs. 80.00 was not the "agreed rent". According to her, suit premises came to be let out at the rate of Rs. 30.00 per month. The defendant also gave reply dated 18th September, 1976; that is to say within one month from the date of receipt of the notice and raised dispute both with regard to the contractual rent as well as standard rent. Defendant also filed an application for fixation of the standard rent in the Court of learned Civil Judge (JD) at Navsari; being Standard Rent Application No. 187 of 1976. The proceedings of this standard rent application intervened the date of the suit notice and the date of the suit which was filed by the plaintiffs. The said standard rent application came to be disposed of as per the order below Exh. 28 and that may be reproduced here :- Order below Exh. 28 Read, the application. Heard learned Advocate Shri B. N. Desai for applicant and learned Advocate Shri K. P. Desai for opponent. Opponent is also present. Applicant does not wish to proceed further with this application and she wants to withdraw the application as opponents have taken and raised various other contentions and it is, therefore, not advisable for her to proceed further with the present application and she wants to withdraw the present application keeping her right to dispute standard rent intact. There are judicial decisions and settled position of law. The standard rent unless decided on merits cannot operate as res - judicata and opponents have not filed any suit on applicant. The opponent pressed for costs. Learned Advocate Shri K. P. Desai has endorsed that he presses for costs and when application is withdrawn at the late stage when it is ripe for hearing, costs have got to be imposed to otherside. Hence I pass the following order :- ORDER The application is allowed to be withdrawn with liberty to raise standard rent dispute as it is not decided either on merits or by compromise. The present application to stand disposed off. Applicant do pay costs of the application to opponent fixed at Rs. 60.00 and applicant to bear her own costs.

(3.) The trial Court decreed the suit holding that the dispute of standard rent raised by the defendant was not bona fide as the defendant had withdrawn the standard rent application without fully complying with the order of the interim rent passed in the said application. In view of the trial Court, the case fell under Sec. 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and in the alternative it also fell under Sec. 12(3)(b) of the said Act inasmuch as the defendant did not deposit, during the pendency of the suit, the amount of arrears of rent regularly either @ Rs. 50.00 per month being the interim rent or @ Rs. 60/- p.m. being the contractual rent. This aspect of the case shall be dealt with a little more elaborately while respective submissions are considered. The fact remains that the trial Court passed the decree for eviction in favour of the plaintiffs both under Secs. 12(3)(a) as well as 12(3)(b) of the Act.