SHIVSHANKER BABULAL THAKORE Vs. THAKKER RAVIKANT NARAYANDAS

JUDGEMENT

(1.) Respondent Ravikant Narayandas Thakker filed Regular Civil Suit No. 416/67 in the Court of 2nd Joint Civil Judge (J. D.) Baroda against the petitioners for obtaining possession of the suit premises which are situated in Kharchikar's Khancha, Raopura. Baroda and bearing census No. 779. The plaintiff's case is that the Civil Court has fixed Rs. 15 as standard rent of the suit premises, and that defendant No. 1, who is really the tenant of the suit premises, is in arrears of rent from 1-8-1965 to 31-3-1967. The plaintiff, therefore, claimed Rs. 300/- as rent due for that period and Rs. 10/- as water tax. The plaintiff also prayed for mesne profits. Defendant No. 1 in his written statement denied that any standard rent was fixed in respect of the suit premises. His case was that the plaintiff was charging Rs. 7 per month as rent but even this was excessive. Defendant No. 1 further contended that he alone is the tenant of the suit premises. He also contended that the standard rent of the suit premises would be really Rs. 4 per month and if the rent is calculated on that basis then he cannot be said to be a tenant in arrears of rent. During the pendency of the suit, defendant No. 2 Rampyari Babulal Thakore applied to the Court for joining her as a party-defendant contending that original tenant of the suit premises was her husband Babulal and that she and her son Ramchandra are also tenants of the suit premises.

(2.) The trial Court, after appreciating the evidence, came to the conclusion that the plaintiff has failed to prove that defendant No 1 alone is the tenant of the suit premises. The learned Civil Judge held that defendants Nos. 2 and 3 are also tenants of the suit premises and as no notice of termination of tenancy was served upon them, the suit for possession must fail. With respect to the fixation of standard rent in the earlier proceedings, the learned Civil Judge held that as it was a consent order, it was not a judgment in rent and that it was open for him to go into that question and decide the standard rent of the suit premises. On the issue of arrears of rent, Civil Judge came to the conclusion that the plaintiff has failed to prove that the defendant No. 1 is in arrears from 1-8-1965. He, however, passed a decree for Rs. 112/-holding that the rent due and payable from 1-12-65 to 31-3-67 at the rate of Rs. 7/- per month comes to Rs. 112/-. He also held that the case was really governed by Section 12 (3) (b) and not 12 (3) (a) of the Bombay Rent Act. The trial Court, therefore, fixed Rs. 7/-per, month as standard rent, passed a decree for Rs. 112/- and dismissed the plaintiff's suit for possession.

(3.) Aggrieved by the judgment and decree passed by the trial Court, the plaintiff filed Civil Appeal No. 137 of 1975 in District Court, Vadodara. The learned Assistant Judge on re-appreciation of the evidence came to the conclusion that defendant No. 1 alone is the tenant of the suit premises. For coming to this conclusion, the learned Assistant Judge relied upon rent receipts, proceeding of Standard Rent Application No. 130/65, applications made by defendant No. 1 for obtaining water and light connections and the conduct of the defendants. The learned Assistant Judge also came to the conclusion that the order passed in Civil Miscellaneous Application No. 130/65 fixing Rs. 15/-as standard rent was not obtained by fraud. The learned Assistant Judge, however, agreed with the finding of the trial Court that the case was governed by Section 12 (3) (b) of the Bombay Rent Act, but he disagreed with the finding recorded by the trial Court that the plaintiff has failed to prove that the rent was due from 1-12-1965. He held that the tenant was in arrears of rent from 1-12-1965 to 28-2-1967. He further held that on 1-4-1968 the total rent and mesne profits due and payable were Rs. 497/- and as against that the defendant No. 1 had deposited only Rs. 190/- and thus defendant No. 1 was in arrears to the extent of Rs. 147/-.