DANILAL GANPAT KANK Vs. LALJI MOHANLAL THAKKAR

JUDGEMENT

(1.) THIS petition under Article, 227 of the Constitution takes exception to a decree for ejectment and a quantum fixed as standard rent in respect of a two-room apartment in Niware Chawl bearing house No. 50(c), Allay No. 55 at Kalyan, District Thane.

(2.) THE points that arise for determination in the present petition have to be considered in the following background : The suit apartment leased out on a rental of Rs. 20 per month exclusive of various charges and takes the latter, also being payable, by the tenant. Rent and other charges had not been paid for the period July, 1972 to May, 1974, both inclusive. On 16.5.74, the respondent-landlord addressed a notice to the defaulting tenant calling upon him to clear the arrears and deliver a vacant possession of the premises by a certain date. The notice was served on 18.5.1974. With in the month of the service i.e. on 14.6.1974, the tenant filed an application which was registered as Misc. Application No. 55 of 1974 for determination of the standard rent nothing further seems to have done in this application. The landlord filed a suit on 28.1.1975 claiming ejectment under Sections 12(3)(a) or 12(3)(b) of the Rent Act. An application was made by the tenant for the fixation of the provisional rent and for a direction to deposit the outstanding rent. This application was moved on 5.3.1975 and from 17.4.1975 till 3.11.1981, the tenant deposited money totalling Rs. 2,529.64 ps. The trial Court held that there was no default that the standard rent was Rs. 16 per month and that in view of the deposit made during the pendency of the suit the tenant was entitled to protection. Consequently, the claim for ejectment was dismissed. Against the dismissal of the suit, the respondent went in appeal to the District Court at Thane. The said appeal was heard by an Additional District Judge who held that the tenant was a defaulter under both the clauses of Section 12(3) of the Rent Act and that the standard rent was 20. Holding thus, the learned Judge allowed the appeal and passed a decree which is assailed before me. There is no substance in the petition and I dismiss the same for the reasons given below.

(3.) IT was next contended that the standard rent had been fixed at Rs. 16 per month by the trial Court upon an application moved by a tenant. No revision was preferred against that finding. It was, therefore, not upon to the appellate Court to vary the standard rent. All that we have not recorded is the knowledge that an application for fixation of standard rent was moved by the tenant. It appears that the application at some stage was allowed to die a natural death by being absorbed in the suit brought by the landlord. That is why the trial Court framed the issue in regard to quantum of standard rent when delivering judgment in the suit of landlord. If so there was a finding in the suit and, that could be challenged in appeal as was done by landlord. Therefore, the appellate Court cannot be said to have been in error in entertaining the challenge to sum determined to be the standard rent.