POPATLAL RATANSEY Vs. KALIDAS BHAVAN

JUDGEMENT

(1.) THESE revision applications raise a point of Jaw whether a consent decree by which the standard lent of certain premises is fixed would operate as res judicata in a subsequent application by the same tenant for fixing the standard rent for the same premises.

(2.) CIVIL Revision Application No. 1924 of 1955 relates to two shops and Civil Revision Application No. l925 of 1955 is in respect of a cabin. The two shops were leased by the respondent-landlord to the applicant-tenant on the 14th June 1948 and the rent which was fixed under the lease was Rs. 136 per month, The tenant filed an application under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, for fixation of standard rent for the shops. It was Application No. 633 of 1949. The landlord filed a cross-suit, which was Suit No. 70 of 1950, for possession and the grounds upon which he sought possession were (1) that the tenant was in arrears of rent and (2) that the tenant had sub-let the premises. The trial Court, in the tenant's application for fixation of standard rent, fixed a sum of Rs. 40 per month as being the standard rent for the shops. The landlord's Suit No. 70 of 1950 was decreed by the Court and under the decree the tenant was called upon to deliver possession of the shops to the landlord. Against the above mentioned decisions both the parties went in appeal. The appeal filed by the tenant was Appeal No. 355 of 1951 and the appeal filed by the landlord was Appeal No. 40 of 1951. The tenant's contention in his appeal was that he should not have been called upon to deliver possession of the premises to the landlord and the landlord's grievance in his appeal was that the standard rent, which was fixed at a sum of Rs. 40 per month, was inadequate and that the amount of standard rent should be increased. In the abovementioned Appeals Nos. 355 and 40 of 1951 there was a compromise arrived at between the parties on the 16th November 1951; and as the result of the compromise a consent decree was passed by the appeal Court, setting aside the decree for possession which was passed by the trial Court in landlord's Suit No. 70 of 1950 and modifying the decree which was passed in tenant's Application No. 633 of 1949 by raising the amount of the standard rent from Rs. 40 per month to Rs. 91 per month. It may be noted that, while the above proceedings were pending in the appeal Court, the parties agreed that the 'reasonable and standard rent of the premises' was Rs. 91 per month without electricity. They made a request to the appeal Court that the standard rent of the premises might be fixed at Rs. 91 per month. The landlord gave up his claim to recover possession of the premises and he agreed to accept the applicant as his tenant. The tenant on the other hand abandoned his contention that the proper standard rent of the premises was Rs. 40 per month and accepted the landlord's figure that Rs. 91 per month should be the standard rent for these shops. When this agreement was submitted to the appeal Court, the Court considered that it was a fair and just agreement, was satisfied that there was nothing unlawful about it and accordingly it passed a decree in terms of the agreement. That was the consent decree by which the dispute between the parties was decided and the applicant was accepted By the respondent as his tenant upon his paying standard rent at the rate of Rs. 91 per month. For some time thereafter, for about a year, the tenant went on paying rent to the landlord at the rate of Rs. 91 per month. But thereafter the dispute started again. It was on account of that dispute that the landlord filed Suit No. 302 of 1952 for recovering possession of the shops from the tenant on the ground that the tenant had failed to pay rent and was in arrears of rent. While-defending the suit the tenant contended that he was not in arrears of rent, as the standard rent for the shops was Rs. 40 per month as previously fixed by the Court in his Application-No. 633 of 1949 and as he had paid rent at that rate. According to the tenant Rs. 91 per month was not the standard rent for these premises. In the landlord's Suit No. 302 of 1952 the trial Court, upon the contentions of the parties before it, framed certain issues as preliminary issues and one of these issues was whether the-consent decree which was passed in Appeals Nos. 355 and 40 of 1951 would operate as a bar to the tenant's contention that the standard rent for the shops was Rs. 40 per month and not Rs. 91 per month. The trial Court held-that the consent decree would not estop the tenant from contending that the standard rent for the shops was Rs. 40 per month instead of Rs. 91 per month as fixed under the consent decree and dismissed the suit of the landlord. On the landlord going in appeal, the learned appellate Judge took a contrary view and held that by reason of the consent decree passed by the Court in Appeals Nos. 355 and 40 of 1951, to which both the present parties were parties, the tenant would be estopped from contending that the standard rent of the premises was not Rs. 91 per month; but it was only Rs. 40 per month. It is from this decision of the learned appellate Judge, the District Judge of Thana, that the present applications are filed by the tenant.

(3.) IN support of the view taken by the learned District Judge Mr. Patel for the respondent has invited our attention to a decision of Mr. Justice Gajendragadkar in Civil Revn. Applns. Nos. 833 and 1253 of 1953 and Civil Rcvn. Applns. Nos. 980, 999 and 807 of 1954, which were decided on 11-8-1954 (Bom) (A ). Mr. Justice Gajendragadkar examined the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, and observed that he was unable to see how it could be contended that it was not open to the parties at dispute as to the standard rent of premises to compromise the said dispute under the provisions of the Act. Mr. Justice Gajendragadkar pointed out that it was undoubtedly true that the policy of the Act was a benevolent policy and the policy was to help the tenants. But he said that he was unable to accept the argument that the Act either expressly or by necessary implication made it obligatory on the Court to decide the matter. In Mr. Justice Gajendragadkar's view, it would be perfectly competent to the parties to settle the dispute in regard to the standard rent and the mere fact that after the tenant had entered into an agreement in respect of this dispute he had begun to feel that he had been persuaded to enter into an agreement to his prejudice would not justify the argument that the compromise agreement itself was a nullity. He observed that upon a Question arising whether a consent decree would constitute a bar of res judicata or not, it was necessary to make a distinction between orders or decrees which might be contrary to law and those which might be prohibited by law, and he said that in the Act he saw no prohibition, preventing the parties from settling the dispute as to the standard rent by agreement. Then Mr. Justice Gajendragadkar pointed out that even if the consent order fixed the standard rent at an amount which might be higher than the amount which might have been fixed by the controller, that would not make the consent order contrary to law. He summed up his view in these words :