BABANRAO CHIMAJI THORAT Vs. MOHSHINDBHAI QUARBAN HUSSAIN

JUDGEMENT

(1.) BOTH these petitions challenge the same order passed by the subordinate Courts. Therefore, both the petitions can be conveniently disposed of by a common order.

(2.) BABANRAO Thorat, the petitioner in writ petition No.2612/86, filed an application under section 11 of the Bombay Rent Act, which was registered as M.A. No.29 of 1984 for fixation of the standard rent of the area which according to the applicant was leased out to him. Mohashinbhai, the petitioner in Writ Petition No.775 of 87 was joined as respondent in that application as he is owner of the demised premises. The application was filed on the allegations by the tenant that the contractual rent fixed by the trial court, is excessive. It appears from the order of the trial Court dated 8.5.1985 that there was some dispute between the landlord and the tenant relating to the open land, adjoining the construction. It appears that there was a Reg.Civil Suit filed, relating to the open land and therefore, in paragraph 5 of its order dated 8.5.85 in application M.A.No.29/84, the trial Court, namely, the civil Judge Jr.Dvn. Ulhasnagar has observed that while fixing the standard rent, he is not touching the open land. He has also not decided the question as to whether this open land was leased out or not and by that order he is deciding only the standard rent of the building/hotel area only. The trial court thus fixed the standard rent at the rate of Rs.300/per month of the built up hotel area only. Therefore, against the order of the trial Court passed in Misc.Application 29 of 1984, the landlord had filed civil revision Appln. No.16/85 and the original applicant/tenant had filed Civil Revision Appln.No.28/85 before the VIIth Addl. District Judge, Thane, Both these applications were decided by the VII th Addl. District Judge, Thane by order dated 6th December 1985. By that order, the appellate Court dismissed both the applications and confirmed the order passed by the trial Court. However, while confirming the order of the trial court, the appellate court has recorded a finding that only built up area was let out by the landlord to the tenant. In the submission of the learned counsel appearing for the tenant there was no warrant for recording this finding. He pointed out to me that it is clear from the observation in paragraph 13 of the order passed by the revisional court that the revisional court agreed with the trial court that it was not proper to pass any order regarding the open land because there was a dispute pending and in view of that dispute, on the basis of only affidavit, no orders can be passed. In the submission of the learned counsel, therefore, there was no justification for the appellate court to observe that only built up area is leased out to the tenant. The learned counsel submits that this is the only grievance that he is making against the order of the revisional court.

(3.) IN the result, therefore, the order passed by the revisional Court and the trial Court in both the petitions are confirmed subject to the modification that the standard rent fixed by the courts below relates only to the suit premises-Hotel Dreamland. It is also clarified that the orders impugned in this petition do not decide the question as to what is the extent and rent of the i.e. open space. Rule disposed of accordingly with no order as to costs.