KHATIJABIBI ABDUL H. KAGDI v. HAIDERALI DAUDBHAI MATARWALA

CORAM : MR.JUSTICE P.B.MAJMUDAR Date of decision: 05/04/2000 ORAL JUDGEMENT

1.(cid:9)The petitioner is the original defendant against whom the respondents - defendants had filed the suit being Civil Suit No.626/77. The aforesaid suit was filed by the respondents - plaintiffs herein for getting the possession of the suit premises. It is the case of the plaintiffs that the suit property was rented out by the father of the plaintiff No.1 and the husband of the plaintiff No.2 to the defendant - tenant. The particulars of the suit property are given in para 1 of the petition. The defendants had filed the application being Rent Petition No.18/69 against late Daudbhai Haiderali for fixation of the standard rent which ended into settlement on 30.8.1969 and accordingly the standard rent was fixed by consent at Rs.11/- excluding other charges. According to the plaintiffs - respondents, the defendant - tenant was in arrears of rent from 1.12.1973, and therefore, demand notice was served upon him. The defendant did not paid any rent in compliance of the suit notice, but instead raised the dispute of standard rent and also filed the standard rent proceedings being Rent Petition No.5/77 on 28.1.1977. The plaintiffs, therefore, filed the suit for possession on the ground of arrears of rent. It is also the case of the plaintiffs that, since the dispute of standard rent was already decided in past, subsequent dispute was not bonafide at all. Therefore, the aforesaid suit was filed for possession and arrears of rent.

2.(cid:9)The defendant appeared in the suit and filed his written statement at Exh.12. It was contended that the suit notice was not legal and valid that he has paid the rent till 18.12.1976, and therefore, he is ready and willing to pay the rent. According to him, the standard rent of Rs.11/- is excessive and on the aforesaid ground the suit was resisted.

3.(cid:9)The trial court framed various issues and after recording the evidence came to the conclusion that the defendant was in arrears of rent for a period of more than six months from 1.12.1973 and he has neglected to pay the rent. It was found that, Rs.11/- was the standard rent and the same is correct in view of the earlier order of the court. Accordingly, the decree for possession was passed under section 12(3)(a) of the Bombay Rent Act.

4.(cid:9)The aforesaid decree of the trial court was challenged by the tenant by preferring an appeal being Regular Civil Appeal No.52/81. Learned Assistant Judge, Bharuch dismissed the said appeal with costs by his judgment and order dated 8.9.1982. The petitioner tenant, therefore, has filed the present revision application under section 29(2) of the Bombay Rent Act challenging the decree passed by the trial court which was confirmed by the appellate court.

5.(cid:9)It is not in dispute that, the standard rent was fixed between the parties by consent in the previous proceedings and the standard rent was fixed at Rs.11/-. Certified copy of the aforesaid compromise is at Exh.40. It was found by the court below that, there is nothing on the record to show that, the order of the court fixing the standard rent at the rate of Rs.11/- per month by consent of the parties is obtained either by fraud or undue influence. Not only that, the defendant was paying the rent at the rate of Rs.11/- accepting the said amount as the correct standard rent. Under the aforesaid circumstances, it was found that the dispute of standard rent which was taken again in the present proceedings, it was not genuine and bonafide and the defendant - tenant was estopped from taking the said dispute again and again.

6.(cid:9)Under the aforesaid background, it was found by the learned appellate court in its judgment in paragraph 9 that, in response to the notice given by the plaintiffs to the defendant under section 12(2) of the Bombay Rent Act, the tenant had not tendered the amount as demanded in the notice, but instead raised the dispute of the standard rent in reply to the notice, even though, the standard rent was already fixed between the parties earlier. It is found that, it is not the case of the defendant that, there was any change of any circumstances after the standard rent of Rs.11/- was fixed by the court. Even, if the fixation of standard rent may not operate as res-judicata, it can certainly create bar of estoppel, and therefore, it was not open for the tenant to reagitate the said question again especially when nothing is found on record as to how the consent order was illegal in any manner. It, therefore, cannot be said that, there was any genuine standard rent dispute which can be said to have been pending when the demand notice was given, therefore, when the tenant has not paid any rent within one month, then, the case would fall under section 12(3((a) of the Bombay Rent Act. The details of arrears have been stated by the learned Appellate Judge in para 13 of his judgment. It, therefore, cannot be said that, any error of law is committed by the learned Appellate Judge which is required to be corrected by this court in this civil revision application. Once, the case falls under section 12(3)(a) of the Bombay Rent Act, the decree for possession is required to be passed.

7.(cid:9)In that view of the matter, I do not find any substance in this civil revision application and the same is accordingly dismissed. Rule discharged. There shall be no order as to costs. (cid:9) (cid:9)(P.B.Majmudar,J.) (pathan) (cid:9) (cid:9) (cid:9)