SCA/993620/2008 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9936 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = PIYUSHKUMAR RAMNIKLAL CHOLIA DECEASED THROUGH LEGAL HEIRS & 7 - Petitioner(s) Versus ABDUL QAYYUM DAMANALI SHAIKH - Respondent(s) ========================================= = Appearance : MR HM PARIKH for Petitioner(s) : 1 - 8. MR IRSHADAHMAD B MEV for Respondent(s) : 1, ========================================= = CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 24/12/2008 ORAL JUDGMENT 1. By way of this petition under Article 227 of the SCA/993620/2008 2/8 JUDGMENT Constitution of India the petitioners-original plaintiffs have prayed for an appropriate writ, order or direction quashing and setting aside the impugned order dated 21/04/2008 passed by the learned Appellate Bench of the Small Causes Court, Ahmedabad in C.R.A. No. 49/2007 by which the learned Appellate Bench has allowed the application by quashing and setting aside the order passed by the learned Judge of the Small Causes Court No. 11, Ahmedabad dated 26/10/2007 by which the learned Small Causes Court has fixed the standard interim rent under Section 11(4) of the Bombay Rent Act at the rate of Rs. 325/- per month with the liability to pay the municipal tax and education cess on the respondent-original defendant-tenant and also to deposit Rs. 24,375/- as arrears of rent from 01/12/2000 to 28/02/2007. 2. The petitioners-original plaintiffs have instituted H.R.P Suit No. 2028/2005 against the respondent-original defendant claiming possession of the disputed property on the ground of subletting, permanent construction and arrears of rent. In the said suit, the petitioners-original plaintiffs submitted an application under Section 11(4) of the Bombay Rent Act for fixing the interim rent. The said application under Section 11(4) of the Bombay Rent Act as well as the suit was resisted by the respondent-original defendant disputing the ownership of the suit property by submitting that the petitioners-original plaintiffs are not the owners of the suit premises and the respondent-original defendant is not the tenant as alleged. It was the contention on behalf of the respondent-original defendant that earlier one Rajaram Kesarimal was the owner of the land in question and, thereafter, one Ahmedkhan M. Akbar Pathan purchased the said open land from the said Rajaram SCA/993620/2008 3/8 JUDGMENT Kesarimal on 05/11/1998 and, thereafter, he has constructed three sheds on the said open land and out of the said three sheds, one shed admeasuring 20' x 22 has been purchased by the respondent-original defendant for sale consideration of Rs. 1,10,000/- on 06/10/1999 and thus the respondent-original defendant has become owner of the super structure. It was also submitted that Ahmedkhan M. Akbar Pathan has been recovering the rent of Rs. 101/- from the respondent-original defendant for which the rent receipt has been issued. Documentary evidences came to be produced on behalf of the petitioner-original plaintiff in support of their claim as the owner of the disputed property. After considering the evidence on record, the learned trial Court by a detailed order allowed the application under Section 11(4) of the Bombay Rent Act fixing the interim standard rent at Rs. 325/- per month with the liability to pay the municipal tax and education cess on the respondent-original defendant and further directing the respondent-original defendant to deposit Rs. 24,375 as arrears of rent from 01/12/2000 to 28/02/2007 within two months. Being aggrieved and dissatisfied with the order passed by the learned Judge of the Small Causes Court No. 11, Ahmedabad dated 26/10/2007 below Exh. 17 in H.R.P. Suit No. 2028/2005, the respondent-original defendant preferred C.R.A. No. 49/2007 before the learned Appellate Bench of the Small Causes Court at Ahmedabad by which the learned Appellate Judge has allowed the application dated 21/04/2008 by quashing and setting aside the order passed by the learned trial Court by holding that in view of the defence raised by the respondent- original defendant with respect to the ownership of the disputed property and denial by the respondent-original defendant that he is not tenant of the suit property, unless and SCA/993620/2008 4/8 JUDGMENT until the said controversy is resolved it is not possible to decide the tenant-landlord relationship between the parties and, therefore, the learned trial Court was not justified in fixing the interim rent at Rs. 325 per month and the learned trial Court has wrongly fasten the liability upon the respondent-original defendant to pay Rs. 24,375/- in the Court. Being aggrieved and dissatisfied with the impugned judgement and order dated 21/04/2008 passed by the learned Appellate Bench of the Small Causes Court at Ahmedabad in C.R.A. No. 49/2007 in allowing the same by quashing and setting aside the order passed by the learned Judge of the Small Causes Court No. 11, Ahmedabad dated 26/10/20007 below Exh. 17 in HRP Suit No. 2028/2005 fixing interim standard rent at Rs. 325/- per month, the petitioners-original plaintiff have preferred the present Special Civil Application under Article 227 of the Constitution of India. 3. Shri H.M Parikh, learned advocate appearing on behalf of the petitioners-original plaintiffs has vehemently submitted that the learned Revisional Court has materially erred in allowing the appeal by quashing and setting aside the reasoned order passed by the learned trial Court. It is submitted that ample evidences were produced on record to prima faice prove the ownership of the disputed property by the petitioners-original plaintiffs and against which the respondent-original defendant is claiming ownership on the basis of the alleged agreement to sell, which does not confer any right, title or interest and atleast does not confer any ownership right in favour of the respondent-original defendant, and, therefore the learned Revisional Court has materially erred in quashing and setting aside the order passed by the SCA/993620/2008 5/8 JUDGMENT learned trial Court fixing the interim rent at Rs. 325/- per month. It is further submitted that the learned trial Court has considered the aforesaid aspect in detail. It is submitted that when the suit has been field by the petitioners-original plaintiffs for recovery of possession on the ground of subletting permanent construction and arrears of rent and an application under Section 11(4) of the Bombay Rent Act for fixing the interim standard rent was submitted, the learned trial Court has not committed any error in fixing the interim standard rent. It is submitted that the learned Revisional Court has materially erred in holding that unless and until the relationship of tenant and the landlord is established, on leading evidence, interim standard rent cannot be fixed. It is submitted that the learned Revisional Court has committed and error in holding so. It is submitted that if the aforesaid is accepted, in that case, each and every tenant will take the dishonest defence disputing the ownership and disputing that he is not the tenant of the disputed property and in that case the landlord has to wait till the final disposal of the trial and the suit, which cannot be accepted and, therefore, it is requested to allow the present Special Civil Application and quash and set aside the impugned order passed by the learned Appellate Bench of the Small Causes Court at Ahmedabad dated 21/04/2008 in C.R.A. No. 49/2007. 4. This Special Civil Application came to be adjourned time and again and all throughout the same was required to be adjourned due to non availability of the learned advocate appearing on behalf of the respondent-original defendant. Lastly, the present Special Civil Application came up for hearing on 18/01/2008 and on that day also the learned SCA/993620/2008 6/8 JUDGMENT advocate appearing on behalf of the respondent-original defendant was absent, and, therefore, this Court passed the following order; “Today, when the matter is called out for final disposal, learned advocate for the respondent is absent. Under the circumstances, S.O. to 24/12/2008. To be placed in 10:30 a.m. Board. On that day, irrespective of non-availability of learned advocate for the respondent, the matter will be proceeded further.” 5. Inspite of the above, today when the matter is called out, it is reported again that the learned advocate appearing on behalf of the respondent-original defendant is not available as he has filed leave note up to 30th December, 2008 i.e. the last working day prior to the winter vacation. Under the circumstances, this Court has no other alternative but to proceed further with the hearing of the present Special Civil Application on merits ex parte. 6. Having heard Shri H.M. Parikh, learned advocate appearing on behalf of the petitioners-original plaintiffs and looking to the impugned order passed by the learned Appellate Bench of the Small Causes Court, Ahmedabad dated 21/04/2008 in C.R.A. No. 49/2007 as well as the order passed by the learned trial Judge dated 26/10/2007 below Exh. 17 in H.R.P. Suit No. 2028/2005 fixing the interim standard rent at 325 per month, it appears that the learned Revisional Court has materially erred in allowing the application by quashing and setting aside the reasoned order passed by the learned Judge of the Small Causes Court No. 11 at Ahmedabad dated SCA/993620/2008 7/8 JUDGMENT 26/10/2007 under Section 11(4) of the Bombay Rent Act. There was ample material on record to prima facie show the ownership of the disputed property of the petitioners-original plaintiffs. On the other hand, the respondent-original defendant has produced one agreement to sell to show his ownership of the disputed land. However, the agreement to sell does not confer any ownership and/or title of the disputed land. Considering the above, when the learned trial Judge passed an order under Section 11(4) of the Bombay Rent Act fixing the interim standard rent, the same was not required to be interfered with by the learned Revisional Court. It appears that what is weighed with the learned Revisional Court is disputing the ownership of the petitioners-original plaintiffs and the denial of the tenant-landlord relationship. It appears that the learned Revisional Court has observed that unless and until the tenant-landlord relationship is established on leading evidence, the interim standard rent order cannot be passed. The same cannot be accepted for the simple reason that the dishonest tenant will always take a defence that the original plaintiffs-landlord is not the owner of the disputed property occupied by him and/or that there is no tenant-landlord relationship, to avoid payment of any interim standard rent. If such a defence is taken, in that case, prima facie opinion is to be found on appreciation of evidence on record at this stage while deciding the interim rent application under Section 11(4) of the Bombay Rent Act, but the same is not required to be adjourned till the final disposal of the suit. Under the circumstances, it appears that the learned Revisional Court has materially erred in quashing and setting aside the order passed by the learned trial Judge on the aforesaid ground. Under the circumstances, the impugned order passed by the learned SCA/993620/2008 8/8 JUDGMENT Revisional Court in C.R.A. No. 49/2007 dated 21/04/2008 deserves to be quashed and set aside. 7. For the reasons, the present Special Civil Application succeeds. The impugned judgement and order passed by the learned Appellate Bench of the Small Causes Court at Ahmedabad dated 21/04/2008 in C.R.A. No. 49/2007 deserves to be quashed and set aside and is accordingly quashed and set aside and the order passed by the learned trial Judge of the Small Causes Court No. 11 at Ahmedabad below Exh. 17 in H.R.P. Suit No. 2028/2005 is hereby restored. 8. With this, the present Special Civil Application is allowed. Rule is made absolute accordingly. There shall be no order as to costs. (M.R. SHAH, J.) siji