IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION NOS. 821 of 1979, 988 of 1988, 1091 of 1979, 1328 of 1987 with FIRST APPEAL NO. 831 OF 1986 with SECOND APPEAL NO. 252 OF 1979 For Approval and Signature: Hon'ble MR.JUSTICE K.M.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- DECD.CHIMANLAL CHANDULAL TRIVEDI Versus NADIRSHAH PIROZSHA DALAL -------------------------------------------------------------- Appearance: 1. Civil Revision Application No. 821 of 1979 MR. S.B. VAKIL for Petitioners MR SH SANJANWALA for Respondent No. 1 2. Civil Revision Application No. 988 of 1988 MR. S.M. SHAH for the petitioenrs MR. S.B. VAKIL for the respondents 3. Civil Revision Application No 1091 of 1979 MR SH SANJANWALA for Petitioners MR SB VAKIL for Respondent No. 1 4. Civil Revision Application No. 1328 of 1987 MR. S.B. VAKIL for Petitioners MR. S.M. SHAH for respondent No. 1 Notice served on respondent No. 2 5. First Appeal No. 831 of 1986 MR. S.M. SHAH with MR. T.S. NANAVATI for the appellant MR. S.B. VAKIL for respondent 6. Second Appeal No. 252 of 1979 MR. S.B. VAKIL for the appellant MR. S.M. SHAH for respondent No. 1 MR. S.H. SANJANWALA for respondents 2-8 -------------------------------------------------------------- CORAM : MR.JUSTICE K.M.MEHTA Date of decision: 9/4/2001 C.A.V. JUDGEMENT C.R.A. No. 821/1979: 1. Chimanlal Chandulal Trivedi the petitioner-original defendant-the tenant has filed this Civil Revision Application before this court against the judgement and decree dated 30.12.1978 passed by the learned Extra Assistant Judge, Surat, in Revision Application No. 6 of 1977. Revision Application No. 6 of 1977 arose out of filing Standard Rent Application being Rent Miscellaneous Application No. 570 of 1971 filed by the tenant for fixation of standard rent of the suit premises. C.R.A. No. 1091 of 1979 (Landlord's revision) 2. Nadirsha Pirojsha Dalal - original plaintiff, petitioner in this petition-the landlord, has filed this revision application against judgement and decree dated 30.12.1978 passed by the learned Extra Assistant Judge, Surat, dismissing Regular Civil Appeal No. 97 of 1977. The said appeal No. 97 of 1977 has been filed by the landlord plaintiff against the judgement and decree dated 28.2.1977 passed by the learned Civil Judge (S.D) dismissing the suit for possession of the plaintiff landlord. BACKGROUND OF THE MATTER:- 3. There is a property known as Firoz Villa bearing Nondh No. 1236 of Ward No. 7 situated at Variavi Bazar, Surat (hereinafter referred to as `Suit Property'). The said property consisted of a bungalow with three rooms and iron sheet garage, outhouse and land. In the year 1944 Nadhir Shah's father Ferozsha expired. In 1946 Ferozsha's second wife and Nadhirsha's mother expired leaving Nadhirsha and others. Nadhirsha originally rented the suit property to Sundarlal Chokshi at monthly rent of Rs. 75/- and subsequently the same was let to C.C. Trivedi at Rs. 100/- per month. On 8.1.1959 (Exh. 34) C.C. Trivedi executed a rent note in favour of Nadirsha. 3.1 Since 1961 there were negotiations going on between Ferozsha and C.C. Trivedi for sale of the property to C.C. Trivedi during which Nadirsha has represented that he was the sole owner of the property. 3.2 Nadhirsha filed Regular Civil Suit No. 729 of 1964 for eviction against C.C. Trivedi on several grounds namely, change of user, subletting, making permanent constructions and for arrears of rent. 3.3 Nadhirsha - plaintiff and C.C. Trivedi original defendant entered into consent terms somewhere in 16.10.1968 at Exh. 30. The consent terms inter alia state as follows: "The defendant to hand over the possession of the suit property to the plaintiff on 17th October, 1969, but the plaintiff has to sell the said property to the defendant on or before 17.10.1969 for the consideration of Rs. 55,000/- and the defendant has to bear all the expenses for the sale deed. If the defendant pays or deposits in Court the amount of Rs. 55,000/- being the consideration for the sale of the said property and the defendant does not purchase the same upto 17th October, 1969, the plaintiff is entitled to take possession of the suit property from the defendant on 17th October, 1969. But if the defendant is ready to pay the amount of Rs. 55,000/- being consideration of the same, but the plaintiff does not get the title of the property cleared, the plaintiff will not be entitled to take possession of the suit property on 17th October, 1969, but the plaintiff has to continue the defendant as tenant in the suit property on monthly rent of Rs. 250/- on the terms as stated in the rent note dated 8th January, 1969. Whether the title of the suit property is clear or not, the decision given by advocate Shri G.U. Patel on the point is to be accepted by the parties as final and the parties have to obtain the said decision before 17th September, 1969. The party will be entitled to enforce by a suit of specific performance against defaulting party." 3.4 In view of the consent terms the court passed a consent decree on 17.10.1968 in Regular Civil Suit No. 729 of 1964 (Exh. 33). 3.5 Shri C.C. Trivedi addressed a notice dated 28.10.1968 for the execution of the Sale Deed. Shri C.C. Trivedi also addressed another notice dated 25.2.1969 to Nadirshah for execution of Sale Deed. Shri C.C. Trivedi also addressed another notice dated 11.4.1969 to Shri Nadirshah requiring him to clear the title and execute the Dale Deed. 3.6 It appears that from 11.6.1969 Shri C.C. Trivedi is said to have fallen in arrears of rent till 31.1.1971. C.R.A. NO. 821/1979 (Tenant's revision) AND CRA 1091/1979 (Landlord's revision): (Present controversy) 4. Thereafter Nadirshah filed Regular Civil Suit No. 404 of 1971 in the Court of Civil Judge (S.D.) against Shri C.C. Trivedi for obtaining vacant and peaceful possession of the suit property together with Rs. 500/towards rent and Rs. 100/- towards the mesne profits and for obtaining mesne profit at Rs. 250/- per month from the date of the suit and for the costs of the suit. The suit was filed on the ground of arrears of rent and also demolition of the whole structure and making material changes of the suit premises and also on the ground of permanent construction of a factory on open land. 5. The defendant Shri C.C. Trivedi filed written statement Exh. 13 and contended that the plaintiff had no right to sue as other persons are also interested in the suit property. It was also stated that the suit is barred by principle of res judicata. It is also denied that rent of the suit property was Rs. 250/- per month. He has also contended that he was a permanent tenant of the suit property and he has made changes regarding user of the bungalow. He has also stated that the original plaintiff has also filed Regular Civil Suit No. 729 of 1964 and the same grounds have been raised and therefore the suit is barred by principle of res judicata. It was also stated that the standard rent of Rs. 250/- was fixed in view of the consent terms entered into between the parties. 5.1 The defendant also filed rent application No. 670 of 1971 for fixation of the rent. 6. The Trial Court by its judgement and decree dated 28.2.1977 was pleased to dismiss the suit of the plaintiff for possession. However, the Trial Court ordered and decreed that the plaintiff do recover Rs. 500/- towards the rent from 1.2.1971 to 31.3.1971 and Rs. 100/- towards the mesne profit, total Rs. 600/- only from the person and properties of the defendant. The standard rent of the suit property was fixed at Rs. 250/per month. The suit of the plaintiff for possession is dismissed while the decree for rent and mesne profit is passed. The Trial Court also dismissed the rent petition of the defendant. 7. Being aggrieved and dissatisfied with the aforesaid judgement and decree, the landlord filed appeal before the Extra Assistant Judge, Surat somewhere on 1.4.1977 being Regular Civil Appeal No. 97 of 1977. The defendant also filed appeal being Regular Civil Appeal No. 117 of 1977 against the judgement and decree which was against the defendant tenant. The defendant C.C. Trivedi also filed Civil Revision Application No. 6 of 1977 against the order of the trial court dismissing the revision application No. 670 of 1971 for fixation of standard rent. 8. All these matters were heard together and the Extra Assistant Judge by his judgement and decree dated 30.12.1978 was pleased to dismiss both the appeals as well as the application and confirmed the judgement and decree of the Trial Court in Regular Civil Suit No. 404 of 1971 and Miscellaneous Civil Application No. 570 of 1971. The learned judge held that the respondent tenant is not entitled to agitate the dispute of standard rent. The learned judge also held that the Trial Court has not erred in passing decree of eviction on the ground of arrears of rent. The learned judge has held that the appellate court held that the suit is barred by principle of estoppel and he is not entitled to raise the grounds of unlawful subletting, permanent alterations and modifications and breach of the terms of the contract and damage to the suit property in the present suit as all those grounds were pleaded by the appellant in the previous suit and none of them has arisen after the decree was passed in Regular Civil Suit No. 729 of 1964 except the construction of a new flush latrine by the respondent in the suit bungalow. 8.1 The court further held that in view of the earlier suit filed being 729 of 1964 and consent terms filed on 17.10.1968 and the decree passed in terms of the said consent terms the respondent is estopped from challenging the standard rent fixed in Regular Civil Suit No. 729 of 1964. The learned trial judge also rejected the contention of the tenant that the said consent term was obtained by fraud. The court further held that the trial court has rightly held that the plaintiff appellant is not entitled to decree for possession on the ground of non-payment of rent. 8.2 Against the aforesaid judgement and decree Shri C.C. Trivedi had filed Civil Revision Application No. 821 of 1979 before this court so far he has aggrieved. Shri Nadirshah Dalal filed Civil Revision Application No. 1091 of 1979 before this court so far he has aggrieved. C.R.A NO. 1328 OF 1987 (Tenant's revision) WITH C.R.A. NO. 988 OF 1988 (Landlord's revision) 9 Shri C.C. Trivedi, petitioner - original defendant, has filed Revision Application No. 1328 of 1987 before this court against the judgement and decree dated 7.11.1987 passed by the Assistant Judge, Surat. The learned judge by his judgement and decree was pleased to partly allow the appeal of the appellant-original plaintiff (respondent herein) and passed a decree for eviction pertaining to the suit bungalow on the ground that Nadirshah, landlord, bona fide and reasonably required the bungalow for his residence by rejecting his case of bona fide requirement for business. The learned Assistant Judge thereby was pleased to confirm the judgement and decree passed in Small Rent Suit No. 470 of 1977 passed by the learned Additional Judge, Small Causes Court, Surat. The learned Assistant Judge, Surat, was pleased to direct the respondent-tenant to handover the possession of the suit bungalow to the appellant landlord within two months from the date of the order. The learned Assistant Judge, however, was pleased to partly set aside the said judgement and decree of the learned Additional Judge, Small Causes Court, Surat. 9.1 The facts giving rise to this application are are under:- 9.2 Shri C.C. Trivedi-tenant, petitioner is original defendant and Nadirshah P. Dalal-landlord, respondent, in revision application is original plaintiff. The plaintiff had filed a suit, being Small Rent Suit No. 470 of 1977 in the Small Cause Court at Surat, inter alia, praying for possession of the suit premises. In the said suit it was contended that the defendant is in arrears of rent for more than six months and the plaintiff required the suit premises reasonably and bona fide for his residence and business and suit notice dated 3.3.1977 was served on the defendant and since he failed to comply with the same, the said suit had to be filed. It was stated that originally in the suit notice the ground of reasonable and bona fide requirement of the landlord was not mentioned. However, bona fide requirement which was stated was only for the purpose of residence. However, subsequently, by way of an amendment the bona fide requirement for carrying on business was added. 9.3 Shri C.C. Trivedi, original defendant, (petitioner herein) appeared and resisted the suit by filing written statement at Exh. 15 and written statement of the amended plaint at Exh. 37 and contended inter alia that the plaintiff alone has no right to file the present suit and that the suit is bad for non-joinder of necessary parties. It was also denied that the rent of Rs. 250/- is standard rent. It was also denied that standard rent was fixed in Rent Suit No. 729 of 1964 at Rs. 250/- per month. The dispute of standard rent is subjudice. He further denied that he is in arrears of rent from 1.2.1971. He contended that he had replied to the suit notice on 11.3.1977 and raised real dispute of standard rent. He also stated that after the receipt of demand notice the defendant filed inter-pleader suit No. 306 of 1977. He stated that he was always ready and willing to pay the rent and never neglected to pay arrears of rent to the plaintiff. It was also stated that the defendant had served notice to the plaintiff and informed the plaintiff that the defendant is prepared to purchase the suit property as per terms of agreement contained in compromise Suit No. 729 of 1964. He further stated that according to the contention of the defendant to raise a dispute that the plaintiff is not the sole owner and that there are other co-owners along with the plaintiff does not amount to denial of title of the plaintiff. He has stated that he has filed suit being Suit No. 153 of 1974 for specific performance of an agreement of suit property by the plaintiff to defendant on the basis of an agreement contained in compromise Rent Suit No. 729 of 1964. The plaintiff landlord refuses to execute the Sale Deed in pursuance of the compromise which was entered into by and between the parties, the defendant-tenant was constrained to file suit being Suit No. 153 of 1974 in the Court of Civil Judge (S.D.), Surat for specific performance to contract. The said suit has been partly decreed and directed defendant No. 1 Nadirsha to execute registered sale deed in favour of the plaintiff for whatever share he is having in the suit property after receiving a sum of Rs. 55,000/- from the plaintiff within two months. Defendant No. 1 is also ordered to put the landlord in symbolic possession of his share in the suit property after executing registered sale deed. The said suit has been decreed on 31.3.1986 by the Third Joint Civil Judge (S.D.), Surat. 9.4 Being aggrieved by the said judgement, the present plaintiff has filed First Appeal No. 831 of 1986 which was admitted by this court on 14.7.1986. It was stated that the suit has been filed with a view to get rent enhanced from time to time. 9.5 The learned Addl. Judge, Small Cause Court, Surat, by his judgement and decree dated 1.10.1982 was pleased to decree the suit of the plaintiff for possession. The learned trial judge however decreed the suit of the plaintiff for arrears of rent for Rs. 9,000/and further held that since the standard rent has already been fixed in Regular Civil Suit No. 729 of 1964, it cannot be refixed in the present suit. 9.6 Being aggrieved and dissatisfied with the judgement and decree passed by the learned trial judge, the plaintiff landlord filed Regular Civil Appeal No. 370 of 1982. 9.7 The learned Assistant Judge, Surat, by his judgement and decree dated 7.11.1987 was pleased to partly allow the appeal of the appellant and passed a decree for eviction pertaining to the suit bungalow on the ground that the landlord bona fide and reasonably required the suit premises for his residence by rejecting the case of bona fide requirement for business. 9.8 Being aggrieved and dissatisfied with the judgement and decree passed Regular Civil Appeal No. 370 of 1982 by the lower appellate court, the petitioner, Shri C.C. Trivedi, has filed Civil Revision Application No. 1328 of 1987. 9.9 The original plaintiff Nadirshah P. Shah has filed Civil Revision Application No. 988 of 1988 against the said judgement and decree so far as the appeal which has been dismissed by the learned appellate judge in this behalf. The said Civil Revision Application was filed on 29.1.1988. 10. All these matters are inter related and therefore I decide all the matters together. 10.1 Mr. S.B. Vakil, learned counsel for the petitioner C.C. Trivedi submitted that there are some basic facts which will have to be considered over and above the facts which have been set out earlier in this behalf. Originally the property belonged to Pirozshah Dalal. The following pedigree emerges from the indenture of release: Pirozshah F. Dalal had wife Dhunbai. Firozshah died on 19.1.1944 leaving his mother Jerbai, his wife Dhanbai, Dasang, i.e. plaintiff, daughter Sunaji Manekji Illuwada and children Dhun (son) and Mehru Palsadia of the predeceased daughter Freny Sorabji Gagrat. Dhunbai died on 24.4.1946. They had children Nadirhsh, Freny, Themy, Suna. Freny married Sorabji Gagrat. 10.2 Before 1991 succession to a Parsi died intestate was governed by Sections 50 to 56 of Chapter III. In the year 1954 Jerbai died. 10.3 It was further stated that thereafter on 8.1.1959 C.C. Trivedi executed a rent note in favour of Nadirshah. On 12.1.1960 daughter Suna Manek Illuwada, Dhun Sorabji Gagrat and Mehru Palsadia released their 5/9th share in the property in favour of Nadirshah. It would appear that on the date of the Deed of release Nadirshah had 4/9th and his two sisters Suna and Freny had 5/9th shares. By the release Deed Suna and Freny have released their 5/9th shares in favour of Nadirshah. That apart, even if the release Deed is not considered Nadirshah had his own 4/9th share in the suit property which is a substantial share. It was submitted that the original owner Pirozshah Dalal executed a release Deed in favour of Nadirshah. 10.4 It was further submitted that before the proceedings started Nadirshah informed Shri C.C. Trivedi that others had right in the property. Nadirshah terminated tenancy of C.C. Trivedi and filed Regular Civil Suit No. 721 of 1964 for eviction. 10.5 As stated earlier, on 17.10.1968 consent terms providing inter alia that Nadirsha had to clear his title. It is submitted by the learned advocate, that the consent terms provide for a decree of eviction coupled with agreement to sell. It sets out the circumstances under which the landlord could recover possession on 17.10.1969. It also records the circumstances under which the landlord was not entitled to recover possession on 17.10.1969 and was bound to continue Trivedi as a monthly tenant on the rent of Rs. 250/- per month. Under the terms either party could obtain the decision of advocate Mr. G.U. Patel before 17.9.1969. This would mean that if the landlord claim right to possession contending that he had cleared the titled, it would be for him to obtain the decision of Mr. G.U. Patel. On the other hand if the tenant claimed that the landlord was not entitled to possession because the plaintiff had not cleared the title, the defendant had to obtain the decision of Mr. G.U. Patel by 17.9.1969. If neither party obtains such decision, the question of title would be required to be decided objectively and de hors any decision of the advocate Mr. G.U. Patel. 10.6. The learned counsel for the petitioner, submitted that the relevant facts are that the suit property had been earlier let on a monthly rent of Rs. 75/- per month. Under the rent note dated 8.1.1959 the agreed rent was Rs. 100/- per month. The landlord had demanded rent at Rs. 100/- per month and never claimed that the standard rent was higher much less applied for fixing the standard rent above Rs. 100/- per month. The suit ended in the consent decree dated 17.10.1969 which at the outset provides for a decree for eviction. The rigor of the decree for eviction is sought to be reduced by an agreement to sale and continuance of tenancy in certain circumstances on the accrued standard rent of Rs. 250/per month. Apparently, the standard rent is not fixed on consideration of Section 5(10) or 11 of the Rent Act. The tenant was compelled to agree to the standard rent of Rs. 250/- per month to avoid eviction. If ultimately, the standard rent is fixed at Rs. 100/- per month the decree passed in Regular Civil Suit No. 404 of 1971 and 470 of 1977 for arrears of rent would be required to be modified. 10.7 He further submitted that fixation of standard rent under consent decree dated 17.10.1969 was without jurisdiction. The same is illegal and liable to be set aside. 10.8 It is further submitted that the provisions of standard rent contained in the Rent Act have been enacted in public interest and in implementation of public policy of the State and the tenant cannot contract himself out of the same. He has further submitted that this is not a case of lease simpliciter but a case of lease coupled with an agreement to sell. It cannot be disputed that qua the agreement to sell the tenant can insist on clearance of title. Moreover, tenant's right to purchase had acquired possession would supersede the landlord's right to possession on determination of tenancy. Therefore, if the tenant succeeds in getting a decree for specific performance, no decree for eviction can be passed against him. He further submitted that in the present case it is clear from the rent note that with the consent of the landlord C.C. Trivedi purchased the metal sheet compound wall as well as an outhouse the ownership whereof remained with the tenant. It also appears that the tenant was permitted to carry out repairs and amendments to the bungalow and adjoining roofs and outhouse as well as to make construction on the open land for the purpose of a weaving factory. Whatever construction were made by the tenant would remain of his ownership and he would be entitled let out the same. In fact, the landlord has admitted in plaint of his Regular Civil Suit No. 404 of 1971 that C.C. Trivedi demolished old latrine and constructed a new latrine, made material changes into rooms attached to the bungalow, constructed a factory in open land, carried alterations in the western and southern lobby, removed the old structure purchased from the previous tenant and made pucca structure in its place. If the decree for specific performance was not granted if and when the tenant was evicted by the landlord he would suffer the loss of the money spent by him for such constructions permitted under the rent note and defendant would lose not only the demised property but his own property standing on the suit property. In this connection he