HARILAL CHAKUBHAI ZAVERI Vs. JAYANTILAL KIRCHAND MAKANI
LAWS(GJH)-1979-5-9
HIGH COURT OF GUJARAT
Decided on May 11,1979

HARILAL CHAKUBHAI ZAVERI Appellant
VERSUS
JAYANTILAL KIRCHAND MAKANI Respondents

JUDGEMENT

N.H.BHATT - (1.) This is a petition under sec. 29(2) of the Bombay Rent Act by a tenant who had filed a regular Civil Suit No. 590 of 1970 in the court of the Civil Judge (J. D.) Rajkot for a declaration that the alleged consent order by the Rent Court Rajkot in Misc. Application No 470 of 1969 fixing the standard rent of the rented premises at Rs. 225/- per month was vitiated by fraud practised on him and on the court. The said suit was decreed by the learned trial Judge by his judgment dated 13 The respondents landlords that is the landlord and his father-cum-manager preferred the Civil Appeal No. 92 of 1976 in the District Court. It came to be allowed by the learned Joint District Judge there The original tenant has therefore moved this court by this revision application seeking reversal of the appellate order and restoration of the trial courts order.
(2.) A few facts require to be stated. There is situated a property at Rajkot belonging to Sudhirkant Jayantilal Makani the real landlord and the defendant No. 9. The said property was managed by his father Jayantilal Makani the original defendant No. 1. The facts which are established in this case and not in controversy are that the petitioner- tenant was under the decree of eviction from his landlord of earlier premises. He had therefore contacted the defendant No. 1 for letting out the suit property to him. According to the petitioner Jayantilal insisted on the standard rent being fixed before he could be inducted into possession and therefore on 12-9-69 advocate Mr. Doshi was jointly approached. The application Ex. 76 was then prepared as if it was to be filed by the tenant Harilal. The application was drafted in a very clever manner as could be seen on reading the same It did not state as to when the premises were taken on rent but it was stated that the premises were taken on rent by the tenant at the rate of Rs. 250.00 per month with the tenants liability to pay house tax and education cess to boot in respect of the suit property. The tenant then alleged in the application that the rent was exorbitant and that the landlord though called upon did not show any readiness to get the standard rent fixed and therefore the tenant was constrained to file the same. Then in paragraph 6 a prayer clause was set out that the standard rent of the premises should be fixed at Rs. 225.00 per month taking into account the location and other facilities including the then prevailing rates and with the house tax and education cess but with a liability of the tenant to pay the increase in those taxes if enhanced thereafter. On the same day Advocate Mr. Doshi prepared the final compromise to be presented to the court. The application is Ex. 76 on the record and the compromise is Ex. 75 on the record. No order of issuance of process appears to have been made below that application but on 23-9-69 the compromise Ex. 75 was presented requesting the court to fix the standard rent Rs. 225.00 as the reasonable rent looking to all attendant circumstances including the then prevailing house tax and education cess but with the liability of the tenant to pay increases in those taxes. Even in the application Ex. 76 this tenant had himself requested the court that an order should be passed that future increase in the amount of house tax and education cess should be left to be borne by the tenant. Such an over enthusiastic tenant is ordinarily not to be found but we find him here. The standard rent came to be fixed by the court by passing the following order : "Parties above are present before me and admit the compromise the rent of Rs. 225.00 inclusive of taxes is reasonable. Hence I fix it accordingly". Thereafter the rent note came to be executed on 3-10-69 mentioning that the premises were let with effect from 1-9-69 for the rent of Rs. 225.00 p. m. The receipt also was passed on 3-10-69 for Rs. 450.00 mentioning that Rs. 225.00 were received as a deposit and Rs. 225.00 were received as rent for the period from 1-9-69 to 30-9-69. The receipt is Ex. 72 and Ex. 73 is the receipt of deposit of one months rent. The tenants say was that it was landlords insistence that he would be put into possession if and only if he got all those formalities finished as a condition precedent to letting which was to be shown as if operative from 1-9-69. It is the tenants contention that it was thereafter that he was put into possession and the rent was charged only for the month of October though a show was made that rent for two months was paid simultaneously on 3-10-69.
(3.) It appears that the initial agreement did not last longer and the tenant then filed the above mentioned Civil Suit No. 590 of 1970 on 2-7-70 praying for a decree to the effect that said consent order in fact was a fraud on the court though the plaint also mentioned that it was a fraud on the plaintiff-tenant also.;


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