HARBHAJANSING DUNASINGH SARARY Vs. SURYAKANT MULSHANKER KAKA
HIGH COURT OF GUJARAT
HARBHAJANSING DUNASINGH SARARY
SURYAKANT MULSHANKER KAKA
Referred Judgements :-
HARKISAN DAS V. PRABHAVATIBEN
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(1.)This revision application is filed against the judgment and order passed by the learned Assistant Judge Baroda in Civil Revision application No. 41 of 1979. That was a revision application filed under sec. 29 (3) of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (hereafter referred to as the Act) by the original applicant tenant against an order passed by the learned Judge of the Small Causes Court Baroda under sec. 11 (4) of the Act. It was dismissed on the ground that it was not maintainable under sec. 29 (3) of the Act.
(2.). The case of the petitioner tenant is that rent of the suit premises is Rs. 1 200 per month: He has also to pay education cess at the rate of Rs. 200.00 per month. This agreed rent was paid by him from March 197 6/11/1977 Even then the opponent tenant raised a dispute regarding standard rent; and therefore he was required to file Rent Miscellaneous Application No. 172 of 1978 in the Small Causes Court at Baroda for fixation of standard rent. That was done on 6 Along with the said application he had also filed an application Exh. 8 for fixing interim standard rent. The learned Judge of the Small Causes Court by an order passed below Exh. 8 fixed interim standard rent at Rs. 1 200 per month plus Rs. 200.00 as taxes. The landlord on 16-1-1979 filed application Exh. 16 for modifying the said order & for directing the petitioner to pay full amount of all taxes. The petitioner opposed that application. The learned trial Judge by an order dated 16-8-1979 modified the previous order passed by him & directed the petitioner tenant to pay standard rent at the rate of Rs. 1 200 month plus all taxes and not at the rate of Rs. 1 200 plus Rs. 200/- only by way of taxes. The tenant was also directed to deposit an amount of Rs. 8 416.36 Ps. towards taxes which were required to be paid in respect of the suit premises. The order was challenged by the tenant by filing the aforesaid revision application in the Court of the Assistant Judge Baroda.
(3.). The learned Assistant Judge upheld the contention of the landlord that the revision application was not maintainable under sec. 29 (3) of the Rent Act. The learned Judge was of the view that as an appeal against an order made under sub-secs. (3) & (4) of sec. 11 of the Act is barred by sub-sec. (5) thereof and not by sec. 29 and independently of it sub-sec. (3) of sec. 29 which provides that where no appeal lies under that section.......the District Court may........ call for the case .... and pass such order with respect thereto as it think fit will have no application. In coming to this conclusion the learned Assis tant Judge also relied upon the following observations made in HARKISAN DAS V. PRABHAVATI BEN 14 G. L. R. 438.
"The effect of this provision is that no order under sub-see. (4) would be an appealable order The order may however be subject to revision under sec. 115 of the Code of Civil Procedure and also subject to the scrutiny of the High Court under Article 227 of the Constitution of India if it is found in a given case that the order raises a question which could be dealt with or decided in exercise of such power. It may also be mentioned that Rules 9 9 and 13 of the Bombay Rents Hotel and Lodging House Rates Rules 1948 which deal with procedure in appeals under sec. 29(1)(a) and (b) of the Act provide that the appellate Court shall as far as may be and with necessary modification follow the practice and procedure prescribed for appeals from original decrees by the Civil Procedure code. Sec. 100 of the Code of Civil Procedure would therefore be attracted and it would be open to a tenant to set forth any error defect or irregularity in any order passed by the trial Court under sub-sec. (4) when he prefers an appeal under sec. 29(1)(a) or (b) of the Act as the case may be. "
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