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IN THE HIGH COURT OF BOMBAY
Shah, J.
Appellants: Bai Dahi
Versus
Respondent: Ghanashyam Haridas
Civil Revn. Appln. No. 1564 of 1953
Decided On: 01.09.1955
Counsels:
For Appellant/Petitioner/Plaintiff: Y.M. Thakkar, Adv. For M.N. Thakkar, Adv.
For Respondents/Defendant: N.V. Karlekar, Adv.
RENT CONTROL - STANDARD RENT - DETERMINATION - RELEVANT FACTORS - BARODA STATE LAW - MERGER WITH INDIAN UNION - APPLICABILITY OF BOMBAY RENTS, HOTEL AND LODGING HOUSE RATES CONTROL ACT, 1947 - SUCCESSION CERTIFICATE - NECESSITY FOR OBTAINING BEFORE DECREE FOR ARREARS OF RENT ACCRUED DURING LIFETIME OF DECEASED LANDLORD.
Fact of the Case:
The plaintiff, as the legatee of the owner of a property used as a boarding house, filed two suits against the defendant tenant: one for possession on the grounds of arrears of rent and nuisance, and the other for recovery of rent arrears. The trial court decreed the possession suit and dismissed the rent recovery suit, while the appellate court reversed the trial court's decision in the rent recovery suit. The defendant challenged both decisions in revision applications.
Finding of the Court:
1. The plaintiff had the right to file the possession suit without proving the will and the executor's assent to the legacy, as these objections were not raised in the lower courts. 2. The plaintiff's mother was a proper next friend to represent the minor plaintiff in the suits. 3. The notice served on the defendant terminating the tenancy was not defective, and any objections to its sufficiency should have been raised in the lower courts. 4. The causes of action in the possession and rent recovery suits were different, and the rent recovery suit was not barred under Order 2, Rule 2, C. P. C. 5. The trial court's procedure in trying the suits as small cause court cases did not result in any substantial injustice to the defendant. 6. The plaintiff's decision not to amend the plaint was within her discretion and did not prejudice the defendant. 7. The defendant was given ample opportunity to lead evidence, and the trial court's refusal to grant further adjournments was not an abuse of discretion. 8. The trial court did not err in fixing the standard rent at Rs. 180/- per month, considering the increased rent allowed under the Baroda State law and the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.
Issues: 1. Whether the plaintiff had the right to file the possession suit without proving the will and the executor's assent to the legacy. 2. Whether the plaintiff's mother was a proper next friend to represent the minor plaintiff in the suits. 3. Whether the notice served on the defendant terminating the tenancy was defective. 4. Whether the causes of action in the possession and rent recovery suits were different, and whether the rent recovery suit was barred under Order 2, Rule 2, C. P. C. 5. Whether the trial court's procedure in trying the suits as small cause court cases resulted in any substantial injustice to the defendant. 6. Whether the plaintiff's decision not to amend the plaint prejudiced the defendant. 7. Whether the defendant was given ample opportunity to lead evidence, and whether the trial court's refusal to grant further adjournments was an abuse of discretion. 8. Whether the trial court erred in fixing the standard rent at Rs. 180/- per month.
Ratio Decidendi: 1. Objections to the plaintiff's right to sue, such as the lack of proof of the will and the executor's assent to the legacy, must be raised in the lower courts and cannot be raised for the first time in revision applications. 2. The mother of a minor plaintiff can be a proper next friend to represent the plaintiff in suits, and any objections to her representation should be raised in the lower courts. 3. The sufficiency or propriety of a notice terminating a tenancy is a question that should be raised in the lower courts, and cannot be raised for the first time in revision applications. 4. The causes of action in a possession suit and a rent recovery suit are different, and a suit for rent recovery is not necessarily barred under Order 2, Rule 2, C. P. C., even if a possession suit has been filed previously. 5. The procedure followed in trying suits as small cause court cases does not result in substantial injustice unless it is shown that the defendant was deprived of a fair opportunity to present their case. 6. A plaintiff's decision not to amend the plaint is within their discretion, and the defendant cannot compel the plaintiff to amend the plaint. 7. The grant of adjournments is within the discretion of the trial court, and the court's refusal to grant further adjournments will not be interfered with unless it is shown that the defendant was deprived of a fair opportunity to present their case. 8. The standard rent can be fixed by the court at a just amount, considering the provisions of the relevant rent control legislation and the circumstances of the case.
Final Decision: 1. The revision application challenging the decree in the possession suit (Civil Revision Application No. 1564 of 1953) is dismissed with costs. 2. The revision application challenging the decree in the rent recovery suit (Civil Revision Application No. 1565 of 1953) is allowed, and the decree of the appellate court is set aside. The case is remanded to the District Court with a direction to seal the decree for arrears of rent only after the plaintiff produces a succession certificate or other representation contemplated by Section 214, Indian Succession Act. If the necessary representation is not produced, the plaintiff will be entitled to a decree only for the rent accrued after the death of the deceased landlord.
1. These two revision applications arise out of two proceedings which were originally filed in the Court of Small Causes at Baroda. Civil Revision Application No. 1564 of 1953 arises out of Small Cause Suit No. 1425 of 1950 filed by the plaintiff on 1-12-1950 for an order against the defendant Bai Dahi in ejectment on the allegations that the defendant was a tenant, that she was in arrears of rent, and that her conduct amounted to a nuisance to the neighbourhood.
2. Small Cause Suit No. 1210 of 1950 out of which Civil Revision Application No. 1565 of 1953 arises was filed by the plaintiff on 5-10-1950, for a decree for recovery of rent which had fallen in arrears. The claim of the plaintiff in suit No. 1425 of 1950 was for recovery of Rs. 2836-9-3 from the defendant. The two suits were resisted by the defendant Bai Dahi in the trial Court. The defendant contended that she was not in arrears, that in any event the plaintiff was not entitled to file a suit for possession of property against her, and that suit No. 1425 of 1950 was barred under Order IL Rule 2, Civil P. C.
2. The learned trial judge decreed suit No. 1210 of 1950 and dismissed suit No. 1425 of 1950. Appeals were preferred against the two decrees passed by the trial Court in the two suits. In appeal the learned District Judge decreed both the suits. The defendant Bai Dahi has applied to this Court in its revisional jurisdiction against the decrees passed by the District Court in the two suits.
3. Few facts which give rise to this litigation may be stated. The property of which possession is claimed in suit No. 1210 of 1950 consists of 14 rooms and is situate in the town of Baroda. It is used as a boarding house by the defendant Bai Dahi. One Bai Mani was the owner of the property, and she leased out the property to Bai Dahi sometime in the year 1944. The agreed rent was Rs. 120/- per month.
It appears that subsequently there was brought in force a statute in the former Baroda State under which a landlord was entitled to enhance the rent in respect of properties used for non-residential pur-pases upto 50 per cent over the contractual rent. Enhanced rent was recovered from Bai Mani accordingly. Bai Mani died sometime in 1950 having made and published a will dated 26-10-1949.
Under the will the plaintiff Ghansham Haridas was constituted the sole legatee of the 14 rooms which are in dispute in the present case. Ghansham was at the date of the will and even when the suits were filed a minor, and the suits were instituted by his mother acting as his next friend. As I have stated earlier suit No. 1210 of 1950 was filed for possession on the ground of arrears of rent and on the ground that the conduct of the defendant Bai Dahi amounted to a nuisance to the neighbours.
Suit No. 1425. of 1950 was filed for recovery of rent part of which had accrued due during the lifetime of Bai Mani and the balance after her death. In the trial Court the plaintiffs right to the property under the will of Bai Mani does not appear to have been denied. As the learned trial judge has pointed out it was common ground between the parties that the plaintiff Ghansham Hart-das had been constituted a sole legatee of the 14 rooms.
The learned trial judge did not accept the contention of the plaintiff that the defendants conduct amounted to a nuisance. He held that the plaintiff had become the owner of the suit premises and that the defendant was his tenant, and the defendant being in arrears the plaintiff was entitled to a decree for possession of the property. The defendant had in the two suits raised a contention that the standard rent payable by her was less than the rent demanded by the plaintiff and the trial Court on a consideration of the evidence came to the conclusion that the standard rent for the suit premises must be regarded as Rs. 180/- per month.
In suit. No. 1425 of 1950 the learned trial judge held accepting the plea of the defendant that the plaintiffs suit was barred under Or
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