The main legal point established in the judgment is that the consent terms govern the rent as standard rent, barring the tenant from seeking standard rent fixation under Section 11 of the Bombay Rent Act.

JUDGMENT :

Dama Seshadri Naidu, J.

Introduction:

A tenant claims his right of occupancy in a reconstructed building; he gets back his possession under a compromise decree. That decree contains a clause for rent. Despite that, he applies for standard-rent fixation. Soon, the landlord sues the tenant for possession on the grounds of rent default and illegal subletting. Both the courts below return concurrent findings against the tenant. Now, in this writ petition under Article 227 of the Constitution of India, has this Court any scope to revise, what seem to be, findings of fact?

Facts:

2. Petitioner-Firm is the tenant, and the respondents are the co-owners. Before 1967, the firm was inducted as a tenant, and it continued to be so. In the course of time, as the building was dilapidated, it had to be demolished and reconstructed. When it was being reconstructed, the firm sued the landlords, seeking a declaration that it was a tenant and it should be reinducted as a tenant once the building was reconstructed. That RAD Suit No.225/1764 of 1967 ended in a compromise in 1969. Based on the consent terms, the trial Court decreed the firm's suit. One of the consent terms concerns the rent; both the parties agreed that it was Rs.1043.75ps per month.

3. Two years later, in 1971, despite the consent decree, the firm applied under Section 12(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act,1947 ("Bombay Rent Act") for having the standard rent fixed. When that Application No.650/2071 was pending, within a month or so, the owners, too, filed RAE & R Suit No.982/5569 of 1971 for eviction. They sought eviction on the grounds of illegal subletting and the firm's unwillingness to pay the agreed rent.

4. On 22nd December 1974, the trial Court dismissed the firm's suit for fixation of standard rent. Aggrieved, the firm filed Revision Application No.35 of 1075. The Revision Court dismissed it. Then, the firm filed Special Civil Application No.2315/1078. This court, by its judgment dated 4.9.1981, rejected that Special Civil Application.

5. Indeed, about the standard rent, the trial Court ruled that the parties have already compromised the matter and that one of the consent terms governs the rent. And that rent must be treated as standard rent. Eventually, on 14th March 1991, the owner's suit for eviction was decreed. Then, the firm filed Appeal No.118/1991; the appeal was dismissed on 29.11.1999. It has finally filed this writ petition, and it has been pending for the last two decades.

Submissions:

Petitioner's:

6. Shri Vishal Thaker, the learned counsel for the tenant firm, has raised three issues. According to him, they are essentially questions of law. To begin with, Shri Thaker has contended there is no illegal subletting. The finding entered by the courts below, he stresses, has no legal basis. In this context, Shri Thaker has referred to Section 15(2) of the Bombay Rent Act. To elaborate, Shri Thaker has submitted that any subletting before 1st February 1972 stood statutorily legitimized. In other words, a subtenant found in possession by that date becomes a deemed tenant-as if he were a regular tenant. As the suit was filed in 1971, the subletting, if any, before that time, stood statutorily sanctified.

7. At any rate, Shri Thaker has fairly submitted that this issue of subletting and the impact of Section 15(2) on this subletting have not been raised earlier. But he maintains that the plea now taken is a pure question of law and can be taken at any stage.

8. About the second issue-that is, the tenant's unwillingness to pay the rent -Shri Thaker has submitted that the tenant did have benefit of Section 12(2) and (3) of the Bombay Rent Act. According to him, once the owners sue for eviction and the tenant applies under Section 11(3) of the Act, and then if the trial Court directs the tenant to pay a certain sum as rent or compensation, the defect of rent default no longer exists. To elaborate, Shri Thaker has submitted that here the trial