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Gujarat High Court
Judgename :P.B.MAJMUDAR
KAPOOR DEVIERWALA HOTELS - Appellant
Versus
SURAT TEXTILE MARKET CO-OP SHOPS and WAREHOUSING SOC, LTD - Respondent
C.R.A.619 of 1988
Decided On : 10/20/2004
The revision application under Section 115 is maintainable against the decision of the District Court under Section 29(3) of the Rent Act, as the District Court is exercising revisional powers under different statue and as the District Court is subordinate to this Court its order is revisable under Section 115 of CPC.
The law laid down by the Supreme Court is to the effect that the decision taken by the subordinate Court is revisable by the High Court under Section 115 of CPC. The question, therefore, is that whether the District Court is subordinate to the High Court and if yes, the order of the District Court can be revised under Section 115 of CPC.
Considering the aspect, this revision under Section 115 of CPC is maintainable and accordingly, preliminary contention is negatived.
(b) Bombay Rent Act - Sections 5(8), 6(1) & 11 - Fixation of standard rent - Premises - Nature of - Applicability of provisions of the Act - Finding of - District Court having found that what was let out was facility of running hotel business or in other words according to District Court it was the business which was let out and not the premises, therefore, provisions of the Act were not applicable - Court found that District Judge has committed jurisdictional error in not considering the relevant documents and other evidence on record in coming to the said conclusion that provisions of the Act were not applicable in the case -Considering this aspect of the matter instead of considering all these evidence here Court held that it would be just and proper to send the matter back to District Court to give appropriate finding again after considering the evidence indicated.
So far as application of the Rent Act is concerned, prima facie, it appears that considering the observation of the Supreme Court in AIR 1981 SC 537 as well as of this Court, as well as considering the proviso to Section 5(8) and Section 6(1) of the Rent Act, it appears that the premises was let out to the tenant with furniture, fixtures etc., for running hotel business.
Considering the matter from said angle, in Courts view, the District Judge has committed an error in coming to the conclusion that the provisions of the Rent Act is not applicable to the premises in question.
It is required to be noted that while examining the said question, the learned District Judge has not considered the various receipts issued by the landlord, as well as the oral evidence in which so called admissions have been made by the landlord. Under these circumstances, without examining all those documents, the District Judge has reversed the finding of the trial Court by coming to the conclusion that the provision of the Rent Act is not applicable.
Considering the aspect, instead of considering all these evidence here, it would be just and proper to send the matter back to the District Court to give appropriate finding again after considering the evidence as indicated in this order.
Considering the aspect of the matter, it is just and proper to send the matter back to the District Court to decide the revision application of the respondent afresh after taking into consideration entire oral and documentary evidence and as per the observations made by this Court in the present order.
Cases Referred :
Parmar Bhimji Govind vs. Heirs of Patel Velji Ramji, 1996 (1) GLH 606;; Pranav Prabha Shivharlal & Anr. vs. Dalichand Chhaganlal, 2001 (1) GLH 232;; Baldevdas Shivlal vs. Filmistan Distributors (India) (P) Ltd., 1970 a SCR 435 = AIR 1970 SC 406;; M/s. D.L.F. Housing and Construction Co. (P) Ltd. vs. Sarup Singh, AIR 1971 SC 2324;; The Managing Director (MIG) Hindustan Aeronautics Ltd., Balanagar, Hyderabad vs. Ajit Prasad Tarway, AIR 1973 SC 76;; Municipal Corporation of Delhi vs. Suresh Chandra Jaipuria, AIR 1976 SC 2621;; Shyamraju Hegde vs. Vnkatesha Bhat & Ors., reported in AIR 1987 SC 2323;; Krishnajis case ILR 1978 (2) Kant 1585;; Somabhai Mathurbhai Patel vs. New Shorrock Mills, 1983 GLH 273;; Prakashkumar Prahladbhai Patel vs. District Primary Education Officer, 2000 (3) GLR 2467;; Natraj Studios (P) Ltd. vs. Navrang Studios & Anr., AIR 1981 SC 537;; Minor Anish Achyut Chinubhai vs. Nanikram Sobhraj Mills Pvt. Ltd., 1992 (2) GLR 1133;; Uttamchand vs. S.M. Lalwani, AIR 1965 SC 716;; Inandas vs. Anant Ramchandra Phadke, AIR 1982 SC 127;; Osman Fakir Mahomed Divecha vs. Ali Akbar Javad Sadkay & Anr., AIR 1970 SC 1893;; Roshan Lal Mehra vs. Ishwar Dass, AIR 1962 SC 646;; Vinod Kumar Arora vs. Smt. Surjit Kaur, AIR 1987 SC 2179;; Hiralal Vallabhram vs. Sheth Kasturbhai Lalbhai, AIR 1967 SC 1853.
I.T.I. Limited vs. Simens Public Communication Networks Ltd., 2002 (5) SCC 510.-Followed
Chhagan Lal vs. The Municipal Corporation, Indore, AIR 1977 SC 1555.-Relied on
Heirs of Suryakant K. Shah vs. Punjabhai Ranchhodbhai Patel, 1998 (2) GLH 453;; Visheshkumar vs. Shantaprasad, AIR 1980 SC 892.-Distinguished
( 1 ) ). THE present Civil Revision Application is filed by the petitioner under Section 29 (2) of the Bombay Rent Act, challenging the order passed by the District Judge, Surat, on 9th March, 1988 in Revision Application No. 3/1982, by which the learned District Judge has allowed the revision application filed by the present respondents and dismissed the Standard Rent Application No. 1026 of 1976 filed by the present petitioner.
( 2 ) ). THE petitioner herein moved an application under Section 11 of the Rent Act for fixation of standard rent of the suit premises. At that time, a stand was taken by the respondents herein before the trial Court that there is no relationship of landlord and tenant between the parties and therefore, the application for fixation of standard rent is not maintainable.
( 3 ) ). THE trial Court has negatived the contention of the respondents and came to the conclusion that the Rent Act is applicable and there is a relationship of landlord and tenant between the parties. Subsequently, the trial Court has fixed standard rent of the suit premises at Rs. 3518. 86 ps. per month and for furniture and fixtures and other equipments at Rs. 1759. 20 ps. per month and in all standard rent is fixed at Rs. 5278. 06 ps. , by the trial Court inclusive of taxes.
( 4 ) ). AGAINST the aforesaid order of the trial court, the respondents preferred a revision application under Section 29 (3) of the Bombay Rent Act before the District Court. As stated earlier, the District Court has allowed the said revision application by coming to the conclusion that since the relationship of tenant and landlord is not established between the parties, the Bombay Rent Act is not applicable and therefore, there was no question of fixation of standard rent by the trial Court.
( 5 ) ). THE District Court, however, gave an alternative finding to the effect that in case the Rent Act is applicable, then the standard rent is fixed at Rs. 1. 25 ps. per sq. ft.
( 6 ) ). IT is the aforesaid order of the District judge which is challenged by the present petitioner-original applicant of standard rent application by way of present revision application.
( 7 ) ). THIS revision application is filed under section 29 (2) of the Bombay Rent Act. At the time of hearing of this revision application, Mr. Vyas, learned advocate for the petitioner has fairly conceded that this revision application under Section 29 (2) of the Rent Act is not maintainable before this Court as the original proceedings arises out of fixation of standard rent and the suit is not for recovery of possession. Therefore, he submitted that this revision may be permitted to be converted into a revision under Section 115 of C. P. C.
( 8 ) ). MR. SHAH, learned Counsel appearing for the respondent submitted that this revision may not be permitted to be converted into a Civil Revision Application under Section 115 of C. P. C. , especially when no such request was made by the petitioner for all these period, even though this revision is pending before this Court since 1988. Mr. Shah has submitted that even otherwise if this revision is permitted to be converted into a Civil Revision Application under Section 115 of C. P. C. , such second revision would not be maintainable in view of the judgement of the learned Single Judge reported in 1996 (1) GLH 606. He, therefore, submitted that the request of the petitioner for permitting him to convert this revision application into a revision application under Section 115 of C. P. C. , may not be granted.
( 9 ) ). SO far as request regarding converting this revision to one under Section 115 of C. P. C. , is concerned, in my view, the petitioner should be permitted to convert this Civil Revision Application into a Civil Revision Application under section 115 of C. P. C. As this revision is pending before this Court since long, it is not proper to ask the petitioner to file fresh Civil Revision Application under Section 115 of C.
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