Bombay High Court
Mohd. Ismail S/O Mohd. Isaque vs Rmohd. Asad S/O Mohd. Akbar on 13 April, 2016
Author: S.B. Shukre
Bench: S.B. Shukre
wp4062.14
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 4062 OF 2014
Mohd. Ismail s/o Mohd. Isaque,
aged about 62 years,
Occupation : Business,
r/o House No. 489, New Bazar Complex,
Near J & K Bank, Golchha Marg,
Sadar, Nagpur. ig .... PETITIONER.
VERSUS
Mohd. Asad s/o Mohd. Akbar,
aged about 35 years,
Occupation : Business,
r/o Shop No.1, New Bazar Complex,
Near J & K Bank, Golchha Marg,
Sadar, Nagpur. .... RESPONDENT.
....
Shri R.S. Akbani Advocate for the Petitioner.
Shri A.B. Shende Advocate for the Respondent.
.....
CORAM : S.B. SHUKRE, J.
DATED : 13.04.2016.
ORAL JUDGMENT :
Rule. Rule made returnable forthwith. Heard finally by consent of parties.
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2. By this writ petition, the petitioner has challenged the judgment and order dated 01.10.2013 passed by District Judge-14, Nagpur, thereby reducing the rent fixed by the trial Court from Rs.2000/- per month to Rs.1500/- per month for the rented premises. Learned counsel for the petitioner submits that the appeal field under Section 96 of Code of Civil Procedure itself was not maintainable as Section 34 of the Maharashtra Rent Control Act, 1999 provides a clear cut bar of filing appeal against the order of fixation of standard rent. The argument is not acceptable to the learned counsel for the respondent who states that basically in the application filed for permitting increase in the rent under Section 8(2) of the Rent Control Act, the appeal is tenable under Section 34(1)(b) of the Rent Control Act.
3. Upon seeing the application filed by the petitioner it can be seen from the tenor of the application that the application was basically for grant of permitted increase in the rent and, therefore, would have to be treated as filed under Section 8 of the said Act. Therefore, by virtue of Section 34(1)(b) of the said Act the appeal filed before the District Court is tenable. Of course, the appeal has been registered as filed under Section 96 of the Code of ::: Uploaded on - 21/04/2016 ::: Downloaded on - 29/07/2016 22:08:33 ::: wp4062.14 3 Civil Procedure, but such incorrect registration of the appeal would not render the appeal as non-maintainable, when there is a specific provision of law creating right of appeal. Therefore, I see no substance in the argument that the appeal itself was not maintainable.
4. On merits of the case, learned counsel for the petitioner submits that it is well settled law that the learned District Judge while deciding the appeal, which is filed on law and facts, cannot substitute the view of the trial Court only because he comes to a conclusion that if he were a trial Court he could have taken a different view. He also submits that the view taken in the impugned order passed by the learned District Judge is not based upon the evidence available on record. In order to support the submission, learned counsel has taken me through the judgment of the trial Court as well as the judgment passed by the learned District Judge.
5. On perusal of both these judgments, however and as rightly submitted by learned counsel for the respondent, I find that it is the view taken by the trial Court and not by the District Judge which is not completely based upon the facts established on ::: Uploaded on - 21/04/2016 ::: Downloaded on - 29/07/2016 22:08:33 ::: wp4062.14 4 record. In paragraph no. 20 of the trial Court's judgment, one admitted fact has been reproduced and it is to the effect that the other tenants are paying rent at 1500/- per month for the same area as the area under occupation by the respondent. Even then the trial Court has found that an amount of Rs.2000/- per month would be just and reasonable licence-fee and accordingly declared it to be the fair rent. This has been properly considered by the learned District Judge who has found that the said finding is not in accordance with the facts established on record. The trial Court has not given any reason as to why in spite of the fact that the other tenants are paying monthly rent of Rs.1500/-, this particular tenant, i.e. the respondent, is liable to pay Rs.2000/- as monthly rent. This is all the more so when we consider other evidence available on record. This evidence discloses that the rented premises are not being maintained in proper condition by the petitioner and that there has been disconnection of water supply. All these facts cumulatively would show that the conclusions recorded by the first appellate Court are in accordance with the evidence available on record and that the findings of the trial Court are not consistent with the record of the case and, therefore, in exercise of writ jurisdiction under Article 227 of Constitution of India, it would not be possible for this Court ::: Uploaded on - 21/04/2016 ::: Downloaded on - 29/07/2016 22:08:33 ::: wp4062.14 5 to view the order impugned herein as perverse or illegal or arbitrary. No interference in the impugned order is required.
6. At this stage, learned counsel for the petitioner submits that in view of provisions of Section 11, a landlord is entitled to increase of 4% per annum and from this view point also the order passed by the trial Court could not have been modified by the first appellate Court. Section 11 does make a provision for increase of 4% per annum in the rent of premises. But the right so conferred upon a landlord would be subject to the other provisions of law, especially those contained in Section 8 of the Maharashtra Rent Control and in view of what is already stated earlier, I do not think that Section 11- right of the landlord, would make him entitled to receive more rent than what has been granted to him by the impugned order. There is no merit in the writ petition. It deserves to be dismissed.
7. Writ petition is dismissed. Rule discharged. No cost.
JUDGE /TA/ ::: Uploaded on - 21/04/2016 ::: Downloaded on - 29/07/2016 22:08:33 :::