Gujarat High Court
Dhirajlal Prabhudas vs Surendrakumar Natvarlal Shah on 25 April, 2011
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL REVISION APPLICATION No 60 of 2003
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DHIRAJLAL PRABHUDAS
Versus
SURENDRAKUMAR NATVARLAL SHAH
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Appearance:
1. Civil Revision Application No. 60 of 2003
MR HARESH N JOSHI for Petitioner No. 1
MR BD KARIA for Respondent No. 1
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CORAM : MR.JUSTICE KUNDAN SINGH
Date of Order: 02/05/2003
ORAL ORDER
This revision petition has been filed against the judgement and order dated 13th August 1999 passed by the Small Causes Court No.4, Ahmedabad whereby the suit of the respondent was decreeded and the petitioner being defendant was directed to hand over the vacant and peaceful possession of the premises to the plaintiff on or before 30th September 1999 and the petitioner being aggrieed from the judgement of the trial court preferred Civil Appeal No. 167 of 1999 before the appellate bench of Small Causes Court at Ahmedabad. The appellate Court has dismissed the appeal and confirmed the findings recorded by the trial court. However, the petitioner tenant was given time to hand over the possession of the premises in question by 31st December 2002.
2.The main contention of the learned counsel for the petitioner is that the petitioner has raised a question regarding the standard rent by the reply to the notice for arrears of rent as well as for possession. The trial court has not framed any issue on this point nor the trial court or the appellate court has recorded any finding to that effect. It was also pointed out that on earlier occasion, the petitioner filed an application for fixation of rent but that application was decided on the basis of the compromise arrived at between the parties and it was aggrieved that the petitioner will pay Rs.125.00 per month to the plaintiff and he will also pay the amount of education cess as well as municipal taxes. That finding arrived at by the court concerned in 1980 was not adjudicated by the court of law, hence that finding would not operate as res judicata or estoppel. In that respect, the learned counsel for the petitioner has relied upon the decision of this Court in the case of (SHRI) TRAN DEVADI MANDIR TRUST AND OTHERS V. DILIPKUMAR BABULAL SHAH AND ANOTHER, 1984 GLH 259, wherein, it is observed that;
"On perusal of the record, the court came to the conclusion that there was no dispute whatsoever between the parties with regard to the tenancy or with regard to the Standard rate of rent. But a fake dispute was created for obtaining a consent decree. It would be interesting to note that the tenants were inducted in the premises from May 1, 1974 as disclosed in the applications. Thus in the very first week of the tenancy the aforesaid applications were filed in two cases and in the third case, the application was filed after about a month. No exchange of notice appears to have taken place between the parties. The date of the commencement of the tenancy and the dates of filing of the respective application clearly show that the parties had adopted a device to invoke the jurisdiction of the court and a show was made that there was dispute between parties."
It is also observed that;
"The decision arrived at by the court in earlier proceeding was not a decision based on free and valid consent and was tainted by fraud."
He also relied on the decision of this Court in the case of M/S. ABDULGANI & CO. V. GULAM HUSSAIN MOHMADBHAI, 20 GLR PAGE 827, wherein, it is observed that;
" A consent decree does not operate as res judicata because a consent decree is merely the record of a contract between the parties to a suit to which is superadded the seal of the court, and a matter in contest in a suit may operate as res judicata only if there is an adjudication by the Court. The Court does not decide anything; nor can it be said that a decision of the court was implicit in it; and that only a decision by the Court can be res judicata whether statutory under sec. 11 of the Code of Civil Procedure or constructive as a matter of public policy on which the entire doctrine rests. Such a decree cannot strictly be regarded as decision on a matter which was heard and finally decided and cannot operate as res judicata, such a decree might create an estoppel by conduct between the parties but such an estoppel must be specifically pleaded."
3.I have considered the contention raised by the learned counsel for the parties in the present case.
4.First of all, in the present case an issue was raised by the petitioner and filed an application for fixing of standard rent and that application was decided on the basis of the compromise arrived at between the parties taking Rs.125.00 as rent and the agreement was also arrived at regarding the payment of education cess and other taxes to be paid by the petitioner. Once the issue has already been decided either on the basis of the compromise arrived at between the parties, or further leading evidence, that will be deemed to have been decided on merits and that issue will be deemed to be an issue decided by the court of competent jurisdiction unless it is pleaded by the parties concerned that the compromise or the settlement was arrived at by committing fraud and the compromise was nothing but fake settlement. In the present case the petitioner has not pleaded that the decision taken on earlier occasion on the basis of the compromise arrived at between the parties regarding the fixation of rent was obtained on the basis of fraud committed by any party. As such, it cannot be said in the facts and circumstances of the case that the decision taken by the court having competent jurisdiction was nullity in view of the fact that it was arrived at and obtained on the basis of the fraud.
5.The second contention of the learned counsel for the petitioner is that the petitioner has raised the question regarding the standard rent in reply to the notice sent by the plaintiff. Both the parties have read out the reply in this court, wherein it is mentioned that the rent claimed is excessive and this is not standard rent. Mere say that it is not a standard rent, particularly that standard rent has already been settled by the Court on the basis of the compromise arrived at between the parties. It cannot be said that there was no standard rent at the relevant time. As such the plea is not available to the petitioner that there is no standard rent or the rent being paid is excessive. Both the courts have exhaustively considered the contentions raised by the learned counsel for the parties and came to conclusion that the defendant has contended that the rent of Rs.125.00 per month has already been fixed but that does not include the amount of education cess and other taxes. If the amount of rent or the rate of rent has already been admitted by the learned counsel for the petitioner before the courts below, he cannot agitate again before this court. So far as the payment of education cess and other taxes is concerned, in that respect, both the parties have arrived at compromise and they have settled that amount of education cess and other taxes will be borne by the petitioner tenant himself. As such, even no issue has been framed by the trial court, but the matter has been considered in view of the admissions made by the learned counsel for the petitioner. The courts have come to the conclusion that the point regarding standard rent has not been raised, even if it is raised then it will be deemed to have been decided by the courts below. So far as the payment regarding inclusion or exclusion of the education cess and the other taxes are concerned, this court has decided this issue in the case of SHARDABEN M. PATEL HEIRS OF MAGANLAL MOTIRAM PATEL V. RANJITLAL MANSUKHLAL (DECEASED), 2002 (2) GLH II 73, holding that; primarily, it is the duty of the landlord to pay education cess for such property, but there can be agreement between the landlord and the opponent for education cess. If there is an agreement between the parties that amount of education cess and taxes would be borne out by the tenant that has to be honoured by the tenant. As such, this amount, even if it is included in the rent but has already been agreed upon by the parties concerned to be borne out by the petitioner, that argument cannot be raised again in this Court.
6.Considering the facts and circumstances of the case, I do not find any good reason for interference with the concurrent findings arrived at by the Courts below. Accordingly this revision application is dismissed.
7.As the revision application has been dismissed, the application for restitution does not survive and rejected as not maintainable. Rule is discharged.
(Kundan Singh,J) Jayanti*