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*