w w w . L a w y e r S e r v i c e s . i n



Jiviben Purushottambhai Dave v/s Mehta Cycle & Auto Stores


Company & Directors' Information:- H & B STORES LIMITED. [Active] CIN = U74120DL2007PLC163361

Company & Directors' Information:- CYCLE CORPORATION OF INDIA LTD [Under Liquidation] CIN = U35921WB1980PLC033053

Company & Directors' Information:- E R AUTO PRIVATE LIMITED [Active] CIN = U34300HR2002PTC035002

Company & Directors' Information:- K Y AUTO PRIVATE LIMITED [Active] CIN = U50300JK2013PTC003849

Company & Directors' Information:- J. S. B. AUTO PRIVATE LIMITED [Active] CIN = U50300DL2010PTC198144

Company & Directors' Information:- T & R AUTO PRIVATE LIMITED [Active] CIN = U50200TG2012PTC082553

Company & Directors' Information:- D R D B AUTO PRIVATE LIMITED [Strike Off] CIN = U74899DL1988PTC032028

Company & Directors' Information:- A-1 AUTO PVT. LTD [Active] CIN = U51502MH2006PTC165934

Company & Directors' Information:- AUTO INDIA PRIVATE LIMITED [Active] CIN = U65991TN1984PTC010923

Company & Directors' Information:- Z-AUTO PRIVATE LIMITED [Active] CIN = U50500UP2021FTC153664

Company & Directors' Information:- K V AUTO LTD [Strike Off] CIN = U28932PB1994PLC014522

Company & Directors' Information:- V S P STORES PRIVATE LIMITED [Active] CIN = U74899DL1980PTC010223

Company & Directors' Information:- K G N AUTO PRIVATE LIMITED [Active] CIN = U74900PN2015PTC157675

Company & Directors' Information:- J. S. AUTO PRIVATE LIMITED [Active] CIN = U34102UP1986PTC008173

Company & Directors' Information:- P S AUTO PRIVATE LIMITED [Active] CIN = U34300MH1999PTC120052

Company & Directors' Information:- P M C AUTO LIMITED [Strike Off] CIN = U34300DL1995PLC071849

Company & Directors' Information:- B C C AUTO PVT LTD [Active] CIN = U74899DL1992PTC051439

Company & Directors' Information:- J S CYCLE PRIVATE LIMITED [Strike Off] CIN = U35921TZ1998PTC008618

Company & Directors' Information:- H H AUTO PRIVATE LIMITED [Amalgamated] CIN = U34100DL2009PTC192880

Company & Directors' Information:- M M AUTO PRIVATE LIMITED [Strike Off] CIN = U50300UP1988PTC009527

Company & Directors' Information:- G B AUTO PRIVATE LIMITED [Strike Off] CIN = U50400MH1998PTC114977

Company & Directors' Information:- V R STORES PRIVATE LIMITED [Active] CIN = U74120UP2015PTC069508

Company & Directors' Information:- M C AUTO PVT LTD [Under Process of Striking Off] CIN = U34300DL1977PTC008716

Company & Directors' Information:- MEHTA E - STORES PRIVATE LIMITED [Active] CIN = U74120DL2008PTC176750

Company & Directors' Information:- E N B AUTO (INDIA) PRIVATE LIMITED [Active] CIN = U34300PB1988PTC008040

Company & Directors' Information:- D K STORES PVT LTD [Strike Off] CIN = U74920WB1989PTC047863

Company & Directors' Information:- K D R AUTO PRIVATE LIMITED [Active] CIN = U34300DL2005PTC132732

Company & Directors' Information:- CYCLE ON INDIA PRIVATE LIMITED [Active] CIN = U35999TN2020PTC139580

Company & Directors' Information:- A AND P STORES PRIVATE LIMITED [Strike Off] CIN = U74899DL1979PTC006685

Company & Directors' Information:- K S R AUTO PRIVATE LIMITED [Active] CIN = U34300PN2011PTC140367

Company & Directors' Information:- J P AUTO PVT LTD [Strike Off] CIN = U50402WB1991PTC052147

Company & Directors' Information:- E G AUTO PRIVATE LIMITED [Converted to LLP] CIN = U74899DL1987PTC027016

Company & Directors' Information:- R AND H AUTO INDIA PVT LTD [Active] CIN = U74899DL1982PTC013349

Company & Directors' Information:- D D AUTO PRIVATE LIMITED [Active] CIN = U74899DL1985PTC022306

Company & Directors' Information:- C R AUTO PRIVATE LIMITED [Strike Off] CIN = U34300PB1997PTC020137

Company & Directors' Information:- B S K AUTO PRIVATE LIMITED [Strike Off] CIN = U29246PB1997PTC020704

Company & Directors' Information:- STORES INDIA PVT LTD [Strike Off] CIN = U51109MH1947PTC005474

Company & Directors' Information:- B S C CYCLE PVT LTD [Under Process of Striking Off] CIN = U35921PB1956PTC001646

Company & Directors' Information:- K AND K AUTO PRIVATE LIMITED [Active] CIN = U29199TZ1996PTC007431

Company & Directors' Information:- J K M AUTO PRIVATE LIMITED [Strike Off] CIN = U34300DL2005PTC143914

Company & Directors' Information:- K AND K AUTO PRIVATE LIMITED [Not available for efiling] CIN = U34300DL1988PTC032426

Company & Directors' Information:- H B AUTO (INDIA) PRIVATE LIMITED [Active] CIN = U50401OR1988PTC002075

Company & Directors' Information:- S K STORES PRIVATE LIMITED [Active] CIN = U51109RJ2013PTC044508

Company & Directors' Information:- S B G AUTO PRIVATE LIMITED [Strike Off] CIN = U50101MH2006PTC158566

Company & Directors' Information:- INDIA AUTO STORES PRIVATE LIMITED [Strike Off] CIN = U74120MH2012PTC234611

Company & Directors' Information:- O P AUTO PRIVATE LIMITED [Active] CIN = U51103DL2008PTC181391

Company & Directors' Information:- K K STORES PRIVATE LIMITED [Active] CIN = U51311DL2002PTC115866

Company & Directors' Information:- D K S AUTO PVT LTD [Strike Off] CIN = U34300DL2001PTC111465

Company & Directors' Information:- C L K AUTO PRIVATE LIMITED [Strike Off] CIN = U34300DL2003PTC118551

Company & Directors' Information:- K B H AUTO PRIVATE LIMITED [Strike Off] CIN = U74899DL2000PTC107258

Company & Directors' Information:- S H STORES PVT LTD [Strike Off] CIN = U51109WB1937PTC008989

Company & Directors' Information:- AUTO INDIA LIMITED [Not available for efiling] CIN = U99999MH1948PLC006176

Company & Directors' Information:- R K AUTO INDIA PVT LTD [Strike Off] CIN = U99999DL2000PTC901836

    C.CRA. 53 of 2007 with R. Special Civil Application No. 8988 of 2007

    Decided On, 14 September 2018

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MR. JUSTICE BIREN VAISHNAV

    For the Petitioner: B.D. Karia, Advocate. For the Respondent: R1,R2,R3, Y.N. Ravani, Advocate.



Judgment Text

Cav Judgment:

1. Both these proceedings arise out of a common judgement and decree dated 30.06.2006. By the aforesaid judgement, the learned Presiding Officer, 4th Fast Track Court, Morbi dismissed the petitioner - applicant's Regular Civil Appeal No. 12 of 1997 which challenged the dismissal of Regular Civil Suit No. 43 of 1987 vide judgement and decree dated 05.08.1995. The petitioner - landlord also failed in his challenge in proceedings of standard rent filed by the tenant. The Misc. Application No. 60 of 1987 for fixation of standard rent filed by the tenant was allowed by the judgement and order of 05.08.1995 and the landlord's Civil Revision Application No. 2 of 1995 was dismissed.

1.1 In other words, Special Civil Application is at instance of the landlord - original defendant challenging the order dated 30.06.2006 in Civil Revision Application No. 2 of 1995 by which the respondent herein - original plaintiff's application for fixing standard rent at Rs. 40/- per month was allowed. Civil Revision Application No. 53 of 2007 is also filed by the same landlord who lost in both the courts when the Regular Civil Appeal No. 22 of 1997 filed by him against the decree of the Civil Court in favour of the plaintiff tenant was dismissed. The revision applicant will also be hereinafter be referred to as 'the petitioner'.

2. The background of the facts in which these proceedings arise are as under:

2.1 The petitioner - a landlord owned a shop at Khara Kuva at Morbi. The suit shop was let out to the respondent on 26.07.1984. Initially, the respondent filed Civil Misc. Application No. 77 of 1984 before the Morbi Civil Court on 26.07.1984. It was the case of the respondent tenant that the rent of Rs.300/- fixed for the suit shop was excessive and therefore standard rent of the shop be fixed. It appears that on the respondent - tenant filing such an application, an agreement was executed on the same day i.e. on 26.07.1984 between the tenant and the landlord, by which, the parties agreed to the rent being fixed at Rs. 300/-. Consent terms were drawn accordingly and by an order dated 26.07.1984 i.e. on the same day, the application was disposed of on the basis of such consent terms and the standard rent was fixed at Rs.300/-.

2.2 The landlord thereafter served a notice Ex. 32 to the defendant on 30.06.1987 that the defendant was a tenant in arrears of rent from 24.12.1986 to 23.06.1987. The respondent - tenant on 07.03.1987 filed Regular Civil Suit No. 43 of 1987 before the Civil Court, Morbi praying that the order dated 26.07.1984 of fixation of standard rent at Rs.300/- was obtained by the landlord by fraud. The plaint alleged that in fact no consent was given by the plaintiff - tenant - respondent herein for arriving at a consent of standard rent of Rs.300/-. That the actual standard rent of Rs.40/- came to their knowledge recently and by subterfuge and misleading the tenant into believing that the standard rent was Rs.300/-, consent was obtained by the landlord by fraud and on the day the application of standard rent was filed, agreement was signed on same day and decree was drawn on same day for standard rent. The tenant therefore prayed that the order of fixing standard rent of Rs.300/- on 26.07.1984 be set aside as being one obtained by fraud. The tenant also filed Misc. Application No. 60 of 1987 on 24.07.1987 praying that the standard rent of the demised premises be fixed at Rs.40/-.

2.3 Both the civil suit and the standard rent application were consolidated and heard by the learned Civil Judge (S.D), Morbi, as there was no separate rent court and by a judgement and decree dated 05.08.1995, the learned Civil Judge (S.D.) decreed the suit of the tenant - respondent herein declaring that the order dated 26.07.1984 in Misc. Application No. 77 of 1984 fixing standard rent at Rs.300/- was obtained by fraud and therefore was set aside. By an order of same date, Misc. Application for fixation of rent at Rs.40/- filed by such tenant was allowed. The landlord filed Regular Civil Appeal No. 22 of 1987 and Civil Revision Application No. 2 of 1995 against the order of fixation of standard rent at Rs.40/-. He lost in both these proceedings by a common order dated 30.06.2006.

2.4 The trial Court which allowed both the civil suit as well as the application for standard rent opined that the order fixing standard rent at Rs.300/- was obtained by the landlord by practising fraud. According to the trial court, on the basis of evidence led before it, the defendant - landlord compelled the tenant to file application for fixation of standard rent. The application and the compromise pursis were signed and his signatures were obtained by making a false show that a dispute existed. The landlord by design waived notice on the same date by signing a fake application. When on the date of making such application i.e. on 26.07.1984 when the premises were not handed over to him as a tenant, he could not have made an application for fixation of standard rent. That on basis of Ex.40 and Ex.41 rent receipts of the previous tenant and his deposition at Ex.20 (Jayantilal Dangi), it was evident that the rent for the period from 03.10.1979 to 24.07.1984 was Rs.40/- which fact was not disclosed by the landlord who led him to believe that the rent was Rs.300/- and therefore consent was obtained by fraud and compulsion.

2.5 Relying on the decision of the High Court, the trial court held that the order below the previous standard rent application was obtained by fraud and therefore deserved to be set aside. The trial Court did not agree with the submissions of the landlord - petitioner herein that it was not open for the tenant to challenge the order of 1984 after 2 years and 9 months. The trial court also disagreed with the landlord's defence that it was the tenant who through his advocate had filed the standard rent application, that he had not engaged any lawyer. Papers were prepared by the advocate of the tenant and signed by him and therefore it cannot be said that the order was obtained by fraud at the instance of the landlord. Moreover, even otherwise, the fresh application for fixation of standard rent was barred by res judicata, delay and estoppel and it was filed as soon as notice for arrears was issued, that it was without merit and therefore could not be entertained. Even here, the trial court did not agree with the landlord. Taking into consideration the evidence of P.W. 2, Jayantilal Dangi, Ex. 20, the previous tenant and rent receipts in his favour at Ex. 40 and Ex. 41 together with the provisions of Section 5(10) read with Section 10 and Section 7 of the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944 Act, the trial court set aside the order of fixation of standard rent on the ground that it was obtained by fraud and also allowed the subsequent application and fixed standard rent at Rs.40/-. In appeal against the decree and in revision against fixation of standard rent, the landlord failed.

3. Mr. Bhargav Karia, learned advocate appearing on behalf of the petitioner - revisionist - landlord, has made the following submissions:

(a) It cannot be said that Civil Misc. Application No. 77 of 1984 was filed with a design or compulsion. No coercion at the behest of the landlord could have been presumed for filing the application and then arriving at a consensus. The application was filed by the tenant. The advocate engaged by him prepared the consent terms, obtained the signatures and filed proceedings in Court. The landlord had not even engaged any advocate for the application.

(b) Merely because the application was filed and the consent was arrived at on the same day and order was also passed on the same day i.e. 26.07.1984, it cannot be presumed that there was a fraud.

(c ) No convincing proof was produced to substantiate the case of fraud by the tenant.

(d) The fact that the suit was filed on 07.03.1987, approximately 3 years after the order would reveal that the tenant was estopped to plead fraud by his conduct. The fresh application for standard rent was also filed in July 1987 after the landlord issued a notice that the tenant was in arrears of rent for more than 6 months i.e. from 24.12.1986 to 23.06.1987. The suit and the fresh application for standard rent were therefore filed purelyas a counterblast.

(e) The rent of Rs.300/- was not excessive as after the landlord's consent, the tenant had carried out various improvements in the suit shop and therefore the standard rent could not be restricted to the previous figure of Rs.40/- Moreover, by an interim arrangement, the trial court by an order dated 22.07.1987 fixed the interim standard rent at Rs.250/- which order was not challenged by the tenant. All these actions would therefore suggest that the courts below had grossly erred in decreeing the suit and allowing the application for standard rent.

3.1 Mr. Karia in support of his submissions relied on a decision of the Supreme Court in the case of Jadu Gopal Chakravarty (dead) after him his Legal Representatives vs. Pannalal Bhowmick and Othersreported in AIR 1978 SC 1329 to suggest that a plea that the compromise decree was obtained by fraud could be challenged in a subsequent suit.

4. Mr. Y.N. Ravani, learned advocate appearing on behalf of the respondent - tenant - plaintiff has made the following submissions:

(i) Taking this Court through the averments made in the plaint, it is suggested that it was a specific case of the tenant - plaintiff in the plaint that the order of consent was obtained by fraud.

(ii) The standard rent immediately preceding the period was Rs.40/- and therefore it can under no circumstances be believed that the tenant would consent to a standard rent of Rs.300/-. The tenant was clearly misled.

(iii) From the facts, it is clear that the lease agreement was signed on 24.07.1984. The application for standard rent was made on 26.07.1984, the possession of the tenanted premises was handed over after Court order. Therefore, on the date of the so-called application, there was no locus for the tenant to make such an application and therefore the order on such an application was apparently fraudulent.

(iv) Evidence had come on record through the testimony of P.W. 2 Jayantilal Dangi at Ex. 20 and rent receipts Ex. 40 and Ex. 41 that the rent of the suit shop for the period from 03.10.1979 to 24.07.1984, two days previous to the alleged agreement was Rs.40/-.

(v)Reliance was also placed on Section 5(10) of the Rent Act to contend that rent at which the premises was last let before 26.07.1984, undisputedly in the case on hand was Rs.40/-.

(vi) The trial Court had arrived at findings of fact that even on that day the suit shop was in the same condition as was let out to the old tenant and therefore that there were improvements made in the shop was a submission on behalf of the landlord which lacked merit.

4.1 Mr. Ravani, in support of his submissions, relied on the following decisions:

(I) (Shri) Tran Devadi Mandir Trust and Others vs. Dilipkumar Babulal Shah and Another reported in 1984 GLH 259 in support of his submission that a fresh application based on the fact that previous fixation was by fraud would not be barred by estoppel.

(II) P.M. Parmar vs. Smt. Ambaben Hargovindas reported in 1995(1) GLH 950 in support of his submission that a consent decree of fixing standard rent without any documents would not be binding.

(III) Prithvichand Rameshchand Sablok vs. S.Y. Shinde reported in AIR 1993 SC 1929 in support of his submission that a consent decree would not operate as resjudicata.

(IV) Ramchandra Shankar Deodhar and Others vs. The State of Maharashtra and Others reported in AIR 1974 SC 259 in support of his submission that a the rule which says that a Court may not inquire into belated or stale claims is not a rule of law but a rule of practice based on sound and proper exercise of discretion and there is no inviolable rule that whenever there is delay the Court must necessarily refuse to entertain the petition as the question is one of discretion to be followed on the facts of each case.

5. Having heard learned advocates appearing on behalf of the respective parties, certain dates on facts need to be recapitulated.

(A) Civil Misc. Application No. 77 of 1994 was filed on 26.07.1984.

Ramchandra Shankar Deodhar (B) Consent terms and the order below such terms was also made on the same day.

(C ) The landlord gave a notice (Ex. 32) that the tenant - plaintiff was in arrears of rent for more than six months from 24.12.1986 to 23.06.1987.

(D) Suit to set aside consent order was filed on 07.03.1987, two years and nine months after the order alleged to have been passed by fraud.

(E) The fresh standard rent application was filed on 24.07.1987 immediately within receiving a notice for arrears of rent for a period upto 23.06.1987 vide notice dated 30.06.1987.

6. The plaint filed in Regular Civil Suit No. 43 of 1987 is on record in the paper book of the Special Civil Application. Reading of the averments therein indicate that a mere averment is made to suggest that the consent order of standard rent of Rs.300/- was obtained by fraud. A vague pleading to overcome delay is made to suggest that it was only in the recent past that the tenant came to know that the standard rent was actually Rs.40/-. Though P.W. 2 - Jayantilal Dangi is examined at Ex. 20 and evidence of rent receipts at Ex. 40 and Ex. 41 are pressed into service to suggest standard rent of Rs.40/-, what needs to be seen is the timing of the suit and the application of 1987 for standard rent. After the consent order of 20.07.1984, upto the date of making of the application of standard rent on 24.07.1987 or on the date of filing of the suit on 07.03.1987 i.e. for 2 years and 9 months, the tenant has remained silent about the figure of standard rent. That, the trigger to challenge the consent order and refixation of standard rent at Rs.40/- under the guise of the consent being obtained by fraud is clearly the notice dated 30.06.1987 issued by the landlord for arrears of rent for more than six months.

7. Mr. Karia, therefore, is right in his submission that assuming that a decree obtained by fraud can be set aside, based on the judgements relied upon by Mr. Ravani the facts of the case on hand would suggest that the tenant did not move for more than two years to come forward and allege fraud. The judgement in the case of (Shri) Tran Devadi Mandir Trust (supra) as rightly contended by Mr. Karia is not applicable to the facts of the present case inasmuch as in the said case the application to set aside the consent terms was made within a short time. In the facts of the present case, it is evident that such an application was moved after three years and that too after the landlord issued a notice for arrears of rent. The action of the tenant was therefore clearly an afterthought. In absence of any plausible explanation for delay and of the issue of how fraud is committed, the decision in the case of (Shri) Tran Devadi Mandir Trust (supra) is clearly distinguishable and will not be of any assistance to the case of the tenant.

8. Similarly, in the case of Ramchandra Shankar Deodhar, the Apex Court has observed that the principle on which the Court proceeds in refusing relief to the petitioner on ground of laches or delay is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there was reasonable explanation for the delay. In the present case, the explanation give for the delay is not plausible enough. The conduct of the tenant in not moving to challenge the action or order as not binding was not promptly challenged. In fact, it was a case bordering on acquiescence by conduct. This now is fortified further by the fact that in an application filed afresh to fix standard rent at the rate of Rs.40/-, when the Court fixed the interim standard rent at Rs.250/-, the tenant has accepted the same without demur. No challenge to the interim order was made and therefore it can safely be presumed that the canard of fraud at the hands of the landlord pleaded by the tenant is clearly unbelievable.

9. The application being Civil Misc. Application No. 77 of 1984 was filed admittedly by the tenant. The tenant engaged a lawyer who drafted the agreement and th

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e same was signed by the landlord. It is the specific case of the landlord that he had not engaged any advocate to draft or fight the standard rent application. In absence of any contrary say of the tenant, it needs to be believed that once all formalities to arrive at a legal framework of consensus was done by the tenant, he cannot turn around and cry foul and plead that the order of fixation of standard rent at Rs.300/- at his behest is a fraud. 10. The order of the Appellate Court and the revision order except recording a brief agreement to the order of the trial court also lacks reasons. In my view, it was not open for the respondent tenant to file a suit to set aside the consent order nor was it open for him to file a fresh application for refixation of standard rent. 11. For the reasons stated hereinabove, the common order dated 05.08.1995 decreeing the suit being Regular Civil Suit No. 43 of 1987 and declaring the order dated 26.07.1984 in Civil Misc. Application No. 77 of 1984 as illegal and further determining standard rent in respect of the shop at Rs.40/- in Civil Misc. Application No. 60 of 1987 is bad and illegal. The consequential order dated 30.06.2006 passed in Regular Civil Appeal No. 22 of 1997 by which the decree of the learned Civil Judge, Morbi dated 05.09.1985 ordered in Civil Revision Application No. 2 of 1995 confirming the order below Civil Misc. Application No. 60 of 1987 is quashed and set aside. Both the Civil Revision Application No. 53 of 2007 and Special Civil Application No. 8988 of 2007 are allowed. Rule is made absolute in both the matters. No costs. After pronouncement of the above judgement, Mr. Ravani, learned advocate appearing on behalf of the respondent requests for stay of the judgement. I see no reason to stay the judgment and accordingly request is rejected.
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