DHARMENDRA VALLABHBHAI RAMANI vs JETPUR SWAMINARAYAN TRUST

C/SA/80/2023 CAV JUDGMENT DATED: 03/03/2026
Reserved On : 17/02/2026
Pronounced On : 03/03/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 80 of 2023
With
R/SECOND APPEAL NO. 81 of 2023
With
R/SECOND APPEAL NO. 411 of 2023
With
R/SECOND APPEAL NO. 412 of 2023
With
R/SECOND APPEAL NO. 413 of 2023
With
R/SECOND APPEAL NO. 414 of 2023
With
R/SECOND APPEAL NO. 415 of 2023
With
R/SECOND APPEAL NO. 416 of 2023
With
R/SECOND APPEAL NO. 417 of 2023
With
R/SECOND APPEAL NO. 418 of 2023
With
R/SECOND APPEAL NO. 419 of 2023
With
R/SECOND APPEAL NO. 421 of 2023
With
R/SECOND APPEAL NO. 422 of 2023
With
R/SECOND APPEAL NO. 423 of 2023
With
R/SECOND APPEAL NO. 424 of 2023
With
R/SECOND APPEAL NO. 425 of 2023
With
R/SECOND APPEAL NO. 426 of 2023
With
R/SECOND APPEAL NO. 427 of 2023
With
R/SECOND APPEAL NO. 428 of 2023
With
R/SECOND APPEAL NO. 429 of 2023
With
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R/SECOND APPEAL NO. 430 of 2023
With
R/SECOND APPEAL NO. 431 of 2023
With
R/SECOND APPEAL NO. 432 of 2023
With
R/SECOND APPEAL NO. 433 of 2023

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE J. C. DOSHI

==========================================================
Approved for Reporting Yes No
==========================================================
DHARMENDRA VALLABHBHAI RAMANI
Versus
JETPUR SWAMINARAYAN TRUST & ANR.
==========================================================
Appearance:
MR HP BAXI(9459) for the Appellants
MR MRUGEN K PUROHIT(1224) for the Respondent No. 1
NOTICE SERVED for the Respondent(s) No. 2
==========================================================
CORAM: HONOURABLE MR. JUSTICE J. C. DOSHI


CAV JUDGMENT
1. The present captioned Second Appeals have been preferred
under Section 100 of the Code of Civil Procedure, 1908 (for short,
“ the Code ”). The appeals arise out of identical and symmetrical
facts and emanate from a common judgment and order passed by
the learned First Appellate Court in a series of First Appeals.
2. In view of the commonality of issues involved and the
similarity of the factual matrix, this Court proposes to adjudicate all
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the aforesaid Second Appeals by this common judgment and order,
so as to avoid repetition and ensure consistency in judicial
determination.
FACTUAL BACKGROUND:-
3. Since the factual backdrop in all the appeals is analogous, as
per report, Second Appeal No. 80 of 2023 is treated as the lead
matter, and the facts are being referred to therefrom for the sake of
convenience. The relevant facts, shorn of unnecessary details, are as
under:–
3.1. The appellants herein, who were the original petitioners
before the Court below, instituted an application for fixation of
standard rent under Section 11(3) of the Bombay Rents, Hotel
and Lodging House Rates Control Act, 1947 (for short, “ the
Rent Act ”), against the landlord, namely Shri Jetpur
Swaminarayan Trust, a public trust duly registered under the
Gujarat Public Trusts Act.
3.1. The subject premises comprise multiple shops
constructed upon non-agricultural land bearing Revenue Survey
No. 698 paiki. The said shops were constructed by the Trust
and let out to various tenants subsequent to the year 2001.
3.2. In the year 2019, the landlord issued a notice to the
appellants seeking permitted increase in rent and terminating
the tenancy. Within one month of receipt of the said notice, the
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appellants, asserting their status as tenants, preferred an
application under Section 11(3) of the Rent Act for fixation of
standard rent.
3.3. In the said proceedings, the landlord entered appearance
and filed an application under Order VII Rule 11 of the Code,
seeking rejection of the plaint. The said application was
premised upon the decision of the Hon’ble Supreme Court in
Malpe Vishwanath Acharya & Ors. v. State of Maharashtra
& Ors., (1998) 2 GLR 1364 , wherein certain provisions relating
to standard rent were analyzed and observed unconstitutional.
Relying upon the ratio of the said decision, it was contended
that the remedy under Section 11 of the Rent Act had become
otiose and unenforceable and, therefore, the application for
fixation of standard rent under Section 11(3) of the Rent Act
was not maintainable in law.
3.4. The learned Trial Court accepted the contention raised
on behalf of the landlord and held that the application under
Section 11(3) of the Rent Act was not maintainable and
amounted to an abuse of the process of law. Consequently, the
plaint came to be rejected under Order VII Rule 11 of the Code.
3.5. Being aggrieved and dissatisfied with the said order, the
tenants preferred Regular Civil Appeals. The learned 6th
Additional District Judge, Jetpur at Rajkot, by a common
judgment and order dated 18.06.2022, dismissed all the First
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Appeals and confirmed the order rejecting the plaint.
3.6. It is against the aforesaid concurrent findings that the
present Second Appeals have been preferred at the instance of
the tenants. Except Second Appeal No. 80 of 2023, Second
Appeal No. 81 of 2023, all the other connected appeals were
admitted by a Coordinate Bench of this Court upon formulation
of the following solitary substantial question of law:–
“1. Whether the Appellant proves that application
filed for fixation of Standard Rent not falls within
purview of Order 7 Rule 11 of C.P.C.?”
4. Heard learned advocate Mr. H. P. Baxi appearing for the
appellant–tenant and learned advocate Mr. Mrugen Purohit
appearing for the respondent–landlord.
SUBMISSIONS OF THE APPELLANTS:-
5. The submissions canvassed by learned advocate Mr. Baxi, in
support of admission and eventual allowance of the present Second
Appeals, may be summarised thus: it is contended that the Courts
below have committed a manifest error of law in treating the
application preferred under Section 11(3) of the Rent Act as a
“plaint” and, on that premise, invoking the powers under Order VII
Rule 11 of the Code for its rejection. According to the learned
advocate for the appellant Mr. Baxi, such an approach is
fundamentally misconceived and legally untenable.
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5.1. It is further submitted that, in terms of Order VI of the Code,
“pleadings” are confined to a plaint or a written statement. An
application for fixation of standard rent under Section 11(3) of the
Rent Act does not partake the character of either a plaint or a
written statement and, therefore, falls outside the ambit of Order
VII Rule 11 of the Code. Consequently, the rejection of such an
application by resorting to the provisions governing rejection of a
plaint is stated to be ex facie without jurisdiction.
5.2. To fortify the aforesaid submission, reliance has been placed
upon the decision of a Coordinate Bench of this Court in Navdip
Education Trust v. LRs of Bhagwanbhai Jesingbhai Patel, Civil
Revision Application No. 199 of 2021 and allied matters, as well as
the judgment rendered by the Telangana High Court in case of
Ashok Kumar Agarwal v. B. Balraj Goud and Others in Civil
Revision Petition Nos. 766 and 842 of 2017 and allied matters.
5.3. It is also urged that both the learned Trial Court and the
learned First Appellate Court have committed a grave error in
accepting the contention of the landlord that the provisions of the
Rent Act are inapplicable to tenancies created subsequent to the
year 2001, without undertaking a proper examination of the
statutory framework and the governing legal position.
5.4. It is further contended that the learned Courts below have
fallen into a patent error in proceeding on the premise that the
Hon’ble Supreme Court has declared the very concept of “standard
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rent” to be unconstitutional. According to learned advocate Mr.
Baxi, such a reading of the decision in Malpe Vishwanath Acharya
(supra) is wholly misconceived. Though certain observations were
made therein with regard to the unreasonableness of freezing rents
at historical levels, the Hon’ble Supreme Court did not efface the
statutory concept of standard rent from the statute book; rather, it
left the matter to the legislative wisdom of the State Government.
Therefore, to hold that the principle of standard rent stands declared
unconstitutional is, according to the learned advocate, a clear
misreading and misapplication of the ratio of the said judgment.
5.5. It is further urged that the landlord having issued a notice
seeking enhancement of contractual rent and termination of
tenancy, such action itself falls squarely within the statutory
framework of the Rent Act. The issuance of such notice, according
to the appellant, furnishes a legitimate cause of action to the tenant
to invoke Section 11(3) of the Rent Act for fixation of standard
rent. Thus, the tenant’s application is a statutory remedy triggered
by the landlord’s own action and cannot be characterised as an
abuse of process.
5.6. Reliance is placed upon the decision of the Hon’ble Supreme
Court in Laxman Jiwaba Baherwade v. Bapurao Dodappa
Tandale, AIR 2002 SC 3266 , wherein the standard rent came to be
determined even in the year 2002. It is, therefore, submitted that it
cannot be contended that the Rent Act or the provisions pertaining
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to standard rent have become otiose or inapplicable post-2001.
5.7. On the strength of the aforesaid submissions, learned advocate
Mr. Baxi has urged that the impugned judgments and orders passed
by the Courts below suffer from substantial errors of law, giving
rise to substantial questions within the meaning of Section 100 of
the Code, and therefore deserve to be quashed and set aside by
allowing the present Second Appeals.
SUBMISSIONS OF THE RESPONDENTS:-
6. Per contra , learned advocate Mr. Mrugen Purohit appearing
for the respondent–landlord has vehemently opposed the present
appeals. He submitted that it is an admitted position on record that
the subject premises were let out in the years 2011–2012. By virtue
of the statutory amendments and the notification issued by the State
Government, the operation of the Rent Act, insofar as newly
constructed premises are concerned, stood excluded for the relevant
period commencing from the year 2001 onwards.
6.1. It is contended that both the learned Trial Court and the
learned First Appellate Court have meticulously referred to and
relied upon the notification issued by the State Government
suspending the applicability of the Rent Act to such premises. In
light of the said statutory position, it is submitted that when the
appellants sought to invoke Section 11(3) of the Rent Act, the very
provision itself was inapplicable and unavailable to them in law.
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6.2. According to the learned advocate, the application for fixation
of standard rent was thus wholly misconceived and untenable,
amounting to an abuse of the process of the Court and a futile
exercise in litigation. The learned Courts below, therefore, rightly
exercised their jurisdiction in rejecting the proceedings at the
threshold, thereby nipping the untenable claim in the bud.
6.3. The second limb of the submissions advanced by learned
advocate Mr. Purohit pertains to the maintainability of the present
proceedings. It is contended that the appellants consciously invoked
the remedy under Section 11(3) of the Rent Act by filing an
application for fixation of standard rent. In terms of Section 29(3)
of the Act, an appeal against such an order rejecting standard rent
application since treated as decree lies before the District Court.
However, the statute does not contemplate or provide for a further
Second Appeal. The only remedy available thereafter is a Civil
Revision under Section 29(2) of the Act.
6.4. It is, therefore, submitted that the present Second Appeals,
having been preferred under Section 100 of the Code, are per se not
maintainable before this Court and are liable to be rejected at the
threshold for want of statutory jurisdiction.
6.5. Lastly, learned advocate Mr. Purohit has invited attention to
Section 141 of the Code, which provides that the procedure
prescribed in the Code in regard to suits shall be followed, as far as
may be, in all proceedings in any Court of civil jurisdiction. It is
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contended that the proceedings under Section 11(3) of the Rent Act,
though styled as an “application,” are in substance adversarial in
character, wherein the applicant asserts a substantive civil right
seeking determination of standard rent on the premise that the rent
demanded by the landlord is excessive and exorbitant.
6.6. According to the learned advocate, once the applicant sets in
motion a lis seeking adjudication of civil rights and such claim is
contested by the opposite party, the proceedings assume the
trappings of a suit. Merely because the nomenclature employed is
that of an “application” or “petition,” the essential character of the
proceedings does not stand diluted, as decision in plea of standard
rent is summary in nature and diluted in short span compared to
regular suit proceedings. The Legislature has through to give form
of application or pension, however, in effect and substance, it
partakes the character of a plaint within the meaning of Order VI of
the Code.
6.7. On this premise, it is submitted that an application under
Section 11(3) of the Rent Act for fixation of standard rent squarely
falls within the ambit of “pleadings” and is amenable to the
provisions of Order VII Rule 11 of the Code.
6.8. Learned advocate Mr. Purohit has placed reliance upon the
decision of a Coordinate Bench of this Court rendered in Special
Civil Application No. 28867 of 2007 in the case of Pujya Shree
Ranchhodji Maharaj Kelavni and Sanskrutik Mandal v. Shree
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Karshanji Zinabhai Brahmashatriya Vidyarthi . He then submitted
that the Coordinate Bench, while considering the ratio of the
judgment of the Hon’ble Supreme Court in Malpe Vishwanath
Acharya (supra) , observed that once the constitutional validity or
sanctity of a statutory provision is successfully assailed and it is
held to be ultra vires the Constitution, such provision is liable to be
treated as though it never existed on the statute book.
6.9. Building upon the aforesaid proposition, learned advocate Mr.
Purohit contended that since the Hon’ble Supreme Court has
seriously impugned the constitutional validity of the principle
underlying standard rent, any subsequent extension or invocation of
the Rent Act would not resurrect or revitalize a provision which
stands rendered otiose. According to him, once the foundation of
the concept of standard rent has been judicially eroded, the same
cannot be pressed into service by the tenant under the guise of
Section 11(3) of the Rent Act.
6.10. In this backdrop, it is submitted that the learned Courts below
have committed no error in rejecting the plaint at the threshold. It is
further urged that this Court, while exercising its limited
jurisdiction under Section 100 of the Code, ought not to interfere in
the absence of any substantial question of law, and the present
Second Appeals deserve to be dismissed in limine .
FINDINGS, ANALYSIS AND CONCLUSION OF THE
COURT:-
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7. Having heard the learned advocates for the respective parties
at length and having perused the impugned orders with due
circumspection, the matter is required to be examined in the
aforesaid legal perspective.
7.1. At the outset, it would be apposite to advert to the decision of
the Hon’ble Supreme Court in Jaichand (Dead) through LRs and
Another v. Sahnulal and Another , reported in 2024 SCC OnLine
SC 3864 , wherein the scope and contours of the jurisdiction
exercisable under Section 100 of the Code have been succinctly
delineated. The Hon’ble Apex Court, while elucidating the limited
ambit of interference in a Second Appeal, has observed as under:–
“28. It is thus clear that under Section 100 CPC, the High
Court cannot interfere with the findings of fact arrived at by
the first Appellate Court which is the final Court of facts
except in such cases where such findings were erroneous
being contrary to the mandatory provisions of law, or its
settled position on the basis of the pronouncement made by
the Apex Court or based upon inadmissible evidence or
without evidence.”
7.2. In the backdrop of the aforesaid legal position, the rival
submissions advanced before the Courts below are required to be
examined in the context of the substantial questions of law framed
at the time of admission of the present Second Appeals (save and
except Second Appeal Nos. 80 of 2023 and 81 of 2023).
7.3. It is noticeable that while admitting the appeals, the
Coordinate Bench cast the burden upon the appellants to
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demonstrate that an application filed for fixation of standard rent
under Section 11(3) of the Rent Act does not fall within the ambit
of Order VII Rule 11 of the Code.
7.3. In an endeavour to discharge the said burden, learned
advocate Mr. Baxi placed reliance upon the provisions of Order VI
of the Code and contended that since a petition under Section 11(3)
of the Rent Act for fixation of standard rent does not answer the
description of a “plaint,” the provisions of Order VII Rule 11 would
have no application thereto.
7.4. However, while advancing the aforesaid submission, learned
advocate Mr. Baxi did not advert to or reconcile the import of
Section 141 of the Code, which extends the procedural framework
governing suits to other proceedings of a civil nature. The said
provision, being germane to the controversy at hand, reads as
under:–
“ 141. Miscellaneous proceedings .-
The procedure provided in this Code in regard to suits shall
be followed, as far as it can be made applicable, in all
proceedings in any Court of civil jurisdiction.
[Explanation .-In this section, the expression "proceedings"
includes proceedings under Order IX, but does not include
any proceeding under article 226 of the Constitution.]”
8. Section 141 of the Code extends the procedural framework
prescribed for suits to miscellaneous proceedings and to other civil
proceedings not otherwise specifically governed by the Code. The
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sweep of Section 141 is confined to matters of procedure alone; it
does not incorporate or import the substantive provisions of the
Code into such proceedings. In other words, it is the procedural
apparatus of the Code that stands attracted by virtue of Section 141,
and not the substantive rights or liabilities created thereunder.
8.1. In this context, it would be apposite to advert to the definition
of “ pleading ” as expounded in Black’s Law Dictionary, Ninth
Edition, which reads as under:–
“A formal document in which a party to a legal proceeding
(esp. a civil lawsuit) sets forth or responds to allegations,
claims, denials, or defenses.”
8.2. In its general sense, the proceedings from the statement of
claim to issue joined i.e. the opposing statements of the parties 2.
Any part of these proceedings.
8.3. A formal written (formerly oral) statement in a civil action
prepared by each side and setting out the cause of action or the
defence.
8.4. Thus, a “ pleading ” is understood to mean a formal statement
filed by a party to judicial proceedings, wherein such party sets
forth the material facts constituting its claim or defence, with a
view to inviting an adjudication by the Court upon the issues so
raised. It embodies either the assertion of a right seeking judicial
determination or a response thereto by way of denial, traverse, or
defence.
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8.5. At this juncture, it would be apposite to advert to the text and
tenor of Section 11(3) of the Rent Act, which reads as under:–
“ Section 11(3) in The Bombay Rents, Hotel and Lodging
House Rates Control Act, 1947
(3) If any application for fixing the standard rent or for
determining the permitted increase is made by a tenant who
has received a notice from his landlord under sub-section (2)
of Section 12, the Court shall make an order directing the
tenant to deposit in Court forthwith and thereafter monthly
or periodically, such amount of rent or permitted increases as
the Court considers to be reasonably due to the landlord
pending the final decision of the application. A copy of such
order shall be served upon the landlord. Out of the amount
so deposited the Court may make order for the payment of
such reasonable sum to the landlord towards payment of rent
or increase due to him, as it thinks fit. If the tenant fails to
deposit such amount, this application shall be dismissed.”
9. A plain reading of Section 11(3) of the Rent Act indicates that
it contemplates an application to be preferred by a tenant for
fixation of standard rent or for determination of permitted increases,
particularly in a case where the tenant has received a notice under
sub-section (2) of Section 12 of the Act.
9.1. The provision employs the expression “cause considered to be
reasonably due to the landlord,” which unmistakably postulates an
adjudicatory exercise by the Court. The Court is required to
evaluate the rival assertions, those advanced by the tenant and those
controverted by the landlord and relevant market value of rented
premises along with market rent, other surrounding property
fetched and thereafter arrive at a judicial determination after
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analyzing the competing evidence as to whether the amount
claimed is reasonably due. Such an exercise is neither ministerial
nor summary in nature; it entails a full-fledged consideration of
contested civil rights deciding the rival claims.
9.2. Therefore, notwithstanding the nomenclature of the
proceeding as an “application,” it, in substance and effect,
adjudicates adversarial rights between the parties. The
determination rendered under Section 11(3) of the Rent Act has a
direct and significant bearing upon the fate of any suit for ejectment
instituted by the landlord against the tenant, particularly when the
ground of arrears is issue in seisin .
9.3. In these circumstances, the submission advanced by learned
advocate Mr. Baxi that an application for fixation of standard rent
under Section 11(3) of the Rent Act does not partake the character
of a pleading is hallow and worthless and thus, cannot be accepted.
The decisions relied upon by the learned advocate do not advance
the case of the appellants and are of no avail in the peculiar facts
and legal matrix of the present matter.
10. Insofar as the decision in Navdip Education Trust (supra) is
concerned, the issue before the Coordinate Bench was whether an
application seeking leave to appeal could be construed as a “plaint”
within the meaning of the Code. Upon examining the nature and
scope of such an application, the Coordinate Bench held that an
application for leave to appeal does not fall within the ambit of a
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plaint. The ratio of the said decision was rendered in the peculiar
context of leave proceedings and cannot be mechanically extended
to the controversy at hand.
11. Similarly, in Ashok Kumar Agarwal (supra) before the
Telangana High Court, the question that arose for consideration was
whether an interlocutory application filed within the framework of a
pending suit could be treated as a plaint. The High Court answered
the said question in the negative, having regard to the limited and
ancillary nature of interlocutory proceedings.
12. Both the aforesaid authorities, therefore, turn upon their own
distinct factual and legal matrices and do not have any
determinative bearing on the present case, where the application
under Section 11(3) of the Rent Act initiates an independent
adjudicatory process affecting substantive civil rights.
13. Before the learned Trial Court, it was specifically contended
on behalf of the landlord that the concept of standard rent had
already been subjected to constitutional scrutiny and its sanctity
successfully assailed in view of the pronouncement of the Hon’ble
Supreme Court in Malpe Vishwanath Acharya (supra) . In that
context, the learned Trial Court adverted to the judgment of a
Coordinate Bench of this Court in Pujya Shree Ranchhodji
Maharaj Kelavni (supra) , wherein, in paragraphs 11, 12 and 13,
relevant findings were recorded. The observations read as under:–
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“11. After referring to various decisions on the point, the
said principle was applied to the legislation in question and
the observations made in Paragraphs-30, 31 and 32 made.
The judgment was rendered on 19.12.1997. From the above
observations, it is crystal clear that from the date of the
pronouncement, the law 1.e. Sections 5, 11 and 12 lost its
sanctity. Although in light of the fact that new legislation
was in contemplation in the State of Maharashtra on the
same subject, the Hon'ble Supreme Court refrained from
striking down the provisions, yet they were declared as
unreasonable and arbitrary. It was, therefore, eloquent that
such provisions were not meant to be applied after the
pronouncement even if they remained on statute book for
the reasons recorded by the Hon'ble Supreme Court.
Unfortunately, this legal position was not brought to the
notice of the Courts below and consequently the impugned
judgments were rendered. It is true that in ignorance of the
pronouncement, if the decision rendered by the Courts
below are tested, there is no jurisdictional error requiring
interference of this Court under Article 227 of the
Constitution of India. However, the fact remains that as on
19.12.1997 i.e. the date of pronouncement of the above
judgment, the application under Section 5 of the Bombay
Rent Act, if pending at any stage, was not maintainable, and
therefore, an application for standard rent could have been
dismissed at the threshold. Since this Court has noticed the
above decision, it can as well be dismissed under Article
227 of the Constitution of India.
12. The learned counsel for the petitioner, however,
contended that the pronouncement was only in the context
of the fact that the new legislation was sought to be brought
by the State of Maharashtra. This Court is unable to accept
the said contention for the simple reason that the Bombay
Rent Act with the same provisions was adopted by the State
of Gujarat and therefore, any pronouncement made by the
Apex Court will be binding on the Courts exercising
jurisdiction under the Bombay Rent Act. The Hon'ble
Supreme Court was concerned with reasonableness of the
said provisions and not with the fact as to whether in
comparison to the contemplated legislation, the provisions
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were reasonable or not? Therefore, the pronouncement
applies in the rent matters in the State of Gujarat with equal
force.
13. It is settled law that once the sanctity of law is
successfully questioned on it being ultra-vires to
constitutional provisions, the provisions are to be treated as
if they are not in existence on the statute book.”
14. The learned First Appellate Court has, in paragraph 9 of its
judgment, extracted and reproduced the material observations from
the decision of the Hon’ble Supreme Court in Malpe Vishwanath
Acharya (supra) , which are germane to the controversy involved in
the present case. The said findings, as reproduced by the learned
Appellate Court, read as under:–
“9. It is pertinent to refer to the relevant paragraphs of the
judgment in case of Malpe Vishwanath Acharya (supra) of
the Hon'ble Supreme Court;
"8. There is considerable judicial authority in support of the
submission of learned counsel for the appellants that with the
passage of time a legislation which was justified when
enacted may become arbitrary and unreasonable with the
change in circumstances. In the State of Madhya Pradesh v.
Bhopal Sugar Industries, MANU/SC/0099/1964 dealing with
a question whether geographical classification due to
historical reasons would be valid this Court at page 853
observed as follows :
"Differential treatment arising out of the application of th/e
laws so continued in different regions of the same
reorganised, State, did not therefore immediately attract the
clause of the Constitution prohibiting discrimination. But by
the passage cf time ， considerations of necessity and
expediency would be obliterated, and the grounds which
justified classification of geographical regions for historical
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reason may cease to be valid. A purely temporary provision
which because of compelling forces justified differential
treatment when the Reorganisation Act was enacted cannot
obviously be permitted to assume permanency, so as to
perpetuate that treatment without a rational basis to support it
after the initial expediency and necessity have disappeared.
31. Taking all the facts and circumstances into consideration,
we have no doubt that the existing provisions of the Bombay
Rent Act relating to the determination and fixation of the
standard rent can no longer be considered to be reasonable.
The said provisions would have been struck down as having
now become unreasonable and arbitrary but we think it is not
necessary to strike down the same in view of the fact that the
present extended period of the Bombay Rent Act comes to an
end on 31st March, 1998. The government's thinking
reflected in various documents itself shows that the existing
provisions have now become unreasonable and therefore,
require reconsideration. The new bill is under consideration
and we leave it to the Legislature to frame a just and fair law
keeping in view the interests of all concerned and in
particular the resolution of the State Ministers for Housing of
1992 and the National Model Law which has been circulated
by the Central Government in 1992. We are not expressing
any opinion on the provisions of the said Model law but as
the same has been drafted and circulated amongst all the
States after due deliberation and thought, there will, perhaps,
have to be very good and compelling reasons in departing
from the said Model law. Mr. Nargolkar assured us that this
Model law will be taken into consideration in the framing of
the proposed new Rent Control Act.
32. We, accordingly, dispose of these appeals, without
granting any immediate relief but we hold that the decision of
the High Court upholding the validity of the impugned
provisions relating to standard rent was not correct. We,
however, refrain from striking down the said provisions as
the existing Act elapses on 31. 3. 1998 and we hope that a
new Rent Control Act will be enacted with effect from 1st
April, 1998 keeping in view the observations made in this
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judgment in so far as fixation of standard rent is concerned. It
is, however, made clear that any further extension of the
existing provisions without bringing them in line with the
views expressed in this judgment, would be invalid as
being arbitrary and violative of Article 14 of the
Constitution and, therefore, of no consequence. The
respondents will pay the costs .”
15. The Hon’ble Supreme Court in Malpe Vishwanath Acharya
(supra) , in the concluding portion of paragraph 32, clarified that
any further extension of the impugned provisions, without suitably
amending them in conformity with the constitutional principles
enunciated in the judgment, would render such provisions
vulnerable as being arbitrary and violative of Article 14 of the
Constitution of India. The Court observed that any such
continuation would be devoid of legal efficacy.
16. In view of the aforesaid pronouncement, although the concept
of standard rent continued to remain on the statute book, its
enforceability stood substantially eclipsed, inasmuch as any
unamended continuation would fall foul of Article 14 of the
Constitution. The learned Courts below, therefore, proceeded on the
footing that the principle of standard rent, in its unamended form,
had become constitutionally untenable.
17. As regards the reliance placed by learned advocate Mr. Baxi
upon the decision in Laxman Jiwaba Baherwade (supra) , the same
is clearly distinguishable on facts. That case arose under the
erstwhile regime of the Rent Act when its provisions were fully
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operational. The tenancy therein had been created as far back as the
year 1963, and it was in that factual milieu that the Hon’ble
Supreme Court, in the year 2002, adjudicated upon the issue of
fixation of standard rent. I am at loss to understand how such
decision and ratio therein helps the case of the appellants.
Referring such decision, finds complete insipid approach. The said
decision cannot be pressed into service in a case where the tenancy
itself commenced much later, in a materially altered statutory
landscape.
18. In the present case, it is an undisputed position that the
tenancy commenced in the years 2011–2012 and that the premises
in question were constructed subsequent to the year 2001. Both the
learned Trial Court as well as the learned First Appellate Court
have adverted to Section 4 of the Rent Act, as amended, in order to
hold that the provisions of the Rent Act were not applicable to the
premises in question.
19. The relevant observations of the learned Appellate Court,
while re-quoting Section 4 of the Rent Act, read as under:–
“Thus, by virtue of this pleading and agrument, the Gujarat
Rents, Hotel and Lodging house Rates Control Act, 1947
would not be applicable and all the applications of the
fixation of standard rent would be barred by law in view of
the Gujarat Amendment Act, 2001.
It would be pertinent to quote the Section 4 of the Act,
1947;
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“4. Exemptions
(1) This Act shall not apply to any premises belonging to
the Government or a local authority or apply as against the
Government to any tenancy or other like relationship
created by a grant from the Government in respect of
premises taken on lease or requisitioned by the Government
but it shall apply in respect of premises let to the
Government or a local authority (1A) This Act shall not
apply to-
(a) any premises constructed on or after the commencement
of the Bombay Rents, Hotel and Loaging House Rates
Control (Gujarat 2001 Second Amendment) Act,
(hereinafter referred to as "the amending Act);
(b) any existing premises which self-occupied by the owner
or vacant on or after the commencement of the amending
Act, and is let after such commencement for a period of ten
years from the date of the commencement of the amending
Act.
Explanation.-For the purpose of this section, "existing
premises" means any premises which exists on the date of
the commencement of the amending Act."
(2) The State Government may, by a notification in the
Official Gazette direct that all or any of the provisions of
this Act shall not, subject to such conditions and terms, as
may specify, apply;
(a) generally-
(i) to premises used for a public purpose of a charitable
nature or to any class of premises used for such purpose.
(ii) to premises held by a public trust for a religious or
charitable purpose;
(iii) to premises held by & public trust for a religious or
charitable purpose and administered by a local authority, or
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(iv) to premises vested by or under the Charitable
Endowment Act, 1890 (VI of 1890) in the treasurer of
Charitable Endowments for India or for any State, or
(v) to premises constructed or purchased out of Public Trust
Administration Fund established under Section 57 of the
Bombay Public Trust Act, 1950 (Bom. XXIX of 1950) and
vesting in the Charity Commissioner, or
(b) for special reasons to be recorded, to any particular
premises of the nature referred to in sub-clauses (i), (ii), (iii)
of Clause (a) Explanation:- or the purpose of this section
"public trust "means a Public Trust registered or deemed to
be registered under Bombay Public Trusts Act, 1950
(Bom.XXIX of 1950), or a wakfs registered or deemed to
be registered under Muslim wake Act, 1954 (XXXIX of
1954) •
( 3) The (State) Government may also by order direct that
all or any of the provisions of part III shall not apply to such
hostel or institution or such class of hostels or institutions,
subject to such terms and conditions, if any, as may be
specified in the order.
(4)(a) The Expression "premises belonging to Government
or & local authority" in sub-section (1) shall,
notwithstanding anything contained in the said sub-section
or in any judgment, decree or order of a court, not include a
building ereated on any land held by any person from the
'Government or a local authority under an agreement, lease
or other grant, although having regard to the provisions of
such agreement, lease or grant the building so erected may
belong or continue to belong to the Government or the local
authority, as the case may be; and
(b) Notwithstanding contained in Section anything15 such
person shall be entitled to create & tenancy in respect of
such building or part thereof whether before or after the
commencement of the Bombay Rents, Hotel and Lodging
House Rates Control (Amendment) Ordinance, 1959 (Bom.
Ord. II of 1959).”
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20. Thus, it becomes abundantly clear that when the appellants
instituted an application under Section 11(3) of the Rent Act
seeking fixation of standard rent, the very provisions of the Rent
Act had ceased to apply to the premises in question. The statutory
remedy invoked was, therefore, not available to the appellants in
law. The institution of such proceedings, in the absence of a
subsisting statutory foundation, amounts to a misconceived
invocation of jurisdiction, resulting in an exercise in futility and an
unwarranted consumption of judicial time, making it an abuse of
process of law. Thus, from all counts makes standard rent
application as irreparable suit, which discerned to be nipped at
threshold.
21. In this context, it would be apposite to refer to the decision of
the Hon’ble Supreme Court in Shipping Corporation of India Ltd.
v. Machado Brothers and Others, (2004) 11 SCC 168 , wherein the
Court, invoking the doctrine of ex debito justitiae , emphasised that
Courts are under an inherent obligation to act in furtherance of
justice and to prevent abuse of process. It was observed that, in
appropriate cases, the Court is duty-bound to bring an infructuous
or untenable litigation to an end by resorting to its inherent powers
under Section 151 of the Code. The relevant observations in
paragraphs 21 to 25 fortify the principle that judicial process ought
not to be permitted to degenerate into a tool for perpetuating
untenable claims or flogging a dead horse. Relevant paragraphs
reads as under:-
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“ 21. In the instant case, the appellant contends that during the
pendency of the first suit, certain subsequent events have taken
place which has made the first suit infructuous and in law the
said suit cannot be kept pending and continued solely for the
purpose of continuing an interim order made in the said suit.
22. While examining this question we will have to consider
whether the court can take cognizance of a subsequent event to
decide whether the pending suit should be disposed of or kept
alive. If so, can a defendant make an application under section
151 CPC for dismissing the pending suit on the ground, the said
suit has lost its cause of action. This Court in the case of
Pasupuleti Venkateswarlu V/s. The Motor & General Traders has
held thus:
"We feel the submissions devoid of substance. First about the jurisdiction and
propriety vis-a-vis circumstances which come into being subsequent to the
commencement of the proceedings. It is basic to our processual jurisprudence
that the right to relief must be judged to exist as on the date a suitor institutes
the legal proceeding. Equally clear is the principle that procedure is the
handmaid and not the mistress of the judicial process. If a fact, arising after the
lis has come to court and has a fundamental impact on the right to relief or the
manner of moulding it, is brought diligently to the notice of the tribunal, it
cannot blink at it or be blind to events which stultify or render inept the
decretal remedy. Equity justifies bending the rules of procedure, where no
specific provision or fair play is not violated, with a view to promote
substantial justice subject, of course, to the absence of other disentitling factors
or just circumstances. Nor can we contemplate any limitation on this power to
take note of updated facts to confine it to the trial court. If the litigation pends,
the power exists, absent other special circumstances repelling resort to that
course in law or justice. Rulings on this point are legion, even as situations for
applications of this equitable rule are myriad. We affirm the proposition that
for making the right or remedy claimed by the party just and meaningful as
also legally and factually in accord with the current realities, the court can,
and in many cases must, take cautious cognizance of events and developments
sub- sequent to the institution of the proceeding provided the rules of fairness
to both sides are scrupulously obeyed."
23. In the very same case, this Court quoted with approval a
Judgement of the Supreme Court of United States in Patterson v.
State of Alabama, wherein it was laid down thus:
"We have frequently held that in the exercise of our appellate jurisdiction we
have power not only to correct error in the Judgement under review but to
make such deposition of the case as justice requires. And in determining what
justice does require, the Court is bound to consider any change, either in fact
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or in law, which has supervened since the Judgement was entered."
24. Almost similar is the view taken by this Court in the case of
J.M.Biswas V/s. N.K. Bhattacharjee & Ors. wherein this Court
held:
"The dispute raised in the case has lost its relevance due to passage of time and
subsequent events which have taken place during the pendency of the litigation.
In the circumstances, continuing this litigation will be like flogging a dead
horse. Such litigation, irrespective of the result, will neither benefit the parties
in the litigation nor will serve the interests of the Union."
25. Thus it is clear that by the subsequent event if the original proceeding has
become infructuous, ex debito justitiae, it will be the duty of the court to take
such action as is necessary in the interest of justice which includes disposing of
infructuous litigation. For the said purpose it will be open to the parties
concerned to make an application under section 151 of CPC to bring to the
notice of the court the facts and circumstances which have made the pending
litigation infructuous. Of course, when such an application is made, the court
will enquire into the alleged facts and circumstances to find out whether the
pending litigation has in fact become infructuous or not.”
22. It is equally apposite to observe that Order VII Rule 11 of the
Code stands as a procedural sentinel guarding the portals of civil
justice. Its salutary object is to ensure that vexatious, meritless or
legally untenable proceedings are interdicted at the threshold. While
the provision must indeed be invoked with circumspection and
sensitivity towards genuine litigants raising bona fide disputes, the
Court cannot remain a mute spectator where the litigation is
demonstrably devoid of legal substratum. The power must,
therefore, be exercised with firmness where the pleadings ex facie
disclose no enforceable right. To fortify the view, let me take
assistance from the well famous judgment of the Hon’ble Apex
Court in case of T. Arivandandam v. T.V. Satyapal (1977) 4
SCC 467, wherein, in para 5 and 6, the Hon’ble Apex Court
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held as under:-
“5. We have not the slightest hesitation in
condemning the petitioner for the gross abuse of the
process of the court repeatedly and unrepentantly
resorted to. From the statement of the facts found in
the judgment of the High Court, it is perfectly plain
that the suit now pending before the First Munsifs
Court, Bangalore, is a flagrant misuse of the mercies
of the law in receiving plaints. The learned Munsif
must remember that if on a meaningful not formal
reading of the plaint it is manifestly vexatious, and
meritless, in the sense of not disclosing a clear right
to sue, he should exercise his power under Order 7,
Rule 11 CPC taking care to see that the ground
mentioned therein is fulfilled. And, if clever drafting
has created the illusion of a cause of action, nip it in
the bud at the first hearing by examining the party
searchingly under Order 10, CPC. An activist Judge is
the answer to irresponsible law suits.”
23. In view of the foregoing discussion and the reasons recorded
hereinabove, these Second Appeals are found to be bereft of merit
and do not give rise to any substantial question of law warranting
interference under Section 100 of the Code. The substantial
questions of law framed at the time of admission are answered
accordingly.
24. Consequently, all the Second Appeals, except Second Appeal
No. 80 of 2023 and Second Appeal No. 81 of 2023, stand
dismissed . Second Appeal No. 80 of 2023 and Second Appeal No.
81 of 2023 are found unworthy of admission and are, therefore,
dismissed in limine. No order as to costs.
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25. Interim relief, if any, stands discontinued forthwith.
26. Record and Proceedings, if any, be transmitted back to the
concerned Court below without delay.
27. The Registry is directed to place a copy of this judgment in
each of the connected matters.
(J. C. DOSHI,J)
MANISH MISHRA / SHEKHAR P. BARVE
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