SANJAY RASIKLAL JOSHI vs ZAHIRUDDIN BADERALI TIRMIJI (SINCE DECEASED THRU' LEGAL HEIRS)
- Court
- Gujarat High Court
C/FA/2252/2013 JUDGMENT DATED: 15/10/2026
(GJHC240396712013)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2252 of 2013
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2022
In R/FIRST APPEAL NO. 2252 of 2013
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2026
In R/FIRST APPEAL NO. 2252 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
===============================================================
Approved for Reporting Yes No
==========================================================
SANJAY RASIKLAL JOSHI
Versus
ZAHIRUDDIN BADERALI TIRMIJI (SINCE DECEASED THRU' LEGAL
HEIRS) & ORS.
===============================================================
Appearance:
MR.SUBHASH G BAROT(2619) for the Appellant(s) No. 1
MR NV GANDHI(1693) for the Defendant(s) No. 1,1.1,1.2,1.3
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CORAM: HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
Date : 15/10/2026
JUDGMENT
1. The captioned appeal is filed against the impugned
judgment and decree dated 18.06.2013 passed by the learned
Judge, City Civil Court No.12 in Civil Suit (CCC) No.2412 of 2009,
whereby the learned trial Court has partly decreed the suit of the
plaintiff and directed the defendant to handover the peaceful
and vacant possession of the suit premises to the plaintiff, and
also directed to pay the rent/mesne profit. The parties herein are
referred as their original status before the learned trial Court.
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2. Succinct facts leading to filing the appeal are that the
plaintiff instituted the suit for recovery of possession as well
arrears of rent and mesne profit on the averments that the
plaintiff possessed the property being Shop No.LL-31 situated in
Mahapratap Centre, behind V.S. Hospital, opp. Ellis bridge Post
Office, Ahmedabad (hereinafter referred to as "suit premises" for
short). It is the case of the plaintiff that the plaintiff and the
defendant entered into partnership a on 1-4-1999 and started
business under the name and style of A-One Medical Stores,
wherein the plaintiff has invested huge amount. The said
business partnership continued till 31-3-2004 and thereafter,
with the consent of the plaintiff and the defendant, the
partnership was dissolved and it was also agreed upon between
the parties that the the defendant to retain the shop and settled
the accounts which was yet to be settled at relevant time and the
defendant, accordingly settled the accounts and dissolution of
partnership was executed.
2.1 The defendant owed Rs.21,78,791/- to the plaintiff and the
plaintiff has also called upon the defendant to pay the aforesaid
amount by way of issuing demand notice through the Chartered
Accountant on 08.04.2009. As agreed upon between the parties
to the suit, the defendant was assigned with proprietorship right
of A-One Medical Stores with all movables and the property of
the firm (except suit property) including the dues of stock in
trade from 01.04.2004. Though the plaintiff being the owner of
the suit premises, the defendant assigned only the
proprietorship right of the firm, namely, A-One Medical Store and
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had to vacate the suit premises, but due to unavailability and
scarcity of the premises in the same complex, the defendant
sought time from the plaintiff and accordingly the plaintiff
considered the same and it was agreed upon between the parties
to the suit that the defendant to pay the amount of Rs.10,000/-
per month from 04.04.2004, including the liability of the
defendant to pay and bear the municipal maintenance
educational tax, expenditures cess and the and defendant
assured and admitted the same and accordingly the defendant
retained the possession till 31.03.2006 and paid the amount of
rent of Rs.10,000/- per month. However, thereafter the amount
of enhanced from Rs.10,000/- to Rs.22,400/-. The defendant
further sought time to handover the possession to the plaintiff
and accordingly the plaintiff permitted the defendant to use the
premises from 01.04.2007 to 31.03.2008 and further amount of
rent was enhanced to Rs.24,500/- and on the expiry of the
aforesaid period again the defendant has sought time for one
year from 01.04-2008 to 31.03.2009 subject to enhancement of
the amount of rent of Rs.27,000/-. It was agreed upon between
the parties that no further extension would be granted to the
defendant and the defendant had to leave and vacate the
premises. Thus, the defendant has been inducted in the premises
on the basis of the partnership deed and after dissolution
thereof continued in the possession of the premises in capacity
of tenant subject to enhancement of rent as agreed upon
between the parties. The defendant has paid the rent upto
31.01.2009 and rent from 01.02.2009 at rate the of Rs.27,000/- is
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due and despite several demands made by the plaintiff, the
defendant under the pretext of one or another reason passed
the time and succeeded in avoiding legitimate dues of per as the
case of the plaintiff. Thus, the amount of Rs.1,08,000/- for the
period from 01.02.2009 to 31.05.2009 is due and recoverable
from the defendant and against the said amount, the defendant
has sent certificate after getting the amount Rs.27,810/-
deducted and accordingly the amount TDS of of Rs.80190/- is due
and payable by the defendant. During the aforesaid period, the
defendant has obtained alternative accommodation being Shop
Bearing L-24 and at present the defendant has been carrying on
the business under the name and style of Vadilal Medical Stores
in the name of his wife. Thus, as per the case of the plaintiff, the
defendant has assured and undertook to handover the
possession on expiry of the period i.e. on 31.03.2009. Despite the
aforesaid fact and instead of the possession of the plaintiff after
expiry of the aforesaid period, defendant rushed to the Court
way by instituting Civil Suit No.717 of 717 of 2009 against the
plaintiff and obtained ex-parte injunction by playing mischief and
misleading the court, though the interim injunction granted in
favour of the defendant came to be vacated. Thus, in view of the
aforesaid facts, the defendant has not handed over the
possession of the suit premises to the plaintiff as assured and
agreed upon between the parties to the suit. On the contrary,
even after getting the alternative accommodation and instead of
handing over the possession, the defendant continuously
retained the possession of the suit premises unlawfully and filed
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the said suit.
3. Having been served with the summons of the suit, the
defendant filed written statement at Exh.14, inter alia, resisting
the suit and mainly disputed the amount of rent which as per the
case of the defendant is Rs.10,000/- instead of the enhanced
amount of Rs.27,000/-. It is denied by the defendant that the
plaintiff having made huge investment in the partnership firm. It
is further denied that the defendant owed the amount of Rs.
21,78,791/- as averred by the plaintiff. On the contrary, the
defendant has raised the objections that several entries in
statements of accounts have been got up in collusion and
concoction with the Chartered Accountant of the firm and the
defendant having no liability as claimed by the plaintiff. Further,
the suit premises retained by the defendant is on the basis of
permanent tenancy right and it was agreed upon between the
parties to the suit that as soon as the accounts of the firm being
settled, the plaintiff would execute the rent note in the nature of
permanent tenancy right being assigned to the defendant of the
suit premises and till then the defendant has to pay the amount
of Rs.10,000/- per month towards the rent.
4. Having considered the pleadings and documents of the
parties, the learned trial Court had framed the following issues at
Exh.36.
1. Whether the plaintiff proves that the property in
question was let out to the defendant from 1-4-2004 for
temporary period?
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2. Whether the plaintiff proves that he is entitled to
recover the peaceful and vacant possession of the property
in question?
3. Whether the plaintiff proves that he is entitled to
recover the arrear from the defendant as sought for?
4. Whether the defendant proves that the defendant has
been inducted in the property in question on the basis of
partnership deed executed between the parties to the suit?
5. Whether the defendant proves that after the dissolution
of the said partnership firm, the property in question was
let out to the defendant on permanent basis on the
payment of rent of Rs.10,000/- per month?
6. Whether the plaintiff is entitled to relief as prayed
against the defendant? the
7. Whether the suit of the plaintiff fails for deficit court fee
stamp?
8. Whether the suit is barred by law of limitation?
9. Whether this court has jurisdiction?
10. What order and decree?
5. Having considered the pleadings, oral as well as
documentary evidence and the submission canvassed by learned
counsel for the parties, the trial Court has returned the following
findings on the aforesaid issues:-
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1. In affirmative
2. In affirmative
3. In affirmative
4. In affirmative
5. In negative
6. In partly affirmative
7. In negative
8. In negative
9. In affirmative
10. As per final order
6. In order to prove their respective case, the plaintiff has
produced following oral evidence.
:-Oral evidence:-
No. Particular Exhibit
1. Affidavit in examination-in-chief of plaintiff-
Zahiruddin Badarali Tirmiji and cross-
examination.
53
6.1 In support of the case, the plaintiff has led the following:-
No. Particular Exhibit
1. The partnership deed dated 27.04.1999
executed between the plaintiff and the
defendant.
39
2. Certified copy of summons dated
20.08.2009 in Civil Suit No.1650/09 filed by
the present defendant against the plaintiff.
40
3. Copy of the Summons dated 08.04.2000 in
Civil Suit No.717/09 filed by the present
41
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defendant against the plaintiff.
4. Copy of the list appended with the
documents filed by the present defendant in
the proceedings in Civil Suit No.717/09,
particularly, the documents produced at Sr.
No.3 being the extract of the account. falls
under the head of rent expenses
68
5. Copy of service of interim order dated
08.04.2009 passed in Civil Suit No.717/09.
42
6. Copy of show-cause notice dt.8-4-09 45
7. Rectified notice of notice produced at
Exh.45 issued by the plaintiff to the
defendant on 27-4-2009
46
8. TDS Certificate dtd.15-6-07, TDS Certificate
dated 31-5-08 and TDS Certificate dated 12-
6-09 respectively
47, 48 and 49
9. Copy of the plaint in Civil Suit No.717 of
2009.
61
10. Copy of the list dated 07.4.2009 produced in
Civil Suit No.717 of 2009.
62
11. Copy of the plaint of Civil Suit No.1650 of
2009 filed by the present defendant against
the plaintiff.
63
12 Copy of the documents and the list thereof
produced in Civil Suit No.1650 of 2009.
64
7. Vide judgment and decree dated 18.06.2013, the learned
trial Court decreed the suit of the plaintiff partly. Being
aggrieved and dissatisfied with the impugned judgment and
decree, the original defendant challenged the impugned
judgment and decree before this Court by way of preferring
captioned appeal.
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8. Heard learned counsels for both the parties.
9. Mr. Subhash Barot, learned counsel appearing on behalf of
original defendant-appellant herein vehemently submitted that
the judgment and decree passed by the Court having no inherent
jurisdiction. To deal with the controversy involved in the present
case, he submitted that the suit before the City Civil Court,
Ahmedabad is not maintainable in view of Section 28 of the
Gujarat Rents, Hotel and Lodging House Rates Control Act, 1947
(hereafter called and referred as Rent Act”) He submitted that
the learned trial Court ought to have rejected the plaint on this
mere ground. However, the learned trial Court has returned the
findings under issue No.9 in affirmative. He submitted that the
finding returned by the learned trial Court is not sustainable. The
judgment and decree passed by the Court is without jurisdiction,
hence is of nullity. In support of his contention, learned counsel
for the defendant-appellant has placed reliance upon the
judgment rendered by the Apex Court in case of Sushil Kumar
Mehta v/s. Gobind Ram, Bohra (dead) through his LRS.,
reported in (1990) 1 SCC 193 .
10. Learned counsel for the defendant-appellant further
submitted that the learned trial Court has not permitted
defendant/appellant to led the evidence on record though no
formal order for striking of the defence of the defendant was
passed. He submitted that the plaintiff has filed an application
below Exh.17 for seeking direction against the defendant to pay
the arrears of rent. The defendant has filed the reply to that
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application below Exh.20, wherein the defendant has clearly
stated that the monthly rent was Rs.10,000/-. He submitted that
the defendant has nowhere admitted that the rent of the
premises was enhanced from Rs.10,000/- to Rs.27,000/-. He
submitted that the order below Exh.17 was challenged before
High Court by way of preferring an appeal being Appeal from
Order No.162 of 2011. In the said appeal, on the basis of
consensus arrived at between the learned counsels for the
respective parties, direction was issued to the learned trial Court
to expedite the matter. He submitted that in view of order
passed by the learned trial Court below Exh.17, the defendant
was directed to clear the arrears of rent, failing which the
defence would be struck down. However, no specific order was
passed by the learned trial Court for striking of the defence of
the defendant. In absence of any order for striking of defence,
learned trial Court ought to have taken the documents filed by
the appellant-defendant alongwith the application below Exh.
57. He submitted that the appellant-defendant was not given fair
chance to lead his evidence and therefore, the order was passed
without affording the opportunity to the defendant to lead the
evidence on record, is hit by the principle of natural justice.
11. Learned counsel for the defendant further submitted that
the plaintiff could not prove that the rent was Rs.27,000/- per
month. The learned trial Court ought to have fixed the standard
rent before passing the judgment. The learned trial Court
presumed that the rent of the suit premises was enhanced to
Rs.27,000/- and therefore, the learned trial Court has passed the
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judgment and decree, thereby assessing the mesne profit at the
rate of Rs.30,000/- per month without any evidence and
therefore, finding returned by the learned trial Court on that
issue, is liable to be reversed.
12. Per contra, learned advocate Mr. N.V.Gandhi, appearing on
behalf of plaintiff vehemently submitted that the learned trial
Court has the jurisdiction to try and adjudicate the suit of the
plaintiff. He submitted that in view of provisions of Section 4 of
the Rent Act, the Rent Act would not apply to the suit premises.
Learned counsel for the plaintiff further submitted that the
defendant himself instituted two suits against the plaintiff, i.e.
Civil Suit No.717 of 2009 and Civil Suit No.1650 of 2009 in the
City Civil Court, Ahmedabad in respect of the suit premises. He
further submitted that the learned trial Court has not committed
any error in deciding issued No.9 in favour of the plaintiff. In
support of his contention, leaned counsel for the plaintiff has
placed reliance upon the judgment rendered by the Co-ordinate
Bench of this Court in Second Appeal No.171 of 2013. Having
placed reliance upon the ratio of the judgment rendered by the
Co-ordinate Bench in the aforesaid appeal, learned counsel for
the plaintiff submitted that the finding returned by the learned
trial Court on issue No.9, is sustainable.
13. Learned counsel for the plaintiff further submitted that
insofar as striking of the defence is concerned, the plaintiff has
filed an application below Exh.17 for seeking direction against
the defendant for clearing the arrears of rent. The said
application was allowed by the learned trial Court vide order
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dated 09.03.2011. The said order was carried by the defendant in
appeal. The said appeal was decided by this Court vide order
dated 09.05.2011, thereby confirming the order of the learned
trial Court. He further submitted that despite the specific
direction by the learned trial Court as well as by High Court in
Appeal from Order No.162 of 2011, the defendant had not
cleared the arrears of rent. Thereafter, the defendant has
preferred an application below Exh.57 for seeking permission to
place certain documents on record. The said application was
allowed, subject to payment of arrears of rent. The said order
was also not complied with. The order passed below Exh. 17 as
well as in the Appeal from Order were very clear on that aspect
that in the event of non-compliance of orders, the defence would
be struck down. Thus, the learned trial Court has not committed
any error.
14. Learned counsel for the plaintiff further submitted that
initially the rent was Rs.10,000/- per month and thereafter, it was
enhanced from time to time and lastly before instituting of the
suit, it was Rs.27,000/- per month. He submitted that the
defendant himself deducted the TDS considering the monthly
rent at Rs.27,000/- per month and therefore, the plaintiff now
would not be permitted to say contrary, more particularly, when
the TDS was deducted considering the rent at Rs.27,000/- per
month. He submitted that the TDS certificates issued by the
defendant to the plaintiff have also been proved at Exh.47, 48
and 49. Thus, it was proved on record that the monthly rent at
the time of filing the suit was Rs.27,000/- per month and
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therefore, the learned trial Court has rightly assessed the mesne
profit at Rs.30,000/- per month. As such, learned counsel for the
plaintiff submitted that the captioned appeal is devoid of merits
and hence, liable to be dismissed.
15. Having considered the submissions of the learned counsels
for the parties and having gone through the record, it is to be
noted that the original defendant had challenged the impugned
judgment and decree dated 18.06.2013 on the ground of
jurisdiction, striking off defense and the mesne profit awarded
by the learned trial Court. In view of the submissions of learned
counsel for the parties, the following points are framed for
determination:-
I. Whether the learned trial Court has the inherent
jurisdiction to try and adjudicate the suit?
II. Whether the defence of the defendant was struck down
rightly?
III. Whether the learned trial Court has rightly assessed the
mesne profit at the rate of Rs.30,000/- per month?
16. It is the case of the plaintiff that the plaintiff and defendant
had started the business of medicines in partnership under the
name and style of A-one Medical Stores at the suit premises. The
suit premises belonged to plaintiff. The deed of partnership was
also executed and the same has been proved at Exh.39 on record.
They commenced the business w.e.f. 01.04.1999. The said
business was continued till 31.03.2004 and thereafter, the
partnership was dissolved and defendant started the very same
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business of medicines under the name and style of A-one Medical
Stores w.e.f. 01.04.2004. With effect from 01.04.2004, the shop
was let out to the defendant at the monthly rent of Rs.10,000/-.
The factum of entering into partnership, carrying on business in
partnership and discontinuation of business of partnership had
also been admitted by the defendant in the written statement at
Exh.14. It has also been admitted by the defendant that w.e.f.
01.04.2004, the said shop was let out to the defendant by the
plaintiff at the monthly rent of Rs.10,000/-, but no formal rent
agreement was executed between the parties. The plaintiff has
also filed his affidavit at Exh.53 alongwith line of pleadings. Thus,
the relationship of owner and tenant between the parties is the
admitted fact. It is also not in dispute that the property is
situated in the City of Ahmedabad. Now, in this facts and
circumstances, as to whether the City Civil Court has jurisdiction
to entertain the suit of the plaintiff? Learned counsel for the
defendant has placed reliance upon the provisions of Section 28
of the Act, which reads as under:-
“ 28. Jurisdiction of Courts - [(1)] Notwithstanding anything contained
in any law and notwithstanding that by reason of the amount of the
claim or for any other reason, the suit or proceeding would not, but for
this provision, be within its jurisdiction-
[(a) in the City of Ahmedabad, the Court of Small Causes of
Ahmedabad.]
[(aa) in any area for which a Court of Small Causes is established under
the Provincial Small Cause Courts Act, 1887, (IX of 1887) such Court,
and]
(b) This clause was inserted by Bombay 58 of 1949, section 4 (2).]
(b)elsewhere, the Court, of the Civil Judge (Junior Division) having
jurisdiction in the area in which the premises are situate or, if there is no
such Civil Judge, the Court of the Civil Judge (Senior Division) having
ordinary jurisdiction, shall have jurisdiction to entertain and try any suit
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or proceeding between a landlord and a tenant relating to the recovery
of rent or possession of any premises to which any of the provisions of
this part apply and to decide any application made under this Act and to
deal with any claim or question arising out of this Act or any of its
provisions and [subject to the provisions of sub-section (2)] [This portion
was inserted by Bombay 15 of 1952, section 2(2).], no other Court shall
have jurisdiction to entertain any such suit, proceeding or application or
to deal with such claim or question.
[(2) (a) Notwithstanding anything contained in clause (aa) of sub-section
(1) District Court may at any stage withdraw any such suit, proceeding
or application pending in a Court of Small Causes established for any
area under the Provincial Small Cause Courts Act, 1887 (IX of 1887) and
transfer the same for trial or disposal to the Court of the Civil Judge
(Senior Division) having ordinary jurisdiction in such area.]
(b) When any suit, proceeding or application has been withdrawn under
clause (a), the Court of the Civil Judge (Senior Division) which thereafter
tries such suit, proceeding or application, as the case may be, may either
retry it or proceed from the stage at which it was withdrawn.
(c)The Court of the Civil Judge trying any suit, proceeding or application
withdrawn under clause (a) from the Court of Small Causes, shall, for
purposes of such suit, proceeding or application, as the case may be,
deemed to be the Court of Small Causes.]
Explanation.-In this section "proceeding" does not include an execution
proceeding arising out of a decree passed before the coming into
operation of this Act.”
16.1 The Section starts with non-obstante clause and prima-
facie, confers jurisdiction upon the Court of Small Causes,
Ahmedabad, but at the same time, the provisions of Section 4
which provides exemptions for certain premises are also looked
into. Section 4 reads as under:-
“ 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 grant
from the Government in respect of premises taken on lease or
requisition by the Government; but it shall apply in respect of premises
let to the Government or a local authority.
[(1-A) This Act shall not apply to,-
(a) any premises constructed on or after the commencement of the
Bombay Rents, Hotel and Lodging House Rents Control (Gujarat Second
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Amendment) Act, 2001 (Gujarat 27 of 2001) (Hereinafter referred to as
"the amending Act");
(b) any existing premises which is self-occupied by the owner or vacant
on or after the commencement of the amending Act, and is let after
such commencement;
Explanation. - For the purpose of this section "existing premises" means
any premises which exists on the date of commencement of the
amending Act.
(2) [The State] [may, by a notification in the Official Gazetted direct]
that all or any of the provisions of this Act [shall not, subject to such
conditions and terms] as it may specify, [apply,- (
( a) generally :](i)[ to premises used for a public purpose of a charitable
nature or 4 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 a public trust for a religious or charitable purpose
and administered by [a local authority] or
(iv) to premises vested by or under the Charitable Endowments 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 the Public Trusts
Administration Fund established under Section 57 of the Bombay Public
Trusts Act, 1950 (Bombay 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) or (iii) of clause (a).]
[Explanation. - For the purpose of this section " public trust" means a
public trust registered or deemed to be registered under the Bombay
Public Trusts Act, 1950 (Bom XXIX of 1950) or a wakf registered or
deemed to be registered under the Muslim Wakfs Act, 1954. (XXIX 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 the Government or a 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,erected on any land held by any person from the
Government or 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
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(b) Notwithstanding anything contained in Section 15 such person "shall
be entitled to create a tenancy in respect of such building or a part
thereof [whether before or after the commencement of the Bombay
Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance,
1959], (Bombay Ordinance No. Ill of 1959.)]”.
17. By amendment, Section 1A was inserted by Gujarat
Amendment Act, 2001 (Gujarat 27 of 2001), w.e.f. 05.09.2001. As
per the amendment, the Act shall not apply to the premises
which falls under Section 4(1-A)(a)(b). In the present case, it is not
in dispute that the premises was constructed prior to 2001 as the
business in the very same premises was started in the year 1999
and therefore, there is no dispute that the premises existed on
the date when the amendment came into force. Thus, in view of
the factual position, Clause 4(1-A)(b) would come into play. As
per clause (b), the twin condition must be fulfilled to claim the
exemption from the Act, firstly, either the premises self
occupied by the owner or vacant on or after the commencement
of the amending Act and secondly, the premises was let out after
the commencement of amended Act i.e. which came into force on
05.09.2001. It is not in dispute that the premises is owned by the
plaintiff. It is also not in dispute that the plaintiff and defendant
had started the business of medicines under the name and style
of M/s. A-One Medical Stores. The partnership deed proved on
record at Exh.39. The terms and condition No.2 of partnership
deed goes to show that the place of business for carrying on the
business under the name and style of A-one Medical Stores was
the suit property. In condition No.5, it is specifically mentioned
that the place of business is owned by the plaintiff and the
plaintiff has all the rights, title and the possession of the
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property and the defendant would not claim any right, title or
share in the property. Though the business of the partnership
was carried out from the suit premises, but all the rights i.e. right,
title and possession remained with the plaintiff. Thus, the first
condition of of Clause-(b) of Section 4 is fulfilled, as the property
was self occupied by the owner as per specific clause of
partnership.
18. Insofar as second condition i.e. the premises was let out
after the commencement of the amendment is concerned, it is
the specific case of the plaintiff that the property was let out
w.e.f. 01.04.2004. This fact was also admitted by the defendant in
the written statement and therefore, the case of the plaintiff
falls within the ambit of Clause Clause 4(1-A)(b). Therefore, the
provisions of Section Section 28 of the would not apply. Hence,
Rent Act is not applicable to the suit property though the
property situated within the City of Ahmedabad. Learned counsel
for the defendant has placed the reliance upon the judgment
rendered by the Apex Court in Sushil Kumar Mehta ( supra ),
wherein the Apex Court has observed in para-27 as under:-
“27. In the light of this position in law the question for
determination is whether the impugned decree of the Civil
Court can be assailed by the appellant in execution. It is
already held that it is the Controller under the Act that has
exclusive jurisdiction to order ejectment of a tenant from a
building in the urban area leased out by the landlord. Thereby
the Civil Court inherently lacks jurisdiction to entertain the
suit and pass a decree of ejectment. Therefore, though the
decree was passed and the jurisdiction of the Court was gone
into in issue Nos. 4 and 5 at the ex-parte trial, the decree
there- under is a nullity, and does not bind the appellant.
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There- fore, it does not operate as a res judicata. The Courts
below have committed grave error of law in holding that the
decree in the suit operated as res judicata and the appellant
cannot raise the same point once again at the execution.”
The ratio of the aforesaid judgement is not applicable in
the facts and circumstances of the case, therefore, the
contention raised by the learned counsel for the defendant is not
sustainable, hence rejected. So, the first point for determination
is answered accordingly.
19. Insofar as the second contention raised by learned counsel
for the appellant/defendant that no specific order for striking off
the defence was passed by the learned trial Court, and in absence
of order, the learned trial Court ought to have permitted the
defendant to lead the evidence is concerned, the order passed by
the learned trial Court is required to be scanned.
20. The original plaintiff had filed an application below Eh.17
before the learned trial Court, thereby seeking direction against
the defendant to clear the arrears of rent. The defendant had
also filed reply to the said application at Exh.20. Having
considered the submissions of learned counsel for the parties,
the learned trial Court vide order dated 09.03.2011, decided the
application and passed following order: -
“The defendant is directed hereby to pay Rs.80,190/-
from 1.2.2009 to 31.5.2009 and the defendant is further
directed to pay Rs.27,000/-per month from 1.6.2009 till the
date of the filing of the suit. The defendant is further directed
to the pay rent amount regularly at rate of Rs.27,000/- from
the date of the filing of the suit till final disposal of the suit
regularly. The defendant shall pay the aforesaid amount
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within two months from the date of this order. For
noncompliance of the order, the defence of the defendants
will be struck off.”
21. The said order was carried to the High Court by way of
preferring an Appeal from Order, which came to be disposed of
vide oral order dated 09.05.2011, whereby the High Court has
observed as under:-
“4. In view of the above broad consensus between the learned
advocates appearing on behalf of the respective parties, the
present Appeal from Order is disposed of and the impugned
order dated 09/03/2011 passed by learned Judge of the City
Civil Court, Ahmedabad is hereby confirmed with further
direction that the respondent herein–original plaintiff shall
furnish security before the learned Trial Court for an amount
of Rs.7,00,000/- to the satisfaction of the Trial Court within a
period of four weeks from today and on furnishing such a
security, respondent herein - original plaintiff shall be
permitted to withdraw the amount, which is to be deposited
by the appellant herein–original defendant, pursuant to the
impugned order passed by the Trial Court. It is clarified that
original plaintiff is not required to furnish the security on
balance amount of Rs.10,000/- per month as the said amount
is admitted by the appellant herein – original defendant.
It goes without saying that if the amount as directed by
the Trial Court is not deposited by the appellant herein –
original defendant, necessary consequences pursuant to the
same shall be followed. The Trial Court is directed to decide
and dispose of Civil Suit No.2412/2009 at the earliest and
preferably on or before 31/12/2013. All concerned are
directed to co-operate the Trial Court to decide and dispose of
the aforesaid Civil Suit within stipulated time, as stated
hereinabove.”
22. The scanning of the order passed by the learned trial Court
as well as the order passed by the High Court would clearly
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depicts that the direction issued by the learned trial Court
regarding depositing of arrears of rent, is confirmed by the High
Court. The High Court further observed that if the amount as
directed by the learned trial Court is not deposited by the
defendant, then necessary consequences pursuant to the same
shall be followed. Meaning thereby, the natural consequences for
non-depositing the arrears of rent within stipulated period would
be the striking off the defence of the defendant. It is not in
dispute that the arrears of rent was not deposited by the
defendant during the pendency of the suit. It also emerges from
the record that the defendant had filed an application below
Exh.57, thereby seeking permission to place certain documents
on record. In the said application, the defendant in para-2 himself
admitted that the defence of the defendant has been struck off.
The said application was disposed of by the learned trial Court
vide order dated 16.02.2013, wherein the learned trial Court
again granted time to comply with the order for depositing of
rent, but despite this fact, the order was not complied with. It
was well within the knowledge of the defendant that what would
be the consequence of non-compliance of the order passed by
the learned trial Court below Exh.17. The said fact was himself
admitted by the defendant in para-2 of the application below
Exh.57. Despite the order of the learned trial Court as well as the
order of the High Court, the defendant had not deposited the
arrears of rent before the learned trial Court. Therefore, the
learned trial Court has rightly not permitted the defendant to
lead evidence however, it emerges from the record that the
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defendant was granted permission to cross-examine the plaintiff
as well as to argue the matter before the learned trial Court.
Therefore, the contention raised by the learned counsel for the
defendant that the formal order for striking off the defense was
not passed, is not sustainable and hence, rejected. Thus, the
second point of determination is answered accordingly.
23. Insofar as the contention of the learned counsel for the
defendant that the learned trial Court had passed the order of
awarding mesne profit at the rate of Rs.30,000/- per month
without any evidence on record. He also argued that even it has
not been proved on record that the monthly rent of the suit
premises was Rs.27,000/-. It emerges from the record that the
plaintiff has proved the TDS certificate dated 15.06.2007,
31.05.2008 and 12.06.2009 respectively at Exh.47, 48 and 49.
These certificates were issued by the defendant himself to the
plaintiff. It emerges from these documents that the defendant
had deducted the TDS considering the monthly rent at
Rs.10,000/- for the period 01.04.2005 to 31.03.2006 and
thereafter, deducted the TDS considering the monthly rent at
Rs.24,500/- from 01.04.2007 to 31.03.2008 and thereafter, the
defendant has deducted the amount of TDS considering the
monthly rent at Rs.27,000/-. Thus, from Exhs. 47, 48 and 49 i.e.
TDS certificates would clearly go to show that the last rent as
proved on record was Rs.27,000/- per month. These certificates
were issued by the defendant himself and therefore, now the
defendant cannot take a plea that the monthly rent was not
Rs.27,000/- from 01.04.2008 and thereafter. In view of the
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documentary evidence, the learned trial Court has not committed
any error in holding that the monthly rent was Rs.27,000/- w.e.f.
01.04.2008, but it also emerges that the plaintiff has not led any
evidence on mesne profit. The learned trial Court has assessed
mesne profit at Rs.30,000/- per month without any evidence.
Considering the material on record and in absence of evidence on
record, the learned trial Court has committed error in assessing
mesne profit at the rate of Rs.30,000/- per month. Therefore, the
impugned judgment and decree is modified to that extent and
the mesne profit is assessed on the basis of last rent i.e.
Rs.27,000/-. The third point of determination is answered
accordingly.
24. Thus, in view of the above discussion, the appeal is partly
allowed to the aforesaid extent. The impugned judgment and
decree is partly modified to the extend that mesne profit is
reduced from Rs.30,000/- to Rs.27,000/-. The remaining portion
of the impugned judgment and decree shall remain unaltered.
Decree be drawn accordingly. Rule is made absolute to the
aforesaid extent. Record and Proceedings be sent back
forthwith.
25. In view of the order passed in the main appeal, no orders
are required to be passed in connected Civil Applications. Hence,
the same stand disposed of accordingly.
(MOOL CHAND TYAGI, J)
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Further order:-
At this stage, learned counsel appearing on behalf of the
appellant/original defendant prays for stay of operation of the
order/judgment passed today for 90 days to enable him to
challenge the order/judgment. The Court finds no substance in
the submission of learned counsel for the appellant/defendant
and hence, the prayer is hereby rejected.
(MOOL CHAND TYAGI, J)
SIDDHARTH
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