LexMAGANLAL CHHOTALAL DESAI versus CHANDRAKANT MOTILAL
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
58
.\-IAGANLAL CHHOTALAL DESAI
v.
ClfAJ'ljlJRAKANT MOTILAL
April 22, 1968
A
'[R. S. BACllAWAT, J. M. SliELAT AND A. N. GROVIoR. JJ.]
B
IJ0111hny Rent.\', Jlotrl and Lodging Hous.~ Rents Control Act (57 of
1947), ~\". 12(1), 12(3) (b) and 20-Scope of-Overpnyme111 of re111-
~dju.\'f1JL'.:n1 agoinst rcnl due \Vltcn pennissible.
Cod(' of ('il·il Procedure (Act 5 of 1908), s. 115-Rc,•i.\ional jurisdic-
Jio11 of l/igli Court.
'fhe appcll:-int \\'as a tci1ant in the respondent's house on ~1 cnntractu;1I
rent of Rs . .100 per n1onth.
The respondent filed a suit cl;1iniing: possc-.-
sion on the ground of non-payn1cnt of rent and cl;,iin1cd arrc:irs of
rent
and mcsnc profits.
·1bc appellant filed his \vritten statcn1cnt, asking for
fixation of the ~:andarcl rent at Rs. 125 per month.
He nllcµ:cd that the
respondent had recovered more than the rent legitimately dtl\: ;:1nd pra;:c<l
for the dismissal of the suit.
He also filed a suit on 14th March 1957
claiming refund of rent paid between 14:h March 1950 and 4th Auw1st
1954 al the rate of Rs. 300 per month, hut he did not pay 1he standard
rent due from him from 4th August J954 nor was he ready and v.·illir..g,to
pay it.
'The trial court decreed the n:spoodent's suit for eviction. The
appell~ltc coun set aside the decree holding that the stantL:.ird rent v.·a'
Rs. 125 and directed the rc~pondcnt to render an account of the over
pay1nenls made to hin1.
Jn revi'\ion. the Hi,!!h Court accepted the findinf!
of the appellate court that the st;1nd:trd rent \\l:tS Rs. 125 hut set a10.idc the
·decree of the appellate court holdin_e that the rent \Vas in arrc:i.r from 4th
August J954 ;ind directed the appellant to pav nlcsnc profits :11 Rs. 125
per month.
In appeal to this Court it was contended that ( 1) the High Court had
no jurisd1ctil)fl. to intcrferi.:: \\'ith the decree of the appellate Court under
~. 115, Civil ProccJure Code; (2) ·n1e rent ~\las not in arrear and should
he treated 01-; paid hy adjustment or deduction of the ovcrpayrncn:s; and
<J)
the appellant
was
entitled to the
protection of s. J".!(1)
:ind
s. 12(3)(h) of the Bombov Rent<, Hotc! anti 1.od.c~n~ House RcnLs Con·
trol Act, 1947.
HEIJJ : ( 1) On the plead in.gs in the respondent's suit. the appellate
Court had acted illegally and \Vith n1aterial irregularity "as it had no Jr.'\ver
10 p;1ss a decree directing the rc.:;pondcnt to rendl!r an account in respect
.of any overpayment of rcn1 made to him.
Therefore. the High C-.ourt had
po\\·er to revi5c the decree. [61DJ
(2) Scclion 20 of the Act ,e.ivcs the tenant a general right to rccoverv
of O\'Crpai<l rent ,~·i.~hin 6 months from the date of payml'11f.
Ifc mav
:il'\o adjust the overpayment by deduction from any rent payahle hy hin1.
Rut if the amount is incar>ahlc of recovery hec:iusc of the b;1r of Jin1il:1tion.
it cannot be recovered hv deduction, .1hat is. the right of rceovefv
hv
(led11ction is barred at the ·,;in1c tin1e ;is the rir!lll of recovcrv hy suit. f62Dl
ln ~he prc,cn1 C;p.,c. lh~ riµht of recovery of the exCCS'\ rcJ): pai<l !~fore
4th Auwsi 1954 become barred on and after 4th Fehmarv 1955.
As
the clai'm for reco\'crv hccamc harrcd. the :1ppell:lnt could n.ot thereafter
odcducr ir frorn rhc renr f!lling due.
Since he never dccluct~<l ir fron1 the
•
•
c
D
E
F
G
•
11
-
-
MAGANLAL v. CHANDRAKANT (Bachawat, !.)
59
A
rent at any time, but filed 'a suit for its recovery, the overpayment could
not be deducted fron1 or adjusted against the, rent falling due after 4th
August 19'54. and therefore, the rent was in arrears. [63F-G]
Sohrab Tavaria v. Ja[ierali, 58 Born, L.R. 680, 687-88 and Karamsey
Kanji v. Velji Virji, 56 Born. L.R. 619, 626, approved.
Bayley v, Walker, [1925] l KB. 447, referred to.
B
(3) The appellant c'Ould not claim the protection of s.
12(1) or
s. 12(3) (h) of the Act, because, (a) he was never ready or willing to
pay the standard rent during the pendency of the suit, (b) he did not at
the first hearing of the, suit or on any other date fixed by the trial court
pay or tender the standard rent and (c) he did not
thereafter continue
to pay or deposit in Court such, rent till the suit was finally
decided
[63H; 64A-B]
C
Civ1L APPELLATE JURISDICTION : Civil Appeal No. 392 of
I)
F
H
1965.
Appeal by special leave from the judgment and order, dated
August 29, November 20, 1962 of the Gujarat High Court in
Civil Revision Application No. 456 of 1960. Excerpt shown. Read the full judgment & AI analysis in Lexace.