Mohd. Ismail S/O Mohd. Isaque vs Rmohd. Asad S/O Mohd. Akbar
2016 Latest Caselaw 1471 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH, NAGPUR.




                                                    
                          WRIT PETITION     No. 4062 OF 2014




                                                   
    Mohd. Ismail s/o Mohd. Isaque,
    aged about 62 years,
    Occupation : Business,




                                          
    r/o House No. 489, New Bazar Complex,
    Near J & K Bank, Golchha Marg,
    Sadar, Nagpur.              ig                      .... PETITIONER.


                              VERSUS
                              
    Mohd. Asad s/o Mohd. Akbar,
    aged about 35 years,
    Occupation : Business,
      


    r/o Shop No.1, New Bazar Complex,
    Near J & K Bank, Golchha Marg,
   



    Sadar, Nagpur.                                        ....  RESPONDENT.


                                     ....





    Shri R.S. Akbani Advocate for the Petitioner.
    Shri A.B. Shende Advocate for the Respondent.
                                     .....


                                       CORAM : S.B. SHUKRE, J.

DATED : 13.04.2016.

ORAL JUDGMENT :

Rule. Rule made returnable forthwith. Heard finally

by consent of parties.

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2. By this writ petition, the petitioner has challenged the

judgment and order dated 01.10.2013 passed by District Judge-14,

Nagpur, thereby reducing the rent fixed by the trial Court from

Rs.2000/- per month to Rs.1500/- per month for the rented

premises. Learned counsel for the petitioner submits that the

appeal field under Section 96 of Code of Civil Procedure itself was

not maintainable as Section 34 of the Maharashtra Rent Control

Act, 1999 provides a clear cut bar of filing appeal against the

order of fixation of standard rent. The argument is not

acceptable to the learned counsel for the respondent who states

that basically in the application filed for permitting increase in the

rent under Section 8(2) of the Rent Control Act, the appeal is

tenable under Section 34(1)(b) of the Rent Control Act.

3. Upon seeing the application filed by the petitioner it

can be seen from the tenor of the application that the application

was basically for grant of permitted increase in the rent and,

therefore, would have to be treated as filed under Section 8 of the

said Act. Therefore, by virtue of Section 34(1)(b) of the said Act

the appeal filed before the District Court is tenable. Of course, the

appeal has been registered as filed under Section 96 of the Code of

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Civil Procedure, but such incorrect registration of the appeal would

not render the appeal as non-maintainable, when there is a

specific provision of law creating right of appeal. Therefore, I see

no substance in the argument that the appeal itself was not

maintainable.

4. On merits of the case, learned counsel for the

petitioner submits that it is well settled law that the learned

District Judge while deciding the appeal, which is filed on law and

facts, cannot substitute the view of the trial Court only because he

comes to a conclusion that if he were a trial Court he could have

taken a different view. He also submits that the view taken in

the impugned order passed by the learned District Judge is not

based upon the evidence available on record. In order to support

the submission, learned counsel has taken me through the

judgment of the trial Court as well as the judgment passed by the

learned District Judge.

5. On perusal of both these judgments, however and as

rightly submitted by learned counsel for the respondent, I find that

it is the view taken by the trial Court and not by the District Judge

which is not completely based upon the facts established on

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record. In paragraph no. 20 of the trial Court's judgment, one

admitted fact has been reproduced and it is to the effect that the

other tenants are paying rent at 1500/- per month for the same

area as the area under occupation by the respondent. Even then

the trial Court has found that an amount of Rs.2000/- per month

would be just and reasonable licence-fee and accordingly declared

it to be the fair rent. This has been properly considered by the

learned District Judge who has found that the said finding is not in

accordance with the facts established on record. The trial Court

has not given any reason as to why in spite of the fact that the

other tenants are paying monthly rent of Rs.1500/-, this

particular tenant, i.e. the respondent, is liable to pay Rs.2000/- as

monthly rent. This is all the more so when we consider other

evidence available on record. This evidence discloses that the

rented premises are not being maintained in proper condition by

the petitioner and that there has been disconnection of water

supply. All these facts cumulatively would show that the

conclusions recorded by the first appellate Court are in

accordance with the evidence available on record and that the

findings of the trial Court are not consistent with the record of the

case and, therefore, in exercise of writ jurisdiction under Article

227 of Constitution of India, it would not be possible for this Court

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to view the order impugned herein as perverse or illegal or

arbitrary. No interference in the impugned order is required.

6. At this stage, learned counsel for the petitioner

submits that in view of provisions of Section 11, a landlord is

entitled to increase of 4% per annum and from this view point also

the order passed by the trial Court could not have been modified

by the first appellate Court. Section 11 does make a provision for

increase of 4% per annum in the rent of premises. But the right

so conferred upon a landlord would be subject to the other

provisions of law, especially those contained in Section 8 of the

Maharashtra Rent Control and in view of what is already stated

earlier, I do not think that Section 11- right of the landlord, would

make him entitled to receive more rent than what has been

granted to him by the impugned order. There is no merit in the

writ petition. It deserves to be dismissed.

7. Writ petition is dismissed. Rule discharged. No cost.

JUDGE

/TA/