Y. Venkatakrishna Jois Vs. T. Venkataswamy - Court Judgment

Excerpt:
- section 26: [ram mohan reddy,j] custody of child rejection of application made under order 7, rule 11 (a) c.p.c., - order passed by family court - decree of divorce by mutual consent and childs custody in terms of the compromise - difficulties in implementation of visiting rights and custody of the child -separate application by the parties under section 26 of the hindu marriage act, 1955 for custody of the child - petitioners application for custody of the female child subject to visitation rights to the respondent-ex-husband was allowed and confirmed by the apex court with certain modifications in the year 2004.- application filed by the respondent under section 26 of the act for permanent and exclusive custody of the minor child, in the year 2006. petitioners objections - at the stage of evidence of respondent, petitioners application under order vii rule 11(a) c.p.c. to reject the application filed by the respondent under section 26 held, there can be no dispute that all orders relating to the custody of minor children from their very nature must be considered to be temporary orders made in the existing circumstance and that with changed conditions and circumstances, including passage of time, the court is entitled to vary such orders, if such variation is considered to be in the paramount interest of the welfare of the minor. indisputably, the object of order 7, rule 11 is to keep out of courts irresponsible law suits, a tool in the hands of the courts. the question to be decided while dealing with an application filed under order 7, rule 11(a) cpc, is whether a real cause of action is set out in the plaint or something purely illusory has been stated. if on a meaningful and not formal reading of the plaint, it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, the court should exercise the power under order 7, rule 11(a). if clever drafting has created the illusion of a cause of action, it must be nipped in the bud at the first hearing by examining the party searchingly under order 10 of the code. suffice it to state that the family court having considered the pleading in the affidavit accompanying the application under section 26 of the act, did not conclude that the cause of action was either illusory or meritless nor vexations, but that there was a need to inquire into the truth of the allegations. the proceeding before the family court had reached the stage of recording the evidence of ex-husband over the assertions and allegations. the petitioner having founded the cause of action on the basis of several averments set out in the affidavit accompanying the application, the family court was fully justified in rejecting the petitioners application by the order impugned. order1. this revision petition is against the order dated 28-8-1952 passed by the district judge, shimoga (camp: chickmagalur) in h. r. c. appeal no. 2 of 1952-53 confirming the order dated 29-4-1952 of the deputy commissioner and rent controller, shimoga in h. r. c. no. 120 of 1951-52.2. the house was let out to the respondent by the petitioner on 30-1-1952 and the rent agreed to was rs. 45/- a month. the courts below are of opinion that the cost of the building is rs. 8000/- and have fixed the fair rent at rs. 37-8-0 per month. it is stated that the built area of the house is about 1000 sq. ft. both the learned district judge and thelearned rent controller have assessed the value of the house at the rate of rs. 8/- per sq. ft. according to which the value of the built area is assessed at rs. 8000/-. the building has got a cement concrete roofing. in cases of this kind it is more usual to value the building on plinth area at the rate of rs. 10/- a sq. ft. even otherwise the courts below have not taken into consideration the value of the site on which the building stands and this should have been taken into consideration in fixing the fair rent of the building.i also think in cases of this kind where the landlord and the tenant have come to an agreement about the rent payable, the presumption is that what has been solemnly agreed to may be taken as the fair rent unless it is shown that the landlord or the tenant has taken undue advantage of the need of the other. the presumption can no doubt be rebutted by placing materials for fixing the fair rent. the petitioner has not placed any materials worth the name to rebut the presumption.3. the revision petition is allowed. the orders of the courts below are set aside and fair rent is fixed at rs. 45/- a month. parties will bear their own costs throughout.4. revision allowed.

Judgment:
ORDER

1. This revision petition is against the order dated 28-8-1952 passed by the District Judge, Shimoga (Camp: Chickmagalur) in H. R. C. Appeal No. 2 of 1952-53 confirming the order dated 29-4-1952 of the Deputy Commissioner and Rent Controller, Shimoga in H. R. C. No. 120 of 1951-52.

2. The house was let out to the respondent by the petitioner on 30-1-1952 and the rent agreed to was Rs. 45/- a month. The Courts below are of opinion that the cost of the building is Rs. 8000/- and have fixed the fair rent at Rs. 37-8-0 per month. It is stated that the built area of the house is about 1000 sq. ft. Both the learned District Judge and thelearned Rent Controller have assessed the value of the house at the rate of Rs. 8/- per sq. ft. according to which the value of the built area is assessed at Rs. 8000/-. The building has got a cement concrete roofing. In cases of this kind it is more usual to value the building on plinth area at the rate of Rs. 10/- a sq. ft. Even otherwise the Courts below have not taken into consideration the value of the site on which the building stands and this should have been taken into consideration in fixing the fair rent of the building.

I also think in cases of this kind where the landlord and the tenant have come to an agreement about the rent payable, the presumption is that what has been solemnly agreed to may be taken as the fair rent unless it is shown that the landlord or the tenant has taken undue advantage of the need of the other. The presumption can no doubt be rebutted by placing materials for fixing the fair rent. The petitioner has not placed any materials worth the name to rebut the presumption.

3. The revision petition is allowed. The orders of the Courts below are set aside and fair rent is fixed at Rs. 45/- a month. Parties will bear their own costs throughout.

4. Revision allowed.