Judgment

BEG, C.J.I. - This is a landlords appeal by special leave against the judgment and order of the High Court of Gujarat allowing a revision application of the tenant under Section 29 (2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Act).

2. It appears from the statement of facts in the judgment of the High Court that there was no dispute that the monthly rent of the premises was Rs. 30/- and that the tenant had also to pay the charges for electricity consumed by him. It was, however, at first disputed whether the tenant had to pay house tax and the education cess also, The landlord had brought a suit for arrears of rent amounting to Rs. 990/- from 6-3-67 to 5-12-69 and also to recover a sum of Rs. 27.49 paid as house tax and another sum of Rs. 210.18 paid by the landlord for the electricity consumed by the tenant. On January 5, 1970 the landlord had served a notice upon the tenant terminating the tenancy on the ground that dues amounting to Rs. 1227.67 had not been paid. The tenant filed an application for fixation of the standard rent within a month of the service of the abovementioned notice. He also filed an application for fixation of interim rent on the ground that he being a poor man, was unable to pay rent and the total amount due at once. On these applications, the interim rent was fixed at Rs. 25/- and the applicant was directed "to deposit arrears of rent and future rent at this rate on or before 10th of the next month."

3. Although the trial Court held the notice terminating the tenancy to be legally valid and the agreed rate of rent to be Rs. 30/- p.m., so that the plaintiff was entitled to the decree for arrears of rent from 6-3-67 to 5-12-1969 and also the amount of Rs. 27.49 as house tax and Rupees 210.18 towards electricity charges, making up the total of Rupees 1227.67, yet. it held that as the defendant - tenant was "ready and willing" to pay the rent to the plaintiff, hence, the suit for ejectment could not be decreed. The appellate Court, on the other hand, held that the unwillingness of the defendant-respondent to pay the rent. which was apparent from the patent facts and admissions and conduct of the defendant-respondent, disentitled him for the protection sought. It, therefore, decreed the suit for ejectment.

4. Learned counsel for the appellant has contended that the High Court had proceeded upon the wrong assumption that the standard rent was fixed in the lower appellate Court for the first time when the appeal was decided. It is very difficult to find the basis for this opinion of the High Court. The application for fixing the standard rent, initiating a separate proceeding, was dismissed, as is admitted on behalf of the tenant-respondent, for non-prosecution. Hence, no standard rent could be fixed under S. 11. Section 5, sub-s. (10) defines standard rent as follows:-

"5. Definitions- In this Act unless there is anything repugnant to the subject or context-

(10) "Standard rent" in relation to any premises means -

(a) "Where the standard rent is fixed by the Court and the Controller respectively under the Bombay Rent Restriction Act, 1939 (Bom. XVI of 1939), or the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1944 (Bombay VII of 1944), such standard rent; or

(b) where the standard rent is not so fixed subject to the provisions of Section 11,

(i) the rent at which the premises were let on the first day of September 1940, or

(ii) where they were not let on the first day of September 1940, the rent at which they were first let, before that day, or

(iii) where they were first let after the first day of September 1940, the rent at which they were first let, or

(iv) in any of the cases specified in Section 11, the rent fixed by the Court."

5. Both the sides before us are agreed that no question of a standard rent actually and finally fixed under S. 11 of the Act arose in the circumstances of this case. Sec. 11 of the Act reads as follows:-

"11.