JUDGMENT

This appeal by special leave arises from the Judgment of the Gujarat High Court in Civil Revision Application No. 1226/72, dated November 22/23, 1975. The facts for the purpose of disposal of his appeal lie in a short compass.

2. The appellant landlord laid a claim for arrears of rent and the respondent shot back by filing an application under S. 11 of the Bombay Rents, Hotel and Lodging H. R. Control Act, for short the Act, for determination of the standard rent. On a compromise the standard rent was fixed at Rs. 211/per month and the application was dismissed as not pressed. Later the appellant filed regular suit for possession and for arrears which was decreed and on appeal it was confirmed. The defence of the respondent was that there was bona fide dispute as to standard rent and an application under S. 12(3)(a) read with S. 11 (1)(c) would lie and so he made the application and even before an adjudication was made, he deposited the arrears subject to fixation of standard rent so as to avoid decree of eviction. So there was no default. Civil Court held that the application would not lie under S. 12(3)(a) and the tenant was liable to eviction. Thus though the respondent was unsuccessful in two Courts below, in the revision, the High Court allowed the revision and held that the standard rent fixed on earlier occasion at Rs. 211/- per mensem was illegal and accordingly the defence under Section 12(3)(c) would be available to determine the standard rent and accordingly dismissed the suit.

3. The contention of Sri Verma, learned senior counsel for the appellant is that fixation of the standard rent by order of the Court dated June 30, 1964 was on a consideration of the facts and circumstances of the case. It is an adjudication on application of mind by the Court and that, therefore, the standard rent fixed at Rs. 211/- per mensern having been allowed to become final and allowed the application dismissed as withdrawn, the respondent committed default in the payment of the rent. On receipt of the notice demanding payment of the rent, the respondent admittedly filed an application under S. 11 of the Act for fixation of the standard rent without any dispute existing between the parties regarding the standard rent as on that date before making the application. Unless there is a dispute in fact, exist as on date, the tenant is not entitled to make an application under S. 11 of the Act and it cannot be used as a device to avoid decree of eviction. Having filed an application, after fixation of the rent under a compromise and allowed it to be withdrawn, it is not permissible for the respondent to plead that there was no default. Application for fixation of the standard rent would, therefore, be an abuse of the process of the Court.

4. There is no dispute that the rent payable is monthly. Section 12(3)(a) of the Act contemplates the existence of a dispute and payment of rent by the month. If there are arrears for a period of 6 months or more, then only the landlord gets a right to issue the notice. If there is no dispute as regard the payment of the rent by the month and the arrears thereof for six months and more, S. 12(3)(a) has no application. The tenant cannot invoke the aid of explanation (1) to Section 12 of the Act unless there is a dispute as regards standard rent or permissible increases.

5. The order passed by the Civil Court on June 30, 1964 is only on a compromise between the parties, the parties cannot contract out of the statute and agree for any standard rent. It is the duty of the Court to adjudicate the rent agreed by the parties whether it be the standard rent as prescribed under the Act. The Court had not done that. As soon as a notice was issued by the appellant calling upon the respondent to pay the arrears of the rent, an application was filed under S. 11 of the Act for determination of the standard rent. Along with the application, by way of a petition, the respondent deposited all the arrears as an abundant