Back
IN THE HIGH COURT OF BOMBAY
M.L. Pendse, J.
Moreshwar Narayan Phadke.... Petitioner.
Versus
Shashikant Balakrishna Malkar.... Respondent.
Writ Petition No. 639 of 1980, decided on 12-9-1980.
Advocates appeared :
M.A. Rane, for petitioner.
G.R. Rege with D.R. Banavalikar, for respondent.
RENT ACT - STANDARD RENT - LIMITATION - BOMBAY RENTS, HOTEL AND LODGING HOUSE RATES CONTROL ACT, 1947 - SECTION 11(3) - EXPLANATION 1 TO SECTION 12 - APPLICATION FOR FIXATION OF STANDARD RENT - LIMITATION PERIOD - INTERIM RENT - DETERMINATION - NECESSITY - BONA FIDE OF APPLICATION.
Fact of the Case:
The petitioner, a tenant, filed an application under section 11(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Rent Act) for fixation of standard rent within one month of receiving a notice from the landlord under section 12(2) of the Rent Act. However, the petitioner did not apply for fixation of interim rent along with the application under section 11(3). The District Judge held that the application was not filed within the limitation period and that the petitioner was not entitled to the benefit of Explanation 1 to section 12 of the Rent Act, which protects tenants from eviction if they file an application for fixation of standard rent within one month of receiving the notice under section 12(2).
Finding of the Court:
The High Court held that the application under section 11(3) of the Rent Act was filed within the limitation period, as the period of one month from the date of receipt of the notice expired during the time the Court was closed for vacation. The Court also held that the petitioner was entitled to the benefit of Explanation 1 to section 12 of the Rent Act, even though the interim rent was not determined at the behest of the tenant immediately on the lodging of the application under section 11(3) of the Rent Act. The Court observed that the application for determination of interim rent is not a sine qua non to attract Explanation 1 of section 12 of the Rent Act and that it is open for a tenant to file the application under section 11(3) and thereafter to pay or deposit the contractual rent without seeking determination of the interim rent.
Issues: 1. Whether the application under section 11(3) of the Rent Act was filed within the limitation period? 2. Whether the petitioner was entitled to the benefit of Explanation 1 to section 12 of the Rent Act, even though the interim rent was not determined at the behest of the tenant immediately on the lodging of the application under section 11(3) of the Rent Act?
Ratio Decidendi: 1. The Court held that the application under section 11(3) of the Rent Act was filed within the limitation period, as the period of one month from the date of receipt of the notice expired during the time the Court was closed for vacation. The Court relied on section 4 read with section 29 of the Limitation Act, 1963, which provides that where the prescribed period for any application expires on a day when the Court is closed, the application may be made on the day when the Court re-opens. 2. The Court held that the petitioner was entitled to the benefit of Explanation 1 to section 12 of the Rent Act, even though the interim rent was not determined at the behest of the tenant immediately on the lodging of the application under section 11(3) of the Rent Act. The Court observed that the application for determination of interim rent is not a sine qua non to attract Explanation 1 of section 12 of the Rent Act and that it is open for a tenant to file the application under section 11(3) and thereafter to pay or deposit the contractual rent without seeking determination of the interim rent.
Final Decision: The petition was allowed, the judgment of the District Judge was set aside, and the judgment of the trial court was restored.
2. The proceedings arise out of a suit for eviction filed by the respondent under the provision of section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Rent Act). The respondent is an owner of a house bearing City Survey No. 1094 at Kolhapur and three rooms on the first floor, one room on the loft and two rooms on the ground floor were let out to the petitioner for his residence at the contractual monthly rent of Rs. 70/-. The petitioner remained in arrears from August 1, 1970 and the respondent terminated the tenancy and called upon the petitioner to pay the arrears of rent as required by section 12(2) of the Rent Act by notice dated April 17, 1974. The notice was received by the petitioner on April, 27, 1974. On June 10, 1974, the petitioner filed Miscellaneous Application No. 98 of 1974 in the Court of Civil Judge, Junior Division, Kolhapur for fixation of standard rent as provided by section 11(3) of the Rent Act. Thereafter on June 12, 1974, the respondent instituted Civil Suit No. 498 of 1974 in the Court of Civil Judge, Junior Division, Kolhapur for recover of possession of leased premises on two grounds. The first was that the premises are unlawfully sublet by the petitioner, while the second ground was that the petitioner had incurred liability by not paying the arrears of rent and is liable to be evicted under section 12(3)(a) of the Rent Act.
3. In the Miscellaneous Application filed by the petitioner, on July 28, 1974, an application was filed by the petitioner for fixation of interim rent. It appears that no order was passed on the application by the trial Court. On August 29, 1974, the respondent/landlord filed an application in the suit instituted by him for direction to the tenant to pay the rent. In answer to this application, the petitioner filed an application at Exhibit 14 on September 16, 1974 in the suit requesting the trial Court to fix interim rent. On this application, the trial Court passed order, in the suit, on October 4, 1974 directing the petitioner to deposit the entire arrears then due before November 11, 1974 and also to deposit the costs of the suit. Accordingly, the petitioner deposited the entire arrears on October 16, 1974 along with the amount of costs. It is not in dispute that thereafter all along the petitioner tenant had regularly paid the rent in the Court.
4. At the hearing of the suit, the trial Court found that the petitioner tenant had filed the application under section 11(3) of the Rent Act within one month of the receipt of notice and has also paid the interim rent as directed by the Court, and is, therefore, entitled to the advantage of Explanation 1 to section 12 of the Rent Act. The trial Court held that the case of the petitioner falls under section 12(3)(b) of the Rent Act and dismissed the claim of the respondent for recover of possession as conditions of that sub-section were satisfied. The trial Court also found that the petitioner was not guilty of unlawfully sub-letting the premises.
5. The respondent carried an appeal before the District Judge, Kolhapur and before the learned District Judge the only ground on which possession was sought was the default committed by the petitioner in payment of rent. The learned District Judge came to the conclusion that the application for fixation of standard rent under section 11(3) of the Rent Act was not filed by the petitioner within a period of one month from the date of receipt of the notice under sub-section (2) of section 12 of the Rent Act, and therefore, the tenant is not entitled to the advantage of Explanation 1 to section 12 of the Rent A
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
