The power of the Court under section 11(4) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 to direct the tenant to deposit rent can be exercised only in suits for recovery of rent and not in suits for possession simpliciter.

JUDGMENT - V.S. DESHPANDE, J.:---In a landlords suit for possession simpliciter against the tenant on the ground of default in payment of rent in breach of section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the Act"), without any claim of recovery of rent, the tenant amongst other defences raised the plea of the rent of Rs. 90/- p.m. being in excess of the standard rent of Rs. 25/- or Rs. 30/- p.m. During the pendency of the trial the learned Judge of the Small Causes Court of Bombay directed the tenant of 4th February, 1975 to deposit in Court a sum of Rs. 8,460/- towards the arrears of rent and compensation due upto February 1975 and thereafter to deposit every month a sum of Rs. 90/- from 15th April, 1975 onwards.

2. The tenant challenged the legality of this order in revision. The Appellant Bench dismissed the revision will costs on 6th January, 1977 and upheld the impugned order relying on a Division Bench judgment of this Court dated 5th February, 1970 in Civil Application No. 40 of 1970 in the case of (Mr. Shera Haveliwala v. Mrs. Rasah Samson)1. The contrary view of the Full Bench in (Dattu Subhana v. Gajanan Vithoba)2, 73 Bom.L.R. 371, was found to have been overruled by the Supreme Court in (Harbanslal v. Prabhudas)3, 78 Bom.L.R. 213. This order is challenged in this revision. The learned Single Judge (S.K. Desai J.) of this Court, before whom the revision came up for hearing, found the view of the Division Bench in Haveliwalas case to be open to doubt. He, therefore, referred the case to the Division Bench which in turn had referred the same to the Full Bench. This is how the case has come up before us.

3. The question that arises for consideration is, whether the Court is competent to pass any such order when the suit is merely for possession and is admittedly not for recovery of rent. The answer turns on the true interpretation of the words "and in any other case" occurring in the first sentence of sub-section (4) of section 11 of the Act. Mr. Panday, the learned Advocate for the petitioners, supports the view of the referring Judges. Mr. Abhyankar appearing amicus curiae, supports the impugned order contending that such a suit for possession simpliciter is yet "another case" overred by the words "and in any other case" of section 11(4) of the Act.

4. Section 11 of the Act authorities the Court to fix the quantum of the "standard rent" and "permitted" increases as defined in section 5(7) and (10) of the Act. Section 7(2) of the Act prevents the landlord from claiming or recovering anything in excess thereof. Sub-sections (1) and (2) of section 11 of the Act provides for such fixation presumably on the application of the interested tenant or even the landlord. Sub-section (3) enables the tenant to so apply wtihin one month of the receipt of the landlords notice for payment of arrears of rent for more than six months, if non-payment of such arrears is due to any dispute about the standard rent or permitted increases. This enables him to get the interim standard rent or permitted increase fixed and also an order for depositing the arrears of that rent and further order for payment of the same or any part thereof to the landlord. This is aimed at (1) saving him from the consequences of the failure to comply with section 12(3)(a) of the Act and (2) raising a fiction of his being ready and willing to pay the rent under Explanation I to section 12 of the Act. Non-compliance with such order itself results in outright rejection of such applications and the protection against the consequence of non-compliance with section 12(3)(a) of the Act. Sub-sections (3) and (4) of section 11 and Explanation I to section 12 and amendment of the phraselogoy of section 12(3)(a) of the Act was introduced in the Act by Maharashtra Act 14 of 1963 at one and the same time indicating how these amendments form part of the same legislative scheme and the intendment.

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