1982 Supreme(Bom) 93

IN THE HIGH COURT OF BOMBAY
M.N. Chandurkar M.L. Pendse, JJ.
Jaypal Bandu Adake another.... Petitioners.
Versus
Basavali Gurulingappa Mhalank another.... Respondents.
AND
Kesharlal Shamlal Jain.... Petitioner.
Versus
Bansilal Loknath Jain another .... Respondents.
Special Civil Application No. 1812 of 1977 Special Civil Application No. 1866 of 1977, decided on 16-3-82.
Advocates appeared :
In Special Civil Application No. 1812 of 1977.
Ajit P. Shah and M.D. Gangakhedkar, for petitioners.
B.P. Apte, for respondent No. 1.
In Special Civil Application No. 1866 of 1977.
S.M. Dange, for M.V. Sali, for petitioner.
V.P. Tipnis, for respondent No. 1.

Headnote:

Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Section 12(3)(a) and 12(3)(b) - Interpretation - Whether in order to take the case out of the provisions of section 12(3)(a), it is obligatory on the tenant to make an application for fixation of standard rent under section 11(3) of the Act - Whether the raising of the standard rent dispute by the tenant by reply to the demand notice before expiry of one without making an application under section 11(3) would take the case of the tenant out of the provisions of section 12(3)(a) - Whether it is obligatory for the tenant to make an application under section 11(3) before the expiration of the period of one month from the date of service of demand notice even when his application under section 11(3) is pending on the date of demand notice.

Fact of the Case:

In Special Civil Application No. 1812 of 1977, the landlord filed a suit for possession of the suit premises on the ground of arrears of rent. The tenant had not paid the arrears within one month of the receipt of the notice under section 12(2) of the Rent Act and had not made an application for fixation of standard rent under section 11(3) of the Act. The trial court held that the standard rent was Rs. 50/- per month and passed a conditional decree for possession if the tenant failed to pay the arrears within one month from the date of the decree. The Appeal Court relying on a Full Bench decision of the Gujarat High Court, took the view that the tenant was not obliged to make a full payment immediately or file a separate application for fixation of standard rent under the provisions of section 11(3) of the Rent Act read with Explanation I to section 12 of the Rent Act. The Appeal Court further held that when the tenant gives a reply to the landlord's notice within one month disputing the standard rent, it becomes obligatory on the landlord to apply to the Court and get the standard rent fixed. The claim of the landlord under section 12(3)(b) of the Rent Act was thus negatived, recording a finding that non-payment of arrears of rent did not amount to neglect since the evidence showed that the tenant was always ready and willing to pay the rent. It does not appear that the question as to whether the tenant was entitled to the protection of section 12(3)(b) of the Rent Act was agitated before the Appeal Court. In Special Civil Application No. 1866 of 1977, the tenant filed a petition challenging the decree for possession passed against him. The tenant had raised a dispute about standard rent in the written statement or by an application filed on the same day, but he had not preferred any application within the period of one month from the date of the notice and, therefore, in view of the decision in Harbanslal's case cited supra, it could not be said that there was a dispute about standard rent within the meaning of section 12(3)(a) of the Rent Act. He, therefore, would not be entitled to the benefit of section 12(3)(b).

Finding of the Court:

The Court held that in order to take the case out of the provisions of section 12(3)(a) of the Rent Act, it is obligatory on the tenant to make an application for fixation of standard rent under section 11(3) of the Act read with Explanation I to section 12. The raising of the standard rent dispute by the tenant by reply to the demand notice before expiry of one without making an application under section 11(3) would not take the case of the tenant out of the provisions of section 12(3)(a). It is obligatory for the tenant to make an application under section 11(3) before the expiration of the period of one month from the date of service of demand notice even when his application under section 11(3) is pending on the date of demand notice.

Issues: 1. Whether in order to take the case out of the provisions of section 12(3)(a), it is obligatory on the tenant to make an application for fixation of standard rent under section 11(3) of the Act? 2. Whether the raising of the standard rent dispute by the tenant by reply to the demand notice before expiry of one without making an application under section 11(3) would take the case of the tenant out of the provisions of section 12(3)(a)? 3. Whether it is obligatory for the tenant to make an application under section 11(3) before the expiration of the period of one month from the date of service of demand notice even when his application under section 11(3) is pending on the date of demand notice?

Ratio Decidendi: The Court held that the only way to prevent a decree for eviction being passed under the provisions of section 12(3)(a) of the Rent Act is that the tenant must make an application raising a dispute regarding standard rent and must ask for fixation of standard rent under section 11(3) of the Rent Act as required by Explanation I to section 12. There is no other mode permissible for raising a dispute as to standard rent for the purposes of section 12 of the Rent Act. By raising a dispute with regard to standard rent by the tenant in a reply to the demand notice before the expiry of one month without making an application under section 11(3) read with Explanation I to section 12, the Court will not be prevented from passing a decree for eviction under the provisions of section 12(3)(a). The fact that there was some dispute about standard rent prior to the notice under section 12(2) would also be immaterial and would not affect the power of the Court to pass a decree under section 12(3)(a) if the conditions referred to in section 12(3)(a) are satisfied if no application has already been made under section 11(1) of the Act.

Final Decision: Special Civil Application No. 1812 of 1977 allowed. Special Civil Application No. 1866 of 1977 dismissed.