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IN THE HIGH COURT OF BOMBAY
R.A. Jahagirdar, J.
Piroja M. Mehta .... Petitioner.
Versus
Hambai Jamshedji Cama (Dr.) others .... Respondents.
Writ Petition No. 5141 of 1987, decided on 11-7-1988.
Advocates appeared :
V.V. Kamat, for petitioner .
K.J. Abhyankar, Jagdish Karia A.K. Abhyankar, for respondents Nos. 1 to 3.
The charges made are conspicuous. The distinction between two classes of suits, namely where there is a dispute about the standard rent, and where there no dispute about the standard rent, was obliterated; so also the distinction between cases where the rent is payable by the month and where the rent is not so payable was also removed. All suits which are instituted after the notice under Section 12 (2) is given are to be treated on the same level by the Dew sub-section (3) introduced in Section 12 of the Bombay Rent Act. Another striking feature of the new provision is the opportunity given to the tenant to pay the arrears of rent "on the first day of hearing of the suit or on or before such other date as the Court may fix". The third striking feature is that an amount by way of interest at the rate of 9 per cent annum is also to be paid on the amount due. The tenant is also obliged to go on paying the rent "till the suit is finally decided".
The argument that sub-section (3) of Section 12, as amended, procedural is not acceptable. Su b-section (3) creates rights and liabilities on the parties to a suit. The original sub-sections (3) (a) and (b) also dealt with the right that would accrued a landlord and that liability that would attach itself to the tenant. Since the sub-section, whether before or after the amendment of 1987, provided for rights and liabilities of the parties, it could not be legitimately suggested that sub-section (3) is procedural. The provision relates to substantive rights and obligations of the parties. It this is so, accordance with the well established rules of interpretation of statutes, should be held that the amended sub-section (3) is prospective and not retrospective. This is on the basis of the clear world in the provision itself. It is not suggested that contrary would be the case by necessary implication.
It is first two types of suits which are not covered by the amended section. It is only the third type of suits that are covered by the amendment. I venture to suggest this interpretation because it can be reasonably assumed that the legislature did not intend to make a further classification between the suits which were filed before the amendment. Moreover, once a suit has been filed on the basis of the steps taken by the landlord prior to the amendment, a vested right has accrued to him. Some liability is also fastend to the tenant. This right and this liability are not intended to be disturbed by the amendment. Further, there is the rule of law which says that the rights and liabilities of the parties are to be worked out on the basis of the law prevailing at the time of the suit, subject of course, to any exception that may be made by the legislature either by express words or by necessary implication. That is not so in the instant case.
2. The petitioner resisted the suit by contending that if proper account was taken of the amounts due from the parties to each other, there would be no arrears of rent as contended by the respondents. The petitioner also contended that the rent was Rs. 2000/- per annum the rent was payable, according to the petitioner, by the year and not by the month. The petitioner also alleged that she had spent a sum of Rs. 20,000/- on repairs to the suit premises. According to the petitioner, the suit fell under section 12(3)(b) of the Bombay Rent Act and not under section 12(3)(a) thereof.
3. The learned trial Judge, by the judgment and order dated 28th of April, 1986, decreed the suit for possession and also directed the petitioner to pay a sum of Rs. 5,125/- which, according to the learned trial Judge, was the arrears of rent from August 1977. The learned trial Judge recorded a finding that the petitioner was in arrears of rent for more than six months and the demand made in the notice under section 12(2) of the Bombay Rent Act was not met by the petitioner and hence the case fell squarely under section 12(3)(a) of the Bombay Rent Act. The decree for possession was thus inevitable in the light of the law laid down by the Supreme Court in (Harbanslal v. Prabhudas)1, A.I.R. 1976 Supreme Court 2005. The learned trial Judge also negatived the claim of the petitioner of having spent a sum of Rs. 20,000/- for repairs and improvements of the suit premises.
4. This decree was challenged by the petitioner in an appeal, being Civil Appeal No. 305 of 1986. A revision application was preferred, being Civil Revision Application No. 12 of 1986, on the question of the standard rent. The trial Court had held that the question of deciding the standard rent did not arise at all, but if it arose, it would fix the same at Rs. 175/- per month which, in fact, was the contractual rent. Both the civil appeal and the revision application were disposed of by the learned District Judge, Satara, by his judgement and order dated 13th of August, 1987. For the reasons which had commended themselves to the Court of first instance, the learned Appellate Judge also negatived the contention of the petitioner that she was not in arrears of rent warranting a decree for eviction. The learned Appellate Judge also dismissed the revision application by the same judgement and order which are now the subject-matter of challenge in this petition under Article 227 on the Constitution of India.
5. Mr. Kamat, the learned Advocate appearing for the petitioner, has, before proceeding to make submissions on the merits of the petition, sought to contend that in view of the amendment which has been made to section 12(3) of the Bombay Rent Act by the Maharashtra Act No. XVIII of 1987, this Court should fix a date for the payment of arrears of rent and if is only if the petitioner does not pay the arrears of rent on the date so fixed that the petitioner will, according to the amended Rent Act, be liable for eviction. This question is involved in several other petitions which have been grouped together for hearing before me. The petitioners in all these petitions are tenants, while the respondent
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