JUDGMENT - R.M. LODHA, J.:---Heard learned Counsel for the parties.

2.This writ petition is directed against the order passed by the Court of Small Causes at Bombay on 31-7-1996 whereby the Court below refused to frame additional issues other than limitation as proposed by the defendants.

3.By way of notice, the defendants submitted before the Court below that five issues be framed in addition to the issues already framed.

(a) Whether the demand for recovery of rent and permitted increases of the suit premises are barred by law of limitation?

(b) Whether the rent charged to the suit premises is excessive, exhorbitant and much more than the standard rent of the suit premises ?

(c) If so, what is the standard rent and permitted increases of the suit premises ?

(d) Whether the defendants prove that they have obtained sanction/permission from the Bombay Municipal Corporation for change of user of the premises ?

(e) If so, whether such, permission amounts to waiver of terms and conditions of lease ?

4.The trial Court held that as regards the proposed additional issues No. (b) and (c), the plea of the standard rent cannot be permitted to be set up in the written statement and , therefore, Issues No. (b) and (c) proposed as additional issues cannot be said to arise for determination. As regards the proposed issues (d) and (e), the trial Court held that the issues already framed cover the controversy of proposed additional issues (d) and (e) and, therefore, the said proposed issues are not required to be framed.

5.Mr. Murthy, the learned Counsel for the petitioner contends principally that it is open to the defendants to set up the plea in the written statement for fixation of standard rent if the agreed rent is excessive and since the defendant has raised this plea, the Court below was bound to frame the additional issues. According to Mr. Murthy, the said controversy is covered by the proposed issue Nos. (d) and (e). In support of his contention, Mr. Murthy relied on the decision of the Apex Court in (Ibrahim Abdulrahim Shaikh (dead) by L.Rs. v. Krishnamorari Sripatlal Agarwal (dead) by L.Rs.)1, 1995(3) Bom.C.R. 1 (S.C.)

6.Responding to the contentions raised by the learned Counsel for the petitioner, on the other hand, Mr. Desai, the learned Counsel appearing for the respondent would urge that the Apex Court in (Harbanshal Jagmohandas v. Prabhudas Shivlal)2, A.I.R. 1976 S.C. 2005 has held and laid down that the plea of fixation of standard rent cannot be set up in written statement. According to Mr. Desai, in Harbanshal Jagmohandas's case (supra), the Apex Court overruled the Full Bench judgment of the Bombay High Court in (Dattu Subhana Panhalkar v. Gajanan Vithoba Bobhate and another)3, A.I.R. 1971 Bom. 396 wherein a view was taken by this Court that plea for fixation of standard rent can be set up in the written statement. According to Mr. Desai, the legal position is no more res integra and the proposed additional issues for fixation of standard rent cannot be said to arise in the present suit.

7.I have considered the contentions raised by the learned Counsel for the parties and also perused the impugned order and the citations referred to by the learned Counsel for the parties.

8.The Full Bench judgment of this Court in Dattu's case (supra) took the view that a tenant could raise a dispute about agreed rent and pray for fixation of standard rent in the written statement. This view did not find favour with the Gujarat High Court and the Gujarat High Court took the view otherwise. The divergent view of this Court and Gujarat High Court came to be considered by the Apex Court in Harbanslal Jagmohandas anr. v. Prabhudas Shivlal's case (supra) and the view of Full Bench of this Court in Dattu's case was not found correct. The Apex Court in Harbanslal Jagmohandas anr. v. Prabhudas Shivlal's, case (supra) held that the view of the Bombay High Court overlooked the limitation of time within which a dispute is to be raised as to st

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