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1970 Supreme(Bom) 110
IN THE HIGH COURT OF BOMBAY
(S.P. Kotval C. J., N.A. Mody and R.M. Kantawala JJ.)
DATTU SUBHANA PANTHALKAR - Petitioner
Versus
GAJANAN VITHOBA BOBHAU - Respondent
Advocates appeared
For landlord Intervener-M.R. Mody, R. M. Kothari and P.T. Gundaria.
For tenant Intervener-B.L. Chabria.
For petitioner--M.L. Pendse.
For opponents--K.J. Abhyankar.
The tenant can raise a dispute as to the standard rent even after the suit is filed by his written statement and that would be a dispute for the purposes of section 12 and that the dispute contemplated in section 12 (3) (a) is not limited to the dispute within one month of the notice under section 12 (2) as required by Explanation I.
Headnote:
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Section 12 - Construction - Dispute regarding standard rent - Tenant raising dispute in written statement - Applicability of section 12(3)(a) or 12(3)(b) - Held, tenant can raise dispute in written statement - Section 12(3)(a) not applicable - Section 12(3)(b) applicable.
Fact of the Case:
The petitioner is the landlord of a house in Kolhapur. On October 1, 1961 he let it out to Gajanan respondent No.1. The agreement was Rs. 28 per month, comprised of Rs. 25 as rent plus Rs. 3 as taxes of the Kolhapur Municipality. Respondent No. 1 failed to pay the rent from December 1963 to May 31, 1965. On that date the landlord gave notice under section 12 (2) of the Rent Act calling upon him to pay the rent or to deliver possession on termination of the tenancy by the end of June 1965. Respondent No. 1 replied to the notice on June 8, 1965. Though the reply had been referred to in the judgments of the Courts below and throughout the proceedings a copy of it was not before us and with the consent of counsel we have taken a copy of the translation of that reply on record. Respondent No.1 asserted that the entire amount had been paid to the petitioner but that the petitioner had not issued any rent receipts after December 1963. He also alleged that the rent of Rs. 28 per month was exorbitant and that he would get standard rent determined. He alleged that the premises should not be worth more than Rs. 8 per month in rent. He also asked what was the standard rent under section 21 (Sic: section 11?) of the Rent Act. There were other grounds upon which the petitioner had also moved for the eviction of respondent N0. 1 on the grounds of waste in respect of the premises let and of being a nuisance to the neighbourhood under section 108 (c) of the Transfer of Property Act, but with these grounds we are not concerned in this reference. Suffice it to say that they have been concurrently negatived by all the Courts with the result that only the ground of non-payment of rent remains to be considered.
Finding of the Court:
The tenant can raise a dispute as to the standard rent even after the suit is filed by his written statement and that would be a dispute for the purposes of section 12 and that the dispute contemplated in section 12 (3) (a) is not limited to the dispute within one month of the notice under section 12 (2) as required by Explanation I. We have stated our reasons for this conclusion and we do not think it necessary to consider each of the cases cited individually. We answer both the questions in the affirmative.
Issues: 1. Whether in a proceeding to which section 12 (3) (a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. would otherwise apply, the tenant-defendant can prove that a dispute about standard rent exists without following the procedure laid down in Explanation I to section 12 ? 2. Can he then also take the defence that section 12 (3) (b) does not apply and section HI (3) (b) applies ?
Ratio Decidendi: The Explanation I is merely an explanation to section 12 (1) and whereas sub-section (I) of section 12 contemplates a case of genuine or real readiness and willingness to pay, the Explanation contemplates by statutory provision a fictional case of readiness and willingness to pay.
Final Decision: Both the questions are answered in the affirmative.
KOTVAL C. J.- This reference raises important questions as to the construction of section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Act 57 of 1947) The Special Civil Application was originally heard by a single Judge. He referred it to a Division Bench and the Division Bench has referred it for decision to a Full Bench upon two questions which are as follows:
"1. Whether in a proceeding to which section 12 (3) (a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. would otherwise apply, the tenant-defendant can prove that a dispute about standard rent exists without following the procedure laid down in Explanation I to section 12 ?
2. Can he then also take the defence that section 12 (3) (a) does not apply and section HI
(3) (b) applies ?"
Since two specific questions have thus been referred but not the whole petition it is really unnecessary to consider the case upon the facts but it will tend to an understanding of the questions that have been referred if we briefly set out the circumstances under which the reference arose.
2. The petitioner is the landlord of a house in Kolhapur. On October 1, 1961 he let it out to Gajanan respondent No.1. The agreement was Rs. 28 per month, comprised of Rs. 25 as rent plus Rs. 3 as taxes of the Kolhapur Municipality. Respondent No. 1 failed to pay the rent from December 1963 to May 31, 1965. On that date the landlord gave notice under section 12 (2) of the Rent Act calling upon him to pay the rent or to deliver possession on termination of the tenancy by the end of June 1965. Respondent No. 1 replied to the notice on June 8, 1965. Though the reply had been referred to in the judgments of the Courts below and throughout the proceedings a copy of it was not before us and with the consent of counsel we have taken a copy of the translation of that reply on record. Respondent No.1 asserted that the entire amount had been paid to the petitioner but that the petitioner had not issued any rent receipts after December 1963. He also alleged that the rent of Rs. 28 per month was exorbitant and that he would get standard rent determined. He alleged that the premises should not be worth more than Rs. 8 per month in rent. He also asked what was the standard rent under section 21 (Sic: section 11?) of the Rent Act. There were other grounds upon which the petitioner had also moved for the eviction of respondent N0. 1 on the grounds of waste in respect of the premises let and of being a nuisance to the neighbourhood under section 108 (c) of the Transfer of Property Act, but with these grounds we are not concerned in this reference. Suffice it to say that they have been concurrently negatived by all the Courts with the result that only the ground of non-payment of rent remains to be considered.
3. As regards standard rent the trial Court fixed the standard rent at Rs. 26 per month, and rejected the stand of the tenant that he had paid all the rent till the end of January 1965. It, however, considered the fact that the tenant had paid in Court the interim standard rent fixed by the Court and also the fact that Rs. 100 of the tenant were in deposit with the landlord and therefore the trial Court did not grant the petitioners claim fur ejectment but merely passed a decree for Rs. 546 as arrears of rent and directed the petitioner to withdraw the amount in deposit towards the arrears decreed.
4. In an appeal to the District Court, Kolhapur, all the findings of the trial Judge were upheld and the cross-objection filed on behalf of the tenant seeking to reduce the standard rent to Rs. 16 per month was rejected. The petition is filed against this decision of the District Court at Kolhapur.
5. When the petition came up before Mr. Justice Bal the question raised before the learned Judge was whether the petitioner-landlord was not entitled to a decree for ejectment having regard to the provisions of section 12 (3) (a) of the Rent Act. The Courts below had hel
