1993 Supreme(Guj) 351

Gujarat High Court
Judgename :B.S.KAPADIA
JAYANTILAL DAHYALAL - Appellant
Versus
BATUK BHAISHANKER - Respondent
C.R.A.1798 of 1979
Decided On : 09/10/1993

Headnote:Bombay Rent Act - Ss. 11(3) & (4), 12(2) & 12(3) (a) - Dispute in regard to standard rent or permitted increase - Required to be raised before expiry of one month from the date of service of notice under Sec. 12 (2) - In the instant case dispute with regard to standard rent raised for the first time in written statement and application for depositing rent made on first day of hearing - Provisions of S.12 (3) (a) would not be attracted.

       It is therefore clear from the discussion made by the learned appellate Judge that he held that Section 12 (3)(a) of the Bombay Rent Act would not apply as the dispute with regard to the standard rent was raised for the first time in the written statement and the application for depositing the rent was made on the first day of hearing. In view of the Jaywant S. Kulkarni vs. Minochar Desobhai Shroff, AIR 1988 SC 1817 it is only when the application disputing the standard rent is made within the time as contemplated by explanation to Section 12 of the Bombay Rent Act that the provisions of sub-sections 3 and 4 of Section 11 are attracted. In order to avoid operation of Section 12(3)(a) of the Act, the dispute in regard to standard rent or permitted increase must be raised at the latest before the expiry of one month from the date of service of notice under Section 12(2) of the Act and it is not enough to raise a dispute for the first time in written statement. Therefore Mr. Shah has rightly submitted that the observations made by the learned appellate Judge are erroneous and illegal.

       [Para 14]

       Bombay Rent Act - S. 12(2) - Notice under - Validity - Notice can not held invalid merely on ground that demand of amount of arrears of rent is more than contractual rent - Provision incorporated merely with the object of giving additional protection to tenant under S. 12(2) - So that such for eviction can not be filed.

       The first facet of the argument challenging the validity of the notice on the ground that the demand of the amount of arrears of rent is that of more than contractual rent will not be a ground for holding the notice to be invalid. What is necessary is the factum of serving the notice which gives additional protection to the tenant under Section 12(2) of the Act and to comply with the notice so that the suit for eviction cannot be filed.

       [Para 16]

       Merely becasue in the notice a claim for a large amount than the standard rent and permitted increase is made, the notice would not be rendered illegal. What is intended by the legislature by providing for giving of a notice is that the tenant must know what was demanded from him and if the notice made it clear that he was demanding also the standard rent and the permitted increases, the notice would comply with the requirement of sec. 12(2). In the said case it was further held that it may be that if by the notice, any amount is claimed which is beyond the amount of arrears of standard rent and permitted increases, the plaintiff may not be entitled to recover that amount ultimately if he were to file a suit to recover such amount. However, it is not possible to interpret this provision of law mean that, in any case, where the demand exceeds the actual amount of standard rent and permitted increases, the notice would be rendered illegal if such a demand is in excess of such standard rent or permitted increases which may ultimately be held to be the standard rent or permitted increases. When a notice under sec. 12(2) of the Bombay Rent Act is given for the payment of arrears of rent not at the rate of contractual rent but at a rate higher than standard rent, the notice itself does not bocome invalid so as to take away the right of the landlord to institute the suit one month after the notice.

       [Para 16]

       Bombay Rent Act - Ss. 12(2) & 28 - Notice - Landlord must accept the person to whom notice is given as tenant - Unless that position is made clear in notice it shall not be a valid notice and rent court would not have jurisdiction under S. 28 of the Act to entertain such for eviction under the Act.

       There must be relationship between the landlord and the tenant and landlord must accept the person to whom the notice is given as tenant if he wants to serve the notice on tenant u/s 12(2) of the Bombay Rent Act. Unless that position is clear in the notice, the notice given to him in the alternative in case the court held the defendant as a tenant can never be said to be a valid notice to the tenant under Section 12(2) of the Bombay Rent Act. It is like riding two horses at a time. In the earlier part of the notice as well as in the plaint the plaintiff did not accept the defendants as tenants meaning thereby the defendants are the trespassers. If the plaintiff is sticking to that aspect of the averment made in the plaint as well as in the notice, then, the rent court will not have jurisdiction under Section 28 or the Rent Act.

       [Para 18]

       Bombay Rent Act - S. 12(2) - Notice - Not valid which does not speecify, either amount of rent in arrear or point of time from which rent is in arrear - In the instant case after demanding rent at Rs. 40 a further demand was for mense profit without specifying period of demand - Held, notice suffers from vice of vagueness and not a valid notice - No decree for possession can be passed.

       A vague notice requiring the tenant to pay all arrears of rent and permitted increases without indicating the actual amount due on that account or the point of time from which the rent and permitted increases at a specified rate are, according to the landlord, in arrears, would afford no real opportunity to the tenant to avail of the facility or benefit of making payment of the arrears due by him before he is sued in ejectment.

       In fact, such notice, while apparently complying with the requirement of law, might prove to be a trap to draw the tenant in by leaving the door open for a controversy to be raised later on that full amount of rent and permitted increases was not tendered within the prescribed time limit after the service of the notice. It is for this reason that the requirement of construing the provision of sec. 12(2) with strictness arise.

       [Para 19]

       In the notice at Exh. 39 after demanding the rent at Rs. 40 a further demand was that of mesne profits and/or rent which was in arrears for which no specific period was mentioned and therefore the door for controversy was kept open even if the tenant paid up the rent of 51 months at the rate of Rs. 40 per month. Thus, this notice is suffering from the vice of vagueness as well as inconsistency, as mentioned above, that the defendants were not accepted as the tenants by the landlord. On these grounds the notice under Section 12(2) of the Bombay Rent Act is bad, illegal and therefore the condition precedent to the filing of the suit has thus not been satisfied and therefore no decree for possession can be passed.

       [Para 21]