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1995 Supreme(Guj) 362
Gujarat High Court
Judgename :J.N.Bhatt
HARILAL GORDHANBHAI - Appellant
Versus
RAMNIKLAL D.RATNESHWAR - Respondent
Civil Revision 1140 of 1983
Decided On : 08/07/1995
Headnote:(a) Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Secs. 11 & 12 - Object - Explained.The object and the underlying scheme of the provisions of Sections 11 and 12 of the Rent Act is to provide umbrella to the tenant against eviction so long as the tenant pays or is ready and willing to pay the standard rent and permitted increases. Section 12 places restriction on the free and unfettered right of the landlord to seek eviction on the ground of non-payment of rent from the tenant during the period the Act remains in force. A tenant who pays and who is ready and willing to pay standard rent and permitted increases is protected from eviction. Section 12 (1) thus provides a statutory protection to the tenant so long as the tenant pays and is ready and willing to pay standard rent and permitted increases and observes the terms of his tenancy. Section 12(2) entitles further protection that a landlord cannot file a suit for eviction unless he has made a demand in notice in writing of the arrears of standard rent or permitted increases. As soon as the tenant receives notice of demand he has either to pay the same within one month or if he raises a dispute with regard to standard rent or permitted increases, he has to file an application for fixation of standard rent or permitted increases, as the case may be within a period of one month in light of provisions of Section 11(3). Failure to do so would obviously disentitle the tenant to protection and will entitle the landlord to eviction decree under section 12(3) (a) or 12(3) (b), as the case may be. If the tenant makes an application under section 11(3) and if such application is dismissed for non-prosecution or default without payment of rent as per the demand in the notice under section 12 (2) and does not get it restored or reviewed, the tenant cannot be said to be ready and willing to pay the rent. It cannot also be said that there is dispute of standard rent once an application for fixation of standard rent under section 11 (3) is dismissed for default. Therefore, the first safeguard under section 12 (1) is lost.[Para 18](b) Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Secs. 11, 12(3)(b) & 29(2) - Eviction - Non payment of rent - Statutory protection under section 12(3)(b) - First application for fixation of standard rent dismissed in default - Second application though maintainable but tenant will not enjoy protection under section 12(3)(b) - In the instant case, eviction justified.The fact that the tenant whose application for fixation of standard rent is dismissed for non-prosecution will be able to file a fresh application for fixation of standard rent under Section 11 does not mean that the tenant will enjoy protection of Section 12. It is true that right to file a fresh application for fixation of standard rent if the Previous or first application is dismissed for default, is not taken away by the provisions of the Rent Act and Order 9, Rule 9, C.P. Code cannot be held to have taken away the said statutory substantive right. However, once application for standard rent is dismissed for default and the same is not got restored, then, the tenant would be deprived of the protection of provisions of Section 12, though he has a right to file a fresh application for fixation of standard rent. Therefore, the mere fact of a fresh application by the tenant does not mean that there is a dispute of standard rent and the tenant should be given time to seek protection of Section 12(3)(b) as the standard rent is fixed alongwith the decision on merits. Having regard to the fact and circumstances enumerated hereinabove and the catelogue of events and the material text of the entire scheme of the Rent Act and aforesaid case law, this court has no hesitation in finding that the petitioner-tenant is not entitled to statutory umbrella of the provisions of Section 12(3)(b) and, therefore, the respondents-landlords are eligible and qualified for an ejectment decree on the ground of non-payment of rent under Section 12(3)(b).
[Paras 19 & 23](c) Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sec. 11 - Civil Procedure Code, 1908 - Order 9, Rule 9 - First applicaion for fixation of standard rent dismissed in default - Filing of second application - Held, not barred under Order 9, Rule 9, CPC - Scheme of the Rent Act not permit such bar.Dismissal of application under Section 11 for default would not bar a fresh application for fixation of standard rent. It is not correct to say that once an application under Section 11 comes to be dismissed, it would preclude the tenant from reagitating the question of standard rent. The second application for fixation of standard rent by the tenant cannot be said to be incompetent under the provisions of Section 11 of the Rent Act.[Para 9]
( 1 ) SHOULD the second application for fixation of standard rent after dismissal of the first application for non-prosecution upon receipt of notice of demand of rent of more than six months, under Sec. 12 (2) of the Bombay Rents, hotel and Lodging House Rates Control Act, 1947 (the Rent Act for short) give protection to the tenant from an ejectment decree, is the theme of the present revision.
( 2 ) THE petitioner is the original defendent-tenant and the respondents are the original plaintiff-landlods in respect of demised premises consisting of one room, Osri and kitchen on the ground floor situated in Vaniawadi Sheri No. 2 at Rajkot. The parties are hereinafter addressed to as the landlords and tenant for the sake of convenience and brevity. The demised premises were let to the tenant at the monthly agreed rent of Rs. 60. 00 inclusive of taxes.
( 3 ) THE landlords filed Regular Civil Suit No. 6 of 1980 in the Small Cause court at Rajkot for possession on the ground of non-payment of rent and also on the ground of nuisance and annoyance. The tenant resisted the suit by filing a written statement. On the basis of the pleadings, issues were settled at Exh. 30. The trial court on appreciation of the facts and circumstances, decreed the suit for possession only on the ground of non-payment of rent under Sec. 12 (3) (b) of the Rent Act. The suit for possession and Civil Misc. Application No. 22 of 1980 which was pending for fixation of standard rent came to be consolidated and decided by the trial Court by a common judgment on 23-2-1981. The unsuccessful tenant carried the matter before the District Court at Rajkot by filing Civil Appeal No. 66 of 1981 and lost in the second inning also as his appeal came to be dismissed on 25-7-1983. The tenant has, therefore, challenged the legality and validity of the eviction decree passed by the Courts below on the ground of non-payment of rent under Sec. 12 (3) (b) of the Rent Act by filing this revision under Sec. 29 (2) of the Bombay Rent Act.
( 4 ) THE learned Advocate Mr. Shah while appearing for the petitioner-tenant has raised the following contentions : (1) That the Courts below have committed error of law in not fixing the standard rent by dismissing the second application for fixation of standard rent. (2) That the decree for possession against the tenant on the ground of nonpayment of rent under Sec. 12 (3) (b) is illegal as time for payment of arrears of rent after fixing standard rent is not given.
( 5 ) THE aforesaid two contentions are interconnected and, therefore, it would be desirable and expedient to deal with them simultaneously.
( 6 ) THE tenant had filed an application for fixation of standard rent under sec. 11 earlier. The first application for fixation of standard rent No. 818 of 1976 came to be dismissed for default on 30-6-1979. There is no dispute about the fact that no application for restoration or review had been made by the tenant. There is also no dispute about the fact that the rent was in arrears from 1-7-1976. The landlords served the tenant with a notice Exh. 21 dated 3-12-1979 demanding arrears of rent from 1-7-1976 to 30-11-1979. Thus, the tenant was served with a notice under Sec. 12 (2) wherein demand of rent of 41 months was made at the rate of rs. 60/- per month, totalling to Rs. 2,460. 00. The tenant received the notice. The acknowledgement receipt is produced at Exh. 22. The suit came to be filed on 4- 1-1980 and the second application for fixation of standard rent No. 22 of 1980 was filed by the tenant on 11-1-1980.
( 7 ) ON appreciation of the facts and circumstances and the evidence on record, the trial Court held that the tenant was in arrears of rent of more than six months and he is liable for eviction under Sec. 12 (3) (b ). The trial Court found that the second application for fixation of standard rent is not maintainable as the first application for fixation of standard rent was dismissed for default. In the opinion of the
