A landlord cannot be denied the opportunity to be heard before the court fixes interim rent for a tenant where notice under S.12(2) of the Bombay Rent Act is not given.

1. This is a revision application referred to us by our Brother R. A. Mehta, J. by his order dt. 21-2-1984.

2. In order to understand what the controversy is, the history of this litigation is required to be looked at. The opponent herein, who admittedly is a tenant of the premises situated at Jamnagar, has filed an application for fixation of standard rent in respect of the premises hired by him from the present petitioners - landlords. He has a right to file an application and there is no controversy about it. In that substantive application itself, the opponent - tenant filed an application for fixation of interim rent, presumably under S.11(3) of the Bombay Rent Act . The learned trial Judge fixed the interim rent of Rs. 1575/- p.m. as against the contractual rent of Rs. 2500/-. Soon on being served with this order fixing the interim rent, the landlords appeared before the learned Judge and gave him an application, Ex. 32, requesting the learned Judge that the said order fixing the interim rent below application Ex. 4 was ex parte and, therefore, he should be heard before any order to his obvious prejudice could be passed. The learned Judge, however, rejected that application holding that the Gujarat High Court in one unreported decision had held that there was no provision in the Act whereby the landlord could make an application to have refixation of the interim rent or to get revised the interim rent fixed by the Court ex parte. The judgment relied upon by the learned trial Judge is in the case of Mahavir Jain Vidyalaya v. Bostor Taylors (C. R. A. 1259 of 1979) decided by our Brother S. L. Talati, J. on 29-12-80. Being aggrieved by the said refusal to re - examine the question, the landlords invoked this High Court's revisional jurisdiction under S.115 of the Civil P.C. The thrust of their arguments before us vigorously put forward by Mr. Shah is that in this case when the landlords had not given any notice under S.12(2) of the Bombay Rent Act , the Court had no jurisdiction whatsoever to fix the interim rent and secondly Mr. Shah urged that even if such a power was assumed to be there vested in the Court under S.11(3) or (4) of the Act, such a prejudicial order passed by way of ad interim order had to be revised or affirmed after hearing the person likely to be adversely affected thereby.

3. We have heard the learned Advocates. We are convinced that this revision application referred to us by our Brother R. A. Mehta J., deserves to be allowed on both the counts urged before us. It is the common case of the parties that the opponent herein, the tenant, was not served with any notice under S.12(2) of the Bombay Rent Act and if there was no such impending threat of institution of a suit for possession on the ground of non - payment of rent, there was no occasion for the tenant to get the interim rent fixed. The Scheme of S.11 of the Act requires to be closely looked at. S.11(1) enumerates the cases in which the Court would be justified in fixing the standard rent on the criteria provided thereto. S.11(2) gives the Court under the Act power to fix the amount of permitted increases. S.11(3) of the Act then provides for fixing of interim rent, obviously at the behest of a tenant who has filed an application for fixation of standard rent for determining permitted increases if he has received a notice from the landlord under S.12(2), which threatens him with an action of eviction on the ground of non - payment of rent if the amount demanded is not paid within a period of one month of the receipt of the notice of demand. The purpose behind enacting this section is very clear, as could be