JOSHI BHURARAM DATTARAM Vs. JIVIBAI D MULCHAND MRS

JUDGEMENT

(1.) The appellant is the tenant. The respondent laid the suit for eviction under Section 12 (1 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short 'the Act') on the ground that he was in arrears of 72 months from 7/03/1969. A notice in this behalf as required under Section 12 (2 was got issued and thereafter the suit was laid. The appellant in the written statement contended that the standard rent payable to the respondent was Rs. 9. 00 and the demand of Rs. 20. 00 as arrears was not valid and that, therefore, the notice issued under Section 12 (2 is not a valid notice. Accordingly the suit is not maintainable. On framing appropriate issues, the trial court found that though the standard rent was Rs 9. 00, the notice Ex. 116 of Rs 20. 00 per mensern was standard rent, the appellant had not disputed the same by issuing any reply notice nor filed any petition as required under Section 11 (3 of the Act within one month from the date of the receipt of the notice. He cannot, therefore, raise the dispute of standard rent in the written statement. Trial court found the appellant in arrears and decreed the suit. Since the appellant had paid, pending suit, excess amount, a direction was given for refund of the excess amount to the appellant. The appellate court found on issue No. 3 that the standard rent was Rs. 9. 00 per mensern. But, however, since the appellant has not proved to have paid the amount as pleaded to have paid Rs. 400. 00, the decree for ejectment was confirmed. The High court dismissed the revision under Article 227 in limine. Thus this appeal by special leave.

(2.) Shri Parekh, learned counsel for the appellant, contended that Section 5 (10 of the Act defines standard rent and the procedure has been prescribed for fixation of the standard rent under Section 11 read with S. 9, 10 and 10-A for enhancement of the standard rent or the permitted rent. It was not open to the landlord to unilaterally enhance the rent, which is an offence under Section 18 and to file an application for fixation of the standard rent. Having failed to take recourse of those provisions and in view of the finding given by both the courts that the standard rent is Rs. 9. 00, the notice under Section 12 (2 demanding Rs. 20. 00 per mensem as standard rent in law is illegal, which is the foundation. Therefore, the ejectment of the appellant on the ground that he was in default in payment of the rent is clearly illegal. Shri Dave, learned counsel for the respondent resisted the contentions. He argues that it is open to the appellant to dispute the standard rent when the notice under Section 12 (2 was issued since the appellant had riot disputed the standard rent. What was claimed in the notice under Section 12 (2 to be the standard rent, procedure prescribed in Section II to determine standard rent and the right given to the tenant was not availed. So he cannot dispute the same and the appellate court was not justified suo motu to go into that question giving the finding that the standard rent was Rs. 9. 00. The finding of both the courts that the appellant committed the default in payment of rent for 72 months is a finding of fact which is not open to this court to interfere with.

(3.) Whether the decree of ejectment made by courts below is vitiated by error of law is the question. Undoubtedly Section 5 (10 defines standard rent, permitted increase also has been defined. Procedure has been prescribed under Section 11 for fixation of the standard rent. Standard rent and permitted increase has to be determined as per S. 9, 10 and IO-A of the Act. On disputation between landlord and tenant of standard rent it shall be determined under Section 11 (1 and in respect of permitted increase under Section 11 (2. In case of a demand of standard rent or permitted increase by a notice under Section 12 (2, the court is enjoined at the behest of the tenant, an application made within 30 days under Section 11 (3 from the date of the receipt of the notice under Section 12 (2, it shall determine the same. Pending determination, it shall also specify the amount of rent or permitted increase which the tenant has to deposit and the court to make order directing the tenant to deposit such rent in court or at his option to pay the same to the landlord. Undoubtedly the Act prescribes standard rent in Section 5 (10 and permitted increase in S. 9, 10 and 11-A. It also prescribes the procedure under Section 11 to determine the standard rent or permitted increase. Section 11 (3 gives a right to the tenant to dispute the correctness of the demand of standard rent and the remedy for determination of the standard rent. When Section 12 (2 enjoins the landlord to issue notice under Section 106 of the Transfer of Property Act in which the demand for arrears of standard rent have been made, it is open to the tenant to dispute the demand or the rate of the standard rent or permitted increase thereof. Section 11 (3 enjoins that an application shall be filed within 30 days from the date of the receipt of the notice. In other words, the Act provides the remedy and procedure to determine standard rent or permitted increase. Section 11 (3 prescribes the limitation to avail the remedy. If the tenant omits or waives the disputation and did not invoke the jurisdiction of the court under Section 11, it isnot permissible to the tenant thereafter to raise the plea in the written statement disputing the rate of standard rent. Section 7 read with Section 18 any demand for excess rent in contravention of Section 7 is an offence under Section 18. The public policy appears to be that an avaricious landlord to enhance the rent at whim has been kept at bay. The notice under Section 12 (2 is only a procedural part, but the substantive remedy is provided under Section II. Therefore, the assertion of the landlord of the rate of standard rent or quantum thereof is not conclusive but a foundation to lay the suit or petition under Section 11 which is subject to determination by the court as envisaged under the Act.