HAJI GULAMNABI HAJI SAFIBHAI Vs. VORA ABBASBHAI ALIMAHOMED

JUDGEMENT

(1.) This Revision Application arises out of a suit filed by the plaintiff against the defendant to recover possession of certain premises situate in Baroda. The contractual rent of the premises was Rs.70.00 per month. The defendant fell in arrears of payment of rent from 1st October 1955 and the plaintiff therefore gave a notice dated 1st December 1956 demanding arrears of rent from the defendant under sec. 12(2) of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (hereinafter referred to as the Rent Act). The notice was received by the defendant on 3rd December 1956. The defendant replied to the notice on 7th December 1956 and in this reply the defendant raised a dispute as regards the standard rent of the premises. The defendant contended that the contractual rent of Rs. 70.00 per month was excessive and was very much more than the standard rent of the premises. The defendant thereafter made an application for fixation of standard rent of the premises on 5th January 1957. In the application the defendant prayed that Rs. 35.00 per month should be fixed as standard rent of the premises. The defendant also prayed that interim rent should be fixed by the Court under sec. 11(3) of the Rent Act. The defendant thereafter deposited in Court a sum of Rs. 500.00 on 8th January 1957 and immediately gave notice to the plaintiff that the defendant had made an application for fixation of standard rent of the premises and that an application for fixing interim rent was also made in such application and that the defendant would pay up all the arrears of rent calculated on the basis of such interim rent as soon as such interim rent was fixed by the Court. It may be mentioned here that prior to this date there was a dispute between the plaintiff and the defendant regarding two items. The first item was rent for the period of six months from 1st October 1955 to 31st March 1956. The defendant contended that he had paid to the plaintiff rent for this period but that the plaintiff had refused to give receipts acknowledging payment of such rent. The plaintiff on the other hand contended that no such rent was at any time paid by the defendant to the plaintiff and that the defendant was in arrears of payment of rent from 1st October 1955. The second item related to a sum of Rs. 200.00 which the defendant alleged was spent by him on electric installations in the premises under an agreement that the plaintiff would reimburse the defendant in respect of the same. The plaintiff denied such agreement and contended that the defendant was not entitled to be reimbursed any amount spent by him on electric installations in the premises. The dispute briefly stated therefore was that the defendant claimed credit in respect of rent for the period of six months from 1 October 1955 to 31st March 1956 as also in respect of the sum of Rs. 200.00 alleged to have been spent by him on electric installations in the premises which claim was denied by the plaintiff. The defendant in the letter addressed by him to the plaintiff offering to pay up all the arrears of rent on the basis of the interim rent fixed by the Court stated that the defendant was Willing to pay up all such arrears without deducting the amount for which he claimed credit and that the dispute in regard to that amount could be settled later. The plaintiff however did not wait and fixed a suit for eviction against the defendant on 25th January 1957 The date for settlement of issues was fixed on 11th April 1957. Prior to this date the defendant deposited in Court a sum of Rs. 200.00 on 2 March 1957. A further sum of Rs. 218.00 was also deposited by the defendant in Court on 11th April 1957. The result therefore was that on 11th April 1957 which was the date for settlement of issues the defendant had deposited in Court an aggregate sum of Rs. 918.00. The defendant thereafter did not deposit any further amount until 24th June 1957 when he deposited a sum of Rs. 102.00. After this date also the defendant was irregular and it was only on 10th September 1957 that he made the next deposit of Rs. 153/. Some deposits were thereafter made by the defendant from time to time but nothing turns on these deposits and I need not therefore concern myself with the same. The suit was ultimately disposed of by the trial Court on 20th March 1958. The trial Court came to the conclusion that the standard rent of the premises was Rs. 51.00 per month and that the defendant had paid rent for the period 1 October 1955 to 31st March 1956 and had also spent a sum of Rs. 150 on account of electric installations for both of which items the defendant was entitled to claim credit from the plaintiff. The trial Court held on the basis of these conclusions that the defendant having deposited in Court before the date of the suit a sum of Rs. 500/- on 8th January 1957 the defendant could not be said to be in arrears of rent and that the plaintiff was therefore not entitled to possession of the premises from the defendant. The trial Court accordingly dismissed the plaintiffs claim for possession against the defendant. The plaintiff being aggrieved by the decree of dismissal passed by the trial Court preferred an appeal in the Court of the District Judge Baroda. The learned Assistant Judge who heard the appeal found that the standard rent of the premises was not Rs. 51.00 per month but was Rs. 70.00 per month. On the question of payment of rent for the period 1st October 1955 to 31st March 1956 the learned Assistant judge took the view that it could not be said to be proved that the defendant had paid such rent to the plaintiff and that the defendant was therefore in arrears of rent from 1st October 1955. The learned Assistant Judge did not disagree with the finding of the trial Court that the defendant had spent Rs. 150.00 on account of electric installations but came to the conclusion that the defendant was not entitled to recover the same from the plaintiff since there was nothing to show that the plaintiff had agreed to reimburse the defendant in respect of the same. In this view of the matter the learned Assistant Judge found that the defendant was a tenant in arrears but that he had complied with the requirements of sec. 12(3) (b) of the Rent Act and was therefore not liable to be evicted by the plaintiff. The learned Assistant Judge accordingly allowed the appeal in so far as the standard rent of the premises was concerned but dismissed the appeal in regard to the plaintiffs claim for possession of the premises against the defendant. The plaintiff thereupon preferred the present Revision Application in this Court

(2.) It was not disputed before me and indeed having regard to the decision of a Division Bench of this Court in Ambalal v. Babaldas (1962) III G. L. R. 625 it could not be disputed that the present case was governed not by section 12(3)(a) but by section 12(3) (b) since the defendant in his reply dated 7th December 1956 to the notice dated 1st December 1956 given by the plaintiff to the defendant under section 12 raised a dispute regarding the standard rent of the premises The main controversy between the parties therefore centred round the question whether the defendant complied with the requirements of section 12 Before however I examine the merits of this controversy for the purpose of coming to a decision one way or the other it would be convenient to first dispose of a contention urged on behalf of the defendant founded on section 12(1). Mr. B. S. Trivedi learned advocate appearing on behalf of the defendant contended that the defendant was entitled to the protection of section 12(1) because he paid or in any event was ready and willing to pay the amount of the standard rent and could not therefore be evicted by the plaintiff. There were two limbs of the contention advanced under this head and they were in the alternative. The first limb of the contention was that having regard to the decision of the Supreme Court in S. B. 8. Oil Mills v. Subhash Chandra (A. I. R. 1961 S. C. 1596) the point of time at which it was to be seen whether the defendant had paid or was ready and willing to pay the amount of the standard rent was when the decree was to be passed. The decree was passed in the present case argued Mr. B. S. Trivedi on 20th March 1958 and at this date the defendant had already deposited in Court an aggregate sum of Rs. 1 479 which covered the arrears of standard rent if the standard rent was Fixed at Rs. 51.00 per month. According to Mr. B. S. Trivedi this constituted sufficient compliance with the requirements of section 12(1). This contention was obviously based on the premise that the standard rent of the premises was Rs. 51.00 per month contrary to the finding of the learned Assistant Judge that the standard rent of the premises should be Rs. 70.00 per month. Of course Mr. B. S. Trivedi contested the finding of the learned Assistant Judge but for reasons which I shall state at the proper time while dealing with that point this finding cannot in my opinion be successfully challenged and the Revision Application must be decided on the basis of the standard rent of the premises being Rs. 70.00 per month. If the standare rent of the premises be taken at Rs. 70.00 per month the amount deposited by the defendant in Court upto the date of the decree was obviously not sufficient to cover the arrears of rent. Mr. B. S. Trivedi thereupon contended that the defendant was yet entitled to the benefit of the protection contained in sec. 12(1) since the amount deposited was sufficient to cover the arrears of rent calculated at the rate of Rs. 51.00 per month which was the interim rent specified by the Court under sec. 11 on the application of the defendant for fixation of interim rent. Now if the date of the decree were the relevant point of time at which to consider whether the conditions mentioned in sec. 12(1) are fulfilled this contention of Mr. B. S. trivedi might have had some force for in that event Mr. B. S. Trivedi could have urged that the standard rent of the premises being in dispute the defendant must be regarded as being ready and willing to pay the amount of the standard rent when the defendant deposited in Court the arrears of rent calculated on the basis of the interim rent specified by the Court under sec. 11(3) on the application of the defendant for fixation of interim rent. But it is now well-settled that the relevant point of time at which it is to be considered whether the conditions mentioned in sec. 12(1) are fulfilled is the date of the suit and not the date of the decree. The decision of the Supreme Court in S. B. &. Oil Mills v. Subhash Chandra (supra) lays down the true rule of decision enacted by sec. 12(1) and the matter must now be regarded as concluded by decision of the Supreme Court. Of course what is the true rule of decision laid down by the Supreme Court in this decision was once a matter of controversy and I may point out that in a decision given by me in Mohanlal v. Maheshwari Mills Ltd. (1962) III G. L. R. 574 prior to the decision of the Division Bench in Ambalal v. Babaldas (supra) I had interpreted this decision of the Supreme Court in S. B. K. Oil Mills v. Subhash Chandra (supra) as laying down the proposition that the relevant point of time to consider whether the conditions mentioned in sec. 12(1) are fulfilled is the time at which the decree is to be passed and not the date of the institution of the suit. But the Division Bench in Ambalal v. Babaldas (supra) differently interpreted the ratio of this decision of the Supreme Court and held that according to this decision of the Supreme Court the protection conferred by sec. 12(1) must be determined from the circumstances existent at the date of the suit and not at the date of the decree. This contention of Mr. B. S. Trivedi based as it was on the premise that sec. 12(1) operates at the date of the decree and not at the date of the suit must therefore fail and be rejected.

(3.) The second limb of the argument of Mr. B. S. Trivedi based on sec. 12 proceeded on the hypothesis that sec. 12 (1) operates at the date of the suit and not at the date of the decree and that it is at the date of the suit that it must be seen whether the tenant has paid or is ready and willing to pay the amount of the standard rent. Mr. B. S. Trivedi contended that even if the relevant point of time for the operation of sec. 12 was the date of the suit and not the date of the decree the defendant was yet entitled to the protection of sec. 12(1) since he was ready and willing to pay the amount of the standard rent at the date of the suit. Now the same decision of the Division Bench in Ambalal v. Babaldas (supra) which lays down that the date at which readiness and willingness of the tenant must be judged in order to decide whether the tenant is entitled to the Protection of sec. 12(1) is the date of the suit and not the date of the decree also establishes that readiness and willingness to pay the amount of the standard rent can be shown by the tenant even apart from the provisions of the Explanation to sec. 12. The Explanation to sec. 12 provides only one mode of evidencing readiness and willingness and the tenant may not choose to resort to that method and may prefer to establish his readiness and willingness otherwise than under the Explanation. There is nothing in sec. 12 not to allow him to establish his actual readiness and willingness instead of relying on the fiction created by the Explanation. The question which therefore arises for consideration under this head of argument is whether the defendant could be said to have shown his readiness and willingness to pay the amount of the standard rent at the date of the suit though he did not make an application for fixation of standard rent within one month of the date of the notice under sec. 12(2) as contemplated by the Explanation. In order to establish the readiness and willingness of the defendant Mr. B. S. Trivedi relied upon the following circumstances. Mr. B. S. Trivedi pointed out that the defendant made an application for fixation of standard rent on 5th January 1957 and immediately applied for an order specifying interim rent under sec. 11(3). Pending the specification of the interim rent the defendant deposited a sum of Rs. 500.00 in Court on 8th January 1957 and gave notice to the plaintiff that as soon as the interim rent was specified the defendant was willing to pay up the arrears in the basis of such interim rent without deducting any amounts for which the defendant claimed credit and in respect of which there was dispute between the parties. These facts clearly showed argued Mr. B. S. Trivedi that the defendant was ready and willing to pay the amount of the standard rent at the date of the suit. But this contention suffers from one serious infirmity. The defendant prayed in the application for fixation of standard rent that the standard rent of the premises should be fixed at Rs. 35.00 per month On the basis of the standard rent being Rs. 35.00 per month the arrears of the standard rent upto 8th January 1957 amounted to Rs.525.00 and yet the defendant deposited in Court only Rs. 500.00 on 8th January 1957. I do not see how under these circumstances the defendant could be said to be ready and willing to pay the amount of the standard rent at the date of the suit. On the defendants own showing the standard rent of the premises was Rs. 35.00 per month and the arrears of the standard rent therefore came to Rs. 525.00 but the defendant did not care to deposit even this amount and deposited only Rs. 500.00 which did not cover the arrears of rent even on the basis accepted by the defendant himself. If the defendant had deposited Rs. 525/- in Court there would have been some force in the argu- ment of Mr. B. S. Trivedi that the defendant was ready and willing to pay the amount of the standard rent for in that event the defendant could have urged that he had actually deposited in Court the arrears of standard rent calculated at the rate of Rs. 35.00 per month which according to his application was the standard rent of the premises. But that not having been done the defendant could not be said to be ready and willing to pay the amount of the standard rent when he did not pay or deposit in Court the arrears calculated on the basis of what even according to him was the standard rent of the premises. The defendant was therefore in my opinion not entitled to claim the benefit of the protection contained in section 12(1) and the present contention of Mr. B. S. Trivedi must be rejected.