TRIKAMLAL MANILAL SHAH Vs. MUSAMIYA IMAM HAIDERBUX RAZVI

JUDGEMENT

(1.) . This is the tenant's revision application under Sec. 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 hereinafter referred to as 'the Rent Act', directed against the judgment and order passed on 13/09/1979 in Civil Appeal No. 357 of 1976 by the learned Judges of the Appellate Bench of Small Causes Court, Ahmedabad, reversing the trial Court's judgment and decree dismissing the respondent-landlord's suit. .... .... .... .... .... The learned Counsels for the parties in this revision application have been heard at length. Two questions arise for determination in this revision application; one is with regard to the decree for possession passed by the Appellate Bench of the Ahmedabad Small Causes Court directing the petitionertenant to hand over peaceful and vacant possession of the suit shop to the respondent-landlord on the ground of arrears of rent as was held to be available under Sec. 12(3)(b) of the Rent Act and the second is with regard to the order holding the petitioner-tenant liable for committing breach of injunction issued by the trial Court on Exh. 5 and passing an order for detaining petitionertenant in civil prison as stated above. Both these questions may now be considered in the context of the submissions made on behalf of the rival parties. (1) Arrears of rent as contemplated by Sec. 12(3)(b) of the Rent Act: In so far as this ground is concerned, it would be necessary to set-out a few facts : The plaintiff-respondent filed the aforesaid H. R. P. Suit No. 392 of 1971 in the Ahmedabad Small Causes Court by pleading in the plaint that the suit shop was let out for the monthly rent of Rs. 19.00 and it was due and payable from 1/02/1968. The plaintiff-respondent further asserted in the plaint that the plaintiff was entitled to permitted increases at the rate of 7.5%, i.e., Rs. 1-43 ps. with effect from 1951 and accordingly the plaintiff-respondent was entitled to Rs. 344-63 by way of permitted increases from the defendant-petitioner. The plaintiff-respondent also claimed permitted increase by virtue of increase in municipal taxes, claiming the amount of such increase in the total sum of Rs. 568-22 upto 1970- 71. In para 5 of the plaint the plaintiff-respondent has come out with the demand of the rent and permitted increases as also education cess from the year 1962. According to the plaintiff the defendant-petitioner did not pay the same and, therefore, the plaintiff-respondent was entitled to possession from the petitioner-tenant. In the prayer clause regarding the money claim of arrears of rent, permuted increases as also the education cess, the plaintiff-respondent has claimed education cess in the sum of Rs. 121-50. Thus according to the plaintiff-respondent the petitioner-tenant was liable to pay education cess which was payable annually. As against the aforesaid facts set-out by the plaintiff-respondent it is an admitted position that the petitioner-tenant filed application for fixation of the standard rent for the suit shop quite within a period of one month from the receipt of the suit nonce. It is also an admitted fact that the said standard rent application was withdrawn with the permission of the Court as per the order Exh. 84 and the question of standard rent was required to be decided in the aforesaid suit. It is finally not in dispute that the question of standard rent and permitted increase came to be decided by the trial Court alongwith the other questions on 5/07/1976 as stated above. The trial Court fixed standard rent of the suit shop at Rs. 19.00per month plus Rs. I.00 per month by way of permitted increase under Sec. 10C of the Rent Act. It is important to note that on the date of the trial Court's judgment and decree the petitioner-tenant had deposited an excess amount to the extent of Rs. 86.00. Issue No. 3 framed by the trial Court related to the plaintiffrespondent's claim of possession on the ground of arrears of rent. The trial Court held that the dispute of standard rent came to be raised within one month from the seivice of the demand notice. Besides, the plaintiffrespondent also claimed permitted increases and the petitioner-tenant disputed such claim of permitted increases. In that view of the matter the trial Court held that the provision contained in Sec. 12(3)(b) of the Rent Act was attiacted and by viltue of the fact that the petitioner-tenant deposited the full amount of arrears, the petitioner-tenant could not be said not ready and willing to pay the rent. The trial Court held that the petitioner-tenant was protected under Sec. 12(3)(b) of the Rent Act.

(2.) . The respondent-plaintiff carried the matter in appeal again disputing the rate of permitted increases. In the grounds of appeal the respondent-landlord asserted that the trial Court ought to have awarded permitted increase at the rate of 7.5% and not at the rate of 5% and that the trial Court ought to have awarded permitted increases on account of increase in municipal taxes. Such appeal came to be filed by the respondent-landlord on 26-11-1976 and it was admitted on 10-1-1977. Dealing with the question of arrears of rent, the Appellate Bench framed the following point for determination :

(3.) . In para 19 of the judgment of the Appellate Bench, the Appellate Bench proceeded to consider the grounds of eviction based on arrears of rent accepting the facts as they appeared with regard to raising of dispute of standard rent. The Appellate Bench observed that the dispute was covered under Sec. 12(3)(b) of the Rent Act. The Appellate Bench, however, proceeded to consider the payments made by the tenant before the Court in the suit proceedings. Reference has been made to the facts with regard to filing of the standard rent application by the tenant. The Appellate Bench then proceeded to find that the trial Court was bound to give lime to the tenant to enable the tenant to deposit the amount of standard rent when the standard rent was fixed alongwnh other questions. The Appellate Bench further proceeded to observe that if the tenant deposited the amount within the time prescribed by the trial Court, then the tenant was protected as being ready and willing to pay arrears of rent.