JETHALAL RAGHUNATH Vs. K H SOJITRA

JUDGEMENT

(1.) This is a revision application referred to us by our Brother R. A. Mehta J. by his order dated 21

(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 applicaion from fixation of standard rent in respect of the premises hired by him from the present petitioners-landlords. He has a right to file an applicaton 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 Section 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 Exhibit 32 requesting the learned Judge that the said order fixing the interim rent below application Exhibit 4 was exparte 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 29-12-1980. Being aggrieved by the said refusal to re-examine the question the landlords invoked this High Courts revisional jurisdiction under Section 115 of the Civil Procedure Code. 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 Section 12(2) of the Bombay Rent Act the court had no jurisdiction whatsoever to fix the interim rent and secondly Mr. Shah urged that if even such a power was assumed to be there vested in the court under Section 11(3) or (4) of the Act such a prejudicial order passed by way of ad interim order had to be revised or afirmed 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 Section 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 Section 11 of the Act requires to be closely looked at. Section 11 (1) enumerates the cases in which the court would be justified in fixing the standard rent on the criteria provided thereto. Section 11 (2) gives the court under the Act power to fix the amount of permitted increases. Section 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 or for determining permitted increases if he has received a notice from the landlord under Section 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 viewed from the Scheme of the Act. Section 12(1) provides a sort of an umbrella above the head of a tenant. It says that as long as the tenant is ready and willing to pay the rent and to comply with other terms of tenancy he cannot be evicted. Section 12(2) then provides a sort of a further safeguard to the tenant. Section 12 says by necessary implication that if a tenant is not paying rent he can be proceeded against in the matter of eviction. In order to give a sort of a further protection to the tenant a procedural safeguard is envisaged by Section 12 (2) which says that before filing a suit for possession on the ground of non-payment of rent a sort of an eleventh hour opportunity should be extended to the tenant so that he may make good his lapse. Section 12 (2) therefore postulates that before a landlord exercises his right of eviction envisaged under Section 12 (1) of the Act he must give an opportunity to the tenant to make good that lapse by paying or tendering the amount allegedly due. Now a situation may arise that the tenant may be genuinely disputing the rate of rent or permitted increases. What should he do in such circumstances ? If he raises the dispute say within a period of one month then he cannot thwart the action of the landlord but he may get protection under Section 12 (3) (b) of the Act at any rate but the Legislature does not want that the tenant should be subjected to this sort of torture of a litigation. If the tenant genuinely contests the landlords claim about the rate of rent such a tenant is given a sort of a further protection to vindicate his grievance about the standard rent. He can file an application for fixation of standard rent under Section 11(1) and 11(3) of the Act then provides that such a tenant to whom a notice under Section 12 (2) has been served may request the court to Ex the interim rent. The moment the interim rent is fixed the arrears at that interim rate are to be deposited with the order to go on paying the rent regularly at that interim rate and the landlords right to proceed against the tenant on the ground of non-payment of rent would stand arrested. The entire scheme of Section 12 (1) and 11 (3) of the Act therefore clearly lays down that the question of interim rent arises if and only if the tenant stands the threat of being proceeded against in the form of eviction proceedings on the ground of non-payment of rent which threat can be initiated only by a notice under Section 12 (2) of the Bombay Rent Act. If there is no such imminence there is no case for getting interim rent fixed. So in the present case the very application Exhibit 4 given by the tenant to the learned Judge for fixing the interim rent was without jurisdiction and on this ground the impugned order of interim rent is required to be quashed and it is here-by quashed on that ground. We however make it clear that if during the pendency of the application under Section 11 (1) of the Act for fixing the standard rent or permitted increases or both if the landlord chooses to give a notice under Section 12 (2) of the Act it will be open for the tenant to seek fixation of interim rent under Section 11 (3) of the Act.