MONGHIBA LAKHAJI Vs. HIRA KUNVAR MULJI

JUDGEMENT

(1.) At the instance of a learned Single Judge of this Court, the following question of law arising from the provisions of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as "the Rent Act") has been referred for our opinion:-

(2.) . Since we are called upon only to consider the above question and not to decide the revision application itself, it is not necessary to set out all the facts in detail. Suffice it to state that - 2.1 The respondent herein (hereinafter referred to as "the plaintiff" or "the landlord") filed Regular Civil Suit No.235 of 1973 for recovering possession of the suit premises and also for recovering arrears of rent from the present petitioner (hereinafter referred to as "the defendant" or "the tenant") on the ground that the defendant was in arrears of rent at the rate of Rs.16/- p.m. for the period from 1.6.1971 to 28.2.1973 and that despite service of notice on the defendant (service by refusal) the defendant did not pay the arrears of rent. The plaintiff also prayed for mesne profits at the rate of Rs.16/-p.m.. The defendant contested the suit and raised a dispute about standard rent, and pleaded that the money order of Rs.300/- sent by the defendant was not accepted by the plaintiff. Hence, the defendant was not in arrears of rent. The defendant prayed for fixation of standard rent. 2.2 The learned trial Judge decreed the suit by judgment and decree dated 18.2.1977 after giving the following findings:- (i) Rent is payable by month. (ii) the standard rent of the suit premises was already fixed in the earlier proceedings between the parties at Rs.16/-p.m. The dispute as to the standard rent was not raised within one month from the date of receipt of the notice; (iii) the defendant is in arrears of rent for more than six months on the date of expiry of one month from the date of receipt of notice. (iv) The amount of Rs.300/- was sent by the defendant to the plaintiff by money order after expiry of the period of one month from the date of service of the notice and, therefore, the defendant was not ready and willing to pay the arrears of rent and the plaintiff was justified in refusing to accept the said money order. The learned trial Judge accordingly held that the conditions of Section 12(3)(a) were satisfied and the plaintiff is entitled to recover the possession of the suit premises and also to recover the arrears to the tune of Rs.368.40; 2.3 Aggrieved by the above judgment, the defendant preferred Regular Civil Appeal No.32 of 1977, which came to be dismissed by the learned Assistant Judge, Jamnagar by judgment and decree dated 29.1.1980 after confirming all the findings of the trial Court except on the question whether rent is payable by month. As per the terms of the lease deed, the defendant has to pay the education cess and other municipal taxes which are payable every year and not every month. Hence, it cannot be said that the rent is payable by month and, therefore, the defendant cannot be evicted under the provisions of Section 12(3)(a) of the Act, but the defendant did not deposit full rent due on the first date of hearing of the suit nor did she deposit the rent regularly every month in the trial Court but the defendant was more or less regular in depositing the rent during pendency of the appeal. The defendant, therefore, lost the protection under section 12(3)(b) of the Rent Act. 2.4 Aggrieved by the aforesaid judgment and decree, the petitioner-defendant-tenant filed the present revision application.

(3.) At the hearing of the revision application before the learned Single Judge, the learned counsel for the petitioner -tenant raised three contentions. We are, however, concerned with only the third contention set out as under:- "In a case where the eviction is sought under Section 12(3)(a) of the Act, the Court cannot proceed further to examine whether the case falls within the purview of Section 12(3)(b) of the Rent Act or to pass a decree for possession under the said Section 12(3)(b) of the Act." The above contention came to be raised on behalf of the petitioner in view of the fact that although the trial Court passed the decree of eviction under Section 12(3)(a) of the Act, the lower Appellate Court, after holding that the case did not fall under Section 12(3)(a), examined the case and held that the defendant did not avail of the protection under Section 12(3)(b) by regularly depositing the rent during pendency of the suit before the trial Court. The learned Single Judge expressed her view that the trial Court had rightly held that the case fell under Section 12(3)(a) of the Act because the standard rent of Rs.16/-p.m. was inclusive of municipal tax and education cess and, therefore, the rent was payable by month. The learned Single Judge also held that in any view of the matter, the defendant having omitted to pay/tender rent regularly pending trial has forfeited right to protection under Section 12(3)(b) of the Rent Act. The learned Single Judge did not agree with the view taken by some learned Single Judges of this Court to the effect that where the conditions stipulated in Section 12(3)(a) are not fulfilled, the Court cannot then examine whether the decree of eviction may be passed under Section 12(3)(b) of the Act which view was taken on the basis of certain observations made by the Hon'ble Supreme Court in NM Engineer & ors. vs. Narendra Singh Virdi & Anr., AIR 1995 SC 448. Hence, this reference.