SURESHCANDRA BHULABHAI JARIWALA Vs. MAGANLAL LALLUBHAI

JUDGEMENT

(1.) One Bhulabhai Nathubhai Jariwala hereinafter referred to as the original petitioner was the owner of a house bearing No. 3638 situate in Ward No. 7 Rampura Surat. The respondent was a tenant of the original petitioner in respect of the first floor of the house to which we shall for the sake of convenience refer as the premises. According to the original petitioner the contractual rent of the premises was Rs. 14/per month calculated according to the Hindu calendar. The respondent fell in arrears of rent from Kartak Sudi Samvat Year 2010 i. e. 7 November 1953 and failed to pay the arrears in spite of repeated demands made by the original petitioner. The original petitioner ultimately gave a notice to quit dated 12th April 1955 terminating the tenancy of the respondent with effect from Vaishakh Vad 30 Samvat Year 2011 i.e. 21 May 1955 and calling upon the respondent to pay up the arrears of rent. The respondent by his letter in reply dated 14th April 1955 raised a dispute in regard to the standard rent of the premises and claimed that the contractual rent was excessive and that the standard rent which he was liable to pay to the petitioner was only Rs. 6 per month. Since the respondent did not hand over possession of the premises in compliance with the notice to quit the original petitioner. filed a suit against the respondent in the Court of the Civil Judge Junior Division Surat on 13th June 1955 claiming possession of the premises and arrears of rent. There were two grounds on which the original petitioner sought to recover possession of the premises from the respondent. One was that the original petitioner required the premises reasonably and bona side for occupation by himself. This ground however does not survive any longer and wa will therefore say no more about it. The second ground which is material for our purpose was that the respondent was in arrears of rent and was therefore not entitled to the protection of Bombay Act 57 of 1947 hereinafter referred to as the Rent Act. On the same day on which the suit was filed the respondent preferred an application in the Court of the Civil Judge Junior Division Surat for fixation of the standard rent of the premises. Thereafter a written statement was filed by him in answer to the suit in which he disputed the claim of the original petitioner to recover possession of the premises and also contended that the contractual rent was excessive and that the standard rent should be fixed at Rs. 6 per month. During the pendency of the suit the respondent deposited a sum of Rs. 1001 in Court on 13th June 1955. The date of settlement of issues in the suit was fixed on 4th October 1955 and on that date the issues were settled by the learned trial Judge. The result was that at the date of the settlement of issues the only amount deposited by the respondent in Court was Rs. 100/whereas the arrears of rent even if calculated at the rate of Rs. 6/per month which was the rate at which the respondent wanted the standard rent to be fixed were more than the said amount of Rs. 100.00. The respondent thereafter deposited in Court from time to time various amounts as per the following particulars :

(2.) The respondent being aggrieved by the decree for eviction passed against him preferred an appeal in the District Court Surat. The learned District Judge who heard the appeal held that the Explanation to sec. 12 was not the only provision which conferred protection on the respondent but that even apart from the Explanation the respondent was entitled to invoke the protection of sec. 12(1) and sec. 12(3)(b). The learned District Judge then proceeded to examine the validity of the claim of the respondent to protection under sec. 12(3)(b) and held that inasmuch as the full amount of the standard rent had been deposited by the respondent in Court before the date of the judgment and an application had been made by the respondent to the learned trial Judge to fix a date Under sec. 12 the respondent was entitled to the protection of sec. 12(3)(b) and the original petitioner was not entitled to obtain a decree for eviction against him. So far as the finding of the learned trial Judge in regard to the standard rent of the premises was concerned the learned District Judge confirmed the same and determined the standard rent of the premises to be Rs. 6/per month. The learned District Judge accordingly allowed the appeal in part and set aside the decree for eviction passed against the respondent. The original petitioner thereupon preferred the present Revision Application in this Court. During the pendency of the Revision Application the original petitioner died and the present petitioners who are the heirs and legal representatives of the original petitioner were accordingly brought on record in place and stead of the original petitioner.

(3.) When the revision application originally came up for hearing before me sitting as a single Judge one of the questions agitated before me was whether the application made by the respondent to the learned trial Judge to fix a date under sec. 12(3)(b) was rightly rejected by the learned trial Judge. It was contended before me on behalf of the petitioners that the learned trial Judge was not only justified but was bound to reject the application inasmuch as the application was made after the first day of hearing of the suit. The argument urged on behalf of the petitioners was that an application for fixation oft a date under sec. 12(3)(b) had to be made on the first day of hearing of the suit and could not be made subsequently and that the application made by the respondent was therefore rightly rejected by the learned trial Judge. The petitioners in support of this contention relied on a decision of Raju J. in Allanur v. Balchand (1962) III G.L.R. 182. I found some difficulty in agreeing with the view taken by Raju J. in this decision and I therefore made an order referring the revision application to a Division Bench and that is how the revision application now comes before us.