RAMNIKLAL DWARKADAS MODI Vs. MOHANLAL LAXMICHAND

JUDGEMENT

(1.) In this reference the question to be determined is whether it is not sufficient to raise a dispute as to the standard rent within one month in reply to the notice or even prior to the date of such demand of rent but it is necessary in either case also to make an application under sec. 11 of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (hereinafter referred to as the Act) within one month of the notice referred to in sec. 12(2) of the Act in order to avoid a decree of eviction under sec. 12(3)(a) of the Act. To state shortly the essential facts are that the suit residential premises were rented by the opponent plaintiff landlord to the petitioner defendant tenant on monthly rent of Rs. 45.00. The tenant was in arrears of rent with effect from April 1 1966 The tenant had given a notice to the landlord on September 2 1966 and raised a dispute that the monthly rent of Rs. 45.00 was excessive. Thus he raised a dispute as to the standard rent of the suit premises. The landlord replied to this notice on September 12 1966 Thereafter the landlord gave a notice dated January 11 1967 to the tenant demanding arrears of rent from April 1 1966 and terminating his tenancy. The notice was returned as not claimed. The landlord therefore gave a second notice dated January 23 1967 which was returned with a postal endorsement refused. Then the landlord filed a Regular Civil Suit No. 334 of 1967 in the Court of the Joint Civil Judge Junior Division Rajkot for recovering the rent and possession of the suit premises on the ground of arrears of rent which were due for a period of more than 6 months. The tenant filed Civil Miscellaneous Application No. 336A of 1967 for fixation of standard rent under sec. 11 of the Act on October 26 1967 This application and the suit were consolidated and heard together. The learned trial Judge following the decision of the Supreme Court in SHAH DHANSUKHLAL CHHAGANLAL V. DALICHAND SHROFF (DECD) 9 G.L.R. 758 passed a decree of eviction under sec. 12(3)(a) of the Act holding that the dispute regarding the standard rent was required to be raised by filing an application for fixation of standard rent under sec. 11(3) of the Act within one month of the notice referred to in sec. 12(2) of the Act and in the present case the dispute regarding the standard rent was not raised in that manner. In Civil Appeal No. 79 of 1968 filed by the tenant against the said judgment and decree the learned District Judge confirmed the decree of eviction passed by the trial Court on the ground that the decision of this Court in SHAH AMBALAL CHHOTALAL V. SHAH BABALDAS DAHYABHAI 3 G.L.R 625 to the effect that it was not incumbent on the tenant to make an application under sec. 11(3) of the Act for fixation of the standard rent within one month of the receipt of the notice was overruled by the decision in Dhansukhlals case wherein it was held that sec. 12(1) of the Act must be read with the explanation and so read the tenant could be considered to be ready and willing to pay if before the expiry of the period of one month after the notice referred to in sub-sec. (2) of sec. 12 of the Act an application to the Court under sec. 11(3) of the Act was made and thereafter the tenant paid or tendered the amount of rent or permitted increases as specified by the Court.

(2.) Before the learned Single Judge who heard this revision application the aforesaid decision of the lower appellate Court was sought to be supported by relying upon the decision given by M. U. Shah J. in Civil Revision Application No. 517 of 1965 decided on October 29 1968 the decisions of the Supreme Court in Dhansukhlals case (supra); HARBANSLAL JAGMOHANDAS V. PRABHUDAS SHIVLAL 78 B.L.R. 213 and the decision of the Division Bench consisting of S. H Sheth J. and Rane J. in Civil Revision Application No. 531 of 1972 decided on April 8. 1976.

(3.) M. U. Shah J. in Civil Revision Application No. 517 of 1965 made the following observations: