THAKKAR RAMANLAL SHIVLAL Vs. THAKKAR HIMATLAL RANCHHODDAS

JUDGEMENT

(1.) The short question which arises in this Revision Application is whether the case is governed by sec. 12(3)(a) or sec. 12(3)(b)of the Bombay Rents Hotel and Lodging House Rates (Control) Act 1947 The dispute in this Revision Application relates to certain premises situate in Padra which were let out by the plaintiffs to the defendant on 5th April 1957 at a contractual rent of Rs. 60 per month. On 8th October 1959 the defendant made an application for fixation of standard rent of the suit premises and whilst the application was pending the plaintiffs gave a notice dated 24th April 1960 terminating the tenancy of the defendant. The defendant was in arrears of rent from 11th June 1959 and the plaintiff therefore also gave another notice dated 29th November 1959 calling upon the defendant to pay up the arrears of rent. The application for fixation of standard rent was thereafter decided by the learned Civil Judge and by an order dated 28th March 1961 the learned Civil Judge determined the standard rent of the suit premises to be Rs. 42-50 ps. per month. Though the standard rent of the suit premises was determined by the said order dated 28th March 1961 the defendant did not pay up all the arrears of rent but paid only an aggregate sum of Rs. 505/with the result that certain arrears of rent still remained due and payable by the defendant to the plaintiff. The plaintiff therefore filed a suit against the defendant on 18th August 1961 claiming to recover possession of the suit premises from the defendant. There were two grounds on which possession of the suit premises was sought one being that the plaintiff bona fide and reasonably required the suit premises for his own use and occupation and the second being that the defendant was in arrears of rent and was therefore not entitled to the protection of the Rent Act. After the suit was filed but before issues were raised in the suit the defendant deposited in the trial Court a sum of Rs. 1 0 along with an application dated 11th October 1961 for permitting him to make the deposit. The. issues were thereafter raised on 12th December 1961 and subsequent to the raising of the issues the defendant regularly deposited in the trial Court from to time the monthly rent of the suit premises. The learned trial Judge then proceeded to try the suit and on a consideration of the evidence on record he came to the conclusion that the plaintiff had failed to establish that he bona fide and reasonably required the suit premises for his own use and occupation and the plaintiff was therefore not entitled to recover possession of the suit premises from the defendant on that ground. But on the other ground the learned trial Judge found in favour of the plaintiff and he held that the case was governed by sec. 12(3)(a) and the plaintiff was therefore entitled to a decree for eviction against the defendant. The learned trial Judge accordingly passed a decree dated 27 October 1962 directing the defendant to hand over possession of the suit premises to the plaintiff. The defendant being aggrieved by the decree for eviction preferred an appeal to the District Court but the learned District Judge agreeing with the view taken by the learned trial Judge dismissed the appeal on 23rd August 1963. The defendant thereupon preferred the present Revision Application in this Court challenging the decision of the learned District Judge.

(2.) It will be seen from the aforesaid statement of facts that the only question which arises for consideration in this Revision Application is whether the case is governed by sec. 12(3)Ca) or sec. 12(3)(b) of the Rent Act. If the case falls within sec. 12(3)(a) the decree for eviction must be held to have been rightly passed against the defendant but if the case does not fall within sec. 123)(a) it will have to be considered whether the defendant has complied with the conditions of sec. 12(3)(b) so as to entitle him to the protection of that section. It was not disputed on behalf of the plaintiff that if the case was governed by sec. 12(3)(b) the defendant had complied with all the conditions of that section and in that event no decree for eviction could be passed against him. But the contention of the plaintiff was and that was the contention which found favour with both the lower Courts-that the case was governed by sec. 12(3)(a). Now there are four conditions which must be fulfilled in order that sec. 12(3)(a) may be attracted and they are (1) the rent must be payable by the month; (2) there should be no dispute regarding the standard rent or permitted increases; (3) such rent or increases must be in arrears for a period of six months or more at the date of the notice under sec. 12(2); and (4) the tenant must have neglected to make payment thereof until the expiration of a period of one month after the notice under sec. 12(2). It was common ground between the parties that the rent was payable by the month such rent was in arrears for a period of over six months on 29th November 1960 being the date of the notice under sec. 12(2) and the defendant neglected to make payment of such arrears until the expiration of the period of one month after the notice under sec. 12(2) There was thus no dispute in regard to the fulfillment of conditions Nos. (1) (3) and (4) but the dispute centered round the fulfillment of the second condition. The plaintiffs alleged that though there was undoubtedly a dispute regarding the amount of the standard rent at the date when the notice under sec 12(2) was given and such dispute continued right upto the expiration of one month from the date of service of the said notice it came to an end on 28th March 1961 and was therefore not in existence at the date of the institution of the suit and the second condition required by sec. 12(3)(a) was consequently satisfied. The defendant on the other hand contended that what sec. 12(3)(a) required was not that there should be a dispute regarding the amount of the standard rent at the date of the institution of the suit but that such dispute must exist at the date of the notice under sec. 12(2) or at any rate within one month after the service of such notice and if such dispute was in existence at the date of the notice under sec. 12(2) or at any rate before the expiry of one month after its service the second condition would not be satisfied and sec. 12(3)(a) would not be attracted and it would be entirely immaterial whether such dispute continued to exist or not upto the date of the institution of the suit. These rival contentions raised a question of interpretation of sec. 12(3)(a) but the question is no longer open to doubt or debate. It stands concluded by two decisions of this Court both being decisions of Division Benches namely Ambalal v. Babaldas (1962) III G.L.R. 625 and Chunilal v. Chimanlal (1966) VII G.L.R. 945. In Ambalal v. Babaldas the question directly arose as to what is the stage at which dispute in regard to the standard rent or permitted increases must be raised in order to take the case out of sec. 12(3)(a) and Shelat J. as he then was delivering the judgment of the Court answered the question by saying:-

(3.) The Revision Application is therefore allowed and the rule is made absolute. The decree for eviction passed by the learned trial Judge and confirmed by the learned District Judge is set aside and the plaintiffs suit is dismissed in so far as it relates to the claim for recovery of possession of the suit premises from the defendant. The plaintiffs will pay the costs of the Revision Application to the defendant. Application allowed.