HIRALAL BHOGIBHAI MANEK Vs. KANTILAL NAGIBHAI RATHOD

JUDGEMENT

(1.) This is plaintiff-landlord's Revision under Section 29(2) of the Bombay Rents, Hotel and Lodging House, Rates Control Act, 1947 (hereinafter referred to as "the Act") against the judgment and decree dated 2-4-1985 passed by the 4th Extra Asstt. Judge, Rajkot, whereby the learned Judge set aside the judgment and decree dated 25-3-1982 passed by the learned Judge, Small Causes Court, Rajkot, and dismissed the plaintiff's suit.

(2.) The necessary facts giving rise to the present Revision Application are that the petitioner-plaintiff filed a suit for recovery of possession stating, inter alia that the suit premises was let out to deceased Nagjibhai Trikambhai on a monthly rent of Rs. 55/- taxes. After his death, the present defendant is in occupation of the said premises. The plaintiffs sought decree for possession on the ground of default in payment of rent. He committed default in payment of rent for 73 months for the period Kartak Sud 1 of S. Y. 2031 to Shravan Vad Amas of S. Y. 2036, i.e. of 73 months. The demand notice under Section 12(2) of the Act was given on 29-7-1980. The defendant neither paid the rent due nor replied the notice. In response to the suit summons, the defendant filed written statement raising number of contentions. He also preferred application under Section 11(2) and (3) of the Act for fixation of standard rent @ Rs. 20/- per month. The learned Judge consolidated the said Misc. Application for fixing standard rent with the main suit. The plaintiff also filed an application below Exh. 20 under Section 11 (4) on which the Trial Judge, by order dated 27-11-1981, directed the defendant to pay Rs. 4,730/- as arrears of rent on or before 14-12-1981, and continue to deposit monthly rent @ Rs. 55/- per month. The defendant deposited Rs. 1,300/- which was short of the amount determined, i.e. Rs. 4,730/-. Thus, the arrears of rent was not paid within one month of the demand notice under Section 12(2), no arrears of rent was deposited on the first date of hearing, i.e. on 24-8-1981, the date on which the issues were framed. The defendant also did not pay arrears of rent as per the order dated 27-11-1981 passed below Exh. 20. In view of this, the Court held that the defendant was not entitled to protection under Section 12(1)(b) of the Act. Thus, the Court decreed the suit for possession in favour of the plaintiff and against the defendant-tenant by judgment dated 25-3-82. The Court also fixed the standard rent at the rate of Rs. 55/- month. The defendant preferred appeal against the said judgment which was heard by 4th Extra Asstt. Judge, Rajkot. The First Appellate Court found that there was a dispute with respect to the standard rent and the same was not determined as a preliminary issue, and was decided only at the conclusion of the trial. In view of this, it cannot be said that the defendant was not ready and willing to pay the rent. The Court also found that during the pendency of the appeal, the tenant deposited Rs. 6,725/- as the arrears of rent for the period from 14-11-1979 to 21-3-1985. The deposit includes even the time- barred rent. As no amount was due at the time of disposal of the appeal, the Appellate Court held that the tenant was entitled to protection under Section 12(3)(b) of the Act. In view of the finding, the learned Extra Asstt. Judge, by judgment dated 2-4-1985, allowed the appeal of the tenant and set aside the judgment and decree passed by the Judge, Small Causes Court, Rajkot.

(3.) Ms. V. P. Shah, learned Sr. Advocate appearing for the petitioner submits that the learned Appellate Judge closed over the important fact that the learned Trial Judge on an application filed by the plaintiff under Section 11 (4) of the Act, passed order dated 27-11-1981 below Exh. 20 directing the defendant to pay arrears of rent to the tune of Rs. 4,370/- on or before 14-12-1981 and further continue to deposit a monthly rent @ Rs. 55/- per month, but the defendant has not complied with the said order and as such he is not entitled to protection under Section 12(3)(b) of the Act. She submits that the controversy has been settled by a decision of this Court in the case of Rameshchandra Panchal v. Vithalbhai Patel, reported in 1996 (1) GLH 253. On the other hand, Mr. Bharat G. Jani, learned Advocate for the respondent submits that Section 12(1) of the Act gives protection to the tenant so long as the tenant pays the amount of standard rent and permitted to increase. The defendant-tenant was ready and willing to pay the rent for which he filed application under Section 11 (2) and (3) of the Act for fixation of standard rent. No fault can be found with the tenant if the said application was consolidated with the main suit and the standard rent was fixed only at the conclusion of the trial. As soon as the standard rent was fixed, the tenant deposited the entire rent including the rent for the time-barred period. He further submitted that the application Exh. 20 was filed by the defendant under Section 11 (4) of the Act for the purpose of striking out the defence. He further submitted that the tenant-respondent is entitled to protection under Section 12(3)(b) of the Act which provides for determination of "standard rent" and not interim rent. Determination of interim rent under Section 11 (3) cannot be equated with the word "standard rent" as used in sub-clause (b) of Section 12(3) of the Act. 3. Mr. Bharat Jani further submits that the controversy has been settled by the Apex Court in the case of Vora Abbasbhai Alimahomed v. Haji Gulamnabi, reported in AIR 1964 SC 1342. He submitted that the decision of the Supreme Court was not brought to the notice of the Hon'ble J. N. Bhatt, J. when His Lordship decided Rameshchandra Panchal's case (supra). On facts also he tried to distinguish the said case.