GOKULDAS JAMNADAS Vs. AHAMED MIYA SAROLE

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioners have impugned decree for possession dated 27th June, 1979 passed by the learned Civil Judge, Senior Division Thane, in Regular Civil Suit No. 266 of 1975 as also the judgment and decree dated 23rd January 1981 passed by the learned IInd Extra Assistant Judge, Thane, in Civil Appeal No. 152 of 1979.

(2.) THE principal question which arises for consideration of the Court in this petition is as to whether Section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Act), as it stood at the material time, was rightly invoked by the plaintiff -landlord.

(3.) (i) Shri Jawhar J. Thakkar, the learned Counsel for the petitioners i.e. the heirs and legal representatives of the original tenant, has extensively argued this petition and has made various factual and legal submissions during the course of his arguments. It is appropriate to summarise the submissions of Shri Thakkar at this stage. Shri Thakkar submitted, in substance, on behalf of the petitioners as under: (1) The plaintiff had promised to reduce the contractual rent from Rs. 30/ - to Rs. 20/ - per month as averred in paragraph 2 of the written statement filed in the suit. (2) The contractual rent and the standard rent of the suit premises did not and could not exceed Rs. 20/ - per month according to the bona fide belief of the petitioners. (3) The original tenant had tendered arrears of rent in response to notice of demand dated 10th August 1974 and 1st October 1974 at the rate of Rs. 20/ - per month which was the amount of reduced contractual rent payable by the tenant to the landlord in respect of the suit premises. The respondent landlord had wrongfully refused to accept each of the said tenders on the ground that the amount tendered was not in full, and the contractual rent of the suit premises was Rs. 30/ - per month. (4) The original tenant had raised the dispute about the standard rent of the suit premises in his reply letters dated 27th August 1974 and 1st November 1974. The original tenant had even applied to the trial Court for fixation of interim rent with a view to obtaining directions of the Court in that behalf and deposit the amount of interim rent during the pendency of the suit and had pursued the remedy by filing a revision application in that behalf. It should therefore be necessarily inferred from the above facts that the tenant was ready and willing to pay the standard rent and/or interim rent of the suit premises at all material times and the tenant had 'not neglected' to pay the amount of rent in any sense of the term. It was not held by the Courts below that the dispute about the standard rent raised by the petitioners or their predecessor -in -title was not bona fide. It follows therefore that the dispute raised about quantum of standard rent was bona fide. (5) The matter was governed by Section 12(3)(b) and not by Section 12(3)(a) of the Act. It was irrelevant that the dispute as to standard rent was not raised by the tenant within time limit of one month by filing application for fixation of standard rent. The tenant was at liberty to raise dispute about standard rent and pray for fixation of standard rent even after expiry of one month from service of statutory notice of demand i.e. in a suit for possession coupled with a suit for recovery of rent. This submission was inter alia supported by the provisions contained in Section 11(4) of the Act. (6) Readiness and willingness to pay standard rent could be proved by the tenant by - (i) tendering the amount of rent within the period of one month from service of notice of demand; or (ii) by filing an application for fixation of standard rent within one month from service of notice and by complying with order of deposit which may be passed by the Court under Section 11(3) of the Act; or (iii) otherwise. (7) In the instant case it could be shown that the tenant was ready and willing to pay amount of standard rent and permitted increases even though the tenant had not tendered the amount of arrears as claimed within one month from service of statutory notice and the tenant had not filed an application for fixation of standard rent within the prescribed period of one month. Lack of readiness and willingness could not be inferred merely from non -tender of the amount demanded by the landlord in full or merely from non -filing of application for fixation of standard rent within one month from date of service of notice of demand. It was the duty of the Court to fix interim rent when the tenant makes an application in that behalf and permit the tenant to deposit amount of interim rent as may be fixed. The petitioners could not be penalised for erroneous orders of the Court in this behalf refusing to fix the interim rent and issue necessary directions as sought for. (8) Section 12(3)(b) of the Act obligated the Court to fix the date for deposit or payment of arrears of rent after the standard rent was fixed and the tenant could be evicted only if the tenant defaulted in complying with such an order of the Court which can be passed only after the standard rent or interim rent was first fixed by the Court. In the instant case, the Court had fixed the standard rent simultaneously with the passing of the decree for eviction and had committed a jurisdictional error by not fixing the standard rent of the suit premises earlier and then fixing the date for deposit of the differential amount by the tenant in accordance with the finding of the Court on the question of standard rent.