VASANTRAO SHANKARRAO BHOSLE Vs. SUHAS RAMCHANDRA APTE

JUDGEMENT

(1.) THE present proceedings under Article 227 of the Constitution of India, are directed against a judgment and order dated 21/09/1989 of the 2nd Additional District Judge, sangli. By the aforesaid judgment, the Learned Additional District Judge, confirmed a decree for eviction passed by the Joint Civil Judge, Junior division, Sangli, on 16/03/1982 on the ground of default in the payment of the arrears of rent.

(2.) THE Petitioner is a tenant in the occupation of four rooms on the north side of a property bearing City Survey No. 991 at Gaonbhag Sangli. The petitioner is conducting and running a Printing Press therein since 1970. On 10/10/1977, a demand notice was issued by the Respondent-landlord by which a demand was made in respect of the arrears of rent in the total amount of Rs. 1125. 69 as on 30/09/1977. The demand was based on arrears in respect of a period exceeding six months. There is no dispute about the fact that within a period of one month of the receipt of the notice, the Petitioner filed an application on 9th November, 1977 for ther the fixation of standard rent. The Petitioner also filed an application at Exh. 5 for the fixation of interim standard rent. The suit came to be disposed of on 15/03/1982 and, while disposing of the suit, the Learned Trial Judge fixed, the standard rent of the suit premises at Rs. 150/- per month exclusive of electricity and water charges. The learned Trial Judge decreed the suit for eviction and the judgment came to be confirmed in appeal by the Learned Additional District Judge, Sangli, on 21/09/1989. The Learned Additional District Judge while confirming the decree for eviction held, relying upon a judgment of a learned Single Judge of this Court reported in 1986 Bombay Rent Cases 316 that the protection of Section 12 (3) (b)would not be available to the tenant "merely because he has completed empty formality of moving an application for determination of the standard rent. " The Appellate Court held that it was obligatory for the tenant to move the Court to specify the amount payable by the tenant and, therefore although interim rent was not fixed, it was obligatory for the tenant to deposit the rent. The Appellate Court relied on the order passed by the Trial Court on an application at Exhibit 18 by which the tenant had been directed on the application of the landlord to deposit the arrears of rent and other charges within a period of one month from 7/11/1979. The Appellate Court noted that the tenant had made several applications for the extension of time to effect the deposit. In sum and substance, the finding of the First Appellate Court was that the tenant was irregular in making the payment of rent, particularly during the period 1978 and 1979 when no payment was made and the applications subsequently filed by the tenant would not show that the delay had been condoned. The decree for eviction was consequently confirmed.

(3.) COUNSEL appearing on behalf of the Petitioner urged that in accordance with the provisions of Section 12 (3) (a) of the Bombay Rent Act as it stood at the material time prior to its amendment in 1987, the Petitioner has within a period of one month of the receipt of the notice from the landlord, filed an application for the determination of standard rent. Thereafter, under the provisions of Section 11 (3), it was necessary for the court to make an order directing the tenant to deposit in Court forthwith and thereafter, monthly or periodically such amount of rent or permissible increases as the Court considered due to the landlord pending a final decision on the application. The submission that was urged is that there was no such determination by the Trial Court under Section 11 (3)and the order that was passed by the Trial Judge on 7/11/1979 upon the application of the landlord at Exh. 18 cannot be construed as an order under Section 11 (3 ). Besides, it was submitted that even the order as it stands, did not contain any direction to the Petitioner to deposit thereafter, monthly or periodically such amount of rent as the Court would consider as reasonably, due to the landlord. Hence, the submission was that in the absence of an order under Section 11 (3), there was no default on the part of the Petitioner to pay the amount of rent. Reliance was also placed upon the explanation to Section 12 of the Act and it was urged that as a result thereof, there is a deeming fiction that the tenant is ready and willing to pay the amount of standard rent if before the expiry of a period of one month from the receipt of the notice under Section 12 (2), the tenant makes an application to the Court under Section 11 (3) and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court. In the present case, it was urged that there was no order of the Court under Section 11 (3) until the amount of standard rent came to be fixed by the Trial court while finally disposing of the suit. The submission, therefore, was that the Learned Trial Judge ought to have given to the Petitioner an opportunity at that stage, of depositing the arrears of standard rent, if any. In any event, it has been urged that during the pendency of the suit as well as the appeal, amounts were regularly deposited by the Petitioner from time to time. During the pendency of the suit, a total amount of Rs. 10,866/- came to be deposited. Reliance was also placed on a chart showing the deposits made during the pendency of the appeal.