CHAMPALAL PRATAPMAL Vs. MUNICIPAL SCHOOL BOARD

JUDGEMENT

(1.) This is a petition by the original landlord plaintiff who succeeded in the trial court but failed in the Appellate Court to obtain a decree against the defendant-tenant. The plaintiff is the owner of a three storeyed building bearing House No. 127-B at Nandurbar, District Dhulia, He let out that building to the defendant-Opponent which is the Municipal School Board, Primary Schools, Nandurbar. This contract of tenancy appears to have taken place long back. In a dispute regarding the standard rent raised by the School Board, the standard rent was fixed by the Civil Judge in Civil Application No. 742/58 at Rs. 89/- per month by his order dated 21st February, 1959. However, even that rent was not paid regularly and the School Board fell in arrears from 1st of January, 1965 to 0th September, 1967. The arrears amounted to Rs. 2937/- plus Rs. 57 by way of education ceas. The Plaintiff served a notice of termination of tenancy dated 13th of October, 1967. After service of Summons, the defendant filed his written statement on 6th of June. 1968 and issues were framed on 18th June, 1968. In spite of the fixation of the standard rent earlier and without any change of circumstances, the School Board again raised the dispute regarding the fixation of standard rent. Till November, 1968 nothing at all was paid towards the rent. On 13-11-1968. the-defendant deposited Rs. 4500/- in Court for the first time. They again deposited Rs. 425/- on 18-12-1978 After hearing the parties, the learned trial Judge passed a decree for possossion under section 12(3)(a) of the Rent Act and for arrears of rent on 29-1-1969. He rejected the plea regarding standard rent on the ground theat no change of circumstance was ever pleaded much less proved. The School Board then carried an appeal to the District Court, being Civil Appeal No. 65 of 1969. In this appeal for the first time, on 14th October, 1969 by an application for amendment the defendant sought permission to amend the written statement. the plea taken up for the first time was that the Municipal Council is the tenant and not the School Board. In spite of opposition by the plaintiff, the learned Appellate Judge allowed the amendment and remanded the suit to the trial court for further disposal according to law. The learned trial Jugde, however, held that the School Board was the tenant and not the Municipal Council. Since all other findings had already gone against the School Board a decree for possession was again passed on 19th October, 1970.

(2.) The school Board then filed an appeal in the District Court being Civil Appeal No. 158/70. It was heard and decided by the Assistant Judge on 26th of June, 1971. He held that the real tenant was the Municipal Council and and not the school Board. However, he held that the standard rent was already fixed and the dispute raised in that behalf was not a genuine one. However, somehow the learned Judge felt that it could not be described as a malefide dispute and the provisions of section 12 (3) (b) of the Rent Act, would apply. If the school Board could be described as a tenant, it had complied with the condition of Section 12 (3) (b) inasmuch as somehow before the date of hearing all arrears had been deposited in the Court. In this view of the matter, he allowed the appeal and and dismissed the plaintiff's suit. Feeling aggrived, the plaintiff has filed the present writ petittion.

(3.) This writ petition was heard by a learned single Judge of this Court, As he found that there were certain judgements taking conflicting views as to when the proviosions of section 12(3)(b) of the rent Act could be made applicable, he framed two issues at the end of his hearing. The learned Judge has, however, held that the School Board is an independent body and it is the School Board which is the tenant of the plaintff. He also confirmed the finding of the courts below that the standard rent was already fixd and there could be no question of the dispute regarding standard rent being raised in this [itigation,However, in view of the conflicting decision as to when section 12(3)(a) applies he framed the following two points and referred to a Division Bench. (1) wether in a suit for eviction it is not obligatory for the tenant to apply for an order under section 11(4) of the Rent Act, if he wants to avail of protection under section 12(3)(b) of the Act, and (2) whether in view of the decision of the Supreme Court in Shah Dhansukhlal's case(70 Bom. L.R.74) the Rent Court has discretion not to pass a decree for eviction in a case govenerd by section 12(3) (a)of the Rent Act. If the tenant has deposited the entire arrears of rent before the decision of the suit