EGBERT D'SOUZA Vs. VENCILLA J. MIRANDA

JUDGEMENT

(1.) BY this petition, the petitioner challenges the order dated 15.12.1983 passed by a Division Bench of the Small Causes Court at Bombay in Appeal No. 659 of 1981. That appeal was filed by the petitioner challenging the judgment and decree passed by the Judge, Small Causes Court at Bombay, dated 3.10.1981 in R.A.E. & R. Suit No. 2168/7545 of 1974. That civil suit was filed by the present respondent claiming therein that she is owner of the premises being Flat No. 5, 1st floor, Silver Sands, Plot No. 50, Lourdes Colony, Orlem, Malad, Bombay, and the petitioner is the tenant. The landlady sought a decree of eviction against the tenant - petitioner on the ground that the tenant has committed default in payment of rent. She contended that a notice dated 22.5.1974 was issued to the petitioner -tenant demanding rent for the period from 1.6.1973 to 30.4.1974. She contended that after due receipt of the notice, the tenant did not dispute his liability to make the payment of rent and also did not make an application contemplated by the provisions of Sub -section (3) of Section 11 of the Bombay Rent Act within a period of one month and therefore she was entitled to a decree of eviction against the tenant under Section 12(3)(a) of the Act. The trial court, after appreciating the material on record, decreed the suit in favour of the landlady. In the appeal carried by the tenant against the decree passed by the trial court, the appellate court confirmed the finding recorded by the trial court and dismissed the appeal. It is these two judgments of the courts below which are challenged in the present petition .

(2.) THE learned Counsel appearing for the petitioner urged before me that the petitioner -tenant had, in the month of July, 1973, filed an application before the court for fixation of standard rent. He urged that when the notice was issued by the landlady on 22.5.1974 demanding arrears of rent, the application for fixation of standard rent was already pending. In the submission of the learned Counsel, though that application was withdrawn on 6.12.1974, before the landlady filed the civil suit on 13.12.1974, a decree under Section 12(3)(a) of the Act cannot be passed against the petitioner. He urged that once he makes an application for fixation of standard rent, after receipt of the notice he could not have made another application for fixation of standard rent and therefore the decree passed against him is vitiated. The learned Counsel relied on the judgment of the Supreme Court in the case of Ibrahim Abdulrahim Shaikh v. Krishnamururi Sripatlal Agarwal : AIR1994SC1609 and contended that there is no limitation prescribed for making an application under Sub -section (3) of Section 11 of the Act. The learned Counsel further urged that in the notice of demand, apart from claiming the arrears of monthly rent, the landlady had also claimed the amount of permitted increases. In the submission of the learned Counsel, the amount of permitted increases is not payable by the month but is to he paid by the year and therefore, relying on the judgment of the Gujarat High Court in the case of Vanilla Vadilal v. Mahendrakumar : AIR1975Guj163 the learned Counsel urged that the notice of demand itself was vitiated.

(3.) NOW , considering the rival submissions, it is clear that there is nothing in the Act which disentitles a landlord from issuing a notice of demand to the tenant demanding from him the amount of rent which according to the landlord is due from the tenant even in a case where a tenant has filed an application for fixation of standard rent and that application is pending. Once that notice is issued, it is for the tenant to dispute his liability, firstly, by sending reply to the notice and, thereafter, by making an application under Sub -section (3) of Section 11 of the act. That there is already an application made for fixation of standard rent does not prevent the tenant from making an application under Sub -section (3) of Section 11 of the Act after he receives the notice. A presumption that the tenant is ready and willing to pay the rent is raised by Explanation I below Section 12 of the Act only in case an application under Sub -section (3) of Section 11 of the Act is made by the tenant after receiving the notice of demand issued under Sub -section (2) of Section 12 of the Act. Therefore, in my opinion, that there was already an application made for fixation of standard rent on the date on which the demand notice was issued is irrelevant for finding out whether the tenant was ready and willing to pay the rent or not. The Division Bench of this Court in Jaypal Bandu's case referred to above has also observed thus : 32. ...The fact that there was some dispute about standard rent prior to the notice under Section 12(2) would also be immaterial and would not affect the power of the Court to pass a decree under Section 12(3)(a) if the conditions referred to in Section 12(3)(a) are satisfied if no application has already been made under Section 11(3) of the Act.... In so far as the judgment of the Supreme Court in the case of Ibrahim Abdulrahim referred to above, relied on by the petitioner, is concerned, the question that was being considered by the Supreme Court in that case was whether there was any period of limitation prescribed by the Act for making an application under Section 11(3) of the Act if the tenant disputes his liability to pay the amount demanded within one month of the receipt of the notice. In that case, the question that arises in this case was not being considered and the question that was considered in that case does not arise in this case.