JAIRAM MAHADEV CHAVAN Vs. SUBHADRA ARJUN RAUT

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 6.6.1984 passed by the Division Bench of the Small Causes Court, Bombay in Appeal No.415 of 1982. That appeal was filed challenging the judgment and decree dated 28th June 1982 passed by the Judge, Small Cause, Court Bombay in R.A.E. and R.No.36 of 1972. That suit was filed by the present petitioner claiming therein that he is the owner of a building known as Chavan Chawl situate at Tejpal Scheme Road No.1 Extension, Kol Dongri, Vile Parle, Bombay 400 057 and that the respondent is the tenant of Room no.2 in the said chawl. The landlord sought a decree of eviction against the tenant on the ground that the tenant is not ready and willing to pay rent. The trial Court recorded a finding against the landlord and dismissed the suit. In the appeal filed by the landlord the appellate Court confirmed the findings recorded by the trial Court and dismissed the appeal. The facts necessary for deciding the present petition are that the landlord had issued a demand notice under Section 12(2) of the Bombay Rent Act demanding arrears of rent for the period from February 1969 to May 1969 and as the tenant did not pay the arrears of rent pursuant to that demand notice dated 9.6.1969 Civil Suit No.2993 of 1970 was filed by the landlord seeking decree of eviction against a tenant on the ground that he is not ready and willing to pay the rent. In the written statement filed in that suit the tenant did not raised the dispute about the standard rent of the suit premises. It is pertinent to note here that no application for fixation of standard rent was filed by the tenant after receiving notice dated 6.9.1969 and rent for the period from 1.2.1970 to 31.11.1971 became due, the landlord issued notice dated 13.11.1971 demanding arrears of rent for the abovesaid period. This demand notice was received by the tenant on 15.11.1971. The admitted position is that within one month of the receipt of this notice dated 13.11.1971, the tenant did not raise the dispute about his liability to make the payment of arrears. He also did not make the payment and also did not make an application for fixation of standard rent under Section 11(3) of the Bombay Rent Act. Both the Courts below have found that the landlord was not entitled to decree of eviction under Section 12(3)(a) of the Bombay Rent Act because the dispute about the standard rent was pending on the date on which present Civil Suit being R.A.E. and R. Suit No.36 of 1972 was filed. Though it is an admitted position that the Civil Suit which was earlier filed by the landlord viz., R.A.E Suit No.2993 of 1970 was decided by the Court on 27.7.1979 whereas the present Civil Suit was decided on 24.6.1982. The appellate Court has also held that the landlord was not entitled to issue the demand notice dated 13.11.1971 because the Civil Suit earlier filed by the landlord was pending and in that suit the tenant was depositing the arrears of rent.

(2.) THE learned Counsel appearing for the petitioner urged before me that firstly, the only method by which the dispute about the standard rent can be raised is by making an application under Section 11 of the Bombay Rent Act. In his submission, the dispute about the standard rent cannot be raised in the written statement and the Court has no jurisdiction to decide the dispute about the standard rent which is not raised by filing an application under Section 11 of the Act. The learned Counsel further urged that even if it is assumed that such a dispute could be raised and dispute in the present case is decided on 27.7.1979 and therefore, when the present Civil Suit was decided on 24.6.1982 there was no dispute about the standard rent of the suit premises and therefore, the landlord was entitled to a decree under Section 12(3)(a) of the Act. In so far as the finding recorded by the appellate Court that the landlord could not have been issued demand notice dated 13.11.1971 because the tenant was depositing the rent in the suit earlier filed is concerned, the learned Counsel submitted that there is no material on record to show that the date on which the demand notice was issued viz., 13.11.1971 the tenant was depositing the rent in the above referred earlier suit. He submitted that on the contrary the tenant has stated in the depositions before the Court in the present suit that after receiving the demand notice, the tenant approached the landlord for payment of the arrears of the rent demanded by the notice. In the submission of the learned Counsel this statement falsifies the observations of the appellate Court that the tenant was depositing rent in the earlier suit when the demand notice was issued. The learned Counsel pointed out that in fact perusal of the record shows that in the earlier suit first deposit was made by the tenant on 13.9.1973 i.e. nearly two years after the present demand notice dated 13.11.1971 was issued. Therefore, in the submission of the learned Counsel the landlord was entitled to issue demand notice dated 13.11.1971.

(3.) SO far as the orders of both the Courts below denying decree of eviction to the landlord under Section 12(3)(a) is concerned in my opinion the provisions of Section 12(3)(a) are to be considered by the Court while it could not consider the case for passing the decree of eviction against the tenant. It is at that point of time that the Court has to consider whether there is any dispute regarding the amount of standard rent. Insofar as the present case is concerned, even living aside the controversy as to whether the dispute could have been validly raised in the written statement though they have not filed an application for fixation of standard rent, it is absolutely clear that on the date on which the Court had passed the parties regarding standard rent and any dispute that might have existed between the decree there was no dispute between the parties about the standard rent stood already decided in the year 1979 while the present suit was being decided in the year 1982. In my opinion, the observations of the Courts below that in view of the fact that the tenant has raised dispute of standard rent in his written statement filed in the earlier suit, he could not have filed an application for fixation of standard rent under Subsection 3 of the Section 11 of the Rent Act within one month of the receipt of the demand notice dated 13.11.1971 is concerned, in my opinion, there is no basis for such a finding in the provisions of the Act. The reliance placed by the learned Counsel for the Respondent-tenant on the provisions of Section 11A of the Rent Act is also misconceived. Perusal of Section 11(A) of the Rent Act shows that it bars filing of application for fixation of standard rent. Once standard rent is fixed by the Court, it does not bar making of an application for fixation of standard while the application for fixation of standard rent filed earlier is pending. Therefore, in my opinion, nothing prevented the tenant from making an application under Section 11(3) of the Bombay Rent Act to fix the standard rent after receiving the demand notice dated 13.11.1971 if the tenant desired to raise a dispute about the standard rent. Thus I find that there is a serious error of law in the findings recorded by both the Courts below and a decree under Section 12(3)(a) of the Bombay Rent Act has been denied to the landlord illegally. The findings recorded by both the Courts below are liable to be quashed and set aside.