PRABHUDAS S THAKKAR Vs. M D SHAH

JUDGEMENT

(1.) These are the six petitions filed by the petitioners tenants under Article 227 of the Constitution challenging the decision of the Additional Chief Judge, Court of Small Causes at Bombay dated December 14, 1977.

(2.) The petitioners in all these Special Civil Applications are tenants in the building known as "Raj-Hans" situtated at Dr. Ambedkar Road, Mulund (w) Bombay 400080 and respondents Nos. 1 to 3 are the landlords-owners in respect of the said building. It appears that the respondents issued a demand notice under section 12 (2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, (hereinafter referred to as the Bombay Rent Act). All the petitioners-tenants having received the notice under Sub-section (2) of Section 12 of the Bombay Rent Act, submitted an application under Section 11 (3) of the Bombay Rent Act for fixing the standard rent of the suit premises. Sub-section (3) of section II of the BombayRent Act applies only where tenant has received a notice under Sub section (2) of Section 12. The tenant can apply to the Court for fixing the standard rent and/or determining the permitted increases. Such an application has got to be made by the tenant before the expiry of the one month after the receipt of the notice referred to in sub-section (2) of Section 12 of the Bombay Rent Act. On the receipt of such an application, the Court is called upon to decide forthwith the in terim rent pending the disposal of the said application. Obviously, the said order can be passed after perusal of the affidavits filed by the respective parties. The Court nas to fix up the date to deposit such rent. The Court is further called upon to pass an order directing the tenant to deposit the amount in the Court or to directly pay to the landlord. This provision of Section 11 (3) of the Bombay Rent Act is enacted to protect the rights of the tenants. This application is to be made in order to show that the tenant is ready and willing to pay the standard rent. Explanation (1) of Section 12 lays down that : 'Explanation (1) In any. case where there is a dispute as to the amount of standard rent or permitted increases recoverable under this act, the tenant shall be deemed to be ready and willing to pay such amount, if before the expliy of the period of one month after notice referred to in subsection (2) he makes an application to thp Court under sub-section (3) of Section 11 and there-after pays or tenders the amount of rent or permitted Incresaes specified in the order made by the Court." If the interim rent so fixed by the Court if not deposited by the tenant, the consequence is provided, viz. that he cannot take a plea that he was ready and willing to pay the standard rent and avoid the decree under Section 12 (3) (a) of the Act.

(3.) Sub-section (4) of section 11 of the Act contemplates a case where the landlord had filed suit for the recovery of rent with or without a prayer for possession of the premises. Under Subsection (4) of Section 11, the landlord is protected if the tenant, on a farivolous and vexatious grounds makes an application for fixing standard rent and does not pay the amount due by way of arrears of rent or permitted increases. But, if the Court is satisfied that the tenant is withholding the rent or permitted increases on the ground that the rent is excessive then, the Court shall if it appears that it is just and proper to make such an order the Court may make an order directing the tenant to deposit in Court forthwith such amount of the rent as the Court considers to be reasonably due to the landlord, or at the option of the tenant an order directing him to pay to the landlord sucn amount thereof as the Court may specify. A specific direction could be given by the Court under sub-section (4) of Section 11 of the Act that the tenant shall deposit in Court periodically such amount as it considers proper as interim standard rent or at the option of the tenant an order to pay to the landlord such amount thereof as the Court may specify during the pendency of the suit. The consequence of failure or default to deposit the amount is also provided under Sub-section (4) of Section 11 of the Act. If the the tenant fails to deposit the amount within such time as may be allowed by it, he shall not be entitled to appear in or defend the suit except with the leave of the C9urt, which leave may be granted subject to such terms and conditions as may be specified