Vamanbhai Asharam v. Navnitlal Kodarlal — 1972 DIGILAW 97 (GUJ)

JUDGMENT : D. P. DESAI, J. 1. Two persons filed a suit as landlords against their tenant, who is opposite party No. 1 in this application. These landlords also joined one Bai Dahi as defendant No. 2 in the suit, being their mother. Possession was claimed from the defendant-tenant on various grounds. But at this stage we are only concerned with the ground of non-payment of rent. For this purpose, a few facts may be stated. The landlords i.e. the two plaintiffs served a notice to the defendant-tenant on March 20, 1961 saying that the rent at the rate of Rs. 15/- per month had not been paid by the tenant since July 1, 1959. This notice was served on the tenant by affixing a copy thereof on the rented premises on March 27, 1961. The defendant-tenant replied to this notice on April 10, 1961 raising dispute about the standard rent saying that Rs. 10/- per month was the reasonable rent of the suit premises. Thereafter, the plaintiffs filed the suit from which present proceeding has arisen, on May, 6, 1961. It was only on or about January 15, 1962 that the defendant-tenant made an application for fixing the standard rent of the suit premises. He also questioned the validity of the notice and said that the suit as framed was not maintainable. The learned trial Judge fixing the standard rent at Rs. 15/- per month plus electric consumption charges plus Rs. 0.25 ps. per month as meter rent. Thus, he negatived the contention raised in reply to the notice. He held that the suit was maintainable and that the notice terminating tenancy was valid. However, a dispute about standard rent was raised and the case fell under section 12(3)(b) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as 'the Act'), the learned trial Judge refused a decree of eviction to the plaintiffs. Other grounds on which relief of possession was claimed were also negatived. The result was that the plaintiffs went in appeal to the Appellate Bench of the Court of Small Causes at Ahmedabad. Other grounds on which relief of possession was claimed were also negatived. The result was that the plaintiffs went in appeal to the Appellate Bench of the Court of Small Causes at Ahmedabad. It appears that before the appellate bench, the contention urged on merits was not that the case fell undo, section 12(3)(a) of the Act, but the contention was that looking to the conduct of the tenant-defendant, the dispute raised about standard rent by him was not a bona fide dispute : and, therefore, the Court should not take notice of that dispute. The learned Judges of the appellate bench held that there was a bona fide dispute regarding the amount of standard rent and that this dispute was raised within one month from the date of the receipt of the notice to quit, under section 12(2) of the Act. Therefore, the learned appellate Judge came to the conclusion that the case fell within section 12(3)(b) of the Act. The appellate Bench also came to the conclusion that the suit was not maintainable without joining Bai Dahi as the plaintiff from the beginning and that the notice was not legal. On all these three counts, therefore, the decree passed by the trial Court with regard to possession was confirmed. Against the appellate decree, the plaintiffs have come in revision to this court. During the pendency of this revision application, plaintiff No. 2, i.e. petitioner No. 2 died and his heirs were brought on record. 2. It is not disputed before me that on merits if it is held that the case fell under section 12 (3)(b) of the Act, the decree passed by the lower appellate Court should stand. The contentions urged by Mr. Nanavati on behalf of the petitioners were that the view taken by the appellate Bench that the suit was not maintainable without joining Bai Dahi as plaintiff and that the suit notice was not valid, is wrong. He also urged on merits that the case is governed by section 12 (3)(a) of the Act and not by section 12(3)(b) and therefore, a decree for possession should be awarded to the petitioners-plaintiffs. 3. Looking to the fact that both the Courts below refused to award a decree for possession to the plaintiffs on the ground that the case fell under section 12 (3)(b) of the Act, I suggested to Mr. 3. Looking to the fact that both the Courts below refused to award a decree for possession to the plaintiffs on the ground that the case fell under section 12 (3)(b) of the Act, I suggested to Mr. Nanavati to argue the point about the applicability of section 12 (3)(a) of the Act to the facts of the present case. If that provision was not applicable and if section 12 (3)(b) of the Act was held applicable, it is conceded before me, as observed earlier, that the decree with regard to possession passed by the lower appellate Court will stand. In that case, it may not be necessary for me to deal with the view of the appellate Court as regard the maintainability of the suit and the validity of the notice to quit, because the decree as passed by the appellate Court can be confirmed if the case fell under section 12(3)(b) of the Act assuming that the suit was maintainable and the notice given was valid. 4. Having heard Mr. Nanavati for the petitioners. I have come to the conclusion that the view taken by the Courts below that the present case fell under section 12(3)(b) of the Act is correct. In view of that conclusion, it is not necessary to deal with the other two contentions advanced by Mr. Nanavati and the decree refusing possession would stand assuming that the suit was maintainable and the notice terminating the tenancy was valid. 5. The whole stress of Mr. Nanavati with regard to the point at issue was that the defendant tenant was bound to make an application for fixing the standard rent within one month of the receipt of the notice under section 12(2) of the Act, i.e. within one month of 27th March, 1961. In his submission, even if the tenant has raised the dispute within this period of one month, it should have been followed up with an application for fixing the standard rent within that period. He tried to submit that the law as laid down in Ambalal v. Babaldas, 3 GLR 625 on this point is no longer a good law in view of the two decisions of the Supreme Court reported as Mrs. Manoranra v. Mrs. Dhanlaxmi, 7 GLR 1061 and Dhansukhlal v. Dalichand, 9 GLR 759. 6. He tried to submit that the law as laid down in Ambalal v. Babaldas, 3 GLR 625 on this point is no longer a good law in view of the two decisions of the Supreme Court reported as Mrs. Manoranra v. Mrs. Dhanlaxmi, 7 GLR 1061 and Dhansukhlal v. Dalichand, 9 GLR 759. 6. The entire scheme of section 12 of the Act came up for consideration in Ambalal's case (supra) by this Court, and so far as the point relevant for our purpose is concerned, the following observations were made by Shelat, J. (as he then was) : "On a proper interpretation of sub-section (3)(a) of section 12 and the scheme of the entire section 12, it appears that the dispute in regard to the standard rent or permitted increases contemplated is one which is in existence at the date of the notice or at any rate before the expiry of one month after its service and not the one raised subsequently in a written statement with a view to avoid the operation of sub-section 3(a)........... These observations show as to when a dispute about standard rent raised by a tenant would take the case out of the provisions of section 12(3)(a). In two different situation arisen after Ambalal's case (supra), this position came to be considered by our High Court again and in both the cases, the High Court affirmed the correctness of the aforesaid view in Ambalal's case. 7. The first of these two cases of our High Court was Chunilal v. Chimanlal, 7 GLR 945. it arose before a Division Bench consisting of Mr. Justice P. N. Bhagwati (as he then was) and Mr. Justice A.D. Desai. In that case, the defendant-tenant fell into arrears of rent for more thin six months and notwithstanding plaintiff's notice terminating the tenancy and making demand of the arrears of rent, the defendant neither replied to the notice nor did It. comply with the requisitions contained in the notice. Thus no dispute as regards standard rent was raised within one month of the service of this notice. Thereafter, the plaintiff filed the suit for eviction and in the written statement, the defendant raised two disputes on this point. comply with the requisitions contained in the notice. Thus no dispute as regards standard rent was raised within one month of the service of this notice. Thereafter, the plaintiff filed the suit for eviction and in the written statement, the defendant raised two disputes on this point. Firstly, he contended that he was not in arrears from the date alleged by the plaintiff and that he had paid rent up to date subsequent to the date alleged by the plaintiff. The second dispute was with regard to the standard rent. Thus, in that case, the dispute as standard rent came to be raised for the first time in the written statement; and not within one month of the receipt of the notice under section 12(2) of the Act. The defendant failed to prove that he had paid up rent upto the date alleged by him. Instead, the trial Court found that the defendant was in arrears of rent from the date alleged by the plaintiff and was, therefore, not ready and willing to pay the standard rent, so as to be entitled to the protection of section 12 (1) of the Act. Still, a decree for ejectment was refused on the ground that all arrears were deposited in the Court during the pendency of the suit; and the defendant could claim protection of Section 12(3)(b) of the Act. The applicability of section 12(3)(a) of the Act was negatived by the trial Court on the ground that the defendant had raised a dispute in the written statement; and therefore, one of the conditions requisite for the application of section 12(3)(a) was not satisfied. Thus a decree for possession was refused. In-appeal, the appellate Court agreeing with the view taken by the trial Court, refused the decree for eviction. Against that refusal, the plaintiff came in revision to this Court; and the matter was referred to the Division Bench, as one of the contentions urged was that the interpretation laid down in Ambalal's case (supra) was no longer good law in view of certain observation made by the Supreme Court in Vora Abbasbhai v. Haji Gulamnbi, (1964)V GLR 55. The Division Beach held that on the point under consideration, Ambakal v. Babalds (supra) was still good law. The Division Beach held that on the point under consideration, Ambakal v. Babalds (supra) was still good law. The observation; of the Division Bench in this connection to be found an paragraph 9 are as under :- "We are, therefore, of the view that, as laid down in Ambalal's case, in order to avoid the operation of section 12(3)(a), the dispute in regard to standard rent or permitted increases must be raised at the latest before the expiry of one month from the date of service of the notice under section 12(2) aid it is not enough to raise a dispute for the first time in the written statement. In this view of the matter the case must be held to be coveted by Section 12 (3) (a) and the plaintiff must be held to be entitled to a decree for eviction against the defendant." After the aforesaid decision of the Division Bench, the same question was sought to be raised in a different situation in another decision of this Court reported as Ramanlal v. Himtalal, 8 GLR 553. In that case the defendant was in arrears of rent from 11-6-1959. On October 8, 1959, the defendant made an application for fixing the standard rent of the rented premises. While the application was pending, the plaintiff gave a notice dated April 24, 1960 terminating the tenancy of the defendant. The plaintiff thereafter gave another notice dated 29th November, 1959 (sic. 1960) calling upon the defendant to pay up arrears of rent. The application for fixation of standard rent was decided on March 28, 1961. Even though this decision was arrived at, the defendant did not pay up all the arrears of rent according to the standard rent determined, but paid only an aggregate sum of Rs. 505/-. The result was that certain arrears of rent still remaining due and payable by defendant. The plaintiff, therefore, filed a suit against the defendant on August 18, 1961 claiming possession of the rented premises. One of the ground on which possession was sought, was arrears of rent. After filing of the suit, but before the settlement of the issues, the defendant deposited an amount of Rs. 1,000/- in the trial Court along with an application for permitting him to make the deposit. One of the ground on which possession was sought, was arrears of rent. After filing of the suit, but before the settlement of the issues, the defendant deposited an amount of Rs. 1,000/- in the trial Court along with an application for permitting him to make the deposit. The issues were raised subsequent thereto on 12th December, 1961 and subsequent to the raising of the issues, the defendant regularly deposited in the trial court from time to time the monthly rent of the property. Now, the contention urged was that the defendant was in arrears; and the standard rent having been determined he was still in arrears and therefore, the plaintiff was entitled to a decree for possession. The trial Court came to the conclusion that the case was governed by Section 12(3)(a) of the Act and gave a decree for eviction to the plaintiff. The appellate Court agreeing with the view of the trial Court, dismissed the appeal of the tenant. Therefore, the defendant came to this Court in revision. The sole question which arose for decision in that case was whether the case was governed by Section 12(3)(a) of the Act or Section 12(3)(b) of the Act? The facts were peculiar in as much as the dispute about standard rent was already existing when the notice under section 12(2) was given and even after the fixation of the standard rent, the arrears were not paid in full. In spite, of this, applying the ratio in Anihalal case (supra) Mr. Justice Bhagwati. (as the then was), held that section 12(3)(a) was excluded inasmuch as a dispute about standard rent was in existence at the date of the notice under Section 12(2) of the Act; and the fact that this dispute had been resolved subsequently before the filing of the suit, would not enable the plaintiff to pray for a decree for eviction under section 12(3)(a) of the Act. The learned Judge observed at page 556; "Once it is found that there is a dispute in regard to the standard rated of permitted increase, in existence at the date of the notice under section 12(2) or at any rate before the expiration of one month after its service, the case would go out of section 12(3)(a) and it would not fall to be governed by Section 12(3)(a) merely because the dispute which was in existence at the, date of expiration of one month from the service of the notice under section 12(3) was subsequently resolved before the suit could be instituted by the plaintiff. In this decision Mrs. Manoranra's case (supra) deeded by the Supreme Court, on which reliance has been placed by Mr. Nanavati, was also referred to; and the following observations in that connection were made at page 556 : "It is now settled by the decision of the Supreme Court in Mrs. Manorama v. Mrs. Dhanlaxmi, that if the conditions to section 12 (3) (a) are satisfied, no subsequent payment of rent by the tenant to the landlord though it be prior to the institution of the suit can entitle the tenant to the protection of section 12 (1). Equally it must follow that if a dispute in regard to the standard rent or permitted increases is in existence at the date of the notice under section 12(2) or at any rate before the expiry of one month after its service and the second condition is, therefore, not satisfied, the case must go out of section 12(3)(a) and no subsequent resolution of such dispute though it be prior to the institution of the suit, can help to bring the case back within section 12(3)(a)." Thus the tenant was held entitled to protection under section 12(3)(b) of the Act and the decree for eviction was reversed in that case. 8. Thus, so far as Mr. Nanavati's contention based on Mrs. Manorama's case (supra) is concerned, the same cannot help him, because that case has been considered by Mr. Justice Bhagwati (as ne then was) in Ramanlal's case (supra); nor is there anything in Mrs. Maitorama's case (supra) which would show that the view taken by this Court with regard to the law laid down in Ambalal's case (supra) on this point is not good law. 9. Justice Bhagwati (as ne then was) in Ramanlal's case (supra); nor is there anything in Mrs. Maitorama's case (supra) which would show that the view taken by this Court with regard to the law laid down in Ambalal's case (supra) on this point is not good law. 9. Then remains the subsequent decision of the Supreme Court in Dhansukhlal's case (supra). Now, one thing to be noted in that case is that before the appellate Court the parties had agreed that the case of the- defendant fell within Section 12(3)(b) of the Act. Another fact to be noted is that by a compromise between the parties in previous proceeding the contractual rent was reduced to Rs. 27/- describing it as the standard rent. The defendant- tenant was also liable to pay permitted increases and taxes. The plaintiff gave notice to the defendant on April 18, 1955 demanding the arrears of rent and permitted increases and also terminated the tenancy. The notice was received by the defendant, but no reply was sent thereto, nor was any payment made to the plaintiff. The suit was filed thereafter claiming eviction on the ground of non-payment of rent. The application of the provisions of section 12(3)(a) was negatived by the trial Court, because the defendant had disputed the municipal taxes and permitted increases. The trial Court, however, came to the conclusion that the conditions of section 12(3)(b) were not fulfilled. Before the learned Assistant Judge it was agreed that the case of the defendant fell within section 12(3)(b) of the Act. Thy High Court also found that the rent which fell due after the first date of hearing of the suit remained unpaid till March 25, 1957, when the suit was disposed of Therefore, the amount of rent not having been deposited regularly in the Court, the decree for eviction was maintained. The defendant was thus faced with the situation that he was not entitled to protection even under section 12(3)(b) of the Act. In this situation, a contention based upon the provisions of Section 12(1) of the Act was sought to be raised before the Supreme Court; and the contention was that the pro visions of the said sub-section were applicable throughout the hearing of the suit and down to the date of the final hearing. In this situation, a contention based upon the provisions of Section 12(1) of the Act was sought to be raised before the Supreme Court; and the contention was that the pro visions of the said sub-section were applicable throughout the hearing of the suit and down to the date of the final hearing. If at that stage it was found that the defendant had paid up all arrears due from him he could not be ejected. It was in dealing with this contention that certain observations were made by the Supreme Court. Reliance on these observations was placed by Mr. Nanavati. These observations are in paragraphs 10 and 12 of the judgment: and they read: 10. It appears to us that there is no substance in the contention put forward on behalf of the appellant. Section 12(1) must he read with the Explanation and so read it means that a tenant can only be considered 'to be ready and willing to pay' if, before the expiry of the period of one month, after notice referred to in sub-section (2), he makes an application to the Court under sub-section (3) of Section 11 and thereafter pays or tenders the amount of rent or permitted increases specified by the Court. We have already noted that the tenant made no payment within the period of one month of the notice of ejectment and although in his written statement he raised a dispute about the standard rent he made no application in terms of section 11(3) of the Act. The readiness and willingness to pay has, therefore, to be indeed in the light of the facts of the case. Whereas here a suit is filed on the ground that the tenant was in arrears for a period of more than 6 months and although raising a dispute as to the standard rent or permitted increases recoverable under the Act, the tenant makes no application in terms of Section 11(3) he cannot claim the protection of Section 12(1) by merely offering to pay or even paying all arrears due from him when the Court is absent to pass a decree against him." "12. As already noted, if sub-section (3)(a) Is not attracted, the tenant, if he is in arrears, cannot sit quiet and offer to pay all the amount due from him at the time of the hearing of the suit so as to get the protection of section 12(1). To be within the protection of sub-section (1)- where he raises a dispute about the standard rent payable, he must make an application to the Court under sub- section (3) of Section 11 and thereafter pay or tender the amount of rent and permitted increases, if any, specified in the order made by the Court. If he does not approach the Court under section 11(3) it is not open to him thereafter to claim the protection of section 12(1)." Now, it should not be overlooked that these observations were made in disposing of a contention that even if there is non-compliance with the provisions of Section 12(3)(b), a tenant who has raised the dispute about standard rent in his written statement for the first time can pay up all the arrears of rent at any stage of the hearing of the suit including the date of the final hearing and obtain protection under section 12(1) of the Act. Section 12(3)(b) of the Act confers protection by its very terms and in order to claim that protection it is not necessary for the tenant to rely upon section 12(1), if he has complied with the conditions laid down under Section 12(3)(b) of the Act. The scheme of Section 12 is quite clear, and the Legislature has conferred protection under that provision on at defaulting tenant at more than one stage. The first protection conferred is by enactment of sub-section (2) so as to enable a defaulting tenant to pay up the arrears of rent in reply to a notice of demand. Then in a case where a dispute about standard rent is raised within a period of one month of the notice, further protection is afforded under section 12(3)(b), on condition that the tenant complies with the conditions specified therein. Therefore, the decision of the Supreme Court in Dhansukhlal's case (supra) also does not affect the validity of the view taken by this Court in Ambalal's case (supra). In fact, Ambalal's case (supra) did not come up for consideration at all before the Supreme Court in Dhansukhlal's case (supra). Therefore, the decision of the Supreme Court in Dhansukhlal's case (supra) also does not affect the validity of the view taken by this Court in Ambalal's case (supra). In fact, Ambalal's case (supra) did not come up for consideration at all before the Supreme Court in Dhansukhlal's case (supra). In this view, the contention of Mr. Nanavati that this subsequent decision of the Supreme Court in effect over-rules the law laid down by Ambalal's case on the point under consideration cannot be accepted. 10. Therefore, the case falls under section 12(3)(b) of the Act; and as observed earlier, if that is the conclusion to which this Court would come, then there is no dispute that the decree passed by the lower appellate Court will stand. 11. No other point was raised. 12. In the result, the application fails and is dismissed. Rule discharged with costs. Application dismissed.