Lallubhai Shah, Acting C.J.
1. The question referred to us is as follows :-
Whether in spite of the decree of the High Court, declaring defendant to be a tenant of the plaintiffs at Rs. 185 per month, it it open to him to contend that he is liable to pay only the standard rent under the Bombay Bent Act.
2. We are of opinion that this question should be answered in the negative. The reference has been fully argued by Mr. Billimoria on behalf of the defendant and both the judgments of the lower Court clearly set out the facts which have given rise to this reference, as also the two views which were respectively contended for by the plaintiffs on the one hand and the defendant on the other in that Court. It is enough for the purposes of this reference to point out that the present defendant made a counter-claim in the suit in the High Court in which, among other things, he prayed that 'it may be declared that the defendant is a monthly tenant of the plaintiff at a monthly rental of Rs. 185'. It was open to him then, if he was so minded, to plead that he was liable to pay only Rs. 150 and not Rs. 185 per month. Instead of doing so, he asked for a declaration in the terms which we have just mentioned. It is urged on his behalf that it was not obligatory upon him then to claim the benefit of the provisions of the Bombay Bent (War Restrictions) Act (II of 1918) and that in that suit it was necessary for him to seek merely a declaration as to his status as tenant as an answer to the plaintiffs' claim which was that the defendant was not a tenant but a rent farmer. Having regard, however, to the nature of the counter-claim made, we are unable to accept the contention, which has been urged on behalf of the defendant with clearness before us, that Section 11 of the Code of Civil Procedure does not create any bar in the way of the defendant now pleading in the suit in the Court of Small Causes that he is liable only to pay Rs. 150 as standard rent and not Rs. 185 as stated in the declaration sought by him and decreed by this Court at his instance. We are of opinion that it was not only relevant but necesssary for the defendant to plead, if he wanted to take the benefit of the provisions of the Bent Act, that he was liable to pay not Rs. 185 but only Rs. 150 as standard rent. It does not appear to us to be open now to the defendant, after having obtained a declaration and the further relief by way of injunction on a certain footing, to say that it is still open to him to claim the benefit of the Rent Act after having, by necessary implication given up what he might have been entitled otherwise to claim in this Court when he made his counter-claim. It is neither illegal nor improper for any tenant of the premises such as we are concerned with here to choose to give up the benefit of the provisions of the Rent Act. It is entirely his look-out and when he puts forward any claim in the Court which has relation to the amount of the rent it is obligatory upon him to make up his mind whether he will claim the benefit of that Act or not. If, in a claim which is made by him, he chooses not to do so, he cannot afterwards claim to be relieved from the consequences of having failed to make that claim which, under the circumstances, he must be deemed to have given up. The declaration made by this Court is binding upon the parties. The position would have been quite different if the declaration had been made prior to the Rent Act.
3. Costs to be costs in the suit. Coats to be taxed on the Original Side scale.