1. The petitioner here is a tenant who is asked to quit by the order passed by the learned Assistant Judge, Poona. He allowed the appeal of the landlord against the order of the Small Causes Court, which had dismissed the landlord's claim for possession. The petitioner had filed a miscellaneous application against the respondent landlord for the purpose of fixing standard rent of the promises in 1958. It was fixed at Rs. 3 per month and when the landlord went in revision before the District Judge, it was dismissed. The landlord therefore challenged the order of the District Court before the High Court and the High Court set aside the order and remanded the matter back for disposal according to law. After the remand the standard rent was fixed by the trial Court at Rs. 5 per month on April 19, 1966. The petitioner-tenant then filed a revision application before the District Court, but it was dismissed on August 11, 1967.
2. In the meanwhile when these proceedings in the miscellaneous application for fixing the standard rent were pending, the landlord gave a notice to the petitioner demanding the arrears of rout from May 1, 196(5 to February 28, 1967. That was for a sum of Rs. 51. The notice was received by the petitioner on January 16, 1967. Although the petitioner sent the demanded sum of Rs. 51 by a money order which was accepted by the landlord on March 11, 1967, yet the landlord filed a suit to eject the petitioner on August 24, 1967. The petitioner also paid all the duos by depositing some money later in Court. He deposited the rent from time to time in Court.
3. The trial Court found that the petitioner was not a defaulter in the payment of rent for more than six months and that his case fell under Section 12(3)(b) of the Bombay Rent Act and that, therefore, the landlord was not entitled to possession. Although the learned trial Judge relied on a ruling in Sipahimalani v. Fidahussein (1955) 58 BomLR 344 wherein the effect of dismissal of revision petition was held not to confirm the order of the trial Court, yet he held that there was dispute till August 11, 1967 when the revision application was decided. The true effect in law according to the ruling in Sipahimalani's case was that when the revisional Court had refused to exercise the revisional jurisdiction conferred on it, there was no question of the order passed by the trial Court merging in the order passed by the revisional Court. The Court also held that the petitioner had deposited all arrears in Court till the date of judgment and that therefore ho is not a defaulter. According to the trial Court Section 12(3)(a) did not apply but Section 12(3)(b) applied. Accordingly therefore the plaintiff's claim for possession was dismissed. The tenant was asked to pay the deposited sum to the landlord. This order therefore was challenged and the learned Assistant Judge who heard the appeal found that the petitioner was a defaulter and that ho was in arrears for more than six months. He also relied on the ratio laid down in Sipahimalani v. Fidahussein but was of the view that the question of standard rent was finally decided by the Small Causes Court on April 19, 1966. If the District Court had interfered with the order, there was something according to him to be said but when it did not interefere with the order, the effect was that that Court refused to exercise the jurisdiction. There was therefore no question of confirmation of the order. According to the learned Assistant Judge therefore it cannot be said that on the date when the notice terminating the tenancy was given, there was a bonafide dispute about the standard rent. In the view of the matter, therefore, according to the learned Assistant Judge, the case fell under Section 12(3)(a) of the Rent Act and not under Section 12(3)(b). Therefore he treated the petitioner as a defaulter. Ho therefore allowed the appeal and set aside the decree passed by the trial Court and decreed the landlord's suit for possession. This decree of the learned Assistant Judge therefore is now challenged here in this petition. The point therefore that arises here for consideration is whether this order is according to law.
4. It must at once be stated here that although the ratio in Sipahimalani v. Fidahussien was that the trial Court's order did not merge in the order of the revisional Court, because it had merely refused to exercise its jurisdiction for the purpose of the setting aside the trial Court's order, yet this ratio was overruled in Shankar v. Krishna : 1SCR322 . It was held in this case :
Where, on its revisional jurisdiction being invoked against the order of the appellate Court under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the High Court dismisses the revision, after hearing both the parties, the order of the appellate Court becomes merged with the order made in revision, and, thereafter, the appellate order cannot be challenged or attacked by another set of proceedings in the High Court under Article 226 or 227 of the Constitution. The principle of merger of orders of inferior Courts would not become affected or inapplicable by making any distinction between a petition for revision and an appeal.
The case Sipahimalani v. Fidahussein was referred to and overruled. Evidently therefore, the present rule of law is that the order of the trial Court merges in the order of the revisional Court. That order in revision was passed on August 11, 1967 and therefore it can safely be said that there was a dispute between the parties as to what exactly should be the standard rent of the suit premises till August 11, 1967. The notice was given by the landlord on January 12, 1967. The case with which we are concerned therefore falls under Section 12(3)(b) as was held by the trial Court and not under Section 12(3)(a) as was held by the learned Assistant Judge; but the learned advocate for the respondent contends here that the dispute should be to the knowledge of the landlord and that since there was no reply whatsoever to the notice given by the landlord on January 12, 1967, according to him the landlord was not aware of any dispute as to the fixation of the standard rent after April 19, 1966 when Rs. 5 were fixed by the trial Court as the standard rent. It is, however, difficult for me to accept this contention for the obvious reason that he was a party to the miscellaneous application filed by the tenant for the fixation of standard rent and after the standard rent was fixed by the trial Court on April 19, 1966, to the revisional application, when the matter was carried to the revisional Court by the petitioner. The landlord was a party to the proceedings until the revision by the petitioner was dismissed on August 11, 1967. The dispute therefore continued until August 11, 1967. The order of the trial Court dated April 19,1966 fixing the standard rent merged in the order of the revisional Court on August 11, 1967. The final order therefore was passed on August 11, 1967. The notice was given on January 12,1967. The landlord well knew about what all was happening. It cannot therefore be contended that the dispute was not to the knowledge of the landlord. This contention therefore is without substance.
5. It appears to me therefore that the learned Asistant. Judge erred in coming to the conclusion that this case falls under Section 12(3)(a) and not under Section 12(3)(b). This case clearly falls under Section 12(3)(b) of the Rent Act. The petitioner therefore cannot be said to be a defaulter.
6. In the above view of the matter therefore this petition will have to be allowed, the order passed by the learned Assistant Judge will have to be set aside and the order passed by the Small Causes Court, Poona will have to be restored.
7. The petition is allowed. The rule is made absolute with costs.