Norman Macleod, C.J.
1. The plaintiff in Appeal No. 57 of 1923 is the owner of a go-down bearing No. 2 situate at Soni Lane. It was in his possession from 1916 to April 1920. On May 1, 1920, the plaintiff first let the premises to the defendants for seven months at a rental of Rs. 18,000, which was equivalent to Rs. 2,571-6-10 a month. On December 1, 1920, he let the go-down to the defendants for a year at a rent of Rs. 1,000 per month. At the end of that period the plaintiff filed a suit in the High Court against the defendants to eject them on the ground that he required the promises reasonably and bona fide for his own use and occupation. As the defendants filed a written statement, the hearing of the suit was delayed. When the suit came on for hearing, the plaintiff's circumstances had so changed that he no longer required the premises for his own use and occupation, and he gave up that contention, which was a true contention at the time the suit was tiled. A settlement was then arrived at, and a consent decree was taken on July 12, 1922. There is a remarkable clause in the consent decree to the effect that the decree was without prejudice to the plaintiff's centention as regards the standard rent of the premises in suit if raised in any other suits filed by or against the plaintiff. I confess I do not understand the meaning of those words. But under the consent decree the defendants became tenants of the premises at a rent of Rs. 1,000 a month.
2. Six days after the decree had been taken, the plaintiff gave notice to the defendants in the following form:
3. You are in occupation of our client's go-down at Colaba being Soni Lane No. 2 as our client's monthly tenant at the monthly rent of Rs. 1,000. You are, however, aware that the standard rent of the said go-down is Rs. 2,571-7-0 per month. Our client several times requested you to agree to pay the said rent as our client is entitled to demand from you but you have refused to do so. We are, therefore, instructed to give you this notice that from the first day of September 1922 our client will charge you rent at the said rate of Rs. 2,571-7-0 per month. If you do not desire to pay any more rent than Rs. 1,000 you can vacate the preminses before the said September 1, 1922.
4. The defendants sent no reply to that notice.
5. The plaintiff wrote again on November 21, 1922, pointing out that the defendants had neither vacated the plaintiff's go-down nor paid rent at the rate demanded from September 1, 1922, nor had they paid rent for July and August 1922 at Rs. 1,000 a month. Notice was, therefore, given calling upon the defendants to pay the arrears for July and August at Rs. 1,000 a month and pay rent from September 1, at the higher rate.
6. On December 21, 1922, the defendant's solicitors replied:
7. 'Our clients deny their liability to the requisitions, made in your letter under acknowledgment. Our clients would have paid your rent at the rate of Rs. 1,000 per month but for the intimation given to them by Mr. N.H. Moos that he has been appointed Receiver in Suit No. 5239 of 1922 of the go-down in question and his demand' for rents in arrears and growing rents. Our clients deny that they are liable to vacate as required by yours and also deny your client's right to demand any rent other than at Rs. 1,000 per month under the consent decree between our respective clients.
8. The plaintiff then filed suit No. 947 of 1923 claiming that the standard rent should be fixed at Rs. 2,571-6-10 and that defendant should be ordered to pay rent at this rate from September 1, 1923, with previous arrears at the rate of Rs. 1,000 a month. In their written statements the defendants pleaded that on a proper construction of the consent decree dated July 12, 1922, they became monthly tenants of the plaintiff at the rate of Rs. 1,000 per month. They further stated that the notices given by the plaintiff were invalid in law and that their tenancy was not duly determined.
9. No issues were raised at the hearing and it would appear from the judgment that the defendants gave up the point taken in para. 7 of the wtitten statement for Mr. Taleyarkhan contended that although the defendants were entitled to a statutory tenancy, they were only entitled to it, if they paid rent to the full extent allowable by the Act, and I find nothing in the judgment to show that there was any argument on the question whether the defendants were in possession of the premises under their agreement as constituted by the consent decree or whether they were in occupation under the provisions of the statute. The learned Judge said:
There was no provision in the Act entitling the landlord to increase the rent without terminating the tenancy simply because the rent he was charging fell short of the standard rent. Sections 3 and 12 of the Bombay Rent (War Restrictions) Act II of 1918 made rent in excess of the standard rent recoverable by the tenant, but the converse proposition that the landlord could recover deficit below the standard rent was nowhere enacted. The claim, therefore, made by the plaintiff in this suit to increase the rent merely because it fell short of the standard rent is altogether unsustainable. The suit for excess rent must fail.
10. Accordingly a decree was passed against the defendants for the rent for July and August at the rate of Rs. 1,000 per month and for the subsequent months down to May 31, 1923, when the defendants vacated, at the same rate.
11. It seems to me that the legal position of a tenant whose tenancy has been determined but who is entitled to continue in possession under the provisions of the Rent Act has not been fully appreciated at the hearing. The plaintiff was entitled to terminate under the ordinary rules of law the contract which had been established between him and the defendants by consent decree, and on August 31, 1922, when the plaintiff's notice expired that tenancy terminated. Had it not been for the Rent Act, the defendants would have been bound to vacate, but under its provisions they might remain in possession, and under Section 9 no order for the recovery of possession of the premises could be made so long as they paid or were ready and willing to pay rent to the full extent allowable by the Act, and perform the conditions of the tenancy. I presume that would mean the conditions of the tenancy existing between the parties before the agreement terminated, which would be continued to that extent by virtue of those words if the tenant remained in possession under the Act.
12. Now the tenancy having terminated, still the plaintiff could not get an order for possession so long as the tenant was paying the rent to the full extent allowable by the Act. We have to turn to Section 2 to see what the definition of standard rent, is in order to ascertain what is the rent which can be charged to a person who remains in occupation of the premises under Section 9. It seems to me that there is nothing in the Act which prevents a landlord from charging his late tenant, as soon as he claims protection under the Act, the standard rent, because the payment of that rent is the sole condition which the Act recognises as enabling a tenant to remain in possessions. There is no analogy between the provisions of the Acts which enable a tenant, who has been charged without his cognizance a higher rent than the standard rent, to recover according to the terms of the Act the excess by deducting it from the current rent, and the ordinary proposition of law that a person in occupation of premises is bound to pay compensation for the use and occupation after the expiration of the contract between him and his landlord, which equally applies to a person who is allowed by the provisions of the Rent Act to remain in possession.
13. We think, therefore, that when the tenancy was terminated at the end of August 1922, and the defendants remained in possession and occupation of the promises, they should only have been allowed to do so provided they paid rent to the full extent allowable by the Act, that is to say the standard rent, and as no issue was framed in the Court below as to what was the standard rent, the case will have to go hack to the lower Court to ascertain what is the standard rent, and pass a decree accordingly in favour of the plaintiff. The appellant will get his costs of the appeal.
13. I entirely agree.