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Surgical Corporation Vs. Lachmibai Gagandas (Smt.) - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application No. 776 of 1980
Judge
Reported in1982(1)BomCR916
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 11(3), 11(4), 12 and 12(2); Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Act, 1963
AppellantSurgical Corporation
RespondentLachmibai Gagandas (Smt.)
Appellant AdvocateV.P. Tipnis, Adv.
Respondent AdvocateY.T. John, Adv.
Excerpt:
.....interim rent as ordered by court - respondent took out notice praying for dismissal of standard rent application on ground of non-compliance with direction given by court - revision against dismissal of application filed by petitioner - as per judicial precedent court has power to fix interim rent in proceedings commenced on application under section 11 (3) - tenant has duty to pay rent so fixed - held, court has jurisdiction to fix interim rent and to direct tenant to pay rent at decided rate. - indian evidence act, 1872 section 24: [v.s. sirpurkar & deepak verma,jj] dying declaration - multiple murders by accused - dying declaration not implicating one accused - evidence of eye witnesses however completely fixing his criminal liability ocular evidence found credible held,..........the respondent took out notice, being no. 5945 of 1979, praying for the dismissal of the standard rent application made by the petitioner under section 11(3) of the bombay rent act on the ground of non-compliance with the direction given by the court. by its order dated 10th december, 1979, the trial court dismissed the application of the petitioner and this order of the trial court was confirmed by the appellate bench of the small causes court by its order dated 7th august, 1980. it is against this order of the appellate bench that the petitioner has approached this court under section 115 of the code of civil procedure.4. mr. tipnis, the learned advocate appearing in support of the petition has contended, and that is his only contention, that in an application made under section 11(3).....
Judgment:

R.A. Jahagirdar, J.

1. This petition arises out of proceedings initiated by the petitioner by filing an application, being R.A.N. Application No. 1225/SR of 1974, under section 11(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, hereinafter referred to as 'the Bombay Rent Act', after receiving the notice from the respondent-landlord under section 12(2) of the Bombay Rent Act. It may be mentioned at this stage itself that the application under section 11(3) of the Bombay Rent Act was not made within one month after the receipt of the notice. From this it seems inevitable that a suit, if one is filed against the petitioner for eviction on the ground of arrears of rent, will have to be decreed in view of the judgment of the Supreme Court in Harbanslal Jagmobandas v. Prabhudas Shivllal 78 Bom.L.R. 213. However, my observation in this regard is only as aside and the Court dealing with the suit will naturally hear the same and dispose it of in accordance with law on the facts placed before it.

2. Retiring to the application under section 11(3) of the Bombay Rent Act which was made on 17th July, 1974,1 must proceed to mention that Subsequently on 3rd August, 1974 an application was made on behalf of the petitioner for fixation of interim rent. Ad interim rent was fixed at Rs. 406/- per month and also a direction was given that an amount of Rs. 8120/- should be deposited by the petitioner by a particular day. The period, however, was later extended and I am informed that the amount was accepted within the extended period under the order of the Court. Subsequently after hearing the respondent interim rent was fixed at Rs. 650/-p.m. By an order dated 16th September, 1975 the petitioner was directed to deposit Rs. 10,894/- towards the arrears of rent upto 30 September, 1975. He was also directed to pay the revised interim rent by 30th day of the last month of each quarter. The petitioner complied with this order for sometime but later committed defaults in the payment of the revised interim rent as ordered by the Court.

3. The respondent took out notice, being No. 5945 of 1979, praying for the dismissal of the standard rent application made by the petitioner under section 11(3) of the Bombay Rent Act on the ground of non-compliance with the direction given by the Court. By its order dated 10th December, 1979, the trial Court dismissed the application of the petitioner and this order of the trial Court was confirmed by the Appellate Bench of the Small Causes Court by its order dated 7th August, 1980. It is against this order of the Appellate Bench that the petitioner has approached this Court under section 115 of the Code of Civil Procedure.

4. Mr. Tipnis, the learned Advocate appearing in support of the petition has contended, and that is his only contention, that in an application made under section 11(3) of the Bombay Rent Act the Court is not empowered to direct that future rent should be paid or deposited by the tenant. According to Mr. Tipnis, the only order that could be passed by the Court on an application made under sub-section (3) of section 11 is to direct the tenant to pay rent due upto the date of the notice under section 12(2) of the Bombay Rent Act or at the latest upto the date of the application-made under the said provision. This is, so, according to Mr. Tipnis, because the application is made under section 11(3) by the tenant who has received the notice from the landlord under section 12(2). The only benefit which would accrue to the landlord is the payment of rent at such rate as the Court may fix upto the date of the notice under section 12(2) of the Bombay Rent Act.

5. Mr. Tipnis has taken me through the provisions of sub-section (4) of section 11 of the Bombay Rent Act and has highlighted with considerable justification the distinction between sub-section (3) and sub-section (4) of section 11 of the Bombay Rent Act. According to Mr. Tipnis, the provisions of sub-section (3) are not applicable when there is a suit filed by the landlord. It is only under sub-section (4) that a power has been given to the Court to make a tenant to pay future rent which is conspicuous by its absence in sub-section (3) of section 11. There is a considerable substance in the contention of Mr. Tipnis based upon the slightly different language used in the two sub-sections of section 11 of the Bombay Rent Act.

6. However, it is not necessary for me to examine this contention in great details because, in my opinion, this question is no longer open to any debate. In Karamsey Kanji v. Velji Virji 56 Bom.L.R. 619. Chagla C.J., examined analogous provisions and has held that the Court is empowered to fix ad interim rent under section 11(3) of the Bombay Rent Act and also to direct the tenant to pay future rent at the rate fixed by it. I have no difficulty in holding that the reasoning contained in the said judgment fully applies to the provisions of section 11 as they now stand despite the fact that sub-section (4) has been subsequently added to section 11 of the Bombay Rent Act. The addition of sub-section (4) has not made any difference to the view taken by Chagla, C.J.

7. Similar view has been expressed by J.C. Shah, J., as he then was in L.M Chakradeo v. Goolabanubai Yoosuf Lalji 58 Bom.L.R. 454. Analysing the provisions of section 11(3) of the Bombay Rent Act which is substantially same even now. Shah, J., observed as follows :---

'The legislature has, therefore, authorised the Court to pass temporary orders directing payment of rent at a rate which the Court regards in the circumstances of the case as just pending determination of the standard rent.'

In Vora Abbasbhai Alimahomed v. Hajj Gulamnabi Haji Safibai, : [1964]5SCR157 , the Supreme Court was examining various provisions of the Bombay Rent Act and in particular the provisions contained in sections 11 and 12. Noticing the Explanation to section 12 which Explanation is now renumbered as Explanation I, the Supreme Court mentioned as follows :

'The explanation enacts a rule of evidence. If after service of the notice upon the tenant by the landlord under sub-section (2) of section 12 the tenant makes an application under sub-section (3) of section 11 before the expiry of a month and thereafter pays or tenders regularly the amount of interim rent specified by the Court till the disposal of the suit, the Court is bound to presume that the tenant is at the date of the decree ready and willing to pay the standard rent and permitted increases.'

8. Even the subsequent decisions which need not be cited, have proceeded on the basis that the Court has power to fix interim rent in proceedings commenced on an application under sub-section (3) of section 11 and the tenant has a duty to pay the rent so fixed. The legislature must have been fully conscious of the law which I have summarised above when it added Explanation II to section 12 by Maharashtra Act 14 of 1963. The said explanation is in the following terms :---

'Explanation II.---For the purposes of sub-section (2), reference to 'standard rent and to 'permitted increase' shall include reference to interim standard rent' and 'interim permitted increase' specified under sub-section (3) or (4) of section 11.

9. The contention, therefore, that under section 11(3) of the Bombay Rent Act the Court has no jurisdiction to fix interim rent and to direct the tenant to go on paying rent at that rate cannot be accepted. If this contention is rejected, the order passed by the two courts below was inevitable. This petition must, therefore, fail. Rule is discharged with costs.


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