S.C. Pratap, J.
1. This petition by the original defendant is preferred against the concurrent decree passed by the two courts below in favour of the plaintiff in his suit for arrears and possession under the provisions of the Bombay Rent Act.
2. Claim for possession was based on ground that the petitioner defendant had remained in arrears of rent for a period of more than six month. Notice of demand under section 12(2) of the Rent Act was served upon the defendant. Even so the arrears were not paid nor any reply sent. No tender was made nor any dispute raised nor any standard rent application filed. Suit was filed in the year 1966. One is now in 1982. At one stage the said suit was decreed ex parte due to default of the defendant. The ex parte order was, however, subsequently set aside and the suit was tried and heard on merits. On merits also the trial Court held in favour of the plaintiff and decreed the suit. Defendant's against the said decree failed. Hence this petition.
3. Hearing the rival submissions of the respective Counsels and going through the impugned judgments of the two courts below, I do not find this to be a case for interference in this court's writ jurisdiction. Both the courts below have considered all the relevant pros and cons of the matter have taken into account the relevant facts and circumstances and have, for goods reasons and on cogent material, come to a concurrent finding of fact against the defendant. This is not a case justifying interference with the concurrent decrees is one's writ jurisdiction.
4. Notice of demand dated 10th May, 1966 was served on the defendant on 17th May, 1966. The defendant did not send any reply to the said notice. The defendant also did not tender any amount within the statutory period of one month of the receipt of the said notice. There was also no application filed for fixation of standard rent. Indeed, the record shows that a purported dispute relating to standard rent was raised for the first time in the written statement. But, as the trial Court has rightly observed in paragraph 15 of its judgment, even the said to be bona fide as no attempt whatsoever has been made to show that the rent was either excessive or unreasonable. If in all these circumstances, the courts below have found the plaintiff's case to be governed fairly and squarely by the provisions of section 12(3)(a) of the Bombay Rent Act, surely this is not a case where one would be justified in one's writ jurisdiction to interfere with the conclusion thus reached.
5. That apart, the conclusion thus reached by the courts below is also pre-eminently correct. The settled position in law has been correctly applied by the two courts below to the established facts of the case. A view was at one time taken by this Court in the case of Dattu Subhana v. Gajanan Vithoba, : AIR1971Bom396 , that dispute relating to standard rent could be raised for the first time even in the written statement so as to obviate the applicability of section 12(3)(a) of the Rent Act. The said view, however, has been expressly overruled by the Supreme Court in Harbanslal v. Prabhudas, : 3SCR628 , holding thus :
'....... In order to avoid the operation of section 12(3)(a) of the Act the dispute in regard to standard rent or permitted increase must be raised at the latest before the expiry of one month from the date of service of notice under section 12(2) of the Act and it is not enough to raise a dispute for the first time in written statement'.
(Vide head not of the said ruling).
6. Indeed, even in an earlier case viz. Dhansukhlal Chhaganlal v. Dalichand Virchand, : 3SCR346 , the Supreme Court held thus :
'........ section 12(1) of the Act must be read with the explanation and so read it means that the 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'.
7. In yet another case viz. Ganpat Ladha v. Sashikant Vishnu Shinde, : 3SCR198 , the Supreme Court observed thus :
'....... Thus section 12(3)(a) of the Act makes it obligatory for the Court to pass a decree when its conditions are satisfied as was pointed out by one of us (Bhagwati, J.) in Ratilal Balabhai Nazar v. Ranchodbhai Shankarbhai Patel A.I.R. 1976 Guj 172. If there is statutory default or neglect on the part of the tenant, whatever may be its cause, the landlord acquires a right under section 12(3)(a) to get a decree for eviction'.
The position is thus well settled to the effect that if a tenant is in arrears of rent for a period of more than six months and does not pay the same within statutory period of one month of the service of the demand notice in that behalf nor files any application for fixation of standard rent within the said period, decree under section 12(3)(a) of the Rent Act is a mandatory consequence. If the courts below have thus applied this settled position to the established facts of the case, interference nevertheless would not at all be justified and would, on the contrary, be an arbitrary exercise of this Court's writ jurisdiction.
8. It was, however, contended that there was a dispute raised in the written statement relating to permitted increases and to an extent the said dispute has been decided in favour of the defendant as the Courts below had reduced the permitted increases from Rs. 30.80 as demanded to Rs. 20.04. Question, however, still remains that even the said dispute was not raised within a period of one month of the receipt of the demand notice. That apart and as will as seen from paragraphs 12 and 13 of the judgment of the trial Court, the demand of permitted increase made by the plaintiff cannot, by any stretch, be said to be mala fide. It was a clear error of calculation and working out the said calculation in the light of various changes that took place from time to time regarding the said increase. The defendant is not entitled to any benefit of such innocuous mistake particularly when he himself never raised any dispute in that behalf within one month of the receipt of the demand notice and also particularly when defendant did not tender even the undisputed rent (permitted increases apart) of the suit premises within the said period.
9. Further more, even on the assumption that the defendant's case stands excluded from the provisions of section 12(3)(a) of the Rent Act and consequently stands governed by the provisions of section 12(3)(b) of the said Act, the ultimate result is nevertheless the same viz., decrees passed by the two courts below are even so fully justified. It is, in this behalf, relevant to note that not only did the defendant not tender any rent within the statutory period of one month of the demand notice but the defendant also did not tender any rent even thereafter. Still more pertinent to note is the fact that even after the filing of the suit, the defendant continued to persist in committing defaults. Indeed, as the record shows, defaults continued despite several orders for deposit passed by the Court. Persistently defaulting conduct of the defendant is more than amply reflected in paragraph 17 of the judgment of the trial Court as also in the reasoning of the Appellate Court's judgment while discussing the applicability or otherwise of section 12(3)(b) of the Rent Act. (See pages 34 to 36 of this petition). Arrears thus mounted and the same ran into thousands of rupees. Order after order for deposit was violated with impunity. Indeed, the Court had to ultimately pass an ex parte decree in favour of the plaintiff. It was only as a condition for setting aside the said ex parte decree that the defendant under compulsion chose to deposit the rent in Court. Such then is the conduct of this defendant in the instant case. In my view, the defendant has neither law nor equity in his favour. As observed by the Supreme Court in Ganpat Ladha v. Sashikant Vishnu Shinde, : 3SCR198 :
'....... But where the conditions of section 12(3)(a) are not satisfied, there is a further opportunity given to the tenant to protect himself against eviction. He can comply with the conditions set out in section 12(3)(b) and defeat the landlord's claim for eviction. If, however, he does not fulfil those conditions, he cannot claim the protection of section 12(3)(b) ...... The decisions of this Court referred to above, in any case, make the position quite clear that section 12(3)(b) does not create any discretionary jurisdiction in the Court. It provides protection to the tenant on certain conditions and these conditions have to be strictly observed by the tenant who seeks the benefit of the section'.
This provision has been once again reiterated by the Supreme Court in Mranalini B. Shah v. Bapalal Mohanlal Shah A.I.R. 1960 Sc 954.
10. Thus, in the first place, the present case is squarely governed by the mandatory provisions of section 12(3)(a) of the Rent Act. But even on the assumption that the defendants can invoke section 12(3)(b) of the Rent Act, the tests laid down for its application have not at all been complied with. Indeed, the conduct of the defendant is that of a contumacious defaulter. The defendant did not pay the arrears prior to the demand notices. Even after the demand notice the same were not paid. Even till the suit was filed be did not pay anything. Even after the filing of the suit, he did not tender of deposit any amount despite order after order passed by the Court. As already indicated earlier, the arrears went on mounting and at one stage the same accumulated to more than Rs. 8,000/-. Ultimately, at one stage an ex parte decree was passed against the defendant. Only thereafter and virtually under compulation, the defendant chose to make deposit. This surely is not conduct deserving any encouragement, much less any protection. If despite such gross facts, one were to interfere, it would be putting premium upon the defendant's conduct amounting to flagrant disobedience of the law as also of court's orders.
11. Contention next raised was that the constituted attorney of the plaintiff did not produce the power of attorney and consequently the suit was bad. It is not possible nor just and fair to defeat the suit on such technicality. Important to note in this connection is that the constituted attorney had taken a rent forming contract. The defendant had been paying rent to him at all relevant times and receipts also were being taken accordingly. These payments were not under any protest but voluntary and unconditional. The Rent Act permits filing of a suit for recovery of arrears and possession as in the present case. Besides, it may also be noted that the factual contention of power of attorney was never raised even in the defences. It was sought to be raised for the first time at the stage of arguments. Even on merits, I find that the defendant, who had been voluntarily and unconditionally paying rent in the past, cannot be permitted to now resile from the said position. A litigant may not be permitted to blow hot and cold. This is all the more so because it is not the case of the defendant that the claim is made against the wishes of the plaintiff or contrary to his instructions. There is no allegation even to that effect. The technical contention aforesaid has been rightly rejected by the courts below.
12. Contention next raised viz., that the property, of which the suit premises form a part, has been sold to a co-operative society and, therefore, the suit is not maintainable, must also fail. Though contention on behalf of the plaintiff is that the sale was not completed in all respects, his further and more important contention is that he continues to be the owner of the present suit premises (forming only a part of the entire property) and in that capacity he is a member of the co-operative society in question. There being no dispute in this behalf, the present suit by the flat owner against this lessee is, in my view, maintainable. There is no merit thus in yet another attempt to defeat a just claim.
13. It is lastly contended that the secretary of the society has stated on affidavit that the society was not opposing the defendant's appeal before the Appellate Bench and was not contesting the same. Submission is made that the plaintiff must, therefore, fail. In the first place, it is difficult to appreciate the said submission. The plaintiff is claiming possession in his own right. The society is least concerned whether the plaintiff gets or does not get possession. It, therefore, may not be interested in either opposing or supporting the appeal in question. Merits of the lis between the plaintiff and the defendants cannot be adjudicated de hors the factors relevant thereto and by consideration of an extraneous circumstances viz. that the society did not choose to oppose the defendants appeal. That the society did not choose to do so is, in my view, an irrelevant circumstance and cannot adversely affect the merits of the plaintiff's claim.
14. It may in this entire context not be out of place to invite attention to the observation of the Supreme Court in the case of Ganpat Ladha v. Sashikant Vishnu Shinde, : 3SCR198 :
'..... Lastly, we think that the High Court committed a gross error in interfering, upon an application under Article 227 of the Constitution with what was a just and proper exercise of its discretion by the Court of Small Causes in Bombay even on the erroneous view that the Court had a discretion in the matter ....... A finding as to whether circumstances justify the exercise of a discretion or not, unless clearly perverse and patently unreasonable is, after all, a finding of fact only, which could not be interfered with either under Article 226 or under Article 227 of the Constitution ..... Even that certainty and predictability is the administration of justice in accordance with law which is possible only if lawyers and Courts care to scrupulously apply the law clearly declared by this Court, would not be attainable if this elementary duty is over looked'.
Such being the weighty observations of the Supreme Court and such being the established facts against the defendant in the instant case, this is not a case where one's discretionary powers in a writ jurisdiction can be successfully invoked by the defendant or can be justifiably exercised in his favour by this Court. Indeed, the sum total of the record established that this is a case where both facts and law are against the defendant and this consequently is a case where discretion cannot be used in favour of the defendant and against the plaintiff and that too against the facts of the case and contrary to the settled legal position in the matter. The proper, just and fair order in the instant case is, an all the circumstances, the one concurrently passed by the two courts below. In the result, this petition fails and the same is rejected.
15. Counsel for the petitioners applies for time. On Counsel's statement and undertaking to this Court on behalf of the petitioner defendant, and which this courts accepts, that the petitioner defendant will not create any third party interest in the suit premises, will not part with possession thereof and will not in any manner adversely deal therewith, decree for possession passed in favour of the plaintiff should not be executed till 31st July, 1982 (inclusive). In the event of the defendant moving the Supreme Court against this order, 72 hours' prior notice in that behalf should be given to the plaintiff.