M.P. Kanade, J.
1. By this petition under Article 227 of the Constitution of India the petitioner challenges the order of eviction passed by the Joint Civil Judge (Junior Division). Nasik dated February 28, 1979 and the order passed in appeal by the Extra Assistant Judge, Nasik, dated July 27, 1981. At the time of admission of this petition before a Single Judge of this Court it was observed that the matter should be heard by a Division Bench in view of the apparent conflict between the two decisions of this Court in (Special Civil Application No. 2021 of 1969 decided on March 12, 1974), (Hajarnavis, J.) and : AIR1977Bom344 (Aggarwal, J,). Accordingly the matter was placed before us for hearing and final disposal.
2. Few facts leading to this writ petition are that the respondents was the owner of a house bearing Municipal House No. 1428, situated at Hundiwala Lane, Nasik and the petitioner was the tenant of a room admeasuring 12' x 10' on the second floor of the said house on payment of Rs. 12/- per month. The petitioner committed defaults in the payment of rent with effect from December 1, 1974 to July 31, 1975. Accordingly on August 26, 1975, a composite notice terminating the tenancy and demand of arrears of rent as provided by section 12(2) of the Bombay Rents, Hotels and Lodging House Rates Control Act, 1947 (hereinafter referred to as 'The Bombay Rent Act), was issued. In spite of the said notice the tenant did not remit the arrears of the rent within one month nor did he make any application for fixation of standard rent as provided under section 11 of the Bombay Rent Act. The second contention of the respondents was that the eastern portion of the house, including the suit room, is in a dilapidated condition. There is a likelihood of its coming down at any time. The said portion of the house was inspected by the Municipal authorities in the year 1972 and a notice of demolition of the said house ,the same being dangerous for residence, within 7 days was issued. The petitioner-tenant did not vacate the room to enable the respondent landlord to demolish the said house. It is on these grounds, namely, default in payment of rent for more than six months and the notice of demolition by the Nasik Municipal Council, that eviction of the said house was claimed by the respondent. The said suit was resisted by the tenant contending inter alia that the tenancy was not terminated by any lawful notice. The petitioner also contended that the suit room is not in a dilapidated condition and there is no likelihood of its coming down. On these rival pleadings number of issues were framed in the trial Court. Issue No. 15 was, 'What is the standard rent of the suit room?'. At this stage, it is necessary to mention that the petitioner, had filed an application on October 16, 1972, which was disposed off on December 28, 1979 holding that the standard rent of the suit room is Rs. 12/- per month. On consideration of the entire evidence on record the learned Judge of the trial Court held that the petitioner is a defaulter and the rent claimed by the landlord is not excessive. Accordingly the order of eviction was passed against the petitioner.
3. Feeling aggrieved by the said order of eviction passed by the learned Joint Civil Judge, the tenant preferred an appeal. The said appeal was heard by the learned Extra Assistant Judge, who confirmed the order of eviction and dismissed the appeal filed by the petitioner by his judgment and order dated July 27, 1981. Against the said order the present writ petition has been filed under Article 227 of Constitution of India challenging the legality and correctness of the said order.
4. Shri Angal, learned Counsel appearing in support of the petition, contended that the notice terminating the tenancy of the tenant is bad in law inasmuch as the correct standard rent has not been demanded. Relying upon the judgement of this court in Ganpat v. Motilal Champalal Lunawat and another, : AIR1977Bom344 , Shri Angal contended that the notice is bad in law because the correct standard rent has not been stated in the said notice and an inflated amount has been claimed as the arrears of rent.
5. It is not disputed before us that the tenant was admittedly in arrears of the rent for more than six months. It is clear from the record that the standard rent application filed by the petitioner bearing No. 227 of 1975 was disposed off on December 28, 1979, holding that the standard rent of the suit room was Rs. 12/-. No revision application was filed against the said order, and accordingly the said order has become final. It must also be stated that the said application was not filed within one month from the date of the notice but it was filed after the filing of the suit by the petitioner. In the written statement a plea has been taken that the rent claimed by the respondent is excessive and the agreed rent was Rs. 10/- and not Rs. 12/- as pleaded by the respondent. Now, the question is as to whether the petitioner is entitled to raise the said plea in this writ petition? In the trial Court the plea of the petitioner was that the respondent was recovering the rent at the rate of Rs. 10/- per month and he increased the rent by Rs. 2/- and started collecting it at that rate from 1966. The learned trial Judge observed that except the bare words of the petitioner there was no other evidence to show that the rent was excessive. From 1966 the petitioner is paying the rent at rate of Rs. 12/- per month without any complaint. The respondent in his statement has mentioned that due to increase in the taxes he increased the rent by Rs. 2/- with the consent of the petitioner. The suit room is in dilapidated condition and the petitioner is provided with necessary amenities of life. On the basis of the said finding recorded by the learned Joint Civil Judge, the present rent cannot be said to be excessive rent. In the appeal a different plea seems to have been taken. The Appellate Court observed that the petitioner ought to have raised that plea in the trial Court and she is not at liberty to raise that contention for the first time in the Appeal. Admittedly she was served with a quit notice on August 26, 1975. That means that she did not prefer an application for fixation of standard rent within the stipulated period of one month from the date of service of the notice. Having made an application for fixation of rent it will not be open to the petitioner to contend that the rent at the rate of Rs. 12/- was excessive. Now in the present petition Shri Angal contends that the notice itself is bad in law inasmuch as the correct demand of standard rent has not been mentioned in the said notice. The petitioner, therefore, cannot be allowed to raise a new plea in this writ petition. However, it must be mentioned that the judgment referred to above, upon which reliance has been placed by Shri Angal, does not support his case. What has been laid down by Aggarwal, J., is that, 'It is vital that a landlord should make a correct demand unless he chooses not to specify the amount. He can simply demand arrears of rent. In such a case, it would be left to the tenant to make the payment on the basis of his calculation. A landlord cannot sit on the fence whereby the rigour of protection secured to the tenant is rendered illusory. A landlord should not be penalised for innocent or harmless mistakes. A demand which is fictitious or untenable cannot be excused on the ground of mistake or oversight. If the demands were allowed to be inflated and the notices were to be held is good under section 12(2), such an approach would defeat the protection afforded by the special enactment'. In the instant case the petitioner was paying Rs. 12/- per month as the standard rent from 1966 and no grievance seems to have been made by her. Secondly, the application for fixation of standard rent also decides Rs. 12/- as the standard rent of the said suit room. Having regard to all these facts it cannot be said that the notice under section 12(2) of the Bombay Rent Act was in any way bad in law. The contention raised by the petitioner is not well founded, and therefore, it has to be rejected.
6. In this view of the matter, it is not necessary for us to decide the conflict between the two judgments referred to above. Accordingly, the rule is discharged with costs.