Skip to content


Shivlal Mafatal and ors. Vs. Mafatlal Ambaram - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 205 of 1967
Judge
Reported inAIR1972Guj209
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 11(3), 12, 12(2) and 12(3)
AppellantShivlal Mafatal and ors.
RespondentMafatlal Ambaram
Appellant Advocate N.V. Karlekar, Adv.
Respondent Advocate B.C. Vakil, Adv. for; S.B. Vakil, Adv.
Cases ReferredFirm of Harbanslal Jagmohandas v. Prabhudas Shivlal
Excerpt:
tenancy - standard rent - sections 11 (3), 12, 12 (2) and 12 (3) of bombay rents, hotel and lodging house rates control act, 1947 - revision petition filed against refusal to pass decree for eviction - dispute regarding standard rent raised by tenant in reply to notice given by landlords under section 12 (2) within one month from date of receipt of notice - section 12 (3) (a) not applicable - revision petition dismissed. - - if he does not exercise that option, the lease would continue for the benefit of the lessor as well as lessee. it will not be proper to consider the landlord's failure to carry out repairs as an act of eviction of the tenant, even though the result may be that the tenant is unable to use the premises. if, as will often by the case, the tenancy has suffered injury.....order1. this is a revision petition filed by the original plaintiffs against the opponent-defendant (tenant) under section 29(2) of the bombay rents, hotel and lodging house rates control act, 1947 (which will be hereinafter referred to as 'the act:), against the judgment and decree passed by the appellate bench of the small causes court, ahmedabad, in civil appeal no.132 of 1964, dismissing that appeal with costs and confirming the judgment and decree passed by the learned trial judge of the small causes court, ahmedabad, in civil suit no.1728 of 1957.2. both the courts below have refused to pass a decree for eviction on the ground that the opponent-tenant having raised a dispute regarding the standard rent within one month, from the date of the receipt of the notice, ex.41 given by the.....
Judgment:
ORDER

1. This is a revision petition filed by the original plaintiffs against the opponent-defendant (tenant) under Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (which will be hereinafter referred to as 'the Act:), against the judgment and decree passed by the appellate Bench of the Small Causes Court, Ahmedabad, in Civil Appeal No.132 of 1964, dismissing that appeal with costs and confirming the judgment and decree passed by the learned trial judge of the Small Causes Court, Ahmedabad, in Civil Suit No.1728 of 1957.

2. Both the courts below have refused to pass a decree for eviction on the ground that the opponent-tenant having raised a dispute regarding the standard rent within one month, from the date of the receipt of the notice, Ex.41 given by the landlords for determining the tenancy and calling upon him to pay the arrears of rent, for a period over six months. According to the two Courts below, there having been raised such a dispute regarding the standard rent with in a month from the date of the receipt of such notice given under Section 12(2) of the Act, Section 12(3)(a) of the Act would not have any application. The tenant had paid all the arrears due on the date of filing of the written statement, dated 9-8-1957 with Pursis, Ex.12.

3. The landlords (petitioners) being dissatisfied with the judgment and decree passed by the two Courts below, have preferred the present revision petition to this court.

4. Mr. Karlekar, appearing for the petitioners, urged that the Courts below have committed an error of law in coming to the conclusion that there was a dispute regarding the standard rent and consequently, Section 12(3)(a) of the Act had no application. This submission was made by him on several grounds. One of such grounds was that a common wall of the suit premises and the property of neighbour Sitaram was pulled down by the landlords. According to them. It was pulled down with the consent of the opponent -tenant. Therefore, in March or April, part of the suit premises was demolished by the municipality on the ground that it was in a dilapidated condition. According to Mr. Karlekar, the dispute that was raised by the tenant in his reply, Ex.43, dated 11-2-1957 in response to the notice given under Section 12(2) of the Act, Ex.41, dated 23-1-1957, was for consequent reduction of rent. In view of the provisions of Section 108(e) of the Transfer of Property Act, if a part of the suit premises was destroyed or demolished on account of irresistible force as stated in that clause, the tenant had an option to treat lease to be void. If he does not exercise that option, the lease would continue for the benefit of the lessor as well as lessee. The claim was really a claim for reduction of rent. It could not be said to be a dispute in regard to the standard rent. According to him, the standard rent would be the rent as defined in Section 5(10) of the Act. In support of his argument, he invited my attention to three decisions, which I will now refer to.

5. In Dr. Kundan Lal v. Shamshad Ahmad, AIR 1966 All 225, S.S.Dhavan, J., has observed:--

'Clause (e) of Section 108 is based on the principle of frustration of contract, and was enacted to safeguard the rights of the tenant in case of the total destruction of the property leased to him. It gives him the right to escape his liability as a tenant by declaring the lease void. It followed that if the tenant does not exercise the option under clause (e) that is, does not invoke the doctrine of frustration the lease shall continue for the benefit of both the parties. There is no other provision under the act providing for a reduction of rent in case of partial destruction of the leased property of for total suspension in case of its complete destruction'.

6. In Bani Sah v. Krishna Chandra, AIR 1951 Pat 508, a Division Bench of the Patna High Court has observed:--

'If tenancy is governed by Transfer of Property Act, tenant cannot demand assessment of fair rent. No abatement in rent can be claimed if there is no deprivation or eviction of tenant from part of premises by reason of non-repairs by landlord'.

7. In National Motor Industries Ltd., v. Birendra Nath Mitra, AIR 1957 Cal 232, a Division Bench of the Calcutta High court has observed:--

'Where the landlord fails to carry out the repairs coming under S. 38(3). (West Bengal Premises Rent Control (Temporary Provisions) Act, 1950), the tenant is not entitled to suspension or abatement of rent. The general law does not give any such remedy to the tenant.

It will not be proper to consider the landlord's failure to carry out repairs as an act of eviction of the tenant, even though the result may be that the tenant is unable to use the premises.

But the tenant is not without any remedy. If, as will often by the case, the tenancy has suffered injury by reason of the landlord's failure to carry out repairs which he is bound to do, the tenant will in appropriate proceedings be entitled to recover damages in compensation for the same.

It is not correct to say that what the second sub-section provides is really a remedy for infringement of the right. Clearly, it provides only a convenient mode of enforcing the right. The provision that the cost of the repairs can be recovered by deduction from the rent of otherwise has nothing to do with the injury caused by the infringement of the right. The fact that repairs are ultimately carried out does not undo the damage caused during the time which may be considerable -- when the repairs had not been done.

Clearly, however, the Court in ascertaining what amount is due as arrears of rent has to take into account is due as arrears of rent has to take into account the provisions of the second sub-section of S.38 under which the tenant is entitled to deduct from the rent the cost of the repairs made by him'

What the tenant claims is not only the reduction in rent as has been urged by Mr. Karlekar, in his reply to the notice.

8. Mr. Karlekar has laid considerable emphasis on the wording of para 3 of this reply, Ex.43. in para 2, the tenant has made a grievance about non-repairs and the efforts made by the landlords to harass him and not to put the premises in a tenantable condition. He has made a complaint that first the common wall was pulled down by the landlords and thereby put him in a precarious position. It is thereafter averred that by acting as a busy-body, some other portion was also pulled down at the hands of the municipality and the roof also was taken off. Thereafter, it is stated in para 3, that his client has no objection for paying the agreed rent but on account of the conduct of the landlords and the existing condition of the suit premises and that having taken place on account of the act of the landlords, according to law, the landlords ceased to be entitled to recover the agreed rent. That is what he believes and understands to be the position of law. In para 4, in terms it is stated that the question is as to what should be the fair rent in view of the present condition of the building and what should be the standard rent. It is necessary to get it fixed. Even to claim rent for the suit building a part of which has been got pulled down, at the rate of Rs.11/- per month, the agreed rent, is not a legal demand. In para 5, it is further stated that the landlords should give him the particulars of the standard rent.

9. Taking into consideration all these averments made by the tenant in his reply to the notice given by the landlords under Section 12(2) of the Act, there is no escape from the conclusion that the tenant did raise a dispute regarding the standard rent. Whether his belief, that in view of such change made in the property, the standard rent should be fixed a sum lower than the agreed rent, was erroneous or not, is in my opinion, irrelevant. It may be that ultimately, his belief may be proved to be erroneous in law. At times, it may be found that the dispute raised was without any basis. That would be the merit the dispute it cannot be said that there was no dispute. It cannot be said that there was no dispute regarding the standard rent raised in this reply given with one month after the date of the receipt of the notice.

10. There is no quarrel with the principle enunciated in the aforesaid three decisions relied upon by Mr. Karlekar construing the provisions of S. 108(e) of the Transfer of Property Act, 1882.

11. It is significant to note that Section 11 of the Act gives powers to the Court to fix the standard rent and permitted increases in cases specified therein. Sub-section (1) of it reads:--

'In any of the following cases the Court may, upon an application made to it for that purpose, or in any suit or proceeding, fix the standard rent at such amount as, having regard, to the provisions of this Act and the circumstances of the case, the Court deems just'.

It, therefore, means that the legislature has given power to the Court to fix the standard rent, having regard to the provisions of the Act, and the circumstances of the case, the Court deems just. Therefore, after, there are five clauses. Clause (e) material for our purposes, reads:--

'(e) where there is any dispute between the landlord and the tenant regarding the amount of standard rent'.

In the instant case, we are not concerned merely with the provisions under the general law. We are concerned with the provision of the Act. As said earlier, apart from making a claim for determination of standard rent in view of the change in the suit premises on account of a common wall having been demolished by the landlords and a portion of it having been demolished by the municipality on the ground that it was in a dilapidated condition, the tenant claimed that the agreed rent could not be the standard rent and the Court should fix the standard rent. Apart from it, on other grounds also, the dispute regarding the standard rent has been raised the two Courts below have, therefore, rightly come to the conclusion that in the reply, Ex.43, given within one month after the date of the receipt of the notice, given by the landlord under Section 12(2) of the Act, the tenant had raised a dispute regarding the standard rent.

12. As there was no specific clear averment regarding fixation of the standard rent in the original written statement field, application for amending the written statement, EX.2, was given in the trial Court on 1-10-1959. It came to be rejected by the trial Court. The appellate Court allowed that amendment and consequently, it set aside the judgment and decree passed by the trial Court earlier in Appeal No.76 of 1962, on 8-7-1963. Actual amendment of the written statement was accordingly made on 14-8-1963 and issues were framed on 9-12-1963 and the judgment and decree came to be passed by the trial Court on 27-12-1963.

13. Mr. Karlekar's submission was that even if this Court finds that there was such a dispute raised regarding the standard rent in the reply to the notice, if was of no consequence. According to him, in the eye-of-law, there would be such dispute regarding the standard rent to take out the case from the ambit of Section 12(3) (a) of the Act only if the tenant had filed an application for fixation of the standard rent under Section 11 of the Act within one month from the date of the receipt of the notice given by the landlord claiming such arrears of rent after determining the tenancy, under Section 12(2) of the Act. In the instant case, application for fixation of standard rent which was registered as Miscellaneous. Application No.1323 of 1961, which has been also decided along with the suit, was filed on 1-11-1961. As said earlier, the suit was first decided on 18-1-1962 and against that decision, appeal No.76 of 1962 was filed by the tenant and that came to be allowed and amendment of the written statement was allowed and the matter was remanded to the trial Court and the trial Court ultimately decided the suit on 27-12-1963.

14. This last submission is made by Mr. Karlekar on the basis of the explanation that finds place in Section 12 of the Act, which reads:--

'In any case where there is a dispute as to the amount of standard rent or permitted increases recoverable under this Act the tenant shall be deemed to be ready and willing to pay such amount 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 S. 11 and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court'.

Mr. Karlekar submitted that it is only if the conditions referred to in this explanation, are fulfilled, then only it could be said that there was a dispute raised regarding the standard rent and in that eventually, the case would be taken out of the ambit of Section 12(3)(a) of the Act. In support of his argument, he invited my attention to the decision of the Supreme Court in Shah Dhansukhlal Chhaganlal v. Dalichand Virchand Shroof, 9 Guj. LR 759 = (AIR 1968 Sc 1109). At page 762, contentions raised before the High Court, have been quoted as under by the Supreme Court:--

'In revision three contentions were raised before the High Court, namely, (1) as to the validity of the notice of ejectment; (2) whether Section 12(3)(a) or 12(3)(b) of the Act applied; and (3) whether the defendant was entitled to protection under Section 12(1) of the Act. The High Court held that it was not open to the tenant to raise the question of the validity of the notice in a revision application. Moreover, there was no substance in it as the compromise petition expressly record that the tenancy in terms of it should commence on September 1, 1952. With regard to the second question the High Court held that 'it was common ground between the parties before the Assistant Judge that the case of the defendant fell within Section 12(3)(b) of the Rent Act'. The learned Judge of the High Court noted:

(a) The trial Judge turned down the applicability of Section 12(3)(a) of the Act holding that the defendant had disputed the municipal taxes and permitted increases;

(b) The conditions under S. 12(3)(b) of the Act were not fulfilled;

(c) No contention about the applicability of Section 12(3)(a) was raised before the Assistant Judge in appeal and he therefore did not go into the question at all; and

(d) the conditions necessary for the applicability of Section 12(3)(a) were not present, and besides the amount of Rs.27/- mentioned in the compromise petition, the tenant had to pay other sums not due from him every month'.

In para 6, it is stated:--

'The High Court further found that after the first date of hearing of the suit on September 3, 1956 rent of the premises which fell due on 1st October 1956, 1st January 1957, 1st February 1957 and 1st March, 1957, remained unpaid on March 25, 1957 when the suit was disposed of. As the defendant did not pay or deposit in Court regularly the amount of standard rent which became due on the aforesaid dates barring the 1st of March, 1957 (taking into account the deposit of Rs.150 on February 25, 1957) there was default on the part of the defendant attracting the operation of Section 12(3)(a) of the Act.

The High Court turned down the contention based on s. 12(1) of the Act'. In para 8 contentions raised by the learned Counsel for the appellant before the Supreme Court, have been noted. They are:--

(1) The provisions of S. 12(1) of the Act were applicable throughout the hearing of the suit and down to the date of the final hearing. If at that stage it was found that the defendant had paid up all areas due from him he could not ejected.

(2) Even applying Section 12(3)(B) there was no default on the part of the defendant which would render him liable to eviction'.

If one reads critically the decision of the Supreme Court, it appears that it was only contention No.1 raised, that the provisions of Section 12(1) of the Act were applicable throughout the hearing of the suit and down to the date of the final hearing, and if the defendant had at that stage paid up all arrears due from him, he could not be ejected, has been turned down. The Supreme Court has not laid down, in my opinion, any ratio that for construing the provisions of Section 12(3)(a) and finding out whether there was any dispute regarding the standard rent, the Court must look only to the explanation, meaning thereby, whether the conditions laid down in that explanation have been fulfilled and only on fulfilment of those conditions it could be said that there was a dispute regarding the standard rent and consequently, the case would be taken out of the ambit of Section 12(3)(a) of the Act.

15. In para 10, at page 764, it is observed:

'It appears to us that there is no substance in the contention put forward on behalf of the appellant. Section 12(1) must be read with the explanation and so read it means that a 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 S. 11 and thereafter pays or tenders the amount of rent or permitted increases specified by the Court. We have already noted that the tenant made no payment within the period of one month of the notice of ejectment and although in his written statement he raised a dispute about the standard rent he made no application in terms of Section 11(3) of the Act'.

It is significant to note that the report does not indicate that in that case there was any such dispute regarding the standard rent raised within one month after the date of the receipt of the notice given by the landlord under Section 12(2) of the Act and even though such dispute was raised therein, the Supreme Court held that it would not amount to a dispute regarding the standard rent within the meaning of Section 12(3)(a) of the Act as the conditions of the Explanation given under Section 12 had not been fulfilled.

16. It is further observed in that very para 10 by the Supreme Court:

'The readiness and willingness to pay has therefore to be judged in the light of the facts of the case. Whereas here a suit is filed on the ground that the tenant was in arrears for a period of more than 6 months and although raising a dispute as to the standard rent or permitted increases recoverable under the Act, the tenant makes no application in terms of Section 11(3) he cannot claim the protection of Section 12(1) by merely offering to pay or even paying all arrears due from him when the Court is about to pass a decree against him. In vora Abbashbhai Alimahomed v. Haji gulamnabi Haji Safinbhai, (1964) 5 SCR 157 = 5 Guj LR 55 = (AIR 1964 SC 1341) it was pointed out that S. 12(1) of the Act applied to a tenant who continued to remain in occupation even after the expiry of the contractual tenancy so long as he paid or was ready and willing to pay the amount of the standard rent and permitted increases. The protection was however available to a tenant subject o the provisions of Section 13 and to the limitations contained in section 12(2) and Section 12(3)(a) of the Act'.

It is further, in para 12, in terms stated by the Supreme Court:--

'As already noted, if sub-section 3 (a) is not attracted, the tenant , if he is in arrears, cannot sit quiet and offer to pay all the amount due from him at the time of the hearing of the suit so as to get the protection of Section 12(1). To be within the protection of sub-section (1) where he raises a dispute about the standard rent payable, he must make an application to the Court under sub-section (3) of Section 11 and thereafter pay or tender the amount of rent and permitted increases, if any, specified in the order made by the Court. If any, specified in the order made by the Court. If he does not approach the Court under Section 11(3) it is not open to him thereafter to claim the protection of Section of Section 12(1)'.

It is thus evident that their, Lordships of the Supreme Court have not laid down the ratio in this decision as has been suggested by Mr. Karlekar. their Lordships have merely dealt with the position whether the tenant would be entitled to claim protection under Section 12(1) of the Act if he has not taken steps suggested in the explanation given in Section 12 of the Act.

17. This reading of the aforesaid Supreme Court decision as well as my conclusion gets support from the decision of a Full Bench of the Bombay High Court in Dattu Sabhana Panhalkar v. Gajanan Vithoba Bobhate, AIR 1971 Bom 396 (FB). At page 404, after referring to the aforesaid Supreme court decision, in para 24, the following observations have been made:

'Now the Courts below have held that the present case is governed by sub-section 3 (b) of S. 12 and since the tenant deposited Rs.546/- they held that it could not be said that the defendant was not ready and willing to pay and therefore have granted him relief under Section 12(3)(b) and negatived the prayer of the landlord for possession of the premises. The contention on behalf of the landlord, supplemented by the argument advanced by Mr. Mody appearing on behalf of one of the interveners, has been that the Courts below were in error in holding that the case is governed by Section 12(3)(b) and that they should have held that the case is governed by Section 12(3)(a). The contention is that once notice has been given as required by sub-section (2) of S. 12, the only mode of raising a dispute would be by the tenant taking action under Explanation I which prescribes that the tenant should apply under Section 11(3) 'before the expiry of the period of one month after notice referred to in sub-section (2)', and thereafter continue to pay or tender the amount of rent or permitted increases specified in the order made by the Court. But he contended that in the present case the tenant never made any application under Sec. 11(3) and he did not raise any dispute at all. At any rate, it must be held that there was no dispute as contemplated by Section 12(3)(a) ................'.

In para 26, it is observed:

'We have already pointed out while considering the provisions of Section 12 that the agrees of the two provisions contained in Section 12(3)(a) and the Explanation I are totally different. The pre-condition to the applicability of Section 12(3)(a) is that 'there is no dispute regarding the amount of standard rent or permitted increase'. Section 12(3)(a) thus postulates a case 'where there is not dispute' whereas the Explanation I postulates a case 'where there is a dispute' and we cannot understand under these circumstances how the one provision can possibly applied to the other'.

In para 27, it is observed:

'Secondly there is to be found in the Explanation I the expression 'ready and willing to pay' and the Explanation provides that if the tenant applied within one month of the notice referred to in sub-section (2) of S. 12, 'the tenant shall be deemed to be ready and willing to pay'. When the Explanation I uses this expression it obviously refers to the self-same expression in Section 12(1) which gives immunity to the tenant from ejectment so long as the tenant pays or is ready and willing to pay the amount of standard rent and permitted increases. It is clear, therefore, that the Explanation I is merely an Explanation to sub-s. (1) of S. 12. What is more important, however, is that no such expression such as 'ready and willing to pay' occurs in sub-section (3) (a). In fact the conditions postulated in sub-section (3) (a) are such that there can be no question of readiness and willingness of tenant to pay; sub-section (3) (a) of S. 12 postulates a case where the tenant does not dispute the standard rent and yet neglects to make payment of the standard rent or permitted increases until the expiration of the period of one month after notice. Obviously those conditions are the very antithesis of readiness and willingness to pay. This is an additional reason, therefore, why the Explanation I can never be attracted to the case under Section 12(3)(a). The contention advanced taking advantage of the Explanation I that unless the tenant makes an application under Section 11(3) (that being the only mode in which he could establish his readiness and willingness to pay), he must be held to have neglected to make the payment, cannot be accepted'.

In para 28, it is observed:

'In our opinion, sub-section (3) (a) of S. 12 contemplates a category of cases which is unique and that category or cases is separately provided for and separately treated in sub-section (3) (a) alone. The conditions are four in number and if those conditions are fulfilled then the consequence also is equally distinctive. The Court is bound to pass a decree for eviction and no option or discretion is left to the Court. The conditions are as we have already indicated that the rent should be payable monthly; that there should be no dispute regarding the standard rent and permitted increases; that the standard rent or permitted increases should be in arrears for a period of six months or more and lastly that the tenant should have neglected to have paid them until the expiration of one month from the notice under sub-section (2). Now id all the conditions are to be fulfilled there is no doubt that in the present case there was a dispute raised. The two Courts below actually fixed the standard rent at the rate of Rs.26/- per month when the contractual rent agreed upon was Rs.28/- per month. Such a case cannot fall under Section 12(3)(a)'. In paras 33 and 34, at pages 408 and 409, the pertinent observations made are as under:--

'For the contention advanced on behalf of the landlord that having regard to the provisions of Section 12 the only mode of raising a dispute is by application under Section 11(3) as contemplated in Explanation I, reliance was placed on the decision of the Supreme Court in 70 Bom LR 714 = AIR 1968 Sc 1109 = 9 Guj LR 759'. After referring to the observations made by the Supreme Court in that decision (AIR 1968 SC 1109 = 9 Guj LR 759) at page 1112, to which I have already made reference. It is observed:

'No doubt the passage says that the tenant can only be considered to be ready and willing to pay if he applied in terms of the Explanation but Dhansukhlal's case. AIR 1968 SC 1109 was not at all concerned with the provisions of Section 12(3)(a). The only plea that was considered in the case was whether the tenant was entitled to protection under Section 12(1) and it was while considering the plea and in the context of that plea that this passage occurs. As a matter of fact in Dhansukhlal's case, AIR 1968 Sc 1109 the Assistant Judge had held that Section 12(3)(b) of the Rent Act applied to the case but the tenant had not fulfiled the conditions laid down by Section 12(3)(b) (see page 715) and in the arguments before the High Court they themselves observed that 'it was common ground between the parties before the Assistant Judge that the case of the defendant fell within Section 12(3)(b) of the Rent Act'. (See page 716). It was only an additional point taken before the Supreme Court that the tenant was also entitled to the protection under Section 12(1) which point of course was negatived. Then their Lordships proceeded to consider whether S. 12(3)(b) had been complied with by the tenant and in the second last paragraph of the judgment (at page 718) they confirmed the view taken by the Assistant Judge and the High Court that the tenant had no complied with Section 12(3)(b). Therefore this decision can be no authority for any interpretation or constructional of Section 12(3)(a). In fact upon the concession of the parties S. 12(3)(a) never applied to that case and never fell to be considered. We do not think therefore that the remarks referred to above can be invoked in aid o f any construction of Section 12(3)(a)'. In my opinion, reading of the aforesaid decision of the Supreme Court made by the Bombay High Court is the correct reading. I also agree with the ratio laid down by the Full Bench of the Bombay High Court in this decision in this behalf. I may make it clear that I am not called upon to answer the question in this case whether the view taken by the Bombay High Court in this decision that even if such a dispute is not raised, in the reply to the notice issued under S. 12(2) of the Act within one month and is only raised for the first time in the written statement , case should be taken out of the ambit of S. 12(3)(a) of the Act, is correct or not. The full Bench of the Bombay High Court has considered Explanation II added by the amendment made by the Maharashtra State in the relevant provisions. The full Bench has not followed the ratio of the decision of this Court in Chunilal Shivlal v. Chimanlal Nagindas, (1966) 7 Guj LR 945. Bhagwati, J. (As he then was), speaking for the Division Bench, has observed: 'In order to avoid the operation of Section 12(3)(a) of the Bombay Rent Control Act, the dispute in regard to standard rent or permitted increases must be raised at the latest before the expiry of one month from the date of service of the notice under Section 12(2) and it is not enough to raise a dispute for the first time in the written statement'.

18. In Ratilal Balabhai Nazar v. Ranchhodbhai Shankerbhai Patel, 9 Guj LR 48 = (AIR 1968 Guj 172) similar view has been expressed by the Division Bench of this Court consisting of P.N. Bhagwati. J. (as he then was) and A.R. Bakshi, J.

19. In 5 Guj LR 55 at p.62 = (AIR 1964 SC 1341) the Supreme Court has also observed in para 13:--

'The claim made by the defendant fell within the terms of Section 12(3)(b) and not Section 12(3)(a). The defendant had contended by his reply, dated December 7, 1956, to the notice served by the plaintiff ,that the contractual rent was excessive; he had then raised the same contention in the application filed for fixation of standard rent and in his written statement filed in the suit. There is nothing in Section 12 to support the contention raised by Mr. Chatterjee on behalf of the plaintiff that the dispute concerning standard rent contemplated by clause (b) of sub-section (3) is one which must have been raised before service of the notice under Section 12(2). The entire tenor of the Section is against that interpretation'.

As the question, which the Bombay High Court in the aforesaid full Bench decision has decided, does not arise before me, I need not express any opinion in that behalf. It is sufficient to note at this stage that the said question is before the Supreme Court for decision in an appeal admitted by granting Special leave against the decision of this Court in Firm of Harbanslal Jagmohandas v. Prabhudas Shivlal, C.R.A.1353 of 1957 (that Special Leave Petition was Special Leave Petition No.342 of 1971). As the dispute regarding the standard rent was raised by the tenant in reply to the notice given by the landlords under Section 12(2) of the Act within one month from the date of the receipt of notice, the two Courts below have rightly come to the conclusion that the case is taken out of the ambit of Section 12(3)(a) of the Act.

20. All the contentions raised on behalf of the petitioners fail. The revision petition, therefore, fails.

21. The revision petition is dismissed with costs. Rule is discharged.

22. Petition dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //