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Thakkar Ramanlal Shivlal Vs. Thakkar Himatlal Ranchhoddas and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1967)8GLR553
AppellantThakkar Ramanlal Shivlal
RespondentThakkar Himatlal Ranchhoddas and anr.
Cases ReferredMrs. Manorama v. Mrs. Dhanlaxmi
Excerpt:
.....section 12(2} was given and such dispute continued right upto the expiration of one month from the date of service of the said notice, it came to an end on 28th march 1961 and was, therefore, not in existence at the date of the institution of the suit and the second condition required by section 12(3)(a) was consequently satisfied. the defendant on the other hand contended that what section 12(3)(a) required was not that there should be a dispute regarding the amount of the standard vent at the date of the institution of the suit but that such dispute must exist at the date of the notice under section 12(2) or at any rate within one month after the service of such notice and if such dispute was in existence at the date of the notice under section 12(2) or at any rate before the expiry of..........standard rent of the suit premises and whilst the application was pending, the plaintiffs gave a notice dated 24th april 1960 terminating the tenancy of the defendant. the defendant was in arrears of rent from 11th june 1959 and the plaintiff, therefore, also gave another notice dated 29th november 1959 calling upon the defendant to pay up the arrears of rent. the application for fixation of standard rent was thereafter decided by the learned civil judge and by an order dated 28th march 1961, the learned civil judge determined the standard rent of the suit premises to be rs. 42-50 ps. per month. though the standard rent of the suit premises was determined by the said order dated 28th march 1961, the defendant did not pay up all the arrears of rent but paid only an aggregate sum of rs......
Judgment:

P.N. Bhagwati, J.

1. The short question which arises in this Revision Application is whether the case is governed by Section 12(3)(a) or Section 12(3)(b) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947. The dispute in this Revision Application relates to certain premises situate in Padra which were let out by the plaintiffs to the defendant on 5th April 1957 at a contractual rent of Rs. 60 per month. On 8th October 1959 the defendant made an application for fixation of standard rent of the suit premises and whilst the application was pending, the plaintiffs gave a notice dated 24th April 1960 terminating the tenancy of the defendant. The defendant was in arrears of rent from 11th June 1959 and the plaintiff, therefore, also gave another notice dated 29th November 1959 calling upon the defendant to pay up the arrears of rent. The application for fixation of standard rent was thereafter decided by the learned Civil Judge and by an order dated 28th March 1961, the learned Civil Judge determined the standard rent of the suit premises to be Rs. 42-50 ps. per month. Though the standard rent of the suit premises was determined by the said order dated 28th March 1961, the defendant did not pay up all the arrears of rent but paid only an aggregate sum of Rs. 505/- with the result that certain arrears of rent still remained due and payable by the defendant to the plaintiff. The plaintiff, therefore, filed a suit against the defendant on 18th August 1961 claiming to recover possession of the suit premises from the defendant. There were two grounds on which possession of the suit premises was sought, one being that the plaintiff bona fide and reasonably required the suit premises for his own use and occupation and the second being that the defendant was in arrears of rent and was, therefore, not entitled to the protection of the Rent Act. After the suit was filed but before issues were raised in the suit, the defendant deposited in the trial Court a sum of Rs. 1, 000/- along with an application dated 11th October 1961 for permitting him to make the deposit. The issues were thereafter raised on 12th December 1961 and subsequent to the raising of the issues, the defendant regularly deposited in the trial Court from to time the monthly rent of the suit premises. The learned trial Judge then proceeded to try the suit and on a consideration of the evidence on record, he came to the conclusion that the plaintiff had failed to establish that he bona fide and reasonably required the suit premises for his own use and occupation and the plaintiff was, therefore, not entitled to recover possession of the suit premises from the defendant on that ground. But on the other ground the learned trial Judge found in favour of the plaintiff and he held that the case was governed by Section 12(3)(a) and the plaintiff was, therefore, entitled to a decree for eviction against the defendant. The learned trial Judge accordingly passed a decree dated 27th October 1962 directing the defendant to hand over possession of the suit premises to the plaintiff. The defendant being aggrieved by the decree for eviction, preferred an appeal to the District Court, but the learned District Judge agreeing with the view taken by the learned trial Judge, dismissed the appeal on 23rd August 1963. The defendant thereupon preferred the present Revision Application in this Court challenging the decision of the learned District Judge.

2. It will be seen from the aforesaid statement of facts that the only question which arises for consideration in this Revision Application is whether the case is governed by Section 12(3)(a) or Section 12(3)(b) of the Rent Act. If the case falls within Section 12(3)(a) the decree for eviction must be held to have been rightly passed against the defendant but if the case does not fall within Section 12(3)(a), it will have to be considered whether the defendant has complied with the conditions of Section 12(3)(b) so as to entitle him to the protection of that section. It was not disputed on behalf of the plaintiff that if the case was governed by Section 12(3)(b), the defendant had complied with all the conditions of that section and in that event no decree for eviction could be passed against him. But the contention of the plaintiff was and that was the contention which found favour with both the lower Courts-that the case was governed by Section 12(3)(a). Now there are four conditions which must be fulfilled in order that Section 12(3)(a) may-be attracted and they are: (1) the rent must be payable by the month; (2) there should be no dispute regarding the standard rent or permitted increases; (3) such rent or increases must be in arrears for a period of six months or more at the date of the notice under Section 12(2); and (4) the tenant must have neglected to make payment thereof until the expiration of a period of one month after the notice under Section 12(2). It was common ground between the parties that the rent was payable by the month, such rent was in arrears for a period of over six months on 29th November 1960 being the date of the notice under Section 12(2) and the defendant neglected to make payment of such arrears until the expiration of the period of one month after the notice under Section 12(2). There was thus no dispute in regard to the fulfilment of conditions Nos. (1), (3) and (4) but the dispute centred round the fulfilment of the second condition. The plaintiffs alleged that though there was undoubtedly a dispute regarding the amount of the standard rent at the date when the notice under Section 12(2} was given and such dispute continued right upto the expiration of one month from the date of service of the said notice, it came to an end on 28th March 1961 and was, therefore, not in existence at the date of the institution of the suit and the second condition required by Section 12(3)(a) was consequently satisfied. The defendant on the other hand contended that what Section 12(3)(a) required was not that there should be a dispute regarding the amount of the standard Vent at the date of the institution of the suit but that such dispute must exist at the date of the notice under Section 12(2) or at any rate within one month after the service of such notice and if such dispute was in existence at the date of the notice under Section 12(2) or at any rate before the expiry of one month after its service, the second condition would not be satisfied and Section 12(3)(a) would not be attracted and it would be entirely immaterial whether such dispute continued to exist or not upto the date of the institution of the suit. These rival contentions raised a question of interpretation of Section 12(3)(a) but the question is no longer open to doubt or debate. It stands concluded by two decisions of this Court, both being decisions of Division Benches, namely, Ambalal v. Babaldas (1962) III G.L.R. 625 and Chunilal v. Chimanlal (1966) VII G.L.R. 945. In Ambalal v. Babaldas the question directly arose as to what is the stage at which dispute in regard to the standard rent or permitted increases must be raised in order to take the case out of Section 12(3)(a) and Shelat J. as he then was, delivering the judgment of the Court, answered the question by saying:

On a proper interpretation of Sub-section (3)(a) and the scheme of the entire section, it appears to us that the dispute in regard to the standard rent or permitted increases contemplated is the one which is in existence at the date of the notice or at any rate before the expiry of one month after its service and not the one raised subsequently in a written statement with a view to avoid the operation of Sub-section (3)(a)....

The validity of this view taken by the Division Bench in Ambalal v. Babaldas was questioned in the subsequent case of Chunilal v. Chimanlal on the strength of certain observations made in two subsequent decisions of the Supreme Court but on consideration of those decisions a Division Bench of this Court consisting of A. D. Desai J. and myself, held that the view taken in Ambalal v. Babaldas was not overruled and must still be regarded as good law and it must be held that the dispute in regard to standard rent or permitted increases contemplated by Section 12(3)(a) is a dispute which 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 the dispute for the first time in the written statement. These decisions clearly lay down that the dispute regarding the standard rent or permitted increases referred to in Section 12(3)(a) is a dispute which must be in existence at the date of the notice under Section 12(2) or at any rate before the expiry of one month after the service of such notice. If such dispute is in existence at the date of the notice under Section 12(2) or at any rate before the expiry of one month after the service of such notice, the case would be taken out of Section 12(3)(a) for in that event it would be possible to say that the second condition is satisfied. The second condition of Section 12(3)(a) does not require that there should be a dispute regarding the standard rent or permitted increases at the date of the suit. What Section 12(3)(a) requires is that there should be no dispute right upto the expiration of one month from the date of service of the notice under Section 12(2) and if such dispute is raised at the latest before the expiry of one. month from the date of service of the notice under Section 12(2), it would be sufficient to take the case out of Section 12(3)(a). Once it is found that there is a dispute in regard to the standard rent or permitted increases in existence, at the date of the notice under Section 12(2) or at any rate before the expiration of one month after its service, the case would go out of Section 12(3)(a) and it would not fall to be governed by Section 12(3)(a) merely because the dispute which was in existence at the date of expiration of one month from the service of the notice under Section 12(2) was subsequently resolved before the suit could be instituted by the plaintiff.

3. It is now settled by the decision of the Supreme Court in Mrs. Manorama v. Mrs. Dhanlaxmi (1966) VII G.L.R. 1061 that if the conditions of Section 12(3)(a) are satisfied, no subsequent payment of rent by the tenant to the landlord though it be prior to the institution of the suit can entitle the tenant to the protection of Section 12(1). Equally it must follow that if a dispute in regard to the standard rent or permitted increases is in existence at the date of the notice under Section 12(2) or at any rate before the expiry of one month after its service and the second condition is, therefore, not satisfied, the case must go out of Section 12(3)(a) and no subsequent resolution of such dispute though it be prior to the institution of the suit, can help to bring the case back within Section 12(3)(a). In the present case the dispute in regard to standard rent was admittedly in existence right upto the date of expiration of one month from the date of service of the notice under Section 12(2) since the application for fixation of standard rent preferred by the defendant on 8th October 1959 was pending and was not disposed of until 23th March 1961. The second condition was, therefore, clearly not fulfilled and the case did not fall within Section 12(3)(a).

3. It is no doubt true that before the institution of the suit, the application for fixation of standard rent was decided and the dispute in regard to the standard rent came to an end at any rate so far as the defendant was concerned, but that, as pointed out above cannot make any difference to the position. It must, therefore, be held that the case was not covered by Section 12(3)(a) and it fell to be decided by reference to Section 12(3)(b), Now admittedly all the conditions of Section 12(3)(b) were satisfied and the defendant must, therefore, be held to be entitled to the protection of Section 12(3)(b). A faint attempt was made on behalf of the plaintiffs to support the judgment of the learned District Judge on the ground of bona fide and reasonable requirement for personal use and occupation but the finding of the learned District Judge on this question being a finding of fact, it is not open to the plaintiffs to assail that finding even under the extended jurisdiction conferred on this Court under Section 29 of the Rent Act.

4. The Revision Application is, therefore, allowed and the rule is made absolute. The decree for eviction passed by the learned trial Judge and confirmed by the learned District Judge is set aside and the plaintiffs' suit is dismissed in so far as it relates to the claim for recovery of possession of the suit premises from the defendant. The plaintiffs will pay the costs of the Revision Application to the defendant.


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