CHUNILAL SHIVLAL Vs. CHIMANLAL NAGINDAS
LAWS(GJH)-1966-8-19
HIGH COURT OF GUJARAT
Decided on August 10,1966

CHUNILAL SHIVLAL SUMANLAL CHUNILAL Appellant
VERSUS
CHIMANLAL NAGINDAS Respondents

JUDGEMENT

P.N.BHAGWATI, A.D.DESAI - (1.) This Revision Application raises a question as to the true interpretation of sec. 12(3)(a) of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (hereinafter referred to as the Rent Act). The question is at what stage must a dispute as to the standard rent and permitted increases be in existence in order to repel the applicability of sec. 12(3)(a). A Division Bench of this Court in Ambalal v. Babaldas (1962) III G.L.R. 625 held that on a proper interpretation of sec. 12(3)(a) and the scheme of the entire section 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 under sec. 12(2) or at any rate before the expiry of one month from the date of its service and not the one raised subsequently in a written statement with a view to avoiding the operation of sec. 12(3)(a). But this view it is contended can no longer stand and must be held to be overruled by the subsequent decision of the Supreme Court in Vora Abbasbhai v. Haji Gulamnabi (1964) V G.L.R. 55 and having regard to the Supreme Court decision the dispute can be raised at any stage in order to take the case out of sec. 12(3)(a). In view of this contention Divan J. before whom the Revision Application originally came up for hearing referred it to a Division Bench and that is how the matter has come before us.
(2.) In order to appreciate how the question arises it is necessary to state briefly a few facts giving rise to the Revision Application. Prior to the termination of his tenancy on 31st March 1958 the defendant was a tenant of the plaintiff in respect of certain premises hereinafter referred to as the suit premises situate in the Town of Surat. The contractual rent of the suit premises was Rs. 19/per month and according to the plaintiff the defendant was also liable to pay permitted increases at the rate of Rs. 2/per month. The defendant fell in arrears of rent from Kartak Sud 1 Samvat Year 2014 and the plaintiff therefore addressed a notice dated 10th March 1958 to the defendant terminating the tenancy of the defendant on 31st March 1958 and calling upon the defendant to pay up the arrears of rent within one month from the receipt of the notice. The defendant did not reply to the notice nor did he comply with the requisitions contained in the notice. The plaintiff therefore ultimately filed Civil Suit No. 442 of 1958 in the Court of the Civil Judge Junior Division Surat on 25th April 1958 claiming to recover arrears of rent and possession of the suit premises from the defendant. There were two grounds on which possession of the suit premises was sought by the plaintiff. The first ground was that the suit premises were required for the immediate purpose of demolition ordered by the Municipality within the meaning of sec. 13(1)(hhh) of the Rent Act but this ground does not survive for it was rejected by both the Courts below and it has not been pressed before us on behalf of the plaintiff. The second ground was the one which formed the main subject matter of controversy between the parties and that ground was non-payment of rent. The plaintiff urged that the defendant was in arrears of rent from Kartak Sud 1 Samvat Year 2014 and though the plaintiff had given the notice dated 10th March 1958 under sec. 12(2) the defendant had neglected to make payment of the arrears of rent within one month from the receipt of the notice and the defendant was therefore not entitled to the protection of sec. 12(1) and a decree for eviction was bound to go against the defendant by reason of non-compliance with sec. 12(1) or in any event under sec. 12(3)(a). The defendant disputed that he was in arrears of rent from Kartak Sud 1 Samvat Year 2014 and alleged that he had paid rent upto Ashad Vad Samvat Year 2014 and was always ready and willing to pay the standard rent and permitted increases and was therefore entitled to the protection of sec. 12(1). The defendant raised a dispute in the written statement in regard to the standard rent of the suit premises and contended that the contractual rent of Rs. 19 per month was excessive and that the standard rent should be fixed at Rs. 12 per month. The defendant also denied that the plaintiff was entitled to recover any amount from the defendant by way of permitted increases. During the pendency of the suit the defendant deposited in the trial Court various amounts aggregating to Rs. 705/which were sufficient to cover all the arrears of rent even if they were calculated at the rate of Rs. 19 per month from Kartak Sud 1 Samvat Year 2014 and on the strength of this deposit urged that in any event the defendant was entitled to the protection of sec. 12(3)(b). The trial Court on a consideration of the evidence recorded in the suit determined the contractual rent of Rs. 19 per month to be the standard rent of the suit premises but held that the plaintiff was not entitled to recover any amount from the defendant by way of permitted increases. The trial Court found that the defendant was in arrears of rent from Kartak Sud 1 Samvat Year 2014 and was therefore not ready and willing to pay the standard rent of the suit premises so as to be entitled to the protection of sec. 12(1) but inasmuch as the defendant had deposited all the arrears of rent during the pendency of the suit the defendant could claim the protection of sec. 12(3)(b) The trial Court negatived the applicability of sec. 12(3)(a) on the ground that the defendant had raised a dispute in regard to the standard rent of the suit premises in his written statement and one of the conditions requisite for the applicability of sec. 12(3)(a) was therefore not satisfied. The trial Court accordingly refused to pass a decree for eviction against the defendant and dismissed the plaintiffs suit in so far as the claim for recovery of possession of the suit premises was concerned. The plaintiff thereupon preferred an appeal in the District Court Surat. The lower appellate Court agreed with the view taken by the trial Court and held that the defendant had failed to pay the rent from Kartak Sud 1 Samvat Year 2014 and that the rent was therefore in arrears for a period of over six months at the date of the notice under sec. 12(2) but since the defendant had raised a dispute in regard to the standard rent in the written statement it could not be said that there was no dispute in regard to the standard rent and the conditions of sec. 12(3)(a) were therefore not satisfied and the defendant was accordingly entitled to claim the protection of sec. 12(3)(b) by complying with the requirements of that section and inasmuch as the defendant had complied with the requirements of sec. 12(3)(b) no decree for eviction could be passed against the defendant. The lower appellate Court accordingly confirmed the decree passed by the trial Court and dismissed the appeal. This led to the filing of the present Revision Application by the plaintiff.
(3.) When the Revision Application came up for hearing before Divan J. it was conceded on behalf of the plaintiff as it is conceded before us now that if the case of the defendant did not fall within sec. 12(3)(a) the defendant was not liable to be evicted for he had complied with the conditions of sec. 12(3)(b) and was entitled to protection under that section. But the argument of the plaintiff was that the case was covered by sec. 12(3)(a) and the plaintiff was therefore. entitled to a decree for eviction against the defendant. Now there are four conditions which must be satisfied to attract the applicability of sec. 12(3)(a) and they are (1) the rent must be payable by the month; (2) there must be no dispute regarding the amount of standard rent and permitted increases; (3) such rent or increases must be in arrears for a period of six months or more; and (4) the tenant must have neglected to make payment thereof until the expiration of a period of one month after the notice under sec. 12(2). There was no dispute that conditions (1) (3) and (4) were satisfied in the present case. The rent was admittedly payable by the month; the defendant had failed to pay rent from Kartak Sud 1 Samvat Year 2014 according to the finding of the lower appellate Court which finding being one of fact must be regarded as beyond challenge in revision and the rent was therefore in arrears for a period of over six months on 10th March 1958 when the notice under sec. 12(2) was given and despite the notice under sec. 12(2) the defendant had neglected to make payment of such arrears within a period of one month from the date of service of such notice. The only dispute was as regards the fulfillment of the second condition. There was admittedly no dispute in regard to the standard rent or permitted increases upto the date of the filing of the written statement and the dispute was raised for the first time only in the written statement but the argument of the defendant was that the raising of the dispute in the written statement was sufficient to constitute non-fulfillment of the second condition so as to take the case out of sec. 12(3)(a). This argument was clearly unsustainable in view of the decision of a Division Bench of this Court in Ambalal v. Babaldas (supra) where it has been held 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 under sec. 12(2) or at any rate before the expiry of one month from the date of its service and not the one raised subsequently in a written statement with a view to avoiding the operation of sec. 12(3)(a). It was apparent that if this decision was good law the second condition would have to be held to be fulfilled and the case of the defendant would directly fall within sec. 12 The defendant however urged that this decision was no longer good law in view of the subsequent decision of the Supreme Court in Vora Abbasbhai v. Haji Gulamnabi (supra) and in view of the Supreme Court decision it must be held that even if a dispute in regard to standard rent or permitted increases were raised for the first time in the written statement that would be sufficient to avoid the operation of sec. 12(3)(a). The question which therefore arose before Divan J. was whether the decision of this Court in Ambalal v. Babaldas (supra) must be held to be overruled by the Supreme Court decision in Vora Abbasbhai v. Haji Gulamnabi (supra) in so far as this point was concerned. Another question was also raised before Divan J. and that was in regard to the scope and ambit of the power of this Court to interfere in the present Revision Application. The question was whether the amended sec. 29(2) of the Rent Act governed the decision of the Revision Application or the Revision Application fell to be decided by reference to sec. 115 of the Code of Civil Procedure. If the Revision Application was to be decided in the light of sec. 115 of the Code of Civil Procedure it was apparent that the Revision Application would fail for admittedly no question touching the jurisdiction of the Court was involved in the Revision Application. It was only if the amended sec. 29(2) of the Rent Act was applicable that this Court could interfere and set aside the decision of the lower appellate Court on the ground that the lower appellate Court had committed an error of law in applying sec. 12(3)(b) when the proper section applicable was sec. 12(3)(a). Now there was a decision of Vakil J. sitting as a single Judge in Punamchand Joshi v. Ramjibhai Maganlal Civil Revision Applications Nos. 13 and 26 of 1962 dated 2nd December 1965 (now reported at (1966) VII G. L. R. 807) in which the view was taken that the amended sec. 29(2) of the Rent Act was retrospective in operation and governed not only Revision Applications filed subsequent to the amendment but also Revision Applications pending at the date of the amendment and according to this decision the amended sec. 29(2) applied to the present Revision Application notwithstanding that it was filed prior to the amendment but the validity of this decision was also questioned before Divan J. The learned Judge therefore having regard to the importance of the questions raised before him referred the Revision Application to a Division Bench.;


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