Chandurkar, J. - (1.)These two petitions have been referred to the Division Bench on an order of reference made by a learned single Judge, who experienced some difficulty in following decision of Jahagirdar J. in Gulab Chand v. Noorbeg, AIR 1980 Bom 307. The questions referred relate to the construction of the provisions of section 12 (3) (a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the "Rent Act") and the determination of the correct ratio of two decisions of the Supreme Court in Shah Dhansukhlal Chhaganlal v. Dalichand Virchand Shroff, AIR 1968 SC 1109 and Harbanslal Jagmohandas and another v. Prabhudas Shtvlal, AIR 1976 SC 2005. Since the only points on which the decisions of both the petitions will really turn related to the construction of the provisions of sections 12 (3) (a) and 12 (3) (b) of the Rent Act, we have heard the learned counsel for the petitioners and the respondents in these cases not only on the questions of law referred but also on the merits of the two petitions and this judgment will, therefore, dispose of both the petitions.
(2.)The three questions of law which have been referred by the learned single Judge in his order of reference are as follows : (1) Whether in order to take the case out of the provisions of section 12 (3) (a), it is obligatory on the tenant to make an application for fixation of standard rent under section 11 (3) of the Bombay Rent Act as required by the 1st Explanation to section 12 ? (2) Whether the raising of the standard rent dispute by the tenant by reply to the demand notice before expiry of one month without making an application under section 12 and the Explanation, or existence of such a dispute prior to the demand notice, notice without the tenant making an application under section 11 (3) would take the case of the tenant out of the provisions of section 12 (3) (a)? (3) Whether it is obligatory for the tenant to make an application under section 11 (3) before the expiration of the period of one month from the date of service of demand notice even when his application under section 11 (3) is pending on the date of demand notice ?
(3.)We shall briefly refer to the facts in the two petitions before us. Special Civil Application No. 1812 of 1977 is filed by the landlords and it arises out of a suit filed by the claiming possession of the suit premises which corisist of house property which was occupied by ths tenant-respondent on a monthly rent of Rs. 55 in Ward B of Kolhapur. The notice terminating the tenancy on the ground of arrears of rent was issued by the landlords on 29th January, 1973 and the arrears claimed were for the period 1st August, 1970 to 3lSt December, 1972. The tenant by a notice dated 15th February, 1973 disputed that Rs. 50 was standard rent and claimed that the standard rent was Rs. 45. The suit for possession was filed on 4th September, 1973. The trial Court held that the standard rent of the premises was Rs. 50 pei month and that the tenant was entitled to the benefit of section 12 (3) (b) of the Rent Act. Giving credit for the amount of Rs. 252.56, which w as paid by the defendant by way of municipal taxes, the trial Court passed a money decree for Rs. 1547.44 but dismissed the suit for possession.