P.N.BHAGWATI - (1.) This application for revision arises out of a suit filed by the plaintiff against the defendant for recovering possession of a shop together with arrears of rent in the Court of the Civil Judge Junior Division Sidhpur. In order to appreciate the contentions which have been urged before me in this Revision Application it is necessary to set out briefly the facts giving rise to this litigation. The facts are few and for the most part undisputed and may be briefly stated as follows:- The plaintiff is the owner of a shop situate on the ground-floor of a building in Sidhpur. The defendant was at all material times a tenant of the plaintiff in respect of the shop. The contractual rent of the shop was Rs. 8/per month. The defendant paid the rent of the shop at The contractual rate of Rs. 8/per month up to 4th January 1954 and thereafter failed and neglected to pay any rent to the plaintiff. The plaintiff gave notice to the defendant on 4th February 1956 calling upon the defendant to pay up the arrears of rent and also terminated the tenancy of the defendant. The defendant however did not pay any amount to the plaintiff in respect of the arrears of rent even though a period of one month expired from the date of service of the notice on the defendant nor did the defendant make any application to the Court before the expiry of the period of one month for fixing the standard rent of the shop. The defendant also did not hand over possession of the shop to the plaintiff pursuant to the notice to quit. The plaintiff therefore filed the present suit against the defendant on 5th May 1956 to recover possession of the shop as also arrears of rent and mesne profits. The plaintiff contended that the tenancy of the defendant having been terminated by a valid and proper notice to quit the defendant was liable to hand over possession of the shop to the plaintiff. The plaintiff also urged that since the defendant was in arrears of rent for a period of six month and more and the defendant had neglected to make payment thereof until the expiration of the period of one month after the service of the notice on the defendant the defendant was not entitled to the protection of the Bombay Rents Hotel and Lodging House Rates (Control) Act 1947 (hereinafter referred to as the Rent Act) and the plaintiff was therefore entitled to recover possession of the shop from the defendant. The defendant in his written statement raised various contentions the chief contention being that the standard rent of the shop was less than the contractual rent of Rs. 8/per month. It appears that before the suit was filed the defendant served a notice on the plaintiff under section 21 of the Rent Act requiring the plaintiff to furnish to the defendant a statement giving full particulars of the amount of standard rent of the shop and of the permitted increases. The notice was served by the defendant on the plaintiff on the 18th February 1956 but the plaintiff did not give any reply to the notice and instead filed the present suit. After the suit was filed the defendant made an application to the Court on 21st December 1956 for fixing the standard rent of the shop and in the application the Court made an order specifying Rs. 6-8-0 per month as the amount of rent to be paid by the defendant pending the final decision of the application. This order specifying Rs. 6 per month as the amount of rent to be paid by the defendant to the plaintiff pending the final decision of the application was made on 19th January 1957. The defendant thereafter paid in Court on 5th February 1957 a sum of Rs. 234/representing the arrears of rent at the rate of Rs. 6-8-0 per month from 4th January 1954 to 5th February 1957. The defendant also paid a further sum of Rs. 19-50 nP. on 19th April 1957 This covered the rent of the shop up to 5th May 1957 at the rate of Rs. 6 per month. The suit was ultimately heard and disposed of on 30th April 1957. The trial Court came to the conclusion that the standard rent of the shop was Rs. 7-8-0 per month and passed a decree for arrears of rent against the defendant based on the standard rent being Rs. 7-8-0 per month. The trial Court also passed a decree for possession of the shop against the defendant.
(2.) The defendant being aggrieved by the decree passed against him by the trial Court preferred an appeal against the same in the Court of the District Judge Mehsana. Now what happened at the hearing of the appeal before the learned District Judge is rather important. The learner advocates appearing on behalf of the defendant stated at the commencement of the hearing of the appeal that to abandoned all his contentions save and except the contention that the defendant had paid the standard rent of the shop on or before the first date of hearing of the suit and that to decree for possession could therefore be passed against the defendant. The learned advocate on behalf of the defendant accordingly urged only one contention before the learned District Judge namely that the defendant had paid the standard Rent of the shop on or before the first date of hearing of the suit and was therefore not liable to be excited from the shop. This contention was obviously based on the provisions of section 12 of the Rent Act. This contention was negatived by the learned district Judge and since this was the only contention urged before the learned District Judge the learned District Judge dismissed the appeal with costs. The defendant thereupon approached this Court by filing the present Revision Application.
(3.) Mr. B.R. Shah learned advocate appearing on behalf of the defendant urged various contentions before me in support of the Revision Application. These contentions have given rise to very interesting questions relating to the interpretation of sec. 115 of the Code of Civil Procedure and section 12 of the Rent Act and I must state that but for the able assistant rendered by the advocates appearing before me - my task would have been rendered considerably more difficult. I shall now proceed to examine these contentions urged Mr. B.R. Shah in the order in which they were pressed before me.;