1 204wp4589 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.4589 OF 1994 Ramratan Shivnath Dube & Anr. ...Petitioners vs. M/s.Nutan Chemical Industries & Ors....Respondents Mr.E.K.Sasidharan for the Petitioners Mr.P.M.Shah with Mr.Dharmesh Jain for the respondent no.1 CORAM : A.S.OKA,J. DATE : NOVEMBER 29, 2011 ORAL JUDGMENT: 1 The petitioners who are the original plaintiffs have taken an exception to the Judgment and Decree dated 10th February 1994 passed by the Appeal Bench of Court of Small Causes. 2 The petitioners filed a suit for eviction against the respondent no.1. Description of the suit premises is in paragraph 1 of the plaint. The area of the suit premises mentioned therein as 3100 sq yard with structure thereon. It is alleged that the standard rent in respect of the suit premises was fixed at Rs.711/- per month under the terms and conditions incorporated in the consent decree passed in R.A.E.Suit no.487/4073 of 1961. It is alleged that the first respondent was in arrears of rent from March 1967. By notice dated 26th December 1967, a demand for arrears of rent was made by the petitioners for the period from March 1967 to November 1967. It is alleged that notice was served 2 204wp4589 on 28th December 1967. However, the arrears were not paid within the stipulated period of one month from the said date. On 9th March 1968, the first respondent paid a sum of Rs.8900/- to the petitioner which was accepted by the Advocate for the petitioners without prejudice to the rights and contentions. It is alleged that illegal construction was made by the first respondent. It is contended that due to negligence on the part of the first respondent, there was a fire in the structure in the suit premises on 30th November 1967 thereby causing damage to the petitioners. The suit for eviction was filed on the ground of arrears of rent, subletting, causing damage to the suit premises and for committing breach of terms and conditions of the consent decree 2nd August 1963. . The suit was contested by the first respondent by filing a written statement. Various contentions were raised in the written statement. It was contended that after the receipt of notice dated 26th December 1967, the partner of the first respondent tendered a sum of Rs.7394.40 to the petitioners. However, the said amount was not accepted by the petitioners. Other allegations made in the suit were denied. Without prejudice to the rights and contentions of the first respondent it was contended that the persons who were in occupation of the suit structure were licensees at the time of institution of the earlier suit and therefore, the petitioners have waived the objection for their presence. 3 The Trial Court decreed the suit mainly on the 3 204wp4589 ground of arrears of rent and unauthorized subletting. The Appellate Court has reversed the decree. The Appellate Court held that the standard rent in respect of the suit premises was Rs.600/- per month and the demand of Rs.711/- per month was excessive. The Appellate Court held that the alleged sub tenancy was created by first respondent prior 1st February 1973 and in view of the amendment to sub section 2 of section 15 of the the Bombay Rents, Hotel and Lodging House Rates (Control)Act, 1947 (hereinafter referred to as the said Act), the decree on the ground of unauthorized subletting cannot be passed. 4 The learned counsel for the petitioners invited the attention of the Court to the order passed on 14th August 1963 on application for fixation of standard rent made by the respondent. His submission is that in the said application, it was contended that the respondent was the tenant in respect of the shop admeasuring 803 sq yards for which contractual rent was Rs.901/- per month. He pointed out that in respect of the said area the standard rent was fixed at Rs.600/- per month. He pointed out the consent decree dated 21st August, 1963 passed in R.A.E. Suit no.487/4073 of 1961 and submitted that the rent in respect of the suit premises admeasuring 3100 sq yard with the structure thereon was fixed at Rs.711/- per month. He, therefore, submitted that as the respondent did not apply for fixation of standard rent within a period of one month from the date of service of notice of demand and the arrears as demanded were not paid within one month from that 4 204wp4589 date, the decree of possession under section 12(3) (a) of the said Act must follow. He submitted that the impugned Judgment of the Appellate Court on the issue of subletting is illegal. The learned counsel for the first respondent-tenant submitted that there was a concluded order passed in the standard rent application fixing the standard rent at Rs.600/- per month and the consent decree passed subsequently has no legal effect. He submitted that as there was an order fixing standard rent at Rs.600/- per month, the demand at the amount exceeding the standard rent was not a bona fide demand and as the said demand was excessive, the notice of demand was itself not legal. He submitted that as the notice itself was invalid, the decree for possession under section 12(3)(a) could not have been passed. 5 I have given careful consideration to the submissions. Clauses (a) and (b) of section 12 (3) read thus: (a) Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub section (2), the Court shall pass a decree for eviction in any such suit for recovery of possession. (b) In any other case, on decree for eviction 5 204wp4589 shall be passed in any such suit, on the first day of hearing of the suit or on or before such date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increase then due and thereafter continues to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court. Explanation 1 to Section 12 of the Act is as follows: 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 notification referred to in sub section (2), he makes an application to the Court under sub section (3) of Section 11 and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court. 6 As far as section 12(3)(a) is concerned, the law laid down by the Apex Court in case of Harbanslal Jagmohandas And another Vs. Prabhudas Shivlal (1976 AIR SC 2005) is that if the tenant was to raise a dispute regarding the standard rent, the same has to be raised only by filing a standard rent application within one month from the date of service of notice of demand. Thus, if the dispute is not raised by filing an application within one month from the date 6 204wp4589 service of notice of demand or if the amount of arrears is not paid within a period of one month from the date of service of notice of demand, the decree for possession must follow. In the present case, there is no dispute regarding service of notice of demand and the fact that the respondent was in arrears of rent for a period of more than six months. There is also no dispute that arrears of rent demanded were not tendered within a period of one month from the date of service of notice of demand. It is also an admitted position that the respondent did not apply for fixation of standard rent within a period of one month from the date of service of notice of demand. 7 A reference will have to be made to the order dated 14th August 1963 passed in application for fixation of standard rent filed by the first respondent. The first paragraph of the said order reads thus : . This is an application by the tenant the applicant against his landlord the respondent for the fixation of standard rent, under S.11(1) (a) Act No.LVII of 1947, the premises let by the respondent to the applicants is a shed admeasuring 803 square yards on S.No.122 p. situate at Walbhat Road, Goregaon (East) and the contractual rent is Rs.901/- per month. The applicants case is that when the shed was let its walls were not constructed the roof was not complete one only the wooden pillars were erected and nothing else and that the respondent had not even obtained a completion certificate 7 204wp4589 from the Municipality. So the applicants completed the structure at their own costs. The respondent is paying rent of Rs.1200/- per year for the plot of 4000 sq yards while the shed stands only 803 sq yards. The structure was meant originally for the buffaloes. The contractual rent is exorbitant and the standard rent can not be more than Rs.200/- per month. (underline added) 8 In the reply filed by the predecessor of the petitioners to the said application, it was contended that Mr.B.R.Patel was the tenant of the shop admeasuring 980 sq yard. The standard rent fixed by the said order was Rs.600/- per month inclusive of municipal taxes but exclusive of water and electricity charges. 9 Reference will have to be made to the consent terms in R.A.E.Suit no.487/4073 of 1961. The suit was filed by the father of the petitioners against the first respondent herein and one Mr.B.R.Patel. The consent decree was passed on 21st August, 1963 by which the petitioners predecessor accepted the first respondent herein as a tenant in respect of the area of 3100 sq yard together with structure. Paragraphs 1 and 2 of the consent terms read thus : 1 It is agreed that defendant no.2 are the plaintiff s tenants of land admeasuring 24.1/2 gunthas or thereabout (that is about 3100 sq. yards) with a structure thereon erected by the plaintiff and situated at Walbhat Road, Goregaon 8 204wp4589 (East), Bombay 62. (underline supplied) 2 By consent the standard rent of the above premsies including the permitted increases upto date and existing Municipal taxes rates cesses is Rs.711/- per month. 10 The consent terms provided that the first respondent submitted to an order of ejectment and agreed to vacate the suit premises by 20th November 1963. However, the consent decree provided that if the first respondent pays monthly current compensation of Rs.711/- and a further amount of Rs. 1300/- towards arrears, the warrant of possession will remain stayed permanently. Clause (q) of the consent terms reads thus : 9 The defendant no.2 submit to an order of ejectment and shall vacate the suit premises by 20th November 1963. It is however agreed that if the defendants no.2 pays in the court the monthly current compensation of Rs.711/- (Rupees seven hundred and eleven only) and a further sum of Rs.1300/- towards the arrears by the 15th of every month and the first of such payment is to be made by the 11th day of October,1963 and thereafter on or before the 15th of every subsequent month till the arrears of rent up to 31st August 1963 amounting to Rs.22995.00 (Rupees twenty two thousand nine hundred and ninety five only) are paid off, warrant of possession will be stayed 9 204wp4589 permanently. In default of any two instalments warrant of possession to issue without notice. Moneys as and when deposited in Court to the plaintiff. 11 Thus, under the consent decree, the standard rent of Rs.711/- was fixed in respect of the suit premises which admeasures 3100 sq yard with structure thereon. As pointed out earlier, the standard rent by order dated 14th August 1963 was in respect of the smaller area of 803 sq yard. 12 The Appellate Court has proceeded on the footing that as the standard rent was fixed at Rs.600/- per month, the first respondent had shown willingness to pay the standard rent and therefore, a decree for eviction cannot be passed. The said finding is completely erroneous. The reason being that the standard rent of Rs.600/- per month was fixed in respect of the structure having an area of 803 square yard. There is no dispute about the consent terms filed in the subsequent suit which records an agreement between the parties that the standard rent of the suit premises(land admeasuring 3100 square yards and structure thereon)shall be Rs.711/- per month. If the contention of the first respondent was that what was fixed under the consent decree was not the standard rent, the said contention could have been raised by the first respondent only by filing an application for fixation standard rent within a period of one month from the date of service of notice. However, admittedly this was not done. Admittedly, there is no compliance with the 10 204wp4589 notice of demand under section 12(2) within a period of one month from the service of notice. Therefore, in view of the law laid down in the case of Harbanslal (supra) the decree of eviction must follow. 13 As far as ground of subletting is concerned, according to the case of the petitioners, the subletting was prior to the year 1973. In view of subsequent amendment to sub section 2 of section 15 of the said Act, the prohibition against subletting will not apply. 14 The learned counsel for the respondent relied upon the decision of this Court in case of Kumari Parvati Kevalram Moorjani Vs. Madanlal Anraj Porwal and others (AIR 1988 Bombay 354). The said case deals with the waiver on the part of the landlord which has nothing to do with the controversy involved in the present petition. 15 Therefore, impugned Judgment and decree of the Appellate Court will have to be quashed and set aside, in so far as the ground of eviction under section 12(3)(a) of the said Act is concerned. The other grounds have been rightly negatived by the Appellate Court. 16 Hence, I pass the following order : i) Impugned Judgment and decree dated 10th February 1994 passed by the Appeal Bench of Court of Small Causes in Appeal no.675 of 1980 is quashed 11 204wp4589 and set aside in so far as ground of arrears of rent under section 12(3)(a) of the said Act is concerned. ii)The Judgment and decree dated 9th October 1980 passed by the Trial Court in R.A.E and R Suit no.245/2011 of 1968 is restored only on the ground of arrears of rent under section 12(3)(a) of the said Act. iii)Time of three months from today is granted to the first respondent to vacate the suit premises and hand over possession thereof to the petitioners. iv)Rule is accordingly made absolute on above terms with no order as to costs. JUDGE