1 (WP5103.94) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5103 OF 1994 Shri Uggarsen Nandlal Punjabi ) Uggarsen Panjabi Chawl ) Chawl No.2, Room No.2, ) Kurar Village, Malad (East), ) Daftary Road, Bombay – 400 064 ) ...Petitioner. V/s John B. Rodrigues, ) Room No.8, Chawl No.2, ) Uggarsen Nandlal Punjabi Chawl ) Daftary Road, Kurar Village, ) Malad (East), Bombay -400 064 ) .... Respondent. Mr. Ranjit Thorat with Mr. P.J. Thorat for the Petitioner. Mr. A.G. Tripathi i/b Legal Point for the Respondent. CORAM: V. M. KANADE, J. DATE : 20th June, 2011 ORAL JUDGMENT: 1. Heard the learned Counsel appearing on behalf of the Petitioner and the learned Counsel appearing on behalf of the Respondent. For the sake of convenience, parties shall be referred to as Plaintiff/Landlord and Defendant/Tenant. 2. Plaintiff/Landlord filed a suit against the 2 (WP5103.94) Defendant/Tenant on the ground of arrears of rent. It was contended that demand notice was served on 10/04/1976. Admittedly, arrears of rent which were demanded were not paid within one month. Defendant/Tenant, however, had filed Standard Rent Application. Thereafter, scrutiny order was passed and he was directed to deposit rent in the Court on 23/01/1980. However, for a period of almost 10 years, the amount was not paid or deposited in the Court. Trial Court decreed the suit. Being aggrieved by the judgment and order of the Trial Court, Landlord filed an appeal before the lower Appellate Court. The lower Appellate Court, however, reversed the judgment and decree of the Trial Court. It came to the conclusion that provisions of section 12(3)(a) were not attracted, firstly because the Tenant had filed an application for standard rent and, therefore, since the dispute was raised regarding standard rent, provisions of section 12(3)(a) were not attracted. Secondly, it was observed that once the provisions of section 12(3)(a) were held to be not attracted, it was not open for the Landlord to take recourse to section 12(3)(b). 3. Shri Thorat, the learned Counsel appearing on behalf of the Petitioner, submitted that the lower Appellate Court had committed an error of law which is apparent on the face of record. He submitted that the Apex Court had clearly held that if standard rent application is not pursued then the provisions of section 12(3)(a) would still be applicable. He 3 (WP5103.94) relied on the judgment of the Apex Court in Mistry Premjibhai Vithaldas vs. Ganeshbhai Keshavji1. Secondly,it was submitted that even after scrutiny order was passed and the Defendant/Tenant was directed to deposit the rent in Court, the said amount was not regularly deposited and, therefore, the Defendant/Tenant could not seek protection under section 12(3)(b). It was submitted that the observation of the lower Appellate Court that the landlord was not entitled to seek recourse under section 12(3)(b) also was incorrect. Reliance was placed on the Division Bench judgment of this Court in Anant Purushottam Athavle vs. Damodar Dattatraya Bedekar and others 2 more particularly on para 8. Lastly, it was submitted that the Apex Court has clearly held that even the provisions of section 12(3)(b) are mandatory and reliance was placed on the Judgment of the Apex Court in Mranalini B. Shah and another vs. Bapalal Mohanlal Shah3 and particularly paras 11 and 12 of the said judgment. 4. On the other hand, the learned Counsel appearing on behalf of the Respondent submitted that the notice was not served. He invited my attention to the deposition of Defendant in the examination-in-chief. He, therefore, submitted that no cause of action had arisen in favour of the landlord to file the suit. 1 AIR 1977 SC 1707 2 1980 Mh.L.J. 737 3 AIR 1980 SC 954 4 (WP5103.94) 5. Counsel for the Petitioner, on the other hand, submitted that this ground was not taken in the Written Statement and in the cross-examination, the Defendant/Tenant admitted that he had received all other letters at the same address and after he was shown the registered acknowledgment due, he merely stated that the signature was not of his wife. 6. There is much substance in the submissions made by the learned Counsel appearing on behalf of the Petitioner. The submission that demand notice was not served cannot be accepted as no such averment was made in the Written Statement. No issue has been raised regarding service of notice. Plaintiff had produced the registered acknowledgment due which was received after service of the demand notice. It is not disputed that the Defendant/Tenant had received other letters on the same address. It is thus not open now for the Defendant/Tenant to raise this issue for the first time in this Court. Secondly, there is also much substance in the submission made by the learned Counsel for the Petitioner that provisions of section 12(3)(a) are clearly attracted particularly since the Defendant/Tenant did not deposit the entire amount from the date of service of demand notice and the standard rent application which was filed was withdrawn by him. In view of the judgment of the Apex Court in Mistry Premjibhai Vithaldas vs. Ganeshbhai Keshavji1, provisions of section 12(3)(a) would still be attracted. The Apex Court in para 10 of the said judgment 1 AIR 1977 SC 1707 5 (WP5103.94) has observed as under:- “10. It appears to us that where a tenant does not prosecute an application for fixation of standard rent and deliberately permits is to be dismissed for non-prosecution it could be reasonably inferred that it was not a bona fide application at all. In the case before us, it being admitted that the agreed rent was Rs 30/- p.m., that would be the “standard rent” as defined by Sections 5(10) of the Act. That was the rate at which rent was payable. Non-prosecution of the application for standard rent indicated that there was no real dispute regarding the standard rent or permitted increases. In such cases, if the provisions of S.12(3)(a) are not shown to be complied with, the Court is bound to pass a decree for eviction.” The lower Appellate Court, therefore, has clearly committed an error of law which is apparent on the face of record in holding that provisions of section 12(3)(a) would not be attracted. Thirdly, the lower Appellate Court also erred in 6 (WP5103.94) holding that it was not open for the landlord to take recourse to section 12(3)(b). Division Bench of this Court in Anant Purushottam Athavle vs. Damodar Dattatraya Bedekar and others 1 in para 8 has clearly held that if the tenant wants to prevent a decree for possession being passed against him on the ground of arrears of rent, he has either to go on depositing in Court regularly the standard rent or permitted increases or the amount as ordered by the Court. If any one of the two conditions are not complied with then it has to be held that he was not ready and willing to pay the standard rent. Further, it has been held in the said judgment that in case where conditions of section 12(3)(a) are not satisfied, the tenant has to comply with the conditions as set out in section 12(3)(b) and if the said conditions are not complied with then the court has discretion to pass a decree for eviction. The judgment and order passed by the lower Appellate Court, therefore, will have to be quashed and set aside. 7. Writ Petition is allowed in terms of prayer clause (b). However, six months time is given to the Respondent to vacate the premises. Respondent, however, shall file an undertaking on usual terms within a period of four weeks. He shall also continue to deposit the rent till he vacates the premises. (V.M. KANADE, J.) 1 1980 Mh.L.J. 737 7 (WP5103.94)