1 cra548withwp9812 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL REVISION APPLICATION NO.548 OF 2010 Asha Pandurant Gujar ...Applicant vs. Akbar Mohammad Atar & Ors. ...Respondents WITH WRIT PETITION NO.9812 OF 2010 Asha Pandurant Gujar & Ors. ...petitioners vs. Akbar Mohammad Atar & Ors. ...Respondents Mr.Pankaj Das for the petitioners-applicants in both the matters Mr.Ajay Joshi for the respondent nos.1(a),(b) and (c) in both the matters. CORAM :A.S.OKA,J. DATE :DECEMBER 23,2010 P.C.: 1 Heard the learned counsel for the parties. The applicant in the revision application is the defendant- tenant and the respondents are the plaintiffs-landlords. The premises on the ground floor of the property more particularly described in paragraph 1 of the suit filed by the respondents is the subject matter of these matters. The said premises on the ground floor will be hereinafter referred to as the suit premises. 2 A suit was filed by the respondents on the ground of arrears of rent. It was contended that the applicant was in arrears of rent from 1st January 1983. It was contended that the rent was Rs.500/- p.m. The case made out in the suit is that a sum of Rs.82,500/- was in arrears of rent from 1st January 1983 to 30th September 2 cra548withwp9812 1996 for which a notice of demand was issued on 16th August 1996. The second ground in the suit is that the applicant is guilty of causing nuisance. Another ground pleaded was that there was a change of user made by the applicant. Reliance was placed on the notice of demolition issued by the local authority and it was contended that considering the fact that as the building was in dilapidated condition, the suit premises was required to be immediately pulled down as per the notice issued by the local authority. Lastly, possession was sought on the ground of bona fide need. 3 It must be stated here that on 13th September 1996, the revision applicant preferred an application for fixation of standard rent. 4 The trial Court decreed the suit upholding the grounds of eviction pleaded by the respondents. An appeal was preferred by the revision applicant before the District Court. The appeal has been dismissed by confirming the decree. The application for fixation of standard rent was dismissed by the trial Court. Revision application preferred by the revision applicant was dismissed by the District Court. The revision application was heard along with the appeal preferred against the decree for eviction. 5 At the outset, it must be stated that the learned counsel for the respondents-landlords stated that he was supporting the decree passed on the ground of arrears of rent and on the ground in clause (hhh) of sub section 1 of section 13 of the Bombay Rents, Hotel and Lodging House Rates (Control)Act, 1947(hereinafter referred to as the said Act). 3 cra548withwp9812 6 Revision application has been preferred against the decree of eviction and the writ petition has been preferred against the order dismissing the application for fixation of standard rent which was confirmed in the revision application by the District Court. 7 The submission of the learned counsel for the petitioners is that within a period of one month from the service of notice of demand under section 12(2) of the said Act, the defendant-tenant filed an application for fixation of standard rent. He submitted that without giving an opportunity to the revision applicant (defendant-tenant) to adduce evidence, the said application was rejected by the trial Court. He submitted that the claim for fixation of standard rent has not been decided by the trial Court on merits. He submitted that the case made out by the defendant-tenant in the said application was the standard rent in respect of the suit premises was Rs.600/- per annum. He submitted that the decree on the ground of arrears of rent could not have been passed in view of filing of the application for standard rent within one month from the date of service of notice of demand. The learned counsel submitted that the decree could not have been passed under section 13 (1) (hhh) of the said Act in as much as the notice issued by the local authority was not proved and moreover, it was not proved that the suit premises was in a dilapidated condition requiring immediate demolition. 8 I have given careful consideration to the submissions. In view of the statement made by the learned counsel for the respondents, submissions were canvassed only on the ground of arrears of rent and the ground incorporated in clause (hhh) of section 13 (1) of the said Act which provides that the premises are 4 cra548withwp9812 required for the immediate purpose of demolition ordered by the local authority. In the present case, in the plaint, the respondents have specifically pleaded the fact that the building was in dilapidated condition and have stated that in fact a part of the building has been already demolished by the municipal Officers. 9 On this issue, the learned trial Judge has held that after inspection of the premises, the Municipal Council issued notices dated 21st December 1993 and 19th October 1995 for demolition of the suit premises. The trial Court held that this fact was admitted by the constituted attorney of the applicant. Moreover, a finding of fact was recorded that a board was displayed by the Municipal Council on the ground floor of the said building stating that the building was dangerous for accommodation and shall not be used. 10 As far as Appellate Court is concerned, the said finding has been confirmed. The Appellate Court has also noted that the witness examined by the respondents admitted that the Municipal Council has issued a notice stating that the structure has become dangerous. As found by the trial Court, notices of the Municipal Council were produced on record and were exhibited. Thus, on this aspect there is a concurrent finding of fact on appreciation of oral and documentary evidence on record. Perusal of the evidence of the constituted attorney of the applicant shows that he admitted that the Municipal Council had issued notice to him that the building was in dangerous condition. In fact, he expressly admitted the notices at Exhibits 95 to 97 issued by the Municipal Council. There is no challenge to the action of the Municipal Authority of issuing notice. Therefore, the Courts below rightly found that 5 cra548withwp9812 the ground under clause (hhh) of section 13(1) of the said Act was established. 11 As far as ground of arrears of rent is concerned, it is not the case of the defendant-tenant that compliance was made by the defendant-tenant of the requirement of sub-section (3) of section 12 of the said Act by depositing the entire arrears with 9% interest and costs of the suit with the trial Court on or before first date of hearing of the suit. Reliance is placed on the act of filing of standard rent application. It must be noted here that admittedly in the standard rent application, the defendant-tenant did not apply for fixation of interim standard rent and did not deposit any amount. 12 A grievance was made that the defendant-tenant was not permitted to adduce evidence in application for standard rent. However, in order dated 4th October 2007 passed on the said application, the trial Court has observed that the defendant-tenant was absent on several dates. In fact, on 7th September 2007, the evidence of the defendant-tenant was closed by the learned trial Judge. 13 As stated earlier, the case of the defendant-tenant was that originally the rent in respect of the suit premises was Rs.600/- per annum and later on it was Rs. 800/- per annum. However, the witness of the defendant- tenant admitted that he was having no evidence to show that initially the rent was Rs.600/- p.a and later on it was increased to Rs.800/- p.a. Thus, it is obvious that the dispute raised by the defendant-tenant as regards the standard rent was not at all a bona fide dispute. As the said dispute was not bona fide dispute, the District court was right in not interfering in the revisional 6 cra548withwp9812 jurisdiction with the order of dismissal of the application for fixation of standard rent. It is well settled that the tenant can take advantage of Explanation-I of sub section 3 of section 12 of the said Act provided the dispute regarding the standard rent is bona fide. The finding is that the dispute was not at all bona fide. Therefore, it was held that the defendant-tenant was a defaulter. There is no merit in the revision application as well as in the writ petition and the same are rejected. 14 On the prayer made by the learned counsel for the revision applicant it is directed that the decree for possession shall not be executed for a period of three months from today subject to condition that the applicant will not create any third party rights in respect of the suit premises and will not part with possession thereof. JUDGE