CRA/1253/1983 1/40 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 1253 of 1983 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= RAVJIBHAI GIGABHAI - Applicant Versus VIRJIBHAI RAVJIBHAI & 3 - Opponents ========================================================= Appearance : MR SURESH M SHAH for Applicant(s) : 1, MR DD VYAS for Opponent(s) : 1 - 2. MR CL SONI for Opponent(s) : 3 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 07/07/2008 CAV JUDGMENT CRA/1253/1983 2/40 JUDGMENT 1. The petitioner - original defendant- respondent tenant is before this Court by way of present Civil Revision Application being aggrieved by the judgment and decree passed by the learned Joint District Judge, Rajkot in Regular Civil Appeal No.30 of 1981, whereby the appeal preferred by the respondents herein- original plaintiffs has been allowed by quashing and setting aside the judgment and decree passed by the trial court. The learned appellate Judge has been pleased to ordered that the petitioner (hereinafter referred to as “the tenant”) shall hand over the vacant possession of the premises to the respondents herein-original plaintiffs (hereinafter referred to as “the landlord”). It is also further ordered by the learned appellate Court that the tenant shall also pay the amount of mesne profit at the rate of Rs.250/- per month. 2. Petitioner is the original defendant-tenant. Respondents herein are the original plaintiffs- landlords. The premises in question was leased CRA/1253/1983 3/40 JUDGMENT to the tenant situated in Rajkot in the area of Bapunagar consisting of a shed and two rooms with an enclosed open space known as “fali” at a monthly rent of Rs.250/- with liability of paying taxes. As per the rent note, the tenant was required to pay monthly rent of Rs.250/- and the tenant was also required to pay the municipal taxes separately. The landlord issued the notice dated 21.9.1978 to the tenant demanding arrears of rent and for possession of the suit premises by terminating the tenancy. The said notice was served upon the tenant. The tenant neither replied the notice nor paid the arrears of rent nor filed any application under Section 11(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as “the Act”) for standard rent. The tenant also did not raise any dispute relating to standard rent. The landlord, therefore, filed a Rent Suit No.701 of 1979 (Old No.133/79) in the Court of learned Small Causes Court, Rajkot for recovery of possession of the suit premises on three grounds; (i) arrears of rent for more than six CRA/1253/1983 4/40 JUDGMENT months; (ii) damage to the suit premises; (iii) breach of the conditions of tenancy. It was contended on behalf of the landlord that the tenant was irregular in making the payment of rent and the cheques given by him were not honoured by the bank. The landlord asked for the relief of possession of the demise premises and also for a decree of Rs.4,868/- being arrears of rent and also for future mesne profit. The tenant filed written statement at Exh.14 and raised the dispute with respect to standard rent for the first time in the written statement. It was denied by the tenant that he is in arrears of rent and that he has committed breach of any of the conditions of the lease deed. It was also submitted by the tenant that he has not caused damage to the roof of the suit property or walls of the suit property as alleged. It was submitted that the rent is excessive and unreasonable so it standard rent should be fixed. 3. In the trial court an application Exh.8 was given by the tenant for the purpose of obtaining CRA/1253/1983 5/40 JUDGMENT an order for depositing the amount of rent and the orders were passed by the trial court accordingly. As per the order passed by the trial court passed below Exh.8 the tenant was directed to deposit the arrears of rent from 1.11.1972 till date on or before 30.4.1980 and to deposit the amount regularly thereafter as and when it becomes due at a rate of Rs.250/-. The tenant deposited the amount of rent vide Exh.120 and Exh.128 by applying for time and extension therefore. It appears that on 30.4.1980 an amount of Rs.6,000/- was deposited and an application Exh.13 was given for extension of time which was granted till 16.6.1980. On 16.6.1980 vide Exh.32 a declaration was made that till then an amount of Rs.8,000/- was deposited which was sufficient to cover the rent upto 30.6.1980. The trial court framed the issues at Exh.34. It was the contention on behalf of the tenant that the case will be governed by Section 12(3)(b) of the Act as the liability to pay taxes was upon the tenant and therefore it cannot be said that the rent is payable monthly and that it CRA/1253/1983 6/40 JUDGMENT can be said that the rent is payable yearly. 4. On the other hand it was the contention on behalf of the landlord that the tenant was required to pay monthly rent at the rate of Rs.250/-, and that the tenant has not raised any dispute with respect to standard rent in reply to the notice and/or had not submitted an application under Section 11(2) of the Act for determination of the standard rent and the dispute with respect to standard rent was raised by the tenant for the first time in the written statement and therefore the case would be governed by Section 12(3)(a) of the Act. 5. After considering the evidence on record and the documentary evidences such as rent note etc., the trial court held and determined the standard rent at Rs.250/- per month plus taxes. The trial court also held that the tenant was in arrears of rent for a period of six months prior to filing of the suit. The trial court also held that the tenant was ready and willing to pay the CRA/1253/1983 7/40 JUDGMENT rent. The trial court held that the case would be governed by Section 12(3)(b) of the Act, and therefore, as the tenant has deposited all the arrears of rent on the first date of hearing and therefore dismissed the suit of the landlord which was for possession of the demise premises. The trial court also held against the landlord that the tenant has committed breach of terms of the tenancy and/or caused damage to the property. 5.1 Being aggrieved and dissatisfied with the judgment and decree dated 3.1.1981 passed by the learned Small Causes Court, Rajkot in Regular Civil Suit No.701 of 1979 in dismissing the suit for possession of the suit premises, the respondents herein-landlords preferred Civil Appeal No.30 of 1981 before the District Court, Rajkot under Section 29 of the Act. 5.2 Being aggrieved and dissatisfied with the fixation of standard rent at Rs.250/- plus taxes by the trial court, the tenant also preferred Civil Appeal No.8 of 1981 and disputed the CRA/1253/1983 8/40 JUDGMENT fixation of standard rent by the trial court. 5.3 The appellate Court i.e. learned Joint District Judge, Rajkot by the judgment and decree dated 18.7.1983 allowed the appeal preferred by the landlord by holding that the case would be governed by Section 12(3)(b) of the Act, however, as the tenant has not deposited/paid the rent regularly during the pendency of the appeal and passed the decree for possession. By the said common judgment and decree the appellate Court dismissed the Revision Application No.8 of 1981 filed by the tenant confirming the judgment and decree passed by the trial court in so far as fixation of the standard rent at Rs.250/- per month plus taxes. 5.4 Being aggrieved and dissatisfied with the common judgment and decree passed by the learned appellate Court dated 18.7.1983 passed in Civil Appeal No.30 of 1981 in passing the decree for possession, the petitioner herein – original tenant has preferred present revision CRA/1253/1983 9/40 JUDGMENT application. 6. Shri S.M.Shah, learned advocate appearing on behalf of the tenant has submitted that in the appeal preferred by the landlord, they have not disputed order of standard rent fixed/passed by the trial court i.e. they have not disputed the standard rent. However, the tenant disputed fixation of standard rent fixed by the trial court by separate revision application and the same came to be determined by the appellate Court along with the final judgment and decree and till then as it was not fixed what amount of rent the tenant is required to pay and therefore the appellate Court has committed an error in passing the decree for possession. It is submitted that the appellate Court has committed an error in observing and holding that though the tenant has disputed the decision of the trial court about its findings as to the standard rent in the appellate Court, it cannot be said that the Court has not fixed the standard rent and the tenant was bound to pay the rent in the appeal at the CRA/1253/1983 10/40 JUDGMENT rate of Rs.250/- per month regularly. It is submitted that the dispute by the tenant with respect to standard rent subsisted till the common judgment and decree in the appeal and in the revision came to be passed and the said dispute was not resolved by the appellate Court till before passing the final judgment challenged in the revision and therefore the appellate Court has committed an error in passing the decree for possession solely on the ground that the amount of standard rent has not been paid by the tenant regularly during the appeal. It is submitted that as the order passed by the trial Court with respect to standard rent was challenged by the tenant by way of revision application and till the final judgment was delivered by the appellate Court in appeal the same is not resolved, the tenant was unable to know what exactly is the standard rent of the suit premises and therefore the appellate court ought not to have passed the decree for possession. 6.1 Shri Shah, learned advocate has relied CRA/1253/1983 11/40 JUDGMENT upon the decisions of this Court in the case of Rupaben wd/o Kaththu Dhanji & Another vs. Babubhai Deojibhai reported in 1982(1) GLR 263; Naranbhai Nathabhai Koli vs. Modha Panalal Maganlal reported in 1982(2) GLR 98 as well as the decision of the Hon'ble Supreme Court in the case of Shah Dhansukhlal Chhaganlal vs. Dalichand Virchand Shroff (dead) by his legal representatives reported in AIR 1968 SC 1109. He has also relied upon unreported decision of the Hon'ble Supreme Court delivered in Civil Appeal No.2926 of 1979 delivered on 17.10.1979 which was also relied upon by this Court in the case reported in 21 GLR 869. 6.2 It is submitted by Shri Shah, learned advocate appeared on behalf of the tenant that as held by the Hon'ble Supreme Court in the aforesaid unreported judgment delivered in Civil Appeal No.2926 of 1979 dated 17.10.1979, there should be mental element, a negative stance of the tenant that he is not ready and willing to CRA/1253/1983 12/40 JUDGMENT pay and this negative fact has to be established and made good by the landlord, and mere arrears of rent per se does not mean negation of readiness and willingness to pay rent. It is submitted that in the present case the aforesaid aspect has not been proved by the landlord looking to the deposits made by the tenant and the dispute as to standard rent is not resolved by the appellate Court till the decision in an appeal. It is submitted that the appellate court has ignored the position of law as stated by this Court in the case of Rupaben (supra) and Naranbhai Nathabhai (supra). 6.3 It is further submitted by Shri Shah, learned advocate appearing on behalf of the tenant that the decision of the Bombay High Court in the case of Sd.Umar Sd.Ahmed vs. Dadamiya Husenbhai and others reported in AIR 1976 Bombay 336 relied upon by the landlord is erroneous and is not applicable to the facts of the present case. It is submitted that the Bombay High Court in the said case has not CRA/1253/1983 13/40 JUDGMENT appreciated the decision of the Hon'ble Supreme Court in the case of Shah Dhansukhlal vs. Dalichand Virchand (supra). It is submitted that the Bombay High Court in the aforesaid decision relied upon the decision of the Hon'ble Supreme Court in the case of Shah Dhansukhlal vs. Dalichand reported in 1968 SC 1109 equivalent to 9 GLR 759. It is submitted that the said case of Shah Dhansukhlal (supra) was based on the facts recorded therein in para 4 at page 761 thereof which is not properly considered by the Bombay High Court in the aforesaid decision. 6.4 By making the above submissions and relying upon the aforesaid decisions, Shri Shah, learned advocate appearing on behalf of the petitioner has requested to allow the present revision application and to quash and set aside the decree of possession passed by the appellate court. 7. Revision is opposed by Shri C.L.Soni, learned advocate appearing on behalf of the respondents-landlord. It is submitted by Shri CRA/1253/1983 14/40 JUDGMENT Soni that it is an admitted position that the tenant had neither replied to the notice issued by the landlord nor filed any application for fixation of standard rent under Section 11(3) of the Act and had raised the dispute about the standard rent for the first time in the written statement and therefore the tenant cannot be said to have raised any dispute as regards standard rent for getting the protection under Section 12(3)(b) of the Act. It is submitted that, merely because the trial court decided the issue of standard rent in the suit it will not alter the decision and therefore it cannot be said that the tenant raised the dispute about the standard rent as contemplated under Section 12(3) (b) of the Act. He has relied upon the decision of this Court in the case of Popatlal M.Bhanshali vs. Kishanlal Shivlal Modhiya reported in 2006(2) GLR 1199. He has also relied upon the decision of the Hon'ble Supreme Court in the case of Joshi Bhuraram Dattaram vs. Jivibai D.Mulchand (Mrs.) reported in 1995 Supp(3) SCC 416 by submitting that as held by the Hon'ble Supreme Court in the CRA/1253/1983 15/40 JUDGMENT aforesaid decision the rate of standard rent mentioned in notice under Section 12(2), if not challenged under Section 11(3), could not be challenged in the written statement. Therefore, it is submitted that, in view of the above, the tenant to avail the protection of Section 12(3) (b) of the Act, has to deposit rent regularly and as appeal is a continuation of a suit, is required to deposit the rent regularly even during the appeal. Shri Soni, learned advocate appearing on behalf of the landlord has further submitted that, as held by the Full Bench of this Court in the case of Lalchand Jematmal vs. Nanabhai Ranchhoddas and others reported in 1976 XVII GLR 1, Section 12(3)(b) applies even at the appellate stage as the appeal is a continuation of the suit. It is submitted that, as held by the Full Bench of this Court the words “till the suit is finally decided” occurring in Section 12(3)(b) of the Act refer also the decision in appeal. It is submitted that, as held in the aforesaid decision, if the tenant has not paid the standard rent as fixed by the trial court CRA/1253/1983 16/40 JUDGMENT regularly, the tenant would be deprived of the protection under Section 12(3)(b) of the Act. It is submitted that the Full Bench in the said decision has approved the ratio in the case of Ratilal Balabhai Nazar vs. Ranchhodbhai Shankerbhai Patel and others reported in 1968 GLR 48. Shri Soni, learned advocate has also relied upon the decision of the Bombay High Court in the case of Sd.Umar Sd.Ahmed vs. Dadamiya Husenbhai and others reported in 1976 Bombay 336 wherein relying upon the decision of the Hon'ble Supreme Court, the Bombay High Court has held that so long as the matter is seized by the appellate court, it would be the bounded duty of the tenant to comply with the lower court's decree on the point of standard rent otherwise it would be deemed not to qualify for protection of Section 12(3)(b) of the Act. It is submitted that in the present case also the trial court determined and fixed the standard rent at the rate of Rs.250/- per month and the landlord preferred the appeal dismissing the suit and the tenant also filed revision application challenging the fixation of CRA/1253/1983 17/40 JUDGMENT standard rent by the trial court. However, as there was a decision by the trial court on the standard rent which was not stayed by the appellate court, the tenant was required to deposit such standard rent regularly during the pendency of the revision application/appeal, and whatever be the final outcome of the revision application preferred by the tenant subject to the further direction that may be issued by the appellate court in case of modification of the order passed by the trial court with respect to standard rent, the parties had to act as per the same. But during the pendency of the appeal the tenant is required to deposit the rent regularly. In support of his above submission he has also relied upon the decision of this Court in the case of Pravinchandra Shamaldas Patel and others vs. Saraswatiben Ranchhodbhai reported in 1977 XVIII GLR 8. 7.1 Shri Soni, learned advocate appearing on behalf of the landlord has next relied upon the decision of the Hon'ble Supreme Court in the case CRA/1253/1983 18/40 JUDGMENT of Ganpat Ladha vs. Sashikant Vishnu Shinde reported in AIR 1978 SC 955 wherein the Hon'ble Supreme Court has held that, where the conditions of Section 12(3)(a) are not satisfied, there is a further opportunity given to the tenant to protect himself against the eviction and he can comply with the conditions set out in Section 12(3)(b) and defeat the landlord's claim for eviction. However, if the tenant does not fulfill those conditions set out in Section 12(3) (b), he cannot claim the said protection, and in that event, a decree for eviction would have to go against him. It is further submitted that, as held by the Hon'ble Supreme Court in the case of Mranalini B.Shah and another vs. Bapalal Mohanlal Shah reported in AIR 1980 SC 954 the provisions of Clause (b) of Section 12(3) are mandatory and not discretionary and it must be strictly complied with by the tenant during the pendency of the suit and also during the appeal as appeal being continuation of the suit. 7.2 Shri Soni, learned advocate appearing on CRA/1253/1983 19/40 JUDGMENT behalf of the landlord has submitted that, since the dispute with respect to standard rent raised in the written statement cannot be said to be a dispute of standard rent to be within the protection of Section 12(3)(b) of the Act and there was already a decision by the trial court determining and fixing the standard rent at Rs.250/- per month, and in absence of any further interim order and/or any further order passed by the appellate court in the appeal, the tenant was under an obligation to deposit Rs.250/- per month which was the rent fixed between the parties and also as per the interim order dated 25.3.1980 passed below Exh.8 filed by the landlord in the suit, regularly during the suit as also during the appeal. It is submitted that as the tenant has not deposited the rent regularly during the pendency of the appeal, the appellate court has rightly passed the decree of eviction against the tenant. He has also relied upon the decision of the learned Single Judge of this Court in the case of Joshi Ratanshi Gopalji vs. Narottam Naranji Mehta and others reported in CRA/1253/1983 20/40 JUDGMENT 1996(1) GCD 61, and relying upon the said decision, it is submitted that as held by this Court if the dispute of standard rent is raised only in written statement and not in reply to notice or by application under Section 11(3), the tenant must deposit regularly the rent fixed by the trial court in appeal, and if he does not, in that case he is not entitled for protection of Section 12(3)(b) of the Act. 7.3 It is submitted that in view of the aforesaid decision of the Hon'ble Supreme Court in the case of Shah Dhansukhlal Chhaganlal (supra), and the decision of Full Bench in the case of Lalchand Jematmal (supra) as well as decision of Division Bench of this Court and in view of the provisions of Section 12(3)(b) of the Act, the decision reported in the case of Rupaben wd/o Kaththu Dhanji and another (supra) is per incurium. It is submitted that, even otherwise, on facts, the said decision would not be applicable. By making above submissions and relying upon the aforesaid decision of the CRA/1253/1983 21/40 JUDGMENT Hon'ble Supreme Court; this Court as well as Bombay High Court, Shri Soni, learned advocate appearing on behalf of the respondent-landlord has requested to dismiss the present revision application. 8. Heard the learned advocates appearing on behalf of the respective parties. 9. The tenant was in arrears of rent and taxes from 1.12.1977 and therefore the landlord served a notice upon the tenant as required under Section 12(2) of the Act dated 21.9.1978 terminating the tenancy and demanding arrears of rent and possession. The same was received by the tenant. The tenant neither paid/deposited the arrears of rent nor raised any dispute with respect to standard rent nor submitted any application for standard rent under Section 11(3) of the Act within the prescribed time. Therefore the landlord filed a rent suit before the trial court for recovery of the possession of the suit premises on three grounds; (i) arrears CRA/1253/1983 22/40 JUDGMENT of rent for more than six months, (ii) damage to the suit premises and (iii) breach of conditions of tenancy. For the first time in the written statement the tenant raised the dispute with respect to standard rent. It was the contention on behalf of the landlord that the case would be governed by Section 12(3)(a) of the Act, and on the other hand it was the case on behalf of the tenant that the case would be governed by Section 12(3)(b) of the Act as the liability to pay the taxes was on the tenant and therefore it cannot be said that the rent is payable monthly and the same would be payable yearly. There are four conditions which are required to be satisfied in order to attract the applicability of Section 12(3)(a) of the Act and they are:(i) the rent must be payable by the month; (ii) there must be no dispute regarding the standard rent or permitted increases right upto the expiration of a period of one month from the date of the notice under Sec.12(2); (iii) the rent must be in arrears for a period of six months or more at the date of such notice; and (iv) the tenant must CRA/1253/1983 23/40 JUDGMENT neglect to make payment of such arrears until the expiration of a period of one month after the date of such notice. If, in any case, these four conditions are satisfied, the landlord is entitled to obtain a decree for eviction against the tenant. Where the rent is not payable