IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No 36 of 1991 For Approval and Signature: Hon'ble MR.JUSTICE K.M.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- HEIRS OF SHANTABEN DAHYABHAI- BHAGWANDAS D PATEL Versus SAROJBEN WD/O N S PANDYA -------------------------------------------------------------- Appearance: MR AJ PATEL for Petitioners MR SM SHAH for Respondent No.1 & 2. MR KJ KAKKAD for Respondent No. 1 MR PK PANDYA for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE K.M.MEHTA Date of decision: 23/03/2001 C.A.V.JUDGEMENT 1. Heirs of deceased Shantaben widow of Dahyabhai Narsinhbhai - petitioners herein - the original defendants have filed the present Civil Revision Application under Sec. 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as `the Act') against the judgement and decree dt. 6th December, 1990 passed by the learned Assistant Judge, Nadiad. The learned Judge was pleased to partly allow the appeal of the appellants-defendants. By the said judgement, the learned Judge was pleased to quash and set aside the eviction decree dtd. 29th October, 1985 passed by the Civil Judge (J.D.), Dakor on the ground of bonafide requirement, permanent structure, charge of user, denial of landlord's title. The learned appellate Judge, however, was pleased to confirm the eviction decree passed by the Trial Judge on the ground of arrears of rent within the meaning of Sec. 12(3)(b) under the provisions of the Act. The Standard rent of the "suit premises" was also fixed at Rs.17.50 ps. for the rest of the terms of the judgement and to that extent, the judgement of the learned Civil Judge is confirmed and the original defendant - tenant was directed to hand-over the peaceful possession without any obstruction or any resistance to the landlord on or before 31/12/1990. 2. Smt. Sarojben widow of Pandya Natverlal Shankerlal original plaintiff - landlord have filed Special Civil Suit No.99 of 1979 before the Civil Judge (J.D.) at Dakor, against Shantaben - widow of Dahyabhai Narsinhbhai and ors. under the provisions of the Act. There is a house in the village Dakor being Panchayat No. 2/3, near Bhrampole bearing Municipal No. 2182 of village Dakor (hereinafter referred to as `the suit premises'). According to the plaintiff, at the time i.e. the date of filing of the suit, the value of the suit property was Rs.30,000/-. It was stated that somewhere on 14th January, 1933, Shri Pandya Shankarlal Harjivan who was residing at Dakor (hereinafter shall be referred to as "the landlord") had given the suit premises to Shri Dahyabhai (hereinafter shall be referred to as "the deft.No.1") for the yearly rent of Rs.187/- for three years, the year to be counted from 14/1/1933 till 13/1/1936. The property tax paid by the tenant and the Conservancy tax was also paid by the landlord. The said Rent Note is produced in this case at Ex.116. 2.1. From the record it appears that the original owner of the property was one Mr.Shankarlal Harjivan Pandya. However, from the record, it appears that the property has been partitioned and ultimately on 22nd April, 1978, Natvarlal - husband of the present respondent Smt. Sarojben became the owner of the property in question and after the death of Natvarlal somewhere in August, 1978, Smt. Sarojben became the owner of the property. 3. It may also be stated that the plaintiff has also produced a notice dtd. 26th June, 1978 calling upon the defendant for transmission of tenancy and intention to vest tenancy in one person, the same is produced on record at Ex,.106. The defendant replied to the said notice on 21st July, 1978 and has stated that they are all qualified tenant. It was also stated that earlier one Mr. Pramodbhai was collecting rent and now the plaintiff should state that to whom the rent is to be paid. The said reply was produced at Ex.107.Thelearned Judge by his order dtd. 26th September, 1978 in C.M.A. No.7 of 1978 in presumption of tenancy case declared Shantaben as recognized tenant. 4. Thereafter, the plaintiff addressed a notice dtd. 3rd October, 1979 under Sec.12(2) of the Rent Act. In that notice he has claimed arrears of rent for more than six months from 1/7/1972. It was also stated that monthly rent of the suit premises was Rs.17.50 ps. In the said notice it was also stated that the landlord required the suit premises bonafide and reasonably for his personal use. It was also stated that the tenant had constructed some of the Oradies, Latrines and Bathrooms in the suit premises. It was, therefore, stated that the tenant had no right to continue in possession. The said notice is produced at Ex. 104. The said notice was issued on 3rd October, 1979 and the said notice was served on the tenant on 5th October, 1979. 5. The tenant, thereafter, replied to the said notice vide his reply dtd. 2nd November, 1979. In the said reply it was only stated that the rent for the suit premies is excessive and illegal. They were yearly tenant and they are not monthly tenants. They have paid rent of the suit premises in this behalf. They have also denied that the landlord required the suit premises reasonably and bonafide. It was, therefore, contended that the said notice is illegal. The said notice was served by the landlord on 7th October, 1979 and the said reply has been produced at Ex.108. 6. Smt. Sarojben Pandya widow of Natvarlal and Shila - daughter of Natvarlal - original plaintiff filed a suit before the Civil Judge (J.D.), Dakor for obtaining vacant and peaceful possession of the property in question i.e. Panchayat NO.2/3, situated at Dakor. In the said suit , it was contended that the monthly rent of the premises was Rs.17.50 and the tenant is in arrears of rent from 1/7/1972 and therefore, the plaintiff had addressed a notice dtd. 3rd October, 1979, which has been received by the tenant on 5th October, 1979 and as the tenants are in arrears of rent for more than 6 months, the tenants were in arrears of rent and therefore, the tenancy was sought to be terminated. The plaintiff did not state as to whether he want the decree either under Section 12(3)(a) or 12(3)(b). He only filed the said suit for possession. 7. It was also averred in the plaint that the plaintiff No.1 is widow and now she along with Shilaben cannot live in Bombay, and therefore, she desires to reside at Dakor and therefore, the suit premises is required reasonably and bonafidely. It was also stated that the defendant has constructed some Oradi without permission of the plaintiff, and therefore, the plaintiff is also entitled to obtain the possession of the suit premises. By way of amendment it was also stated that the defendant is also carrying business of sweets and selling the sweets in the suit premises. It was also stated that the Defendant has not paid rent of Rs.1522.50 ps. that is for the period from 1/7/1972 to 330/9/1979. The mesne profit of Rs.17.50 from 1/10/1979 to 20/11/1979, Rs.219/further mesne profit for 12 months, Rs.51/- Notice charges, in all the plaintiff claimed Rs.1811/-. The said suit was filed on 11/11/1979. 8. The defendant filed written statement at Ex.21 and in the said written statement, it was stated that the rent between the parties is not a standard rent, there are other co-owners of the suit property and therefore, the suit is required to be dismissed on the said ground. It was further stated that the rent of the suit premises is very excessive and the same is not standard rent. The suit notice is not legal and valid. It has denied that the arrears of rent from 1/7/1972. It has also stated that the plaintiff has also other property in Dakor and it has denied that they have not constructed any room. Other landlord has also recovered rent and also prayed before the Court for fixation of standard rent. The said written statement was filed on 3/5/1980. 9. After recording the oral evidence and considering the documentary evidence produced by the parties, the learned Civil Judge (J.D.), Dakor passed the judgement and decree dtd. 29th October, 1985 and was pleased to pass a decree of eviction in favour of the plaintiff. The learned Judge has held that the deft. No.1 was tenant of the suit property. 10. The learned trial judge has also relied upon the previous correspondence. The learned Judge held that the notice was legal and valid. It was also stated that if the decree for possession is not passed, the petitioner will suffer irreparable injury and hardship. The learned Trial Judge by his judgement fixed the standard rent at Rs.17.50 ps. The defendant has also constructed permanent structure without consent of the landlord. The plaintiff is entitled for possession of the suit premises. The plaintiff proved their ownership of the suit premises and they are entitled for arrears of the rent. 10.1. The trial court also held that the relationship between the plaintiff and the defendant were of landlord and tenant as the deft.no.1 was the tenant of the suit premises. The learned trial court has accepted the contention of the landlord that the deft. had not paid rent from 1/7/1972 till 19/7/1982 i.e. for 10 years and 6 months and out of that, the tenant had paid rent for only 3 years and thereafter the tenant has not paid any rent and has not produced any receipt in this behalf and therefore, the tenant had failed to comply with the condition of Sec.12(3)(b) of the Act and the tenant lose the protection under Sec.12(3)(b) of the Rent Act. The learned trial court has also held that the deft. also required to pay time barred rent also. The trial court also did not accept the contention of the defendant that they have paid rent from 1/7/1972 to 1978 to one Shri Promodbhai, on the ground that Promodbhai died on 10th August, 1972, and therefore, ultimately, the deft. failed and neglected to pay the time barred rent. The trial court also held that the suit notice dtd.3/8/1979 issued by the plaintiff was legal and valid, and therefore also the plaintiff is entitled for decree. 11. Being aggrieved by the dissatisfied with the aforesaid judgement and decree, the original tenants filed Regular Civil Appeal No.210 of 1985 before the Assistant Judge, Kheda at Nadiad. The said appeal was filed on 9/12/1985. 12. The Assistant Judge, Nadiad by his judgement and decree dtd. 6/12/1990 was pleased to quash and set aside the eviction decree passed by the trial court on the ground of bonafide requirement, permanent structure, change of user and denial of landlord's title. However the learned Judge was pleased to confirm the eviction decree passed on the ground of arrears of rent and also held that the standard rent of the suit premises is Rs.17.50 ps. and the learned judge was pleased to confirm the decree of the trial court and directed to the tenant to hand over the peaceful and vacant possession of the suit premises without any obstruction or resistance to the land lady on 31/12/1990. 12.1. The learned appellate judge also rejected the contention of the tenant that they have paid rent to one Ajitbhai on the ground that the Ajitbhai was not examined to prove that he has collected the rent. The learned appellate judge held that in this case originally the monthly rent was Rs.15.50 in 1993 and if Rs.2/- is increased by way of tax, then the rent becomes Rs.17.50 p.m. and the same was reasonable rent and not excessive before 1/9/1940. The appellate Judge has further held that as per Sec.7 of the Rent Act, 7.1/2% increase in the rent was permissible under the Rent Act, as the property rented before 1/9/1940, and thereafter, it is an admitted fact that the tax is increased for number of times, and therefore, increase of Rs.2/- in the rent can be considered in this behalf. In view of Sec. 106 of the T.P. Act, it was held that the house is let for residential purpose and therefore, the tenancy can be said to be monthly tenancy, even though the rent is payable early. 12.2 The learned appellate judge has further held that the terms of tenancy, unregistered document under Sec.107(3) of the T.P. Act if any violation of the said Act, the agreement is made then also the terms can be looked into, but however, in view of the judgement of the Supreme Court in the Case of Dhanpal, the notice is legal and valid. The learned Appellate judge has further held that in this case, Rs.2 increased in the rent because the house tax and other municipal taxes are increased from time to time and that increase of Rs.2/in the rent is not excessive, but the same is reasonable, and therefore, the agreed rent of Rs.17.50 becomes standard rent and is not excessive rent and the dispute of standard rent is not a bona fide dispute and therefore, the tenant will not get the benefit of raising the dispute of standard rent. The learned appellate judge further held that in this case the rent was due at the time of notice since 1/1/1972 to 1979. The tenant had deposited the rent in the Court on 6/12/1980 only Rs.561/- for 3 years' rent, while outstanding rent since 1972 for 10 years and 6 months has not paid. The tenant has not paid all the arrears of rent. The appellate court also held that the rent was due for 10 year and 6 months which comes to Rs.1870/-, while the tenant had deposited only Rs.1042/- upto 24/11/1982. The court did not accept the contention of the tenant that he has paid the rent to Promodbhai or in the alternatively to Ajitbhai. The court held that the Promodbhai died in 1972, whereas the tenant has not examined the Ajitbhai and therefore, the appellate court did not believe the contention of the tenant that he has paid the rent in this behalf. The appellate court held that it is crystal clear that the tenant has not deposited the time barred rent and therefore, the tenant was in arrears of rent for more than 6 months. 12.3 The learned appellate judge has further held that the tenant is in arrears of rent which is clearly established by evidence, and the dispute of standard rent is not bona fide dispute. So, the Court has held that the case will fall under Sec.12(3)(b) and not under Sec.12(3)(a), on the ground that the rent is not payable by every month and the house tax and other taxes have been paid by the tenant. The appellate court has further held that the notice is served. The tenant was in arrears of rent for more than 6 months and on the fist day of hearing, he has not paid all the due towards the rent including the time barred rent. Under the circumstances, the Court held that the tenant has not complied with the direction given to him, to get the benefit of Sec.12(3)(b), and therefore, no protection under the Act is provided to the defaulter tenant and ultimately, therefore, the decree passed by the learned Single Judge and which is confirmed by the Appellate Court on the ground of arrears of rent under Sec.12(3)(b) is legal and correct. 13. Being aggrieved by and dissatisfied with the aforesaid judgement and decree of the learned Appellate Judge, the petitioner has filed the present Civil Revision Application before this Court on 9/1/1991. 14. Before considering rival contentions of the parties, the relevant Sections i.e. Section 12(1), Sections 12(3)(a) and 12(3)(b) of the Rent Act, are required to be noted to consider the controversy between the parties, which reads as under; Sec.12(1) : A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in far as they are consistent with the provisions of this Act." Sec.12(3)(a); Where the rent is payable by the month and there is no dispute regarding the amount of st.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 may pass a decree for eviction in any such suit for recovery of possession. Sec.12)3)(b); In any other case, no defence for eviction shall be passed in any such suit, if, 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 st.rent and permitted increase then due." 15. Shri A.J.Patel, the learned counsel for the petitioner has raised the following contentions: 15.1 He stated that the Courts below committed an error in passing a decree under section 12(3)(b) of the Rent Act, inasmuch as the petitioners had already raised a dispute about standard rent of the suit premises even in the notice reply; and unless such a dispute was resolved the decree under section 12(3)(b) could not have been passed. 15.2 Learned counsel for the petitioner further submitted that the Courts below committed an error in not appreciating that the dispute about the standard rent was resolved only with the final disposal of the suit; and, therefore, section 12(3)(b) of the Rent Act would have no application to the facts of the present case. 15.3 In support of the aforesaid contention, the learned counsel for the petitioner -defendant has relied upon the judgement in the case of Gangaben Poonjabhai Amin Vs. Narayan Sonia and ors., reported in 15 GLR page 310. In para 20 of the said judgement, the learned Judge has held as under ; "20. It follows from the the above discussion that this is not a case which is governed by clause (a) of Sec.12(3) of the Rent Act. But this does not solve the matter because it was contended on behalf of the petitioner that the tenant would still liable to eviction inasmuch as he has not fulfilled the conditions of clause (b) of Sec.12(3) of the Act because, it is an admitted position that on the first day of hearing he has not paid up the whole amount of the rent in arrears of which was found due on that date. As already stated above, rent deposited by tenant on the first day of the hearing was short by Rs.119/-. Therefore, prima facie it cannot be disputed that the tenant has not deposited the rent in arrears on the first day of the hearing of the suit, though he has deposited the whole amount of rent in arrears on subsequent dates. Therefore, the question is that what is the effect of this position? While considering this question, it should be remembered that in his written statement the tenant had raised a question as regards the standard rent, and had requested the court to fix the same. However, the court did not fix any interim standard rent and even after the tenant moved the Court by his application Ex. 25 the Court, at the request of the other side decided to dispose of the question of standard rent at the time of disposing the suit itself. The question which therefore arises to be determined is the legal effect of the want of court's order as regards interim standard rent so far as clause (b) of Sec. 12(3) of the Rent Act is concerned. The answer of this question is supplied by two decisions of this Court. One given by a Single Judge in Harnamsing Lalsing Vs. Gangaram, (1968) 9 GLR and another a Division bench in Nanji Pancha Vs. Daulal (1970) 11 GLR 285. In both these decisions it is held that where there is a dispute about the standard rent, the tenant would not be in a position to pay or tender the standard rent, on the first date of hearing, and fixing another date by the Court for payment or tender would be ineffectual until the standard rent is fixed. It is further observed that in absence of the Court acting suo-motu to regularise payments or for fixing some other date for payment, the tenant would never be able to claim protection under Sec. 12(3)(b) as the first date of hearing had already gone and the subsequent payments could only be made under the order of the Court. According to both these decisions law impose a fetter on the power of the Court to pass a decree for eviction without considering whether the tenant was protected under Sec. 12(3)(b). It has further taken the view that when the benefit of Sec. 12(3)(b) could be only availed of if the Court fixes the amount of standard rent, it becomes the mandatory duty of the Court to exercise the above said power of suo-motu so that the benefit of Sec. 12(3)(b) is not rendered illusory. According to these decisions even at the state of appeal or revision the court would have suo-motu to exercise power to give time to the tenant to pay up the dues before passing any decree for eviction. It is thus obvious that both these decisions of the Court cast a duty on the Court to fix the amount of standard rent in cases where the dispute of standard rent is raised by the tenant and that unless this duty is performed by the Court the tenant cannot be held liable for eviction on the ground that he has not complied with the provisions contained in clause (b) of Sec. 12(3) of the Rent Act. Since in the instant case the Court has failed to perform its duty in fixing the standard rent suo-motu even though the tenant had raised a dispute as regards the standard rent, it cannot be said that the tenant has lost the protection given by clause (b) of Sec. 12(3)." 15.4 The learned counsel has relied upon the judgment of this Court in the case of Rupaben wd/o Kaththu Dhanji & Anr. Vs. Babubhai Deojibhai reported in 1983(1) GLR 263. In para 4 the Hon'ble Court has observed as under: "Mr.A.L.Shah, the learned Advocate for the petitioners-tenants urged only one point before me namely, the tenants were not in a position to know exactly at what rate they were required to pay up the arrears and hence, as they were not specifically informed by a judicial decision of the rate of deposit, any short-fall at some stage cannot go to their detriment and they cannot be said to have forfeited the benign benefit of sec.13(3)(b) of the Bombay Rent Act.There are two judgments of this Court, one delivered by Mr Brother Majmudar,J. in the case of Champaben v.Gopinath Gangadhar, XXI GLR page 709 and one unreported judgment of mine in the case of Naranbhai Nathabhai Koli v Modhia Panalal Maganlal in the Civil Revision Application No.1635/80 decided by me on 9th April, 1982. In the case decided by me the case was falling under sec.12(3)(b) of the Bombay Rent Act and for the technical purpose of sec.12(3)(a) it could be said that there was no dispute about standard rent in so far as a having been not raised within one month from the date of