1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 954 OF 2008 IN WRIT PETITION NO.4713 OF 1989 Kooverji Tejshi Shah alias Dedhia ..... Applicant. (Original Respondent) Versus Khurbhur Ramsundar Dhobi, (since deceased) 1[a] Ramkishor Khurbhur Kanojia and Ors. ..... Respondents. (Original Petitioners) ----- Mr. K.P. Tiwari i/b M/s K.P. Tiwari & Co. for the applicant. Mr. Sandesh Patil i/b Shri Dinesh R. Shah for the respondent. ------ CORAM: V.M. KANADE, J. DATE : 21ST OCTOBER, 2008 ORAL ORDER: 1. Heard the learned Counsel appearing on behalf of the applicant and the learned Counsel appearing on behalf of the respondents. 2. Applicant is the original respondent in Writ Petition No.4713 of 1989. This Civil Application is filed by the applicant for setting aside 2 the order dated 18/01/2008 passed by this Court, allowing Writ Petition filed by the original petitioner in terms of prayer clause (b) of the Writ Petition. In the application, it is mentioned that the advocate on record did not notice the matter which was on daily board on 18/01/2008 and, therefore, he could not remain present on 18/01/2008 when the matter was called out. It is stated that the impugned order was passed without hearing the Counsel for the respondent and, therefore, the said impugned order should be set aside. 3. For the sake of convenience the parties shall be hereinafter referred to as the “landlord” and “tenant”. 4. Since the landlord's Counsel was not heard when the impugned order was passed on 18/01/2008, I have heard him at length. He has firstly submitted that, both, the Trial Court and the Lower Appellate Court, were justified in passing the decree in favour of the landlord since the tenant had not deposited the standard rent. The tenant had not deposited the amount of interim rent fixed by the Trial Court in the standard rent application which was taken out by the tenant. He submitted that the tenant, not having paid the rent as directed by the Rent Court, his application for fixation of standard rent was dismissed on 07/02/1972 and that his further application for setting aside the said 3 order was also dismissed by the Trial Court. He submitted that, therefore, the protection which was available to the tenant as laid down under section 12(2) of the old Rent Act no longer was in existence and, therefore, the landlord was justified in filing a suit on the basis of the demand notice which she sent on 09/03/1968. He submitted that this fact was also acknowledged by the learned Counsel appearing on behalf of the tenant. He invited my attention to the observations made by the Lower Appellate Court wherein the Court has recorded the submission of the Counsel appearing on behalf of the tenant that no application for standard rent was filed by the tenant after the statutory notice was issued. He submitted that there was no limitation prescribed for filing a suit after the notice was served on the tenant under section 12(2) of the Rent Act and, therefore, the landlord was justified in filing the suit for eviction on 10/05/1972. In support of the said submission, he also relied upon the judgment of the Apex Court in the case of Chase Bright Steel Limited vs. Shantaram Shankar Sawant and another, reported in AIR 1994 SC 2114. He also relied on the judgment of this Court in the case of Mohanlal Chuniwal Lotwala & Ors vs Kesharimal Motilal Jain & Ors reported in 1996(3) ALL MR 608. He also relied upon the judgment of the Apex Court in the case of Raju Kakara Shetty vs. Ramesh Prataprao Shirole and anr reported in 1999(1) Rent Control Reporter 4 218 He also relied upon the judgment of the learned Single Judge of this Court in the case of Virji Raisey vs. Anand Issardas Motiani reported in 1987 Mah. R. C. J. 36 and the learned single Judge of the Gujarat High Court in the case of Udeymal Nathumal and another vs. Premchand Trikamdas Baswani reported in 1980 Bom. R.C. 144. 5. The learned Counsel appearing on behalf of tenant, on the other hand, relied upon the judgment of the Supreme Court in the case of Harbanslal v. Prabhuas reported in AIR 1976 SC 2005 and the judgment of the learned Single Judge of this Court in the case of Rahanbai Shaikh Farid & anr vs. Laxman Piraji Kumbhar reported in 1997 II LJ 455 6. After having heard the learned Counsel appearing on behalf of the landlord and tenant at length, I am of the view that no ground is made out for reviewing the order passed by this Court on 18/01/2008. In the said order, however, there is a typographical error and in para 5 it is stated as under:- “5..........In any event case of the Petitioners would fall U/s 13(1)(b).......” 5 The correct section is section 12(3)(b) instead of 13(1)(b). The order dated 18/01/2008 is accordingly modified and, in the aforesaid paragraph No.5, in place of “13(1)(b)” section “12(3)(b)” is substituted. 7. Since I have heard the learned Counsel appearing on behalf of the landlord at length, it would be necessary, however, to deal with his arguments. Before dealing with his arguments, it would be necessary to see the chronology of events. The demand notice under section 12 (2) was sent by the landlord to the tenant on 09/03/1968 and, in the demand notice, it is mentioned that the tenancy of the tenant was terminated on the ground of arrears of rent from 01/01/1967 to 29/02/1968 and the amount towards the arrears of rent was Rs 630/- and the amount towards the arrears of municipal taxes was Rs 170/-. The demand notice, admittedly, was received by the tenant on 13/03/1968. He gave reply to the demand notice on 05/04/1968 through his advocate and denied the arrears of rent and further claimed that the rent demanded by the landlord was exorbitant. Thereafter on 8/4/1968 i.e within one month from the receipt of the demand notice, he filed Rent Application bearing No.RAN 376/SR/1968 in the Court of Small Causes for fixation of standard rent of the suit premises within thirty days of the receipt of the termination 6 notice. The landlord filed his reply to the said application. On 24/07/1968, the Trial Court passed an interim order directing the tenant to deposit arrears of rent at the interim rate of Rs 30/- and further directed the tenant to continue to deposit rent @ Rs 30/- per month in the court. On account of the default on the part of the tenant to deposit the standard rent, application was filed by the landlord for dismissal of the standard rent application. The tenant appeared in the Court and took leave of the Court to deposit all the arrears and, accordingly, on 18/09/1969, the tenant deposited Rs 960/- in the court. In June, 1970, the tenant deposited Rs 150/- in the Court. This amount was withdrawn by the landlord. His application, however, was dismissed by the Trial Court on 07/02/1972 since the tenant failed to comply with the order dated 24/07/1968. His application for restoration was also dismissed by the Trial Court on 12/04/1972. The landlord, thereafter, filed a suit for eviction on the basis of the original demand notice which was sent by him on 09/03/1968. The tenant again filed another application for fixation of the standard rent. However, this application was also dismissed by the Trial Court on 05/08/1975. The eviction suit filed by the landlord was decreed on 15/02/1984 and by the appellate Court on 13/10/1989. 8. The learned Counsel appearing on behalf of the landlord has 7 urged that there was no necessity of giving separate demand notice to the tenant since his application for standard rent was dismissed on account of non-compliance of the order of the Trial Court. He submitted that, therefore, protection which was available to the tenant under section 12(1) was no longer available on account of dismissal of the standard rent application. He submitted that the facts in the case of Rahanabai Shaikh Farid & anr (supra) were different and, in that case, no order was passed on the application which was filed by the tenant for fixing the standard rent and, under these circumstances, the learned judge has made the observations in para 7 of the judgment. He further submitted that the observations made by the Apex Court in Harbanslal's case (supra) is of no assistance to the tenant in view of the subsequent judgment of the Apex Court in the case of Chase Bright Steel Limited vs. Shantaram Shankar Sawant and another, reported in AIR 1994 SC 2114. 9. It is not possible to accept the submissions made by the learned Counsel appearing for the landlord. I have already observed that the statutory demand notice which was issued by the landlord on 09/03/1968 for non-payment of the amount of Rs 630/- which was payable towards the arrears of rent from 1/1/1967 to 29/2/1968 as also the amount towards municipal taxes of Rs 170/-, stood 8 discharged on the tenant depositing Rs 960/- and Rs 150/- in the Court on 18/09/1969 and June 1970 in the application which was filed by the tenant for fixation of the standard rent. It is true that the said application for fixation of standard rent was dismissed on account of failure on the part of the tenant to deposit the further amount of Rs 30/- per month as directed by the Trial Court on 24/7/1968. However, the moment the standard rent application was filed by the tenant within one month from the receipt of the demand notice from the landlord, the cause of action for the purpose of filing a suit on the ground of arrears of rent disappeared which is evident from the wording of section itself. Section 12 of the said Act reads as Under:- “12. No ejectment ordinarily to be made if tenant pays or is ready and willing to pay standard rent and permitted increases. (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 the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act. (2) No suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration 9 of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the Transfer of Property Act, 1882 (VI of 1882) [(3)(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 may pass a decree for eviction in any such suit for recovery of possession. (b) In any other case, no decree for eviction shall be passed in any such suit, if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due (and thereafter, 1 (i) continues to pay or tender in Court such rent and permitted increases till the suit is finally decided; and (ii) also pays costs of the suit as directed by the Court.] [(4) Pending the disposal of any such suit, the Court may out of any amount paid or tendered by the tenant pay to the landlord such amount towards payment of rent or permitted increases due to him as the Court thinks fit.] Explanation:- In any case where there is 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 notice 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 10 permitted increases specified in the order made by the Court.” Perusal of the aforesaid section clearly indicates that though the landlord has a right to demand eviction of the tenant on account of arrears of rent, protection is given to the tenant and it is provided that the suit for recovery of possession cannot be instituted by the landlord as long as notice in writing is served on the tenant. Therefore, the moment dispute is raised in respect of the standard rent which is payable to the landlord, the cause of action which would accrue on such notice of demand being served on tenant, disappears. In the present case, therefore, after the demand notice was served and after the standard rent dispute was raised and the standard rent as demanded for the said period having been deposited in court by the tenant, the cause of action came to an end. It has to be noted that the said provision has been made in order to ensure that the landlord does not take undue advantage of the said provision and make a show of service of demand notice either by falsely showing that the tenant is in arrears of rent or falsely claiming to be in arrears of rent as stated by him in the demand notice. There was a conflict between the decisions given by the learned Single Judges of this Court regarding interpretation of section 12(1) and 12(2) of the said Act and the matter was, thereafter, referred to the Division Bench and the Division Bench 11 has now taken a decision by its judgment dated 12th September, 2007 delivered in Writ Petition No.935 of 1994 and Writ Petition No. 2682 of 1991 on the Appellate Side, stating therein that if the amount demanded in the notice is already remitted by money order, the cause of action would not accrue in favour of the landlord. Though the facts of the case in the said judgment are different, the Division Bench has considered and interpreted section 12 of the Rent Act and has observed in para 15 of its judgment as under:- “15. In view of the clear explanation of Section 12, if the tenant raises a dispute with regard to the standard rent and permitted increases, he has to approach the Court within a period of one month from the notice of termination and make deposit within a period of one month in the Court. On the contrary, if there is no dispute, the tenant must show his readiness and willingness to pay rent and permitted increases and must keep regularly tendering the same, even by money order and no landlord can take advantage, neither by refusing to accept the same nor say that the tenant had not paid the rent or tendered the rent. This fact has been rightly pointed out by the Hon'ble Supreme Court in the case of Priya Ghosh and Ors. Vs. Bajranglal Singhania and Anr and it is held that the landlord will be easily able to trap the tenant by refusing to accept and turn round and to file a suit against the tenant. That is why the Hon'ble Supreme Court has clearly observed that the law has to be construed in a fair manner and it is not intended 12 to trap the tenant into a situation so that the landlord can evict the tenant.” 10. In my view, therefore, after the tenant had continued to be in arrears, it was incumbent on the landlord to have issued a fresh demand notice for the subsequent period for which the tenant was in arrears of rent and that the landlord having not done so, no cause of action had accrued in his favour for filing the suit for eviction in view of the embargo laid down in section 12(1) of the said Act. In my view, therefore, the ratio of the judgment on which the reliance was placed by the learned Counsel appearing for the landlord would not apply to the facts of the present case. In the case of Chase Bright Steel Limited (supra), the tenant was paying only standard rent per month and depositing in Court also only standard rent but not the permitted increases during the pendency of the suit and, therefore, the issue before the Court was : whether the tenant was relieved of the obligation of depositing rent in court? It was held that he was not relieved of the obligation under section 12(3)(b) and the landlord, in such circumstances, was entitled for decree. In para 20 of the said Judgment the Supreme Court has observed that the standard rent was fixed at Rs 358/- per month and the permitted increases were fixed at Rs 56 per month. Though the appellant continued to pay Rs 358 per month as standard rent, he did not pay the permitted 13 increases. So under such circumstances, the Apex Court held that the tenant was under an obligation to deposit the permitted increases not only during the pendency of standard rent application but even during the pendency of suit for eviction. In this case, however, as noticed earlier, the cause of action itself did not accrue in favour of the landlord after filing of the standard rent application and after the said arrears, as demanded in the demand notice, were paid by the tenant. Therefore, it is not possible to accept the submissions made by the learned Counsel appearing on behalf of the landlord. 11. Civil Application for review of the order dated 18/01/2008 is dismissed. The order dated 18/01/2008 passed in Writ Petition No.4713 of 2008 is confirmed. (V. M. KANADE, J.)