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PETITIONER: JESHWANTRAI MULUKCHAND

       Vs.

RESPONDENT: ANANDILAL BAPALAL

DATE OF JUDGMENT: 07/12/1964

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. SHAH, J.C. BACHAWAT, R.S.

CITATION:  1965 AIR 1419            1965 SCR  (2) 350  CITATOR INFO :  R          1966 SC 439  (3)  RF         1974 SC 471  (7)

ACT: Bombay  Rents,  Hotel and Lodging House Rates  Control  Act, 1947, cls. (a) & (b) of s. 12(3)-Application-Standard  rent, fixation.

HEADNOTE: The  appellant-tenant  filed  a suit  for  the  fixation  of standard  rent and during its pendency paid the  provisional standard rent fixed by the Court of Small Causes.  After the final  order fixing the standard rent of Rs.  125/per  month passed  on  November 9, 1956 both the  tenant  and  landlord filed  revisions in the District Court which were  dismissed after  contest  on  March 25, 1958.   It  appears  that  the landlord  filed a further revision in the High  Court  about which  it is not known from the record when and how  it  was dismissed.   After the order passed on November 9, 1956  the landlord demanded the balance of the rent due to him at  the new rate and sent a registered notice but the tenant did not pay.  Thereupon, the landlord filed the suit, giving rise to the  present  appeal,  contending that  the  tenant  was  in arrears for six months which he had failed to pay within one month  of the notice.  The suit was terminated in favour  of the  tenant on April 28, 1958 because by then the back  rent calculated at the standard rate finally fixed and the  costs of  the  suit were fully paid by the tenant.   The  landlord appealed  to  the Assistant Judge claiming  that  after  the Standard  rent was fixed finally on March 25, 1956 the  case fell to be governed by cl. (a) of s. 12(3) of the Act and as the  tenant  was in arrears for a period of  six  months  he ought  to  have been evicted.  The appeal failed as  it  was held  that the tenant was protected by cl. (b) of s.  12(3). On  revision, the High Court reversed the decision being  of the opinion that cl. (a) of s. 12(3) applied to the facts of the case.  In appeal by special leave : HELD:The appeal must be allowed. Eviction  under  cl.  (a) is made  to  depend  upon  several considerations which must coexist and one such condition  is that  there  should be no dispute about the  standard  rent.

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Clause  (b) comprehends all cases other than  those  falling within cl. (a) and a. case in which there is a dispute about standard rent must obviously fall not in cl. (a) but in  cl. (b). Since  the  dispute  continued  as  both  sides  had   filed revisions, the tenant was protected by cl. (b) of s.  12(3). [353 F-H] Vasumatiben  Gaurishankar  Bhatt v. Naviram Vora,  [1964]  4 S.C.R. 417 distinguished. Vora  Abbasbhai Alimahomed v. Haji Gulamnabi Haji  Safibhai, [1964] 5 S.C.R. 157 referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 539 of 1963. Appeal  by special leave from the judgment and  order  dated October  24, 1961 and January 16, 1962 of the  Gujarat  High Court in Civil Revision Application No. 431 of 1960. 351 S.T.  Desai,  J. B.  Dadachanji, O. C. Mathur  and  Ravinder Narain, for the appellant. Ganpat Rai, for the respondent. The Judgment of the Court was delivered by Hidayatullah,  J.  Jeshwantrai  Mulukchand  who  appeals  by special  leave  against the judgment of the  High  Court  of Gujarat  dated  October  24, 1961, was a tenant  of  a  shop belonging to Anandilal Bapalal respondent.  By the  judgment now  under  appeal the High Court  reversed  the  concurrent decision of the two courts below and ordered eviction of the appellant from the shop on the ground that he was in arrears for a period of six months in the payment of the rent.  By a supplementary  order  dated January 16, 1962  mesne  profits were   also  granted  to  the  landlord  till  delivery   of possession  of the shop.  The High Court has  differed  from the  two courts below in the application of the  third  sub- section  of  s. 12 of the Bombay Rents,  Hotel  and  Lodging House  Rates  Control Act, 1947, by  which  sub-section  the present proceedings were governed.  The High Court held that cl.  (a) of the sub-section applied while the  courts  below applied  cl.  (b).   Before we read the  section  the  facts necessary to understand this difference in the two points of view may be stated. The tenant rented the shop from April 1, 1954 and executed a rent  note for Rs. 1551- p.m. From February 1, 1955  he  did not  pay  the  rent and when the landlord  demanded  it  the tenant  filed a suit for fixation of standard rent.   During the  pendency  of  those proceedings,  the  Court  of  Small Causes,  Ahmedabad  acting under s. II (3) of  the  Act  (to which  reference  is  unnecessary) fixed Rs.  80/-  p.m.  as provisional standard rent and the tenant paid Rs. 1600/-  by instalments for the period for which he was then in arrears. On  November 9, 1956 the court passed a final  order  fixing Rs. 125/- p.m. as the standard rent.  Both sides filed revi- sions against that order in the District Court and they were dismissed after contest on March 25, 1958.  It appears  that the landlord filed a further revision in the High Court  but it  is  not  known  from the record  when  and  how  it  was dismissed.  After the order was passed on November 9,  1956, the landlord demanded Rs. 1385/- as the balance of the  rent due to him at the new rate till the end of January, 1957 and sent  a  registered notice but the tenant did not  pay.   On March  4, 1957 the landlord filed the suit from  which  this appeal arises contending that the tenant was in arrears  for six months and had not paid the arrears within one month  of

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the notice.  This suit terminated in favour of the tenant 352 on  April 28, 1958 because by then the back rent  calculated at Rs. 125 p.m. and the costs of the suit were fully paid by the  tenant.  The landlord appealed to the Assistant  Judge, Ahmedabad  claiming that after the standard rent  was  fixed finally on November 9, 1956 the case fell to be governed  by cl.  (a)  of s. 12(3) of the Act and as the  tenant  was  in arrears  for  a period of six months he ought to  have  been evicted.  The appeal was not accepted.  The Assistant  Judge held that the tenant was protected by cl. (b) of s. 12(3) of the Act.  On revision before the High Court under S. 115  of the Code of Civil Procedure the decision was reversed as  in the  opinion  of the High Court cl. (a) of  the  third  sub- section applied to the facts of the case. Section 12 of the Act, in so far as it is material, may  now be read:               " 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  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)               (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 shall 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 continues to pay or tender  in               Court   regularly  such  rent  and   premitted               increases till the suit is finally decided and               also pays costs of the suit as directed by the               Court. (4)               Explanation  1.. In any case where there is  a               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 353 .lm15 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 1 1 and thereafter pays  or tenders the amount of rent or permitted increases  specified in the order made by the Court. Explanation 2. Mr. S. T. Desai submits on behalf of the appellant that  the High Court, could not act under s. 115 of the Code of  Civil Procedure when no question of jurisdiction was involved  and he  refers  to Vora Abbasbhai Alimahomed v.  Haji  Gulamnabi Haji Safibhai(12).  He argues in the alternative that as the tenant paid the provisional standard rent and discharged all

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arrears  of  standard  rent and costs before  the  suit  was decided  he could not be evicted under cl. (a) of the  third sub-section  and  he,  relies  on  the  same  ruling.    Mr. Ganpatrai  on the side of the landlord submits,  that  after the  decision of the court fixing Rs. 125 p.m.  as  standard rent,  no  dispute  regarding the amount  of  standard  rent remained and as rent was payable by the month and the tenant was in arrears for six months and did not pay the arrears of standard  rent  so fixed within one month of the  notice  to him, the court was bound to pass a decree of eviction  under cl.(a).  This is how the High Court also viewed the  matter. He  relies  upon Vasumatiben Gaurishankar Bhatt  v.  Naviram Mancharam Vora and Others(2). The decision referred to by Mr. Ganpatrai has no application here.  In our opinion, it is unnecessary to decide the first of  Mr.  Desai’s  contentions because  this  appeal  can  be disposed  of on a consideration of the rival contentions  on the second point.  We are concerned with the two clauses (a) and  (b)  of s. 12(3).  Eviction under cl. (a)  is  made  to depend upon several conditions which must coexist and  which find adequate enumeration in our summary of Mr.  Ganpatrai’s argument.   One  such condition is that there should  be  no dispute  regarding the amount of standard rent.  Clause  (b) comprehends  all cases other than those falling  within  cl. (a)  and  a  case  in which there is  a  dispute  about  the standard rent must obviously fall not in cl. (a) but in  cl. (b).   There  was here a dispute about standard  rent.   The tenant  had  already  made an application  for  fixation  of standard rent, paid the arrears of provisional standard rent and  complied  with  the requirements of cl.  (b).   He  was therefore protected. (1,) 11964] 5 S.C.R. 157. (2) [1964] 4 S.C.R. 417 354 The  contention of Mr. Ganpatrai that the dispute  regarding the  standard rent came to an end on November 9,  1956  when the  court fixed Rs. 125 p.m. as the standard rent would  be correct  if  the parties accepted  the  determination.   But neither side did.  Each side questioned the amount by filing a  revision  in  the District  Court.   It  is  particularly strange for the landlord to claim that there was no  dispute subsisting when he himself filed one revision after  another to  get the amount increased.  Since the dispute  continued, the case was not governed by cl. (a) but by cl. (b) and  the High  Court was in error in applying the former  clause  and reversing the decisions based on the latter. The  appeal  will be allowed and the judgment  of  the  High Court  will  be set aside and that of the  Assistant  Judge, Ahmedabad  will be restored.  The respondent will  bear  the costs throughout. Appeal allowed 355