1. The present Civil Revision Application under Section 29(2) of the Bombay Rent Act has been preferred by the applicants (now heirs and legal representatives of the original applicant- original defendant) to quash and set aside the impugned judgment and order/decree passed by the learned appellate Court-learned 3rd Extra Assistant Judge, Kheda at Nadiad dated 14/07/1998 in Regular Civil Appeal No. 68/1992 by which the learned appellate Court has allowed the appeal preferred by the respondents-original plaintiffs by quashing and setting aside the judgment and decree passed by the learned trial Court-learned Joint Civil Judge (Junior Division), Anand dated 16/09/1991 in Regular Civil Suit No. 334/1982 dismissing the suit and consequently decreed the suit and passed the eviction decree against the original defendant-tenant under Section 12(3)(b) of the Bombay Rent Act.
2. The respondents-original plaintiffs instituted Regular Civil Suit No. 334/1982 against the original defendant-tenant for recovery of possession/eviction decree on the ground of arrears of rent submitting that despite service of statutory notice under Section 12(2) of the Bombay Rent Act demanding rent for the period between 01/08/1980 to 30/06/1982 at the rate of Rs. 150/- per month the original defendant-tenant neither deposited the arrears of rent nor replied to the statutory notice nor did he raise any dispute with respect to standard rent to be paid within a period of one month from the date of receipt of the statutory notice and, therefore, it was submitted that as the original defendant-tenant is a tenant in arrears of rent it was requested to pass the eviction decree on the ground of arrears of rent.
3. The suit was resisted by the original defendant-tenant by filing the written statement submitting that he is not in arrears of rent. It was submitted that in the statutory notice under Section 12(2) of the Bombay Rent Act the respondents-original plaintiffs-landlord claimed the municipal tax also and, therefore, it was submitted that the case would not fall under Section 12(3)(a) of the Bombay Rent Act. In the written statement, for the first time, the original defendant-tenant raised the dispute with respect to standard rent. The learned trial Court framed the issues at Exh. 12. Both the sides led the evidence, oral as well as documentary. As the respondents- original plaintiffs-landlord demanded municipal tax also in the statutory notice under Section 12(2) of the Bombay Rent Act over and above the arrears of rent at the rate of Rs. 150/- per month, the learned trial Court held that the case would not fall under Section 12(3)(a) of the Bombay Rent Act. Considering the fact that the original defendant-tenant raised the dispute with respect to standard rent in the written statement and deposited the rent due and payable during pendency of the suit, the learned trial Court held that the respondents-original plaintiffs are not entitled to the decree under Section 12(3)(b) of the Bombay Rent Act and consequently by judgment and decree dated 16/09/1991 dismissed the suit and refused to pass the eviction decree. Being aggrieved and dissatisfied with the impugned judgment and decree passed by the learned trial Court dated 16/09/1991 in Regular Civil Suit No. 334/1982 the the heirs and legal representatives of the original plaintiff (as the original plaintiff-landlord died during pendency of the suit) preferred Regular Civil Appeal No. 68/1992 before the learned appellate Court and the learned appellate Court-learned 3rd Extra Assistant Judge, Kheda at Nadiad dated 14/07/1998 allowed the said appeal by quashing and setting aside the judgment and decree passed by the learned trial Court by which the learned trial Court dismissed the suit and consequently allowed the suit and passed the eviction decree on the ground of arrears of rent, more particularly, under Section 12(3)(b) of the Bombay Rent Act by observing that as the dispute with respect to the standard rent was not raised within a period of one month from the date of receipt of the statutory notice and the dispute was raised for the first time in the written statement and no separate application to determine the standard rent as required under Section 11 of the Bombay Rent has been filed on the ground that the defendant-tenant has not deposited the contractual rent, the eviction decree was passed. Being aggrieved and dissatisfied with the impugned judgment and order/decree passed by the learned appellate Court in passing the eviction decree against the original defendant-tenant, the original defendant-tenant has preferred the present Civil Revision Application under Section 29(2) of the Bombay Rent Act. As during pendency of the present Civil Revision Application, the original defendant- tenant has expired the heirs and legal representatives of the original defendant-tenant are brought on record and they are prosecuting the present Civil Revision Application.
4. Shri H.M. Parikh, learned advocate appearing on behalf of the applicants has vehemently submitted that the learned appellate Court has materially erred in passing the eviction decree under Section 12(3)(b) of the Bombay Rent Act. It is submitted that as the dispute with respect to standard rent was raised in the written statement and it was not decided by the learned trial Court till the final decision of the suit the original defendant-tenant was not aware of the standard rent to be deposited and, therefore, the learned trial Court has rightly dismissed the suit, which was not required to be interfered with by the learned appellate Court. It is further submitted that the learned appellate Court has materially erred in observing that the original defendant-tenant was required to raise the dispute with respect to standard rent by filing separate application and if the dispute with respect to standard rent is not raised by filing separate application under Section 11 of the Bombay Rent Act, it cannot be said to raising the dispute with respect to standard rent.
4.1. It is further submitted by Shri Parikh, learned advocate appearing on behalf of the applicants that as during pendency of the suit original defendant-tenant deposited the entire arrears, may be in instalment, the case would fall under Section 12(3)(b) of the Bombay Rent Act and, therefore, the learned appellate Court has materially erred in decreeing the suit and passing the eviction decree by quashing and setting aside the judgment and decree passed by the learned trial Court dismissing the suit. It is further submitted by Shri Parikh, learned advocate appearing on behalf of the applicants that even as per the consensus given by the learned advocate appearing on behalf of the respondents-original plaintiffs as the tax was demanded in the statutory notice, the case would not fall under Section 12(3)(a) of the Bombay Rent Act and, therefore, there is no question of passing the eviction decree under Section 12(3)(a) of the Bombay Rent Act. Making the above submission, it is requested to allow the present Civil Revision Application.
5. The present Civil Revision Application is opposed by Shri Pradeep Patel, learned advocate appearing on behalf of the respondents-original plaintiffs-landlord. It is submitted that as such the case would fall under Section 12(3)(a) of the Bombay Rent Act. It is submitted that admittedly the original defendant-tenant was served with the statutory notice under Section 12(2) of the Bombay Rent Act demanding arrears of rent for the period between 01/08/1980 to 30/06/1982 at the rate of Rs. 150/- per month over and above the municipal tax and the despite the service of the statutory notice, the original defendant-tenant did not reply to the said statutory notice and even did not deposit the entire arrears of rent within a period of one month and did not raise any dispute with respect to the standard rent and, therefore, when all the things mentioned in Section 12(3)(a) of the Bombay Rent act are satisfied, the case would fall under Section 12(3)(a) of the Bombay Rent Act. It is submitted that at the relevant time, the learned advocate appearing on behalf of the respondents-original plaintiffs might have given concession under mistaken belief, however in view of the unreported decision of this Court in Civil Revision Application Nos. 70 and 71 of 2008 dated 27/04/2010 if the landlord had demanded the arrears of rent it would be over and above the municipal tax and if all other conditions mentioned in the Bombay Rent Act are satisfied the case would fall under Section 12(3)(a) of the Bombay Rent Act and the Court has no other alternative but to pass the eviction decree under Section 12(3)(a) of the Bombay Rent Act and, therefore, it is requested to confirm the judgment and decree passed by the learned appellate Court i.e. under Section 12(3)(a) of the Bombay Rent Act.
5.1. Now so far as raising the dispute of standard rent by the original defendant-tenant for the first time in the written statement is concerned, Shri Patel, learned advocate appearing on behalf of the respondents-original landlord has relied upon another decision of this Court in the case of Ravjibhai Gigabhai Vs. Virjibhai Ravjibhai & Ors rendered in 2009 (1) GLR 407. It is submitted that as held by this Court in the aforesaid decision the dispute of standard rent if not raised by an application under Section 11 or in reply to the notice under Section 12(2) of the Bombay Rent Act and is raised for the first time in the written statement, it cannot be said to be a dispute of standard rent as contemplated under Section 12(3)(a) and/or 12(3)(b) of the Bombay Rent Act. Making the above submissions and relying upon the above decision, it is requested to dismiss the present Civil Revision Application.
6. Heard the learned advocates appearing on behalf of the respective parties at length and considered the impugned judgment and orders passed by both the Courts below as well as the evidence from the Record and Proceedings received from the learned trial Court. At the outset, it is required to be noted that the original defendant-tenant was in arrears of rent for the period between 01/08/1980 to 30/06/1982 and by statutory notice under Section 12(2) of the Bombay Rent Act (Exh. 26) the original defendant-tenant was called upon to pay the arrears of rent at the rate of Rs. 150/- per month over and above the original defendant was also called upon to pay the municipal tax also. It is an admitted position that with respect to the dispute of service of statutory notice under Section 12(2) of the Bombay Rent Act, the original defendant-tenant neither replied to the statutory notice nor deposited/paid the rent demanded in the statutory notice within a period of one month from the date of receipt of the notice nor even raised any dispute with respect to standard rent. Under the circumstances, as such and even considering the unreported decision of this Court in Civil Revision Application Nos. 70 and 71/2008 in which this Court has relied upon the decision of the Hon'ble Supreme Court in the case of Hotel Kings and Ors. Vs. Sara Farhan Lukmani and Ors reported in (2007) 1 SCC 202 the case would fall under Section 12(3)(a) of the Bombay Rent Act. However, it appears that the learned trial Court did not pass the eviction decree under Section 12(3)(a) of the Bombay Rent Act and held that the case would not fall under Section 12(3)(a) of the Bombay Rent Act as over and above the rent the original defendant-tenant was called upon to pay the municipal tax also. Even the learned advocate appearing on behalf of the respondents-original plaintiffs also at the relevant time conceded before the learned appellate Court that in view of the demand of the municipal tax, Section 12(3)(a) would not be applicable. However, such a concession given by the learned advocate appearing on behalf of the respondents-original plaintiffs was on mistaken belief. In the case of Rabiyabibi Widow of Mhoammedbhai Umarbhai Pathan rendered in Civil Revision Application Nos. 70 & 71/2008 dated 27/04/2010 this Court had an occasion to consider the controversy/issue whether in a case where the landlord demanded the arrears of rent alongwith the municipal tax, which was payable separately whether the case would fall under Section 12(3)(a) of the Bombay Rent Act or not. Considering the decision of the Hon'ble Supreme Court in the case of Hotel Kings and Ors. (Supra) this Court has held that if the liability to pay the rent (municipal tax) is excluding the municipal tax the case would fall under Section 12(3)(a) of the Bombay Rent Act. In the said decision, this Court considered the decision of the Hon'ble Supreme Court in paragraph 38, which is observed and held as under;
“38. Consequently, even though the lease deed contained a provision for payment of the rates and taxes exclusively by the lessee and it is also stipulated that the lessor will have no liability therefor, the lease will still be governed under Section 12(3)(a) of the Bombay Rent Act as held by Appellate Bench of the Small Cause Court at Bombay and affirmed by the High Court. The expression “consideration” indicated in Section 105 of Transfer of Property Act has been used in a generic sense to include the price paid or promised or money, a share of crops, service or any other thing of value. On the other hand, the lease deed specifies the mount to be paid as rent each month while the rates and taxes and other outgoings are treated to be the separate liability of the lessee, no doubt having regard to the intention of the parties that a building was to be erected by the lessee on the demised land.”
6.1. Therefore, when the rent is found to be payable monthly and over and above that the the original defendant-tenant is liable to pay the rates/tax still the case would be governed under Section 12(3)(a) of the Bombay Rent Act. Considering the aforesaid facts and circumstances of the case when all the conditions of Section 12(3)(a) of the Bombay Rent Act are satisfied, in that case, the Court has no other alternative but to pass the eviction decree under Section 12(3)(a) of the Bombay Rent Act. Under the circumstances, the impugned judgment and order/decree passed by the learned appellate Court is required to be confirmed on other ground i.e. under Section 12(3)(a) of the Bombay Rent act and not under Section 12(3) (b) of the Bombay Rent Act, as observed and held by the learned appellate Court.
7. In view of the above and for the reasons stated hereinabove, the present Civil Revision Application deserves to be dismissed and is accordingly dismissed. Rule is discharged. Ad-interim relief granted earlier, if any, stands vacated forthwith. At this stage, Shri Parikh, learned advocate appearing on behalf of the applicants has requested to continue the interim relief granted earlier for a period of three months so as to enable the applicants to approach the higher forum if they so choose. In the facts and circumstances of the case, interim relief granted earlier is directed to be continued up to 15/11/2012 on condition that the applicants shall not transfer and/or alienate the suit premises in the meantime and shall clear the arrears of rent, if any, due and payable and continue to pay the same as and when due and payable.
(M.R. SHAH, J.) siji