1. The present Civil Revision Application under section 29(2) of the Bombay Rent Act has been preferred by the petitioner herein – original defendant to quash and set aside the impugned judgement and decree dated 31/08/1998 passed by learned Additional Judge, Small Causes Court, Surat in Small Causes Suit No.98 of 1984 as well as the impugned judgement and order dated 31/12/1999 passed by learned Assistant Judge, District Court, Surat in Regular Civil Appeal No.71 of 1998, by which, learned Appellate Court has dismissed the said appeal preferred by the petitioner herein – original defendant confirming the judgement and decree passed by learned Trial Court decreeing the suit and passing eviction decree against the petitioner herein – original defendant-tenant.
2. That the respondents herein - original plaintiffs - landlord instituted Small Causes Suit No.98 of 1984 against the petitioner herein - original defendant – tenant before learned Small Causes Court, Surat for eviction decree/ recovery of possession on the ground of arrears of rent for more than six months. It was the case on behalf of the original plaintiffs that the petitioner herein - original defendant was tenant of the suit premises at the monthly rent of Rs.50/- and standard rent of suit premises was fixed at the rate of Rs.50/- per month. That the original defendant – tenant committed breach of condition of tenancy and did not pay the rent regularly and become tenant in arrears of rent for more than six months from 1982.
It was the case on behalf of the original plaintiffs that though statutory notice as required under section 12(2) of the Bombay Rent Act was issued upon the original defendant, the petitioner herein – original defendant - tenant did not deposit the arrears of rent within a period of one month from the date of receipt of the statutory notice. However, he raised the false dispute of standard rent despite the fact that in earlier proceedings in the year 1976 the standard rent was fixed by the concerned Court at the rate of Rs.50/- per month. Therefore, it was the case on behalf of the original plaintiffs that dispute of standard rent raised by the original defendant is not bonafide. Therefore, it was requested to pass eviction decree under section 12(3)(a) of the Bombay Rent Act.
That the suit was resisted by original defendant – tenant by filing written statement and by submitting that he was always ready and willing to pay rent. It was the case on behalf of the original defendant – tenant that he replied to the statutory notice within a period of one month and also raised dispute with respect to standard rent. Learned Trial Court framed issues at Exh.15 and on appreciation of evidence learned Trial Court held that as standard rent dispute is already decided in the year 1976 deciding standard rent at the rate of Rs.50/- per month, dispute raised by the original defendant in reply to the statutory notice, cannot be said to be bonafide and, therefore, learned Trial Court passed eviction decree under section 12(3)(a) of the Bombay Rent Act.
3. Being aggrieved by and dissatisfied with the judgement and decree passed by learned Small Causes Court, Surat in Small Causes Suit No.98 of 1984 in decreeing the suit, the petitioner herein – original defendant preferred Regular Civil Appeal No.71 of 1998 before learned Assistant Judge, District Court, Surat and learned Assistant Judge, District Court, Surat by impugned judgement and order dated 31/12/1999 dismissed the said appeal confirming the judgement and decree passed by learned Trial Court.
Being aggrieved by and dissatisfied with the judgement and orders passed by both the Courts below in passing eviction decree against the petitioner herein – original defendant for arrears of rent for more than six months under section 12(3)(a) of the Bombay Rent Act, the petitioner herein – original defendant has preferred the present Civil Revision Application u/s.29(2) of the Bombay Rent Act.
4. Mr.Utpal Panchal, learned advocate appearing on behalf of the petitioner herein – original defendant has vehemently submitted that learned Trial Court has materially erred in passing eviction decree against the petitioner herein- original defendant under section 12(3)(a) of the Bombay Rent Act. It is submitted by Mr.Utpal Panchal, learned advocate appearing on behalf of the petitioner herein – original defendant that learned Trial Court has materially erred in holding that the standard rent dispute raised by the original defendant - tenant in reply to the statutory notice was not bonafide. It is submitted that learned Trial Court has materially erred in holding that as the standard rent decided in earlier proceedings in the year 1976 was by consent and, therefore, at the time when statutory notice was served upon the petitioner herein – original defendant, it was not open for the original defendant- tenant to raise standard rent dispute.
Mr.Utpal Panchal, learned advocate appearing on behalf of the petitioner herein – tenant has submitted that as earlier standard rent was decided by the Civil Court by consent and there was no adjudication by the Court, it was open for the tenant to raise the dispute with respect to standard rent when he was served with the statutory notice under section 12(2) of the Bombay Rent Act and there was demand of arrears of rent by the landlord. In support of his above submissions, Mr.Utpal Panchal, learned advocate appearing on behalf of the petitioner herein – original defendant – tenant has heavily relied upon decision of the Hon'ble Supreme Court in the case of Devkaran Nenshi Tanna (Dead) by LRS. V/s. Manharlal Nenshi and another reported in (1994)5 SCC 681. It is submitted that in the aforesaid decision, it is held by Hon'ble Supreme Court that tenant can make application for determination of standard rent when demand notice issued by the landlord and there is no need for a pre-existing dispute subsisting before invoking jurisdiction of the Court under section 11(1)(e) of the Bombay Rent Act i.e. submitting application for determination of standard rent. It is further submitted that it is also held by Hon'ble Supreme Court in the aforesaid decision that filing of such application for determination of standard rent itself is a dispute. It is further submitted that in the aforesaid decision it is further observed by Hon'ble Supreme Court that in a case where adjudication of standard rent earlier was merely passed on a compromise between the parties and the court did not apply its mind to the factum whether the terms agreed by the parties are just and reasonable and whether it would be the standard rent consistent with the provision of the statute, the tenant is not precluded from making an application when the notice was issued by the landlord demanding payment of arrears of the standard rent. Therefore, it is submitted that both the Courts below have materially erred in passing eviction decree under section 12(3)(a) of the Bombay Rent Act by observing that standard rent dispute raised by the tenant in the reply to the statutory notice is not bonafide as earlier standard rent is already determined by the concerned Court.
5. Mr.Utpal Panchal, learned advocate appearing on behalf of the petitioner herein has also relied upon decision of the learned Single Judge in the case of (Shri) Tran Devadi Mandir Trust and others V/s. Dilipkumar Babulal Shah and another reported in 1984 GLH 259 by submitting that as held by this Court in the aforesaid decision, if it is found that standard rent fixed on the basis of consent terms is tainted by fraud, no estoppel by the tenant for bringing fresh application. It is submitted by Mr.Utpal Panchal, learned advocate appearing on behalf of the petitioner that in the present case even original plaintiffs have even specifically admitted in examination-in-chief that earlier standard rent was fixed by the Court on consent terms. It is further submitted that when specific question was put to the landlord whether earlier standard rent was determined by the concerned Court by judgement or adjudication, he has specifically stated that he does not know. It is submitted by Mr.Utpal Panchal, learned advocate appearing on behalf of the petitioner herein that considering the fact that the suit premises was let to the original defendant in the year 1976 and in the very year standard rent application was submitted and there was consent terms in the year 1976 itself is suggestive that standard rent was got fixed by the landlord by fraud. Therefore, it is submitted that when in reply to the statutory notice, the defendant raised dispute with respect to standard rent, learned Trial Court ought not have to passed eviction decree as all the conditions mentioned in section 12(3)(a) of the Bombay Rent Act are not satisfied. Therefore, it is requested to allow the present civil revision application.
6. Learned advocate appearing on behalf of the respondents herein – original plaintiffs has chosen to remain absent. Even on earlier occasions also, learned advocate appearing on behalf of the respondents herein had chosen to remain absent and as the present civil revision application is of the year 2000, this Court has no other alternative but to proceed further with the present civil revision application ex-parte.
7. Heard Mr.Utpal Panchal, learned advocate appearing on behalf of the petitioner herein – original defendant at length and considered the impugned judgement and orders passed by both the Courts below.
8. At the outset, it is required to be noted that learned Trial Court has passed eviction decree under section 12(3)(a) of the Bombay Rent Act solely on the ground of arrears of rent for more than six months. It is not in dispute that in reply to the statutory notice, petitioner herein – original defendant – tenant did raise the dispute with respect to standard rent. However, considering the fact that earlier in the year 1976, standard rent was fixed by the concerned Court at the rate of Rs.50/- per month, which was by consent, learned Trial Court held that standard rent dispute raised by the petitioner herein – original defendant - tenant raised in the reply to the statutory notice is not bonafide and in view of the earlier proceedings, it was not open for the petitioner herein – tenant to raise dispute with respect to standard rent again and, therefore, learned Trial Court held that case would fall under section 12(3)(a) of the Bombay Rent Act and, therefore, learned Trial Court passed eviction decree u/s.12(3)(a) of the Bombay Rent Act. However, it is required to be noted and it has come on record and even admitted by the original plaintiff in his deposition at Exh.32 that earlier standard rent was fixed at the rate of Rs.50/- per month by consent of the parties. It is required to be noted at this stage that even in the cross- examination, when specific question was put to landlord whether earlier standard rent was fixed by the concerned Court by judgement or adjudication, he has specifically stated that he does not know. It is also required to be noted at this stage that the suit premises was let to the original defendant in the year 1976 and even standard rent application was submitted in the year 1976 and standard rent was fixed by consent of the parties by concerned Court at the rate of Rs.50/- per month. Considering the aforesaid facts and circumstances of the case, this Court is required to consider whether it was open for the tenant to raise dispute with respect to standard rent when he was served with the statutory notice under section 12(2) of the Bombay Rent Act issued by the landlord calling upon the tenant to pay arrears of rent? and Whether learned Trial Court was justified in passing eviction decree under section 12(3)(a) of the Bombay Rent Act?
9. Identical question came to be considered by Hon'ble Supreme Court in the case of Devkaran Nenshi Tanna (Supra). In the aforesaid decision, Hon'ble Supreme Court has specifically held that it cannot be said that there must be pre-existing dispute on the date of filing of an application and thereon alone the tenant is entitled to make an application under section 11. When the landlord issued a notice to the tenant calling upon the tenant to pay the arrears of rent as contemplated under section 12(2) of the Bombay Rent Act, it is open for the tenant to cause a reply issued denying his liability to pay the rent as demanded and plead therein that the standard rent is much less than the rent demanded by the landlord and that, therefore, he is not liable to make payment of the rent demanded by the landlord. In the aforesaid decision, Hon'ble Supreme Court has further observed and held that it is true that once a standard rent has been determined by the Court, after applying its mind to all the facts and circumstances and after adjudicating the dispute, under section 11(1)(e) or permitted increases, then unless that order is reversed or set aside by the appropriate appellate Court or the revisional court or on appeal by this Court, parties are bound by the adjudication of the standard rent and to make payment thereafter. But in a case where adjudication was merely passed on a compromise between the parties, and the court did not apply its mind to the factum whether the terms agreed by the parties are just and reasonable and whether it would be the standard rent consistent with the provision of the statute, the tenant is not precluded from making application again when the notice was issued by the landlord demanding payment of the arrears of the standard rent.
As per the aforesaid decision of the Hon'ble Supreme Court, despite earlier determination/ fixation of the standard rent which was by consent of the parties and Court did not apply its mind and standard rent was fixed without adjudication, it is open for the tenant to raise dispute with respect to standard rent in reply to the statutory notice under section 12(2) of the Bombay Rent Act. Under the circumstances, both the Courts below have materially erred in holding that the dispute with respect to standard rent raised in reply to the statutory notice is not bonafide and it was not CRA/82/2000 10/10 JUDGMENT open for the tenant to raise dispute with respect to standard rent as earlier standard rent dispute is fixed at the rate of Rs.50/- per month and case would fall under section 12(3)(a) of the Bombay Rent Act and the same cannot be sustained.
Once it is held that it was permissible for the tenant to raise dispute with respect to standard rent in reply to the statutory notice and in fact the tenant raised dispute with respect to standard rent within a period of one month from the date of receipt of the statutory notice, the case would not fall under section 12(3)(a) of the Bombay Rent Act as all the conditions of section 12(3)(a) are not satisfied. Under the circumstances, learned Trial Court has committed an error in passing eviction decree and learned Appellate Court has materially erred in confirming the same. Under the circumstances, the judgement and orders passed by both the Courts below deserve to be quashed and set aside.
10. In view of the above and for the reasons stated hereinabove, the impugned judgement and decree dated 31/08/1998 passed by learned Additional Judge, Small Causes Court, Surat in Small Causes Suit No.98 of 1984 as well as the impugned judgement and order dated 31/12/1999 passed by learned Assistant Judge, District Court, Surat in Regular Civil Appeal No.71 of 1998 are hereby quashed and set aside and the suit filed by original plaintiffs for recovery of possession under section 12(3)(a) of the Bombay Rent Act deserves to be dismissed and is accordingly dismissed. Rule is made absolute to the aforesaid extent. No costs.
*dipti [M.R.SHAH,J]