[Cites 21, Cited by 0]
Gujarat High Court
Ravjibhai Hirabhai Vekaria (Deceased) vs Lalitaben Jayantilal Popat on 3 December, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 153 of 2005
With
R/CIVIL REVISION APPLICATION NO. 154 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
Yes
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RAVJIBHAI HIRABHAI VEKARIA (DECEASED) & ORS.
Versus
LALITABEN JAYANTILAL POPAT & ORS.
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Appearance:
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Applicant(s) No. 1
MR BHAVESH P TRIVEDI(2731) for the Applicant(s) No.
1.1,1.2,1.3,1.4,1.5,1.6,2
MR RR TRIVEDI(941) for the Applicant(s) No. 1.1,1.2,1.3,1.4,1.5,1.6,2
MR DM THAKKAR(894) for the Opponent(s) No. 3
RULE SERVED for the Opponent(s) No. 3,4,5
SERVED BY AFFIX. (R) for the Opponent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 03/12/2025
ORAL JUDGMENT
1. Captioned Revision Applications filed under Section 29 (2) of the
Bombay Rents Lands, Hotels and Lodging House Rates Control Act,
1947 ('Rent Act', for short) arise from impugned common judgment and,
therefore, this Court decides both the captioned Revision Applications
vide this common judgment.
2. These Civil Revision Applications challenge the common
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judgment and decree delivered in Regular Civil Appeal No.97 of 1998
and Regular Civil Appeal No.100 of 1998 whereby the 3rd Fast Track
Court, Gondal, in First Appeal upturned the judgment and decree
delivered in Regular CiviL Suit No.52 of 1980 and decreed the plaintiff
suit under Section 12(3)(a) of the Rent Act whereby the appellants are
directed to handover peaceful vacant possession of the suit property to the
plaintiff within a period of two months from the date of the order.
Regular Civil Suit No.52 of 1998 filed by the landlord - Jayantilal
Parsottam Katariya was dismissed by the Civil Judge (J.D.) Jetpur by
judgment and decree dated 29.07.1998.
3.1 The case background, as Mr.Jayantilal Parsottam Katariya, who
has expired during the proceedings of Regular Civil Suit filed the said
suit for recovery of possession of the suit premises, particulars of which
are stated in paras:1 and 2 of the plaint, on the ground of arrears of rent
and on personal and bona fide requirement of the suit premises.
According to the plaintiff, the defendant of the suit was irregular in
paying the rent and as such the rent for suit premises was due for the time
commencing from 01.09.1986 to 31.08.1987 in total of 12 months. The
tenancy was monthly tenancy at the rent of Rs.500/- per month in total
Rs.6000/- of was arrears of the rent and, therefore, suit notice dated
03.09.1987 was issued by the plaintiff to the defendant and demanded the
arrears of rent as well as peaceful and vacant possession of the suit
premises. It is the further case of the plaintiff that since as per condition
of the rent-note the tenant defendant was responsible to pay local taxes
which was outstanding since 1982-83, another notice was issued on
18.04.1987 to recover the local taxes from the defendant.
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3.2 The plaintiff also pleaded the ground of personal and bona fide
requirement as he pleaded that earlier he was doing business in Calcutta
and now is living in Jetpur and is intending to start business in Jetpur.
Therefore, he requires the suit premises for his personal and bona fide
requirement.
3.3 Pending the proceedings of the suit, the original plaintiff -
Jayantilal Parsottam Katariya expired. Therefore, Lalitaben who is his
sister joined as a plaintiff upon strength of his Will as per order passed
below Exh.68. Prasnnaben Jagjivanbhai Chotai - the divorcee of
deceased Jayantilal Parsottam Katariya - plaintiff is also joined as
plaintiff vide order below Exh.60 and some distant relatives i.e.
Pragnyaben Jamnadas Katariya etc. also claimed to be heirs of deceased
Jayantilal Parsottam Katariya, joined as plaintiffs vide order below
Exh.63. Learned trial Court, after fixing the issues and permitting both
the parties to lead the evidence, please to dismiss the suit on the ground
that issue of arrears of rent is covered under Section 12(3)(b) of the Rent
Act and during pendency of the suit, the tenant has deposited the entire
arrears of rent which implies his readiness and willingness to deposit rent.
Therefore, his tenancy is protected under Section 12(3)(b) of the Rent
Act. No eviction decree can be passed thus.
3.4 The ground of personal and bona fide requirement also did not
believe by the learned trial Court on the ground that pending the suit, the
plaintiff Jayantilal Parsottam Katariya since expired, his personal and
bona fide requirement also expires with him.
3.5 Being dissatisfied with the judgment and decree delivered in
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Regular Civil Suit, Lalitaben Jayantilal Popat preferred Regular Civil
Appeal No.97 of 1998 and Pragnyaben Jamnadas Katariya and others
preferred Regular Civil Appeal No.100 of 1998 before the 3 rd Fast Track,
Gondal. Both the appeals were decided by the common judgment and
decree dated 04.07.2005 by which learned 3rd Fast Track Court, Gondal
believed that the issue of arrears of rent is governed under Section 12(3)
(a) of the Rent Act. The first appellate Court further believed that the
since the defendant tenant has not raised issue of standard rent by filing
separate application under Section 11 of the Rent Act within one month
from receipt of statutory demand notice under Section 12(2) of the Rent
Act, therefore, raising of the dispute of the standard rent for the first time
in written statement would not take away the case of the landlord from
purview of Section 12(3)(a) of the Rent Act. It was also believed by
learned first appellate Court that since on expiry of one month from
issuance of statutory notice, the tenant has not paid amount of arrears of
rent claimed in the statutory notice, the decree of eviction is crystallized
on the date of filing of the suit. These findings have prompted learned
first appellate Court to pass eviction decree under Section 12(3) (a) of the
Rent Act.
3.6 The ground of personal and bona fide requirement was also not
pressed during hearing of the first appeal.
3.7 In the background of aforesaid aspects, these two revision
applications are filed by the tenant facing the eviction decree.
4.1 Learned advocate Mr.Bhavesh P. Trivedi appearing for the
petitioner, in his solitary submission, argued that learned appellate Court
has committed serious mistake in understanding the thin line difference
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between application of Section 12(3)(a) and Section 12(3)(b) of Rent Act.
He further submitted that tenant having received statutory notice under
Section 12(2) of the Rent Act from the landlord within one month has
raised dispute of standard rent by replying the statutory notice. He
referred to Exh.116 and submitted that it was specific case of the tenant,
contractual rent of Rs.500/- per month is excessive and exhorbitant. It is
not standard rent, which at the most could be Rs.200/- per month. He
would submit that whether the defense of standard rent raised by the
tenant survives or otherwise is one one thing but raising a defense of
standard rent within one month from receipt of statutory notice under
Section 12(2) of the Rent Act takes away the case of the landlord from
operation of Section 12(3)(a) of the Rent Act and is squarely falls under
Section 12(3)(b) of the Rent Act. He referred to the Full Bench judgment
of this Court reported in 1977 GLR 32 in the case of Ramniklal
Dwarkadas Modi vs. Mohanlal Laxmichand & Ors. And submits that if
the dispute of standard rent is raised in the reply to the statutory notice,
the dispute of arrears of rent in question will be governed by Section
12(3) (b) of the Rent Act and not under Section 12(3)(a) of the Rent Act.
He would further submit that learned appellate Court, in ignorance of this
judgment, has passed the judgment and decree and, therefore, such
judgment and decree having full of error, legally unsustainable. He
further submits that by Gujarat Act No.7 of 1985 in Section 12 thereof the
word substituted for the portion beginning with the words "and thereafter
continues" and ending with the word "also pays costs of the suit as
directed by the Court" has been omitted. Therefore, there is no need to
pay or tender the the rent continuously if the case falls under Section
12(3)(b) of the Rent Act.
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4.2 Learned advocate Mr.Trivedi has taken this Court through paras:10
and 11 of the trial Court judgment to submits that the findings of the
learned trial Court clinches the issue that before first hearing of the suit
the tenant has deposited entire amount of rent and thereafter he continued
to deposit the amount of rent as and when it accrues. In view of above, he
would submits that findings arrived at by the learned appellate Court that
the case falls under Section 12(3)(a) of the Rent Act is fallacious and
erroneous findings being perverse and against settled principles of law,
deserves to be repealed by allowing these revision applications.
4.3 As far as status of Pragnyaben Jamnadas Katariya and others is
concerned, he referred to judgment reported in 2008 (15) SCC 365
between Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas Kataria
and others, who are respondents in Revision and submitted that the
Supreme Court, by aforesaid judgment, believed that Lalitaben Jayantilal
Popat is only heir of the deceased Jayantilal Parsottam Katariya.
4.4 It is noticeable that learned advocate Mr.D.M.Thakkar was
appearing for respondent - Pragnyaben Jamnadas Katariya and others.
The order dated 26.11.2025 clarifies that learned advocate
Mr.D.M.Thakkar remained absent. This Court has granted last
opportunity to him with the observations that the matters will be
proceeded on merits. In view of the judgment of the Hon'ble Supreme
Court, as referred to herein-above, Pragnyaben Jamnadas Katariya and
others have no right as they were not held to be heirs of deceased
Jayantilal Parsottam Katariya. Thus, they are not required to be heard.
4.5 Upon above submissions, learned advocate Mr.Trivedi submits to
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allow the revision and to set aside the judgment and decree passed by
learned appellate Court by restoring judgment and decree passed by
learned trial Court.
4.6 Other respondents are though served, they did not remain present
to contest these revision applications.
5.1 Learned trial Court fixed the issues at Exh.51, which reads as
under:
"(1) Whether the Plaintiff proves that the rent for the period of 12
months, from 01-09-1986 to 31-08-1987, is due from the
Defendant?
(2) Whether the Plaintiff proves that the Defendant is liable to
pay the House Tax and Education Cess for the suit property,
in addition to the rent? And Whether the tax due from the
Defendant since 1982-1983?
(3) Whether the Plaintiff proves that the suit notice is legal?
(4) Whether the Plaintiff proves that the suit property is required
by the Plaintiff for his personal use in good faith?
(5) Whether there is any outstanding amount of rent due from
the Defendant to the Plaintiff? If yes, how much?
(6) Whether the Plaintiff is entitled to get the reliefs as prayed
for?
(7) What Order and Decree?
(8) Whether the Plaintiff's suit is barred by non-joinder of parties
or mis-joinder of parties?
5.2 After analysing the evidence on record, learned trial Court believed
that the plaintiff has failed to prove Issue Nos.1, 4, 5, 6 and 8 and
answered those issues in negative. Learned trial Court also believed that
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the tenant is liable to pay local taxes, however, learned trial Court did not
find any arrears of local taxes. Issue No.3 is answered in affirmative. The
suit notice was held to be legal and valid. Apt to note that suit notices are
produced vide Exh.107 and Exh.108. One for demanding arrears of rent
another for demanding arrears of local tax. Acknowledged receipts are
also produced on record. Exh.116 is reply to the statutory notice under
Section 12(2) of the Rent Act. In para:2 of the reply (Exh.116) to the
statutory notice, the tenant has categorically raised the contention that
rent claimed by the landlord is excessive and not the standard rent. It is
further contended that standard rent of the suit premises cannot be more
than Rs.250/- per month.
5.3 While discussing the reasons for deciding Issue No.1, learned trial
Court believed that on receipt of the statutory notice on 08.09.1986, the
tenant has paid Rs.10,000/- to the plaintiff's advocate Mr.Shukla, receipt
qua the same was issued and thereafter the tenant has deposited entire
arrears of rent upto 31.07.1997. The receipt of paying rent of Rs.10,000/-
pursuant to service of statutory notice has been produced by the tenant
vide Exh.128.
5.4 In all, learned trial Court believed that the since defendant tenant
has paid arrears of rent before first date of hearing, he is protected tenant
as per provisions of the Rent Act. [Section 12(3)(b) of the Rent Act ]
5.5 Learned appellate Court took divergent view and held that case of
landlord fall under Section 12(3)(a) of the Rent Act, as tenant has not
raised dispute of standard rent next within one month from receipt of
statutory notice, by filing separate application under Section 11(1) of the
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Rent Act, to fix standard rent.
5.6 At this juncture, I may refer to Section 12 of the Rent Act, which
reads thus:
"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 tar
as they are consistent with the provisions of this Act.
[(1A) Where by reason of any riot or violence of mob any material part
of
the premises in a disturbed area is wholly destroyed or rendered
substantially and permanently unfit for the purpose for which it was
let, the landlord shall not be entitled to --
(a) the standard rent and permitted increases due for the premises,
(b) recover possession of such premises merely on the ground of
nonpayment of standard rent and permitted increases due, during the
period in which such premises remain so destroyed or unfit.]
[(1B) Notwithstanding anything contained in this Act, where by reason
of earthquake or any other natural calamity, any material part of
premises is wholly destroyed or rendered substantially and
permanently unfit for the purpose for which it was let, the landlord
shall not be entitled to--
(a) standard rent and permitted increases due for the premises,
(b) recover possession of such premises merely on the ground of non
payment of standard rent and permitted increases due, during the
period in which such premises remained so destroyed or unfit.]
(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 of one month next after
notice in writing of the demand of the standard rent or permitted
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increases has been served upon the tenant in the manner provided in
section 106 of the Transfer of Property Act, 1882.
[(3) (a) Where the rent is payble 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, -
(i) continues to pay or tender in Court such rent and
permitted increases till the suit is finally decided; and
(ii) 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 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 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
permitted increases specified in the order made by the Court."
5.7 Perusal of Section 12 indicates that it starts with negative clause,
ejectment of tenant is therefore not permissible except in case where the
condition under Section 12 is satisfied. As long as the tenant is ready and
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willing to pay standard rent and permitted increase, he cannot be evicted
from the suit premises. Section 12(2) makes that demand of non-payment
of standard rent for arrears of rent for six months, is mandatory. Time of
one month next to service of notice has to be given to tenant. The
phraseology of Section 12(3)(a) and Section 12(3)(b) are now important.
Section 12(3)(a) would operate if no dispute regarding amount of
standard rent or permitted increase is raised by the tenant within the one
month from receipt of the statutory notice and tenant remained neglect to
pay payment thereof. In any other case, it is Section 12(3)(b) of the Rent
Act operates and no decree for eviction can be passed if, on first date of
hearing of the suit or on before such other date, as Court may fixed the
tenant to pay off amount of standard rent and permitted increase than due
as directed by the Court.
5.8 It is apposite to refer that by replying the statutory notice, the
tenant has raised the issue that the demand of arrears of rent made by the
landlord, is excessive and exorbitant and it is not a demand of arrears of
standard rent. A specific contention raised that the rent which is claimed
by the landlord is not the standard rent. The reply to the statutory notice is
produced vide Exh.116 which claims that standard rent is Rs.250/- per
month.
5.9 Learned advocate Mr.Trivedi submits that pending suit learned trial
Court has fixed interim standard rent and entire interim standard rent as
directed by the Court was deposited, before first hearing of the suit. The
learned trial Court, though has fixed the interim standard rent, did not
frame the issue of standard rent. Thus, ultimately contractual rent remains
as standard rent. The findings of contractual rent being standard rent has
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not been challenged by the tenant before the first appellate Court, by
filing separate appeal or cross-objection.
6.1 In background of aforesaid factual aspects, if we refer the judgment
passed by the learned appellate Court, in para:14 of the judgment, it is
believed that since dispute of standard rent has not been raised by filing
separate application under Section 11 of the Rent Act within month of
receipt of statutory notice by the tenant, the issue of arrears of rent falls
under Section 12(3)(a) of the Rent Act and not under Section 12(3)(b) of
the Rent Act.
6.2 The learned first appellate Court to fortify his view, on this issue,
refers to the decision of the Apex Court in case of Arjun Khiamai
Makhijani vs. Jamnadas C. Tuliani, reported in 1989 (4) SCC 612. The
ratio of the judgment has however been misunderstood by the learned
first appellate Court. The judgment rendered in the case of Arjun
Khiamai Makhijani vs. Jamnadas C. Tuliani (supra) interprets
application of Section 11(1), 11(2) and 11(3) of the Rent Act. It further
clarifies that on what stage Section 11(1) of the Rent Act applies and for
what purpose Section 11(2) and 11(3) of the Rent Act are provided by the
law makers. In this case, the landlord claims that if application under
Section 11(1) of the Rent Act has not been preferred by tenant within one
month from the receipt of the statutory notice and did not deposit the
amount of arrears of rent, the tenant would not be saved from the
operation of Section 12(3)(a) of the Rent Act. However, the missing
factual aspect in a case before the Apex Court was whether the tenant has
raised the dispute of standard rent in reply to the notice. Thus, the
judgment would not help the case of the landlord, as in the case on hand
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tenant has raised dispute of standard rent within one month from receipt
of the statutory notice by replying the same.
6.3 The Full Bench judgment of this Court reported in case of
Ramniklal Dwarkadas Modi vs. Mohanlal Laxmichand & Ors (supra)
has addressed this issue wherein the Full Bench of this Court has
summerized position of law on the point of issue on hand as under:
"11. We completely agree with the position of law on the point in
issue enunciated in Ambalal's case and the reasons of our agreement
are as set out in the said judgment and it is not necessary to repeat
the same. To summarise the correct proposition of law on the point
in issue:
(a) If the tenant files an application' to the Court under
Section 11(3) of the Act within the period of one month of the
receipt of the notice referred to in Section 12(2) of the Act, he
shall be deemed to be ready and willing to pay the rent and
permitted increases specified in the order made by the Court
as per provisions of Section 12 read with the, Explanation.
(b) The tenant can also establish his readiness and
willingness to pay the rent due by any other mode than the
one indicated in the Explanation read with Section 12 of the
Act, as for example, by tendering the demanded amount of
rent in cash within one month of the receipt of the notice
referred to in Section 12(2) of the Act. This illustration
regarding payment in cash is merely illustrative and not
exhaustive.
(c) The tenant can also claim protection from the operation of
Section 12(3)(a) of the Act by raising a dispute as to the
standard rent either prior to the notice under Section 12(2) of
the Act or by reply to the notice but in this case the tenant
must do so within one month from the receipt of the notice
referred to in Section 12(2) of the Act.
The protection obtainable as per points (b) and (c) set out hereinbefore
is further protection to which the tenant is entitled and is independent of
each other as well as what is said in point (a). It is not a further
requirement for such protections that the tenant must make an
application under Section 11(3) of the Act. it may be clarified that the
word 'next' used in Section 12(2) means immediately so that the tenant
has to raise a dispute regarding the standard rent with in one month of
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the receipt of the notice referred to in Section 12(2) of the Act.
12. Our answer, therefore, to the question referred to is that a dispute as
to the standard rent can be raised in any other manner like giving a
notice disputing standard rent prior to the demand notice under Section
12(2) or by way of a reply within one month of such a notice. It is not that
the only manner in which the dispute regarding the standard rent can be
brought into existence for taking the case out of Section 12(3)(a) of the
Act is to make an application for fixing the standard rent within one
month of the service of the demand notice."
6.4 The position of law summarized by the Full Bench judgment of the
High Court applied to the facts of the present case. Learned appellate
Court, therefore, erred in holding that issue is covered under Section
12(3)(a) of the Rent Act and not under Section 12(3)(b) of the Rent Act.
In raising the dispute of standard rent in reply to the statutory notice
regarding the standard rent within one month of receipt of notice takes
away case of landlord from one under Section 12(3)(a) to Section 12(3)
(b) as the learned trial Court has rightly reached to the conclusion and, the
judgment and decree passed by the learned appellate Court is, therefore,
perverse and against the settled principles of law.
6.5 Insofar as as the issue of personal and bona fide requirement is
concerned, it is not pressed during hearing of the appeal before the first
appellate Court as original plaintiff has expired.
6.6 The learned first appellate Court has also referred to judgment of
the Apex Court in the case of Laxman Jiwaba Baherwarde & Anr. vs.
Bapurao Dodappa Tandale reported in (2002) 7 SCC 618 for the
contention that raising of the dispute of standard rent first time in the
written statement would not take away the case of the landlord from the
purview of Section 12(3)(a) of the Rent Act. In paras:6 and 7 of the said
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judgment, the Apex Court referred to Sections 11 and 12 of the Rent Act
to hold that the Court may fix standard rent and permitted increase either
upon an application made under Section 11 of the Rent Act to it for that
purpose or in any other suit or proceedings. Thus, it was held by the Apex
Court that dispute regarding standard rend would not be necessary by
way of application. However, the Apex Court finds that to decide the
issue regarding permitted increase between the landlord and the tenant, it
can be decided by the court only on an application made by the tenant
under Section 11(2) and Section 11(3) of Rent Act as the case may be.
Paras:6 and 7 of the said judgment of the Apex Court read thus:
"6. Before the submissions of the parties are considered the
relevant provisions need to be set out. Sections 10, 11 and 12 of the
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 read
as follows:
"10. Increase in rent on account of payment of rates, etc.- (1) On and
after the commencement of the Bombay Rents, Hotel and Lodging
House Rates Control (Amendment) Act, 1986, where a landlord is
required to pay to Government or to any local authority or statutory
authority, in respect of any premises any fresh rate, cess, charges, tax,
land assessment, ground rent of land or any other levy on lands and
buildings, or increase in rate, cess, charges, tax, land assessment,
ground rent of land or any other levy on lands and buildings, he shall,
notwithstanding anything contained in any other provisions of this Act but
save as otherwise expressly provided in any other law for the time being
in force, be entitled to make an increase in the rent of such premises.
Provided that, the increase in rent shall not exceed the amount of any
such rate, cess, charges, tax, land assessment, ground rent of land or
any other levy on lands and buildings, as the case may be.
(2) Where the rent is inclusive of charges for electricity and water and
the landlord is required to pay any increase in these charges in respect
of any premises, he shall be entitled to make an increase in the rent of
such premises by an amount not exceeding the additional amount
payable by him in respect of such premises on account of such increase.
(3) The amount of the increase in rent recoverable from each tenant
under sub-sections (1) and (2) shall bear the same proportion as the rent
payable by him in respect of his premises bears to the total amount of
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any such rate, cess, charges, tax, land assessment, ground rent of land
or any other levy on lands and buildings, or increase in electricity or
water charges, as the case may be.
* * *
11. Court may fix standard rent and permitted increases in certain cases
(1) Subject to the provisions of Section IIA in any of the following cases
the Court may, upon an application made to it for that purpose, or in any
suit or proceedings, fix the standard rent at such amount as, having
regard to the provisions of this Act and circumstances of the case, the
Court deems just -
(a) where any premises are first let after the first day of September 1940,
and the rent at which they are so let is in the opinion of the Court
excessive; or
(b) where the Court is satisfied that there is not sufficient evidence to
ascertain the rent at which the premises were let in any one of the cases
mentioned in paragraph (i) to (iii) of sub-clause (b) of clause (10) of
section 5; or
(c) where by reason of the premises having been let at one time as a
whole or in parts and at another time in parts or as a whole, or for any
other reason, any difficulty arises in giving effect to this Part; or
(d) where any premises have been or are let rent- free or at a nominal
rent or for some consideration in addition to rent; or
(d-1) without prejudice to the provisions of sub- section (1A) of section 4
and paragraph (iii-a) of sub- clause (b) of clause (10) of section 5, where
the Court is satisfied that the rent in respect of premises referred to
therein exceeds the limit of standard rent laid down in the said
paragraph (iii-a); or
(e) where there is any dispute between the landlord and the tenant
regarding the amount of standard rent.
(2) If there is any dispute between the landlord and the tenant regarding
the amount of permitted increases, the Court may determine such
amount.
(3) If any application for fixing the standard rent or for determining the
permitted increases is made by a tenant who has received a notice from
his landlord under sub-section (2) of section 12, the Court shall forthwith
specify the amount of rent or permitted increases which are to be
deposited in Court by the tenant, and make an order directing the tenant
to deposit such amount in Court or at the option of the tenant make an
order to pay to the landlord such amount thereof as the Court may
specify, pending the final decision of the application. A copy of the order
shall be served upon the landlord. Out of any amount deposited in Court,
the Court may make an order for payment of such reasonable sum to the
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landlord towards payment of rent or increase due to him as it thinks fit. If
the tenant fails to deposit such amount or, as the case may be, to pay
such amount thereof to the landlord, his application shall be dismissed.
(4) Where at any stage of a suit for recovery of rent, whether with or
without a claim for possession of the premises, the Court is satisfied that
the tenant is withholding the rent on the ground that the rent is excessive
and standard rent should be fixed, the Court shall, and in any other case
if it appears to the Court that it is just and proper to make such an order
the Court may, make an order directing the tenant to deposit in Court
forthwith such amount of the rent as the Court considers to be
reasonably due to the landlord, or at the option of the tenant an order
directing him to pay to the landlord such amount thereof as the Court
may specify. The Court may further make an order directing the tenant to
deposit in Court periodically, such amount as it considers proper as
interim standard rent, or at the option of the tenant an order to pay to the
landlord such amount thereof as the Court may specify, during the
pendency of the suit. The Court may also direct that if the tenant fails to
comply with any order make as aforesaid, within such time as may be
allowed by it, he shall not be entitled to appear in or defend the suit
except with leave of the Court, which leave may be granted subject to
such terms and conditions as the Court may specify.
(5) No appeal shall lie from any order of the Court under sub-section (3)
or (4).
(6) An application under this section may be made jointly by all or any of
the tenants interested in respect of the premises situated in the same
building.
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 tenant on the ground of non-payment of the standard rent or
permitted increases due, until the expiration 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.
(3) No decree for eviction shall be passed by the Court in any suit for
recovery of possession on the ground of arrears of standard rent and
permitted increases 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
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together with simple interest on the amount of arrears of such standard
rent and permitted increases at the rate of nine per cent per annum; and
thereafter continues to pay or tenders in Court regularly such standard
rent and permitted increases till the suit is finally decided and also pays
cost of the suit as directed by the Court.
Provided that, the relief provided under this sub- section shall not be
available to a tenant to whom relief against forfeiture was given in any
two suits previously instituted by the landlord against such tenant."
Thus under Section 10 the tenant is bound to pay to the landlord the
increase in rate, cess, charges, tax, land assessment, ground rent or any
other levy. The amount of increase, the tenant is bound to pay, has to be in
the same proportion as the rent payable by him bears to the total amount of
such rate, cess, charges, tax, land assessment, ground rent or any other levy.
Section 11 gives the Court the power to fix the standard rent and/or the
amount of the permitted increases. It has to be noted that under Section 11(1)
the Court may fix the standard rent either upon an application made to it for
that purpose or in any suit or proceeding. Thus the dispute regarding standard
rent need not necessarily be by way of an application. However, under sub-
clauses (2) and (3) of Section 11 if there is any dispute between the landlord
and the tenant regarding the amount of permitted increases, it can be decided
by the Court only on an application made by the tenant who has received a
notice from his landlord. Thus in a Suit for ejectment it would not be open for
the tenant to raise a dispute regarding the permitted increases. If on receipt of
a notice the tenant has either not paid the amount of the permitted increase
and not raised a dispute by filing an application then, by virtue of Sections
12(2) and (3), the landlord would be entitled to a decree for eviction.
7. In the case of Harbanslal Jagmohandas v. Prabhudas reported in AIR
1976 SC 2005, it has been held that in order to avoid operation of Section
12(3)(a) the dispute in regard to the standard rent or permitted increase must
be raised, at the latest, before the expiry of one month from date of service of
notice. It has been held that it is not enough to raise a dispute for the first time
in the written statement."
6.7 Seen thus, learned appellate Court again fell in error in interpreting
the provisions of law viz. Section 11(1), 12(3)(a) and 12(3)(b) of the Rent
Act as well as that what would be position of law if dispute of standard
rent is raised in reply to notice. Also, Appellate Court has misread and
misplaced above judgment to the facts of the case.
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6.8 What could be noticeable that Section 12(1) of the Rent Act as well
as Section 12(2) permits the landlord to recover the standard rent and
permitted increase, not anything beyond standard rent as statutory notice
for recovery of arrears of rent has to be issued only for recovery of
standard rent or permitted increase. If the tenant claims in reply to the
notice within one month of receipt of notice that rent claimed by the
landlord is not standard rent, it amounts to raising of dispute on standard
rent, this dispute would take case within purview of Section 12(3)(b) of
the Rent Act. The issue was not discussed in Laxman Jiwaba Baherwarde
& Anr. vs. Bapurao Dodappa Tandale (supra). Therefore, the first
appellate Court has wrongly relied upon the judgment of the Apex Court
rendered in the case of Laxman Jiwaba Baherwarde & Anr. vs. Bapurao
Dodappa Tandale (supra) to believe that dispute between the parties
landlord and tenant was covered by Section 12(3)(a) of the Rent Act. The
question of law has been cleared by the Full Bench judgment of this
Court referred to hereinabove.
6.9 As the appellate Court has committed serious error of
understanding the provisions of law, interference in these Revision
Applications is required and accordingly both these Civil Revision
Applications are allowed. The common judgment and decree passed in
Regular Civil Appeal No.97 of 1998 and Regular Civil Appeal No.100 of
1998 dated 07.10.2003 passed by the learned 3 rd Fast Track Court,
Gondal is hereby quashed and set aside, in turn, the judgment and decree
passed by the Civil Judge (J.D.) in Regular Civil Suit No.52 of 1998 is
hereby restored. Accordingly suit of the plaintiff stands dismissed.
7. The landlord would be at liberty to withdraw the amount of rent if
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any deposited. Rule, in both these revision applications, is made absolute
to the aforesaid extent. Records and Proceedings be sent back to the
concerned Court.
(J. C. DOSHI,J)
MISHRA AMIT V.
