Judgment:
R.M. Lodha, J.
1. Heard learned Counsel for the parties.
2. This writ petition is directed against the order passed by the Court of Small Causes at Bombay on 31-7-1996 whereby the Court below refused to frame additional issues other than limitation as proposed by the defendants.
3. By way of notice, the defendants submitted before the Court below that five issues be framed in addition to the issues already framed.
(a) Whether the demand for recovery of rent and permitted increases of the suit premises are barred by law of limitation?
(b) Whether the rent charged to the suit premises is excessive, exhorbitant and much more than the standard rent of the suit premises ?
(c) If so, what is the standard rent and permitted increases of the suit premises ?
(d) Whether the defendants prove that they have obtained sanction/permission from the Bombay Municipal Corporation for change of user of the premises ?
(e) If so, whether such, permission amounts to waiver of terms and conditions of lease
4. The trial Court held that as regards the proposed additional issues No. (b) and (c), the plea of the standard rent cannot be permitted to be set up in the written statement and , therefore, Issues No. (b) and (c) proposed as additional issues cannot be said to arise for determination. As regards the proposed issues (d) and (e), the trial Court held that the issues already framed cover the controversy of proposed additional issues (d) and (e) and, therefore, the said proposed issues are not required to be framed.
5. Mr. Murthy, the learned Counsel for the petitioner contends principally that it is open to the defendants to set up the plea in the written statement for fixation of standard rent if the agreed rent is excessive and since the defendant has raised this plea, the Court below was bound to frame the additional issues. According to Mr. Murthy, the said controversy is covered by the proposed issue Nos. (d) and (e). In support of his contention, Mr. Murthy relied on the decision of the Apex Court in Ibrahim Abdulrahim Shaikh (dead) by L.Rs. v. Krishnamorari Sripatlal Agarwal (dead) by L.Rs., : AIR1994SC1609 .
6. Responding to the contentions raised by the learned Counsel for the petitioner, on the other hand, Mr. Desai, the learned Counsel appearing for the respondent would urge that the Apex Court in Harbanshal Jagmohandas v. Prabhudas Shivlal, : [1976]3SCR628 has held and laid down that the plea of fixation of standard rent cannot be set up in written statement. According to Mr. Desai, in Harbanshal Jagmohandas's case (supra), the Apex Court overruled the Full Bench judgment of the Bombay High Court in Dattu Subhana Panhalkar v. Gajanan Vithoba Bobhate and another, : AIR1971Bom396 wherein a view was taken by this Court that plea for fixation of standard rent can be set up in the written statement. According to Mr. Desai, the legal position is no more res integra and the proposed additional issues for fixation of standard rent cannot be said to arise in the present suit.
7. I have considered the contentions raised by the learned Counsel for the parties and also perused the impugned order and the citations referred to by the learned Counsel for the parties.
8. The Full Bench judgment of this Court in Dattu's case (supra) took the view that a tenant could raise a dispute about agreed rent and pray for fixation of standard rent in the written statement. This view did not find favour with the Gujarat High Court and the Gujarat High Court took the view otherwise. The divergent view of this Court and Gujarat High Court came to be considered by the Apex Court in Harbanslal Jagmohandas & anr. v. Prabhudas Shivlal's case (supra) and the view of Full Bench of this Court in Dattu's case was not found correct. The Apex Court in Harbanslal Jagmohandas & anr. v. Prabhudas Shivlal's, case (supra) held that the view of the Bombay High Court overlooked the limitation of time within which a dispute is to be raised as to standard rent. Apex Court held thus :
'The view of the Bombay High Court overlooks the limitation of time within which a dispute is to be raised as to standard rent. The view of the Bombay High Court is that disputing within one month of the service of the notice terminating the tenancy is one mode of raising a dispute and there is another mode of raising the dispute at any stage of the suit. The view of the Bombay High Court nullifies the provisions contained in section 12 and Explanation thereto and confers a right on the tenant where the legislation does not contemplate such a right.'
9. According to the aforesaid law laid by the Apex Court the mode of raising dispute in the written statement praying for fixation of standard rent was not permissible as it would nullify the provisions contained in section 12 and Explanation thereto and would confer a right on the tenant where the Legislature did not contemplate such a right.
10. Mr. Murthy, the learned Counsel for the petitioner, contends that in subsequent decision in Ibrahim Abdulrahim Shaikh's case (supra), the Apex Court has held that the statute does not prescribe the period of limitation under section 11(3) to lay the application for fixation of standard rent or permitted increases and, therefore, in view of the said judgment of the Apex Court it is permissible to set up the plea for fixation of standard rent in the written statement.
11. In Ibrahim Abdulrahim Shaikh's case, the Apex Court was seized of the question whether the case fell under section 12(3)(a) or (b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short Bombay Rent Control Act) and in that context the Apex Court in paragraphs 2 and 3 of the report held thus :
'2. The sole question that arises for our consideration is whether the case falls under section 12(3)(a) or (b). Section 12(3)(a) and (b) read as under :
'12(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 continues to pay or tender in Court regularly such rent and permitted increased till the suit is finally decided and also pays costs of the suit as directed by the Court.'
This Court in Harbanslal Jagmohandas v. Prabhudas Shiv Lal, : [1976]3SCR628 construing the provisions of the Act and in view of the difference of opinion between the High Court of Bombay and the High Court of Gujarat held that the view of the Gujarat High Court is the correct law. The Gujarat High Court held that the tenant on receipt of the notice from the land- lord claiming arrears of rent and also permitted increases unless disputes the same within one month from the date of the receipt of the notice, he is not entitled to claim the benefit of section 12(3)(a) of the Act. The Bombay High Court's view was that he could raise the dispute in his written statement, which view was not accepted. Therefore, on the basis of this ratio, it is contended by the learned Counsel for the appellant that the tenant shall also file an application for fixation of the standard rent or permitted increases under section 11 within one month. Unless he does it, he is not entitled to the benefit of section 12(3)(a). In support thereof, he seeks to place reliance on the judgment of this Court in Shah Dhansukhlal Chhaganlal v. Dalichand Virchand Shroff, : [1968]3SCR346 . In this case, this Court has held that 'it appears to us that there is no substance in the contention put forward on behalf of the appellant. Section 12(1) must be read with the explanation and so read it means that a tenant can only be considered to be ready and willing to pay 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 by the Court. We have already noted that the tenant made no payment within the period of one month of the notice of ejectment and although in his written statement he raised a dispute about the standard rent he made no application in terms of section 11(3) of the Act. The readiness and willingness to pay have therefore to be judged in the light of the facts of the case'. In that case it was found as a fact that there is no dispute with regard to the standard rent or permitted increases. There was no denial within one month from the date of the receipt of the notice and that the payment was not made immediately on first day of appearance on receipt of the notice from the Court. He disputed the standard rent in written statement. Later he made an offer to pay the entire arrears and the offer was not accepted. From these facts this Court held that unless he disputes within one month from the date of the receipt of the notice and files an application under section 11(3) he was not entitled to the benefit under section 12(3)(a).
3. The Act is a welfare legislation interposing into the contractual rights of the landlord and tenant and regulating the letting of the buildings and determination of the standard rent and permitted increases in accordance with the Act. The tenant is obligated to pay the rent to the landlord every month unless the landlord refuses to receive it. In the latter event recourse can be had to deposit the rent. Some statutes provide the procedure for deposit in the Court of the Rent Controller after following the procedure prescribed therein. If the tenant commits default in the payment of the rent the Act provides that the landlord is entitled to file an application for eviction if the arrears of rent continues for six months and more. The Act also prescribes issuance of a notice determining the tenancy for failure on the part of the tenant to pay the arrears of standard rent or permitted increases for six months and more and for delivery of possession. In case the tenant disputes the standard rent or permitted increases claimed in the notice, the tenant is enjoined under section 12(3)(a) to dispute the correctness thereof and to plead prevailing one by issuing reply notice within one month from the date of its receipt. In that situation it is manifest that the landlord elected his statutory right to determine the tenancy on account of arrears for a period of six months or more. The landlord put the tenant on notice of his negligence and to make payment thereof within one month from the date of the receipt of the notice and on disputation is enjoined to seek remedy under section 11(3) for determination of the standard rent or permitted increases. If he fails to dispute and omits to pay the arrears within one month from the date of the receipt of the notice he became liable to be evicted under section 12(3)(a) of the Act. Admittedly the statute did not prescribe any period of limitation under section 11(3) to lay the application for fixation of standard rent or permitted increases. Therefore, by necessary construction of sections 11 and 12, what this Court appears to have intended was that the tenant should dispute the standard rent or permitted increases within one month from the date of the receipt of the notice and then file the application under section 11(3). It would not appear to have been meant that the application under section 11(3) should also be filed within one month from the date of the receipt of the notice. But expeditious action is called for to prove the bona fides of the tenants disputing the right of the landlord in the claim of standard rent or permitted increases. The Act appears to have intended to quench thirst of the avaricious landlord to claim the rent in excess of the standard rent or permitted increases under the Act and at the same time obligated the tenant, in case of his dispute or disagreement to have the statutory recourse for determining standard rent or permitted increases. Therefore, expeditious action had to be had before the receipt of the notice from the Court which would indicate not only bona fides on the part of the tenant in resisting the claim for excess standard rent or permitted increases but also to have his right to pay the standard rent or permitted increases determined according to law.'
12. It is true that in Ibrahim Abdulrahim Shaikh's case the Apex Court considered its previous judgment in Harbanslal Jagmohandas v. Prabhudas Shiv Lal case (supra) but it was only in the context of the issue which was before the Supreme Court whether the case was covered under section 12(3)(a) or (b) of the Bombay Rent Control Act. In Ibrahim Abdulrahim Shaikh's case the Apex Court was not seized of the question whether the tenant can set up the plea of fixation of standard rent in the written statement or not and, therefore, the observations made by the Apex Court in Ibrahim Abdulrahim Shaikh's case are to be read in the context the issue was before the Apex Court whether the case was covered under section 12(3)(a) or (b) of the Bombay Rent Control Act. The case in hand is clearly covered by the Apex Court judgment in Harbanslal Jagmohandas v. Prabhudas Shiv Lal's case.
13. In this view of the matter, no case for interference is made out in the writ petition and it is dismissed accordingly.
14. Needless to observe that it would be open to the Small Causes Court to decide the question of default in accordance with law on merits after the parties lead evidence and it would be open to the defendant/petitioner to urge the argument based on Ibrahim Abdulrahim Shaikh's case (supra) on the merits of the ground of default and the trial Court would decide the same in accordance with law.
15. Issue of certified copy expedited.