Judgment:
V.P. Tipnis, J.
1. The landlord filed Civil Suit No. 380 of 1977 in the Court of the Civil Judge, Junior Division, Nasik, against his tenant for possession of the suit premises on the ground that the landlord needed the suit premises reasonably and bona fide for personal use and that the tenant has been in arrears of rent for more than six months and has not paid, despite notice of demand. The defendant filed written statement and denied that he is a defaulter. He contended that the rent is excessive. He further contended that he had deposited rent of Rs. 80/- with the Municipality towards arrears of house tax and, thereafter, he has also deposited Rs. 340/- with the Municipality in pursuance to the notice by the Municipality.
2. The learned trial Judge held that though the defendant was paying Rs. 35/- as rent, the standard rent is Rs. 25/- per month without electricity. The learned Judge held that the plaintiff has not proved that the defendant is a defaulter. The learned Judge held that the defendant had paid the rent till November 1976. The learned Judge negatived the case of the plaintiff for possession on the ground of bona fide personal requirement. Accordingly, the learned Judge dismissed the suit with costs by judgement and decree dated 30th September 1980
3. The landlord preferred Civil Appeal No. 434 of 1980 to the District Court at Nasik. The learned Joint Judge, Nasik, by his judgement and decree dated 30th October 1982 allowed the appeal and decreed the suit of the plaintiff for possession on the ground of default.
4. The landlord had alleged that the tenant was in arrears from 1-7-1976 and by notice dated 24-1-1977 demanded the arrears of rent from 1-7-1977 till the end of January 1977. However, the tenant did not pay the rent. The learned Judge on the basis of evidence held that the standard rent of the premises is Rs. 25/- and that the plaintiff has proved that the defendant is a defaulter. He confirmed the finding of the trial Court as regards the ground of reasonable and bona fide requirement of the landlord holding the same against the landlord.
5. So far as the ground of default is concerned, the learned Judge on the basis of evidence on record, held that though the tenant has raised the dispute of standard rent, in the reply notice which was sent within one month, the tenant has failed to establish that he had paid the rent upto November 1976 or that he had deposited Rs.500/- with the landlord. The learned Judge found that admittedly the defendant -tenant did not pay the entire rent within one month after the receipt of the notice. He also did not file any application for fixation of standard rent. The only defence of the defendant is that he is not a defaulter because he had made payment of rent from 1-7-1976 to November 1976 and as the landlord did not pass any receipt, he sent rent of December 1976 by Money Order. On the basis of appreciation of the evidence on record, the learned Judge of the lower Appellate Court did not accept the explanation of the tenant and held that the tenant was proved to be in arrears of rent for more than six months. On the facts proved, the learned Judge held that the case is clearly covered under section 12(3)(a) of the Bombay Rent Act.
6. It was specifically contended before the lower Appellate Court on behalf of the tenant that the tenant had raised the dispute about standard rent in the reply notice. He has also raised the same in the written statement and, as such, it was obligatory on the Court to pass some order under Explanation to section 12 read with section 11(4) of the Bombay Rent Act directing the defendant to deposit the rent in Court during the pendency of the suit. It was specifically contended that during the pendency of the suit, the Court is obliged to pass a suitable order regarding payment of rent and defendant cannot be expected to pay the standard rent in Court on his own. The learned Advocate for the defendant relied upon the decision of the Supreme Court in Abbasbhai v. Gulambabi, : [1964]5SCR157 . The learned Judge held that even if section 12(3)(b) is considered and even though the learned Judge of the trial Court during the pendency had not determined the standard rent, the Court cannot be blamed for that as it is for the tenant to obtain such order. Relying upon the decision of this Court reported in Anant Purshottam Athavle v. Damodar Dattatray Bedekar, : AIR1980Bom257 , the learned Judge held that the said decision laid down that the tenant must satisfy two conditions if he wants to show that he is ready and willing to pay the standard rent. Firstly, he must make an application under section 11(3) of the Bombay Rent Act and he must tender and go on depositing the rent specified in the order by the Court. The learned Judge, on the facts of the case, held that even if the provisions of section 12(3)(b) of the Bombay Rent Act are held to be applicable, as the tenant has not complied with the requirement of section 12(3)(b), the decree will have to be passed, as in the instant case, the defendant did not deposit rent due on the first date of hearing nor has he secured any order from the Court for making interim payment, he cannot be termed to be ready and willing to pay standard rent and he will not be entitled to protection under section 12(3)(b) of the Bombay Rent Act. The learned Judge observed that it was for the tenant to bring to the notice of the Court that he had disputed the standard rent and that he should have moved the Court to pass some order in that behalf and, thereafter, complied with the order. As the defendant took no steps in that behalf, the learned Judge held that he is not ready and willing to pay the standard rent.
Being aggrieved by the said judgement and decree of the lower Appellate Court, the tenant has preferred this writ petition.
7. I have heard Mr. Shastri, learned Counsel appearing for the petitioning-tenant and Mr. Gangakhedkar, learned Counsel appearing for the respondent-landlord. With the assistance of the learned Counsel, I have gone through the entire record and the judgements of both the courts below. Mr. Shastri contended that inasmuch as the tenant had raised the dispute in the reply notice sent within one month of the receipt of the notice of demand and since, as a matter of fact, the issue was raised in the suit and, in fact, standard rent at a reduced amount was determined by the trial Court, the provisions of section 12(3)(a) will not be attracted. Mr. Shastri then contended that if the provisions of section 12(3)(b) are to be taken into consideration, the tenant cannot be penalised if the Court has not passed the order for payment of arrears of rent or the future deposits. Mr. Shastri very heavily relied on the decision of a Single Judge of this Court in Shevantibai Dattatraya v. Vasant 74 Bom.L.R. 701 in support of his second submission. Mr. Shastri also pointed out that, as a matter of fact, the tenant has paid some Municipal taxes prior to the suit notice as well as some taxes after the suit notice to the Municipality. Mr. Gangakhedkar, on the other hand, contended that the learned Judge of the lower Appellate Court is absolutely right. He contended that the decision of the learned Single Judge reported in 74 Bom.L.R. 701 has been impliedly over-ruled by the decisions of the Apex Court in Ganpat v. Shashikant, reported in 1978 Mh.L.J. 550, and the decision of a Division Bench of this Court in Jaypal Bandu Adake v. Basavali Gurulingappa, reported in 1982 Mh.L.J. 512 in which reliance was placed on the decision of the Apex Court in Ganpat's case.
8. Undoubtedly, the learned Single Judge in the decision reported in 74 Bom.L.R. 701 has held that in a suit by the landlord for recovering arrears of rent for more than six months where a dispute about standard rent is raised by the tenant in his written statement but the Court for some reason or other in such suit has not fixed the standard rent or permitted increases as mentioned in section 12(3)(b) or has not given any directions about the deposit of rent on the basis of interim standard rent fixed by it under section 11(4), then the tenant cannot be penalised in any manner. His plea about standard rent or permitted increases raised in the suit will be finally heard and decided by the Court. If at the end of the hearing of the suit the Court comes to the conclusion that on the basis of the standard rent and permitted increases fixed by it, the tenant is liable to pay certain amount as due, then the Court should specify the amount and direct the tenant to pay the same within a prescribed time and only when the tenant fails to pay the amount, the Court will proceed to pass a decree for his eviction.
9. Section 12(3)(b) of the Bombay Rent Act provides that in a case which is not covered under section 12(3)(a), no decree of eviction shall be passed if on the first date 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 standard rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court. The section clearly envisages that when a tenant disputes the standard rent, he can avoid passing of a decree of eviction against him, firstly, by paying or tendering in Court the standard rent and permitted increases then due on the first day of hearing of the suit and, thereafter, continues to pay or tender in Court regularly such standard rent and permitted increases till the suit is finally decided, secondly, he can move the Court and obtain an order from the Court regarding interim standard rent and pay or tender in Court the standard rent and permitted increases then due and continue to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided. It is difficult to appreciate that when a tenant does nothing of the sort, there is any obligation cast on the Court to pass any such order without the tenant doing anything. In my opinion, Mr. Gangakhedkar, learned Counsel appearing for the landlord, is absolutely right in submitting that the judgement of the learned Single Judge stands impliedly over-ruled by the decision of the Apex Court in Ganpat's case (supra) as also by the Division Bench ruling of this Court reported in 1982 Mh.L.J. 512.
10. In paras 31 to 39 of the decision of this Court reported in 1982 Mh.L.J. 512, the Division Bench has elaborately considered the provisions of section 12(3)(b) and 12(3)(a) of the Bombay Rent Act and after referring to several decisions of the Apex Court and especially to the decision of the Apex Court in Ganpat's case, it was observed that in Ganpat's case, the Apex Court has made the following observations:-
'Thus, section 12(3)(a) of the Act makes it obligatory for the Court to pass a decree when its conditions are satisfied as was pointed out by one of us (Bhagwati, J.) in Ratilal Balabhai Nazar v. Ranchodbhai Shankerbhai Patel. If there is statutory default or neglect on the part of the tenant, whatever may be its cause, the landlord acquires a right under section 12(3)(a) to get a decree for eviction. But where the conditions of section 12(3)(a) are not satisfied, there is a further opportunity given to the tenant to protect himself against eviction. He can comply with the conditions set out in section 12(3)(b), and defeat the landlord's claim for eviction. If, however, he does not fulfil those conditions, he cannot claim the protection of section 12(3)(b) and in that event, there being no other protection available to him, a decree for eviction would have to go against him. It is difficult to see how by any judicial valour discretion exercisable in favour of the tenant can be found in section 12(3)(b), even where the conditions laid down by it are satisfied, to be strictly confined within the limits prescribed for their operation. We think that Chagla, C.J., was doing nothing less than legislating in Kalidas Bhavan's case (supra), in converting the provisions of section 12(3)(b) into a sort of discretionary jurisdiction of the Court to relieve tenants from hardship. The decisions of this Court referred to above, in any case, make the position quite clear that section 12(3)(b) does not create any discretionary jurisdiction in the Court. It provides protection to the tenant on certain conditions and these conditions have to be strictly observed by the tenant who seeks the benefit of the section. If the statutory provisions do not go far enough to relieve the hardship of the tenant the remedy lies with the legislature. It is not in the hands of the courts.'
In the opinion of the Division Bench, the effect of the observations of the Supreme Court quoted above clearly is that the conditions specified in section 12(3)(b) have to be strictly observed if the tenant seeks the benefits of that section.
11. In view of the aforesaid position, there is no merit in this petition and the petition must fail. In the result, the rule is discharged. There shall be no order as to costs all throughout.
12. Mr. Shastri, learned Counsel appearing for the petitioner-tenant, at this juncture, prays that the decree for eviction may not be executed for some reasonable period. In the facts and circumstances of the case, I direct that the decree for possession shall not be executed till 30th April 1997. However, the petitioning-tenant is injuncted from parting with possession of the suit premises or, in any way, creating any third-party interest in the suit premisses. He is also directed to clear off all the arrears of rent, if any, before 30th November 1996 and continue to pay the monthly rent regularly thereof.