A.N. Divecha, J.
1. Can the landlord be permitted to succeed in his design in getting possession of the suit permises by laying a trap for the tenant to fall into arrears of rent after refusing to accept money orders for rent sent by the tenant on previous occasions What is the mode of raising a dispute regarding the standard rent Is it necessary for the tenant to raise the dispute as to the standard rent of the rented premises afresh after service of the demand notice once he has raised it after service of the demand notice on the earlier occasion These are some of the questions arising in this revisional application preferred by the original tenant under Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (the 'Rent Act' for brief) challenging the legality and validity of the judgment and the decree passed by the learned Assistant Judge of Jamnagar on 21st November, 1979 in Regular Civil Appeal No. 126 of 1976. Thereby the learned Appellate Judge was pleased to accept the appeal and to set aside the judgment and the decree passed by the learned Joint Civil Judge (S.D.) at Jamnagar on 16th August, 1976 in Regular Civil Suit No. 297 of 1972. Thereby the learned Trial Judge was pleased to dismiss the suit filed by the landlords for possession of the rented premises from the tenant. It may be mentioned at this stage that the original tenant has breathed his last during the pendency of this revisional application before this Court and his heirs and legal representatives have been brought on record pursuant to the order passed by this Court on 15th February, 1984 in Civil Application No. 626 of 1984.
2. The facts giving rise to this revisional application may be summarised thus: The original petitioner was the tenant of the premises belonging to the respondents herein. The monthly rent of the premises was Rs. 6.25 ps. It appears that the landlords wanted possession of the suit premises from the tenant. They therefore served one notice on 3rd March, 1971 through their Advocate to the tenant terminating his tenancy and calling upon him to hand over possession of the rented premises to them. They claimed possession on the ground that the son of the original tenant had acquired a suitable residence. It was indicated in the notice that the rent for the month of February 1971 had fallen due. The original tenant caused his reply on 20th March, 1971 through his Advocate to the aforesaid notice of the landlords inter alia contending therein that the monthly rent of the rented premises was originally Rs. 4 per month and it was subsequently raised to Rs. 6.25 ps. per month. It was denied that his son had acquired suitable residence. He also sent one money order for Rs. 6.25 ps. along with his reply through his Advocate addressed to the Advocate through whom the landlords served to him the quit notice. That money order was not accepted. The original tenant thereafter sent another money order for Rs. 6.25 ps. towards the rent due for February 1971 in the name of his landlord. It was also not accepted. Little later he again sent a money order for Rs. 12.50 ps. in the name of the landlord towards the rent for two months for February and March 1971. It was also not accepted. Thereafter, on 9th March, 1972, the landlords gave another notice to the original tenant calling upon him to pay up the rent for 13 months from 1st February, 1971 to 29th February, 1972. As the said rent had fallen due, the tenancy of the tenant was sought to be terminated by the said notice. The tenant appears not to have caused any reply thereto. He does not appear to have paid the rent demanded by the landlords in their notice. Thereupon the landlords filed one suit in the Court of the Civil Judge (J. D.) at Jamnagar against the tenant for recovery of possession of the rented premises from him. That suit came to be registered as Regular Civil Suit No. 297 of 1972. The tenant filed his written statement at Exh. 8 in the suit proceedings and resisted it on various grounds. The learned trial Judge framed the necessary issues at Exh. 10 on the record of the suit. After recording evidence and hearing the parties, by his judgment and decree passed on 16th August, 1976 in Regular Civil Suit No. 297 of 1972, the learned Trial Judge was pleased to dismiss the suit filed by the landlords against the tenant for possession. The aggrieved landlords thereupon carried the matter in appeal before the District Court at Jamnagar. Their appeal came to be registered as Regular Civil Appeal No. 126 of 1976. It appears to have been assigned to the learned Assistant Judge for hearing and disposal. After hearing the parties, the learned Assistant Judge at Jamnagar, by his judgment and decree passed on 21st November, 1979, was pleased to accept the appeal and to set aside the judgment and the decree passed by the learned Trial Judge. The learned Appellate Judge was pleased to decree the suit of the landlords for possession. The aggrieved tenant thereupon invoked the revisional jurisdiction of this Court under Section 29(2) of the Rent Act.
3. The learned Trial Judge held in favour of the tenant that the tenant had shown willingness to pay the rent by money orders but the same was refused by and on behalf of the landlords. The learned Appellate Judge however took a contrary view holding that the previous readiness and willingness of the tenant would not enure for his benefit when the demand notice is subsequently served to him.
4. The previous notice of 3rd March, 1971 served to the tenant on behalf of the landlords is at Exh. 24 on the record of the Trial Court. As indicated hereinabove, the tenant's tenancy was sought to be terminated by it. The demand for one month's rent for February 1971 was also raised therein. The tenant caused his reply thereto through his Advocate on 20th March, 1971. His reply is at Exh. 25 on the record of the Trial Court. He indicated therein that the former rent of the rented premises was Rs. 4 per month but it was raised to Rs. 6.25 ps. per month. Along with the reply he sent one money order for Rs. 6.25 ps. towards the rent demanded under the notice- That was not accepted by by and on behalf of the landlords. It was refused by the addressee. The M. 0. coupon showing refusal of the rent by the addressee is at Exh. 32 on the record of the Trial Court. It appears that some time in March the tenant attempted to send one more money order of Rs. 6.25 ps. towards the rent for the month of March 1971. It was again refused by and on behalf of the landlords. The money order coupon showing refusal of the rent is at Exh. 30 on the record of the Trial Court. It appears that some time in May 1971 he again appears to have sent one more money order for Rs. 12.50 ps. towards the rent for March and April 1971. That money order was also refused. The M. 0. coupon showing its refusal is at Exh. 31 on the record of the Trial Court. Thereafter the tenant does rot appear to have sent any money order towards the rent due. This remittance made by the tenant to his landlords clearly shows that he was ready and willing to pay the rent due from him. The learned Trial Judge lightly held that the tenant was ready and willing to pay the rent due from him and he was therefore protected under the relevant provisions contained in the Rent Act. A scheme landlord cannot be permitted to take advantage of his own wrong by laying a trap for his tenant by refusing to accept the rent from his tenant and then on a fine morning serve to the tenant a demand notice after allowing arrears of rent to accumulate. The learned Trial Judge rightly relied on the judgment of this Court in the case of Lilavanti Dhirajlal Boradiya v. Soni Harjivan Devjibhai reported in (1975) XVI GLR 1002 in that regard. It has been held therein:
If a landlord refuses to accept the amount tendered by his tenant either by money order or in any other recognized mode of payment without any justifiable cause the tenant is not bound nor is he under en obligation to go on repeating the remittance of the same amount over and over again. A landlord cannot try to take advantage of his own wrong and seek the recovery of possession of the premises. The Bent Act is the measure which is intended to protect the tenants. It is not a trap for the landlord to lay in order to draw his tenant in.
With respect, the learned Appellate Judge ought to have closely read the observations in the ruling of this Court in the case of Lilavanti Dhirajlal Boradiya (supra). The learned Appellate Judge was, with respect, ought not to have lightly brushed aside it and distinguished in a technical manner. The learned Appellate Judge ought to have realised that on the facts and in the circumstances of the case no decree of eviction could have been passed against the tenant. The decree for possession passed by the lower Appellate Court therefore deserves to be set aside on this ground alone.
5. The learned Appellate Judge has again not correctly appreciated the fact that, in his reply at Exh. 25, the tenant did raise the dispute as to the standard rent of the rented premises. In his reply at Exh. 25 on the record of the; Trial Court the tenant his in terms made grievance about excessiveness of the rent of the rented premises. It has in terms been stated that the rent of the rented premises formerly was Rs. 4 per month and it has been raised to Rs. 6.25 ps. per month. This is a sufficient indication that he made grievance about excessiveness of the rent in respect of the rented premises. It would clearly mean that the agreed rent was not the standard rent of the rented premises. It is not necessary for the tenant expressly to raise the dispute with respect to the standard rent of the rented premises. Such a dispute can be raised either expressly or by necessary implication. No particular form is prescribed for raising a dispute as to the standard rent in respect of the rented premises in reply to the demand notice contemplated under the relevant provisions contained in Section 12 of the Rent Act. When a grievance is made in the reply to the demand notice as to excessiveness of the rent in respect of the rented premises, the tenant can be said to have raised a dispute as to the standard rent in respect of the rented premises.
6. Once it is found that in his reply to the demand notice the tenant has raised a dispute about the standard rent in respect of the rented premises and that reply is seat within one months from the date of the demand notice, the case fall outside the purview of Section 12(3)(a) of the Rent Act. In the instant case the notice at Exh. 24 was issued on 3rd March, 1971 The reply thereto at Exh. 25 was caused on 20th March, 1971, that is, well within one month from the date of the demand notice at Exh. 24. In that view of the matter, the tenant did raise a dispute about standard rent in respect of the rented premises within one month from the date of the demand notice at Exh. 24 on the record of the Trial Court. Once such dispute is raised in the previous notice correspondence well within the stipulated time limit, it is not necessary for the tenant to raise such dispute again in reply to the second demand notice. The dispute raised earlier was pending. It was not necessary for the tenant to go to a Court of law and to get the standard rent in respect of the rented premises fixed by the Court. His raising of such dispute within the stipulated time limit would be sufficient and would enure for his benefit even at the stage of the subsequent demand notice till the standard rent dispute is resolved. Once having raised such dispute in the earlier notice correspondence, simply because the tenant does not reply to the second demand notice or simply because he does not raise again a dispute about the standard rent of the rented premises, it cannot be said that there was no dispute as to the standard rent in respect of the rented premises and the case would be governed by Section 12(3)(a) of the Rent Act only on that ground simply because other conditions are found fulfilled for the purpose. If that is allowed to be done a landlord may go on issuing repeated demand notices and can successfully lay a trap for an illiterate and ignorant tenant. An unwary tenant may be caught in such a trap. He may through oversight forget to raise a dispute about the standard rent of the rented premises in reply to the last demand notice though he might have repeatedly raised such dispute in the previous notice correspondence which could be more than enough. Different considerations would arise if the dispute as to the standard rent is resolved after it is raised within the stipulated time limit in reply to the demand notice. I think the learned Appellate Judge was not right in coming to the conclusion that the tenant had raised no dispute about the standard rent in his reply at Exh. 25 to the notice at Exh. 24 simply because he did not expressly use such language. Even at the cost of repetition, I reiterate that by necessary implication the tenant can be said to have raised a dispute about the standard rent in respect of the rented premises in his reply at Exh. 25 within the stipulated time-limit in response to the demand notice at Exh. 24 on the record of the Trial Court. Again, with respect, the learned Appellate Judge was not right in coming to the conclusion that such dispute, did not exist as it was not taken in reply to the subsequent demand notice.
Once it is found that the case falls outside the purview of Section 12(2)(a) of the Rent Act, it is not in dispute that the tenant is protected under Section 12(3)(b) thereof in the instant case. In that view of the matter the decree for possession passed by the Appellate Court deserves to be quashed and set aside.
7. In the result, this revisional application is accepted. The judgment and the decree passed by the learned Assistant Judge of Jamnagar on 21st November, 1979 in Regular Civil Appeal No. 126 of 1976 to the extent of directing the tenant to hand over the possession of the rented premises to the landlords is quashed and set aside. The judgment and the decree passed by the Trial Court is restored. Rule is accordingly made absolute however with no order as to costs on the facts and in the circumstances of the case.