Rupaben and Another vs Babubhai Deojibhai

N.H. Bhatt, J.—This is a revision application filed by the original defendants of the H. R. P. Civil Suit No. 1264 of 1975 dismissed in their favour by the trial Judge, namely the Judge of the Small Cause Court, whose judgment came to be set at naught by the appellate Bench of that Court in the respondent-landlord''s Regular Civil Appeal No. 113 of 1979. Being aggrieved by the said decree of eviction, the original defendants have filed this revision application u/s 29 (2) of the Bombay Rent Act.

A few facts as found by the appellate Bench are required to be noted with precision. The tenants were in arrears of rent from 1-11-1969, and despite the notice Ex. 32 dated 14-9-1972, received by the tenants on 18-9-1972, they had failed to pay or tender the arrears of rent within one month from the date of the receipt of the notice, as held by the Appellate Bench contrary to what was found by the learned trial Judge. It is further found by the Appellate Bench that no dispute about standard rent was raised within one month of the receipt of the notice, but as the taxes were demanded by the notice of demand Ex. 30, the Appellate Bench held that the case would not fall u/s 12 (3) (a) of the Bombay Rent Act. The appellate. Bench further found that as there was no regular payment of rent as per the rate demanded, the protection given by Section 12 (3) (b) of the Rent Act was not available to the tenants and the result was that eviction decree followed.

Now it is to be noted with pertinence that the dispute about standard rent was raised by the tenants in the written statement. It is again a finding that the standard rent came to be fixed for the first time at the rate of Rs. 8/- plus Rs. 3/- by way of permitted increase per month, by the learned trial Judge at the time of the final conclusion. It is again an admitted position that in the memo of appeal, the landlords had raised a dispute against the fixation of Rs. 8/- as standard rent, presumably because according to them the standard rent should have been fixed at Rs. 10/- plus Rs. 3/- by way of permitted increase, but it appears that at the time the matter was heard before the appellate Bench, this point was not pressed.

Mr. A. L. Shah, the learned Advocate for the petitioners-tenants urged only one point before me, namely, the tenants were not in a position to know exactly at what rate they were required to pay up the arrears and hence, as they were not specifically informed by a judicial decision of the rate of deposit, any short-fall at some stage cannot go to their detriment and they cannot be said to have forfeited the benign benefit of Section 12 (3) (b) of the Bombay Rent Act. There are two judgments of this Court, one delivered by My Brother Majmudar, J., in the case of Champaben v. Gopinath Gangadhar 21 GLR 709 : (AIR 1980 NOC 18) and one unreported judgment of mine in the case of Naranbhai Natha-bhai Koli v. Modhia Panalal Maganlal in the Civil Revn. Appln. No. 1635 of 1980 decided by me on 9th April 1982. In the case decided by me the case was falling u/s 12 (3) (b) of the Bombay Rent Act and for the technical purpose of Section 12 (3) (a) it could be said that there was no dispute about standard rent in so far as it having been not raised within one month from the date of the notice, as is the case in this revision application also. I, however, held and so, has been held by My Brother Majmudar, J. in the case of Champaben, that in order to avail himself of the benefit of Section 12 (3) (b) of the Rent Act, the tenant must know at what rate he has to go on paying the rent and if there was on hand of the Trial Court as well as the Appellate Court, the question, of deciding what the standard rent is, the tenant can be said to be technically not able to deposit the rent fully, even though he may be willing to do so. I and my brother Majmudar, J. have placed our reliance on the earlier judgment of the Division Bench of this Court in the case of Nanji Pancha Vs. Daulal Naraindas, . In view of these judgments, the tenants'' revision application is required to be allowed.

Mr. Shah, however, invited my attention to three judgments, namely 5 Guj LR 55 : Vora Abbasbhai Alimahomed Vs. Haji Gulamnabi Haji Safibhai, in the case of Mranalini B. Shah and Another Vs. Bapalal Mohanlal Shah, , in the case of Mranalini B. Shah v. Bapalal Mohanlal Shah and the Full Bench decision of this Court to which I was a party, in the case of Ramniklal Dwarkadas Modi Vs. Mohanlal Laximichand and Others, . In my estimation the ratio decidendi of all these three cases is quite different from the point which I am required to decide in this revision application. In Ramniklal''s case what was decided was that as to when a case would fall within the purview of Section 12 (3) (a) of the Act, that is, three circumstances are envisaged in that judgment. In the Supreme Court''s judgment what has been explained, is the meaning of the term ''''regularly" appearing in Section 12 (3) (b) of the Act. The earlier judgment in the case of Vora Abbasbhai Alimahomed. (5 Guj LR 55) : Vora Abbasbhai Alimahomed Vs. Haji Gulamnabi Haji Safibhai, also does not deal with the question which has been viewed by me and my Brother Majmudar, J. in the aforesaid cases. There is no question of regular deposit during the appeal, because during the appeal also, the dispute about the standard rent was agitated before the learned Judges but was not pressed at hearing as no specific point for determination has been raised by the learned Judges.

The result is that the revision application is allowed by setting aside the appellate judgment and restoring that of the trial Judge. In the facts and circumstances of the ease I direct the par ties to bear their own costs throughout.