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Judgment
D.K. Deskmukh, J.—This is a petition filed under Article 227 of the Constitution of India, challenging the Order of the 5th Additional District Judge, Pune dated 7.12.1993 allowing the Appeal filed by the respondent and setting aside the decree passed by the Trial Court in Suit No. 1248/1984 dt. 13.12.1989. Civil Suit No. 1248/84 was filed by the petitioner, claiming that he is a landlord of one room out of the property, bearing No. 58 Juna Bazar, Kirkee, Pune. The said suit was filed under the provisions of the Bombay Rent Act against the respondent, who is the tenant in the suit premises. It is the case of the landlord that the tenant did not pay the rent from 9.3.1974. Therefore, on 16.4.83 a notice was; issued to the tenant by the landlord demanding the arrears of rent. The notice was received by the tenant on 21.4.1983. The tenant replied the said notice, disputing his liability to pay the amount of arrears of rent. The tenant on 27.4.1983 also filed an application for fixation of the standard rent.
The Trial Court held that the tenant is defaulter within the meaning of Section 12(3)(a) of the Bombay Rent Act. The other two issues, namely, alternate accommodation secured by the tenant and bona fide need of the landlord were answered in favour of the tenant. The tenant preferred an. Appeal being Civil Appeal No. 217 of 1990. The Appellate Court decided the Appeal in favour of the tenant. The Appellate Court held that the tenant was not a defaulter within the meaning of the provisions of Section 12(3)(a) of the Bombay Rent Act. It is this Appellate Court Judgement, which is impugned in this petition.
The learned Counsel appearing for the petitioners urged before me that in view of the receipt of the notice, the tenant had made an application for fixation of the standard rent. However, the Court did not pass any order, fixing the amount of standard rent and therefore, now in the submission of the learned Counsel for the petitioner the landlord was not entitled to a decree u/s 12(3)(a) of the Act.
The learned Counsel appearing for the respondents submitted that after receiving notice the tenant can make an application for fixation of the standard rent if he is disputing the amount of rent claimed by the landlord. The tenant has filed such application before the Court but, the Court did not make an order regarding the fixation of the interim standard rent. The failure of the Court to make an order on interim rent to be deposited by the tenant, does not cast any liability on the tenant to make deposit of any amount in the Court.
For deciding the question that is raised in the petition, it is necessary to refer the provisions of Sub-section 2 of Section 12 of the Bombay Rent Act. Sub-section 2 of Section 12 of the Act reads as under :-
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.
Thus it is clear from the provisions of Sub-section 2 of Section 12 of the Act that before filing a civil suit, the landlord has to issue a notice demanding the arrears of rent. Explanation (1) - appearing below Section 12 of the Act reads as under :
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.
It is thus clear from the perusal of the explanation, quoted above that after the tenant receives a notice, he should make an application as contemplated by Sub-section 3 of Section 11 of the Act. Sub-section 3 of Section 11 of the Act reads as under:-
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. The 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 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.
It thus becomes clear from the perusal of the above quoted provision that the tenant, who is in arrears for the period of more than 6 months after receiving notice of demand from the landlord, can make an application under Sub-section 3 of Section 11 of the Act for fixation of the standard rent. The moment such an application is made in view of the provisions contained in the explanation No. (I), appearing below Section 12 of the Act, it is to be deemed that the tenant is ready and willing to pay the rent. Perusal of the provisions of Sub-section 1 of Section 12 of the Act shows that landlord becomes entitled to recover possession of the demise premises only in one contingency, namely, if the tenant is not ready and willing to pay the rent. Perusal of the provisions of explanation (I) appearing below Section 12, shows that the moment the tenant makes an application for fixation of the standard rent within one month from the receipt of the notice, a statutory presumption is raised that he is ready and willing to pay the rent. In the face of this statutory presumption in terms of the provisions of Sub-section 1 of Section 12 of the Act, the landlord would not be entitled to recover possession from the said tenant. Perusal of the Sub-section 3 of Section 11 of the Act shows that after a tenant makes an application for fixation of the standard rent, the duty cast on the Court to fix the amount of rent and it is only after such an order is made then the duty cast on the tenant to deposit the rent. If there is no order made by the Court, then the tenant is not obliged to deposit any amount of rent. In any case the moment an application for fixation of the standard rent is made, a statutory presumption arises that the tenant is ready and willing to pay rent and therefore, the landlord loses his cause of action in terms of provisions of Sub-section 1 of Section 12 of the Act to recover the possession of the premises on the ground that the tenant is defaulter.
In so far as the present case is concerned it is an admitted position that after receiving notice on 21.4.1983 the respondent-tenant made an application on 27.4.1983 for fixation of the standard rent. The moment that application for standard rent was filed by the tenant a statutory presumption was raised in his favour that he is ready and willing to pay the rent and therefore, on 27.4.1983 the landlord lost the cause of action in terms of the provisions of Sub-section 1 of Section 12 of the Act to file suit for recovery of the possession against the tenant on the ground that the tenant is not ready and willing to pay the amount of rent and therefore, in such a suit no decree of possession could have been passed by the Courts. Once such a statutory presumption is raised, what happened subsequently to the application of the standard rent is not to be considered by the Court. The moment, an application for fixation of the standard rent is filed, the notice of demand issued by the landlord loses its efficacy. Therefore, a suit based on such a notice would not be tenable in the eyes of law. Therefore, decree u/s 12(3)(a) cannot be passed against the tenant.
Now considering the provision of Section 12(3)(b) of the Act it is to be seen that though the suit has been filed in the year 1984, it is clear from the order of the Trial Court that the tenant started depositing the agreed rent in the Court from 13.6.1983 itself. This aspect of the matter has been rightly considered by the Appellate Court. No fault can be found in the reasoning adopted by the Appellate Court.
In the result, therefore, I find that the Appellate Court has rightly allowed the Appeal filed by the tenant. Hence, the petition fails and is dismissed with no order as to costs.