ORDER
D.G. Deshpande, J.
1. Heard Mr. Thorat for the petitioner and Mr. Jahagirdar for the respondents.
2. Petitioner is a landlord and respondents are the tenants. Impugned order was passed under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the “Bombay Rent Act”). The property is a house property situate within the Municipal limits of Nasik i.e. Municipal House No. 972 equivalent to C.T.S. No. 1438 situate in Bohorpatti, having shop premises on the ground floor admeasuring 15′ x 15′ with oata.
3. The original respondent was the tenant of the petitioner on rent of Rs.72/-plus Rs. 8.64 as permitted increases. According to the petitioner, respondent was a habitual defaulter and therefore the petitioner gave notice dated 12-6-1978 calling upon the respondent to pay the arrears of rent. The notice was received by the respondent on 15-6-1978 but the rent was not paid and hence the petitioner filed the suit for eviction. This suit was decreed by the trial Court with costs and the respondent was directed to deliver vacant possession of the suit premises to the plaintiff and other reliefs. The respondent-tenant preferred an appeal before the District Judge, Nasik, which came to be ultimately allowed and the judgment and decree for eviction was set aside and the standard rent was fixed at Rs. 65/- plus permitted increases at Rs. 7.05. The present petition is filed to challenge the appellate decree.
4. It was contended by Mr. Thorat that the appellate Court committed an error in not holding the tenant as habitual defaulter when in fact the tenant had not after filing his application for fixation of fair rent paid or deposited the arrears of rent in the Court. Mr. Thorat relied upon the judgment of Justice Tipnis reported in (1997) 1 Mah LJ 289 : (1997 AIHC 2410); Kalandarali Akbarali Kazi v. Shaikh Gulam Ibrahim, another judgment of the Supreme Court ; Kulkami Patterns Pvt. Ltd. v. Vasant Baburao Ashtekar and judgment of justice Daud reported in 1986 Bom RC 316; Danilal Ganpat v. Lalji Mohanlal Thakkar. He also relied upon a judgment of the Supreme Court reported in AIR 1990 SC 954 Mranalini B. Shah v. Bapalal Mohanlal Shah, with reference to the provisions of Section 12(3)(b) of the Bombay Rent Act.
5. On the other hand, it was contended by Mr. Jahagirdar that admittedly the tenant had within one month of receipt of the notice applied for fixation of fair rent but the Court did not pass any order on that application and therefore it cannot be contended that the tenant was habitual defaulter, nor the tenant could be made liable for the lapses on the part of the Court. Further, Mr. Jahagirdar contended that as required by Section 12(3) of the Bombay Rent Act, the tenant had deposited on the first date of hearing of the suit all the arrears of standard rent and permitted increases and therefore the tenant could not be held as defaulter. Since this objection goes to the root of the matter, the same has to be decided first.
6. Section 12(1) of the Bombay Rent Act prohibits the landlord from recovering possession of the premises so long as the tenant pays or is ready and willing to pay the amount of the standard rent and the permitted increases and performs other conditions of tenancy. Sub-section (2) of Section 12 lays down that before filing a suit for recovery of possession on the ground of non-payment of rent, the landlord shall give one month’s notice in writing and serve the same as per the provisions of Section 106 of the Transfer of Property Act. Sub-section (3) thereafter provides that no decree on this count will be passed against the tenant if on the first date of hearing of the suit, the tenant pays or tenders in Court the standard rent and permitted increases. As per Section 12(3)(b) no decree for 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 rent and permitted increases till the suit is finally decided.
7. The provisions of Section 12 including Sub-section (3) of Section 12 are clear in themselves, whether the dispute between the petitioner and the respondent, whether making of an application to the Court by the tenant under Section 12(3) for fixation of fair rent and showing willingness to pay the rent is sufficient or whether the tenant must take steps to get orders on his application and deposit the rent immediately. According to Mr. Thorat, the tenant did not apply for fixation of interim rent and remained contended by merely filing an application for fixation of fair rent. Therefore, according to him in view of the judgments relied upon by him, the trial Court was justified in holding the tenant as habitual defaulter. Whereas, on the other hand according to Mr. Jahagirdar once the tenant files an application for fixation of fair rent, then it is for the Court to pass orders for fixation or pay-mentof interim rent and if the Court does not pass any such order, no liability can be said to be incurred by the tenant.
8. Justice Daud has in Writ Petition No. 4934 of 1984, reported in 1986 Bom RC 316 held
that:
“The mere fact that the tenant had made an application within a month of the service of the notice, did not bring him within the protection of Section 12(3)(b). That section requires that a tenant who has received a notice of demand under Section 12(2) shall move the Court for fixation of the standard rent or the permitted increases and the Court shall forthwith specify the amount of rent or permitted increases which are to be deposited by the tenant etc. Here, the tenant-does not appear to have moved the Court to do anything in particular, after filing Misc. Application No. 55 of 1974. The empty formality of moving an application for determination of standard rent within a month of receipt of the demand notice under Section 12(2) is not enough. If the Court was under an obligation to forthwith specify the amount payable by the tenant, it could do so, only if it was moved by the tenant.”
9. Justice Tipnis in the case of Kalandarali Akbarali Kazi, reported in 1997 (1) Mad LJ 289 : (1997 AIHC 2410) has rejected the similar contentions raised by the tenants advocate and held that:
“9. The tenant 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 (i) 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 with the tenant doing anything.”
Justice Tipnis has referred to the judgment of the Apex Court and had held that conditions specified in Section 12(3)(b) have to be strictly observed if the tenant seeks the benefits of that section.
10. Another judgment relied upon by Mr. Thorat was of the Supreme Court . In that case the Supreme Court held that the provisions of Section 12(3)(b) are mandatory and must be strictly complied with by the tenant during the pendency of the suit or appeal and Section 12(3)(b) does not create any discretionary jurisdiction to the Court because Section 12(3)(b) provides protection to the tenant on certain conditions which must be strictly observed by the Tenant who seeks benefit of the section.
11. From all the three judgments referred to above, it is clear that the tenant cannot remain contended by merely filing an application for fixation of fair rent, he must take steps to get an interim order from the Court as early as possible without any delay in that regard and comply with the order of the Court that may be passed under Section 12(3)(b). In the instant case the tenant filed an application under Section 12(3)(b) but remain contended by merely doing that and did not press for any orders in that regard. There is therefore non compliance by the tenant of the statutory duty and obligation cast and consequently the appellate order in favour of the tenant is required to be quashed and set aside.
12. So far as the other contention of Mr. Thorat under Section 12(3)(a) is concerned, he tried to contend that there was an irregularity in payment of rent after the first date of hearing, and on the other hand Mr. Jahagirdar contended that the tenant had paid the rent in advance. Both of them filed details in that regard, but in my opinion that question cannot be decided by this Court because it is a complicated question of fact. Even the appellate Court had not properly looked into that aspect nor find out the truth. It was necessary for the appellate Court to take into consideration the date of the demand notice given by the petitioner landlord, the petitioner’s claim in that notice and the period of arrears, the rate of the rent with permitted increases claimed, defence of the defendant regarding payment up to a particular date and non payment from a particular date, the rate of rent agreeable to the tenant, the dates of payment of rent by the tenant, and the effect of the payment, the punctuality and regularity in payment of rent and also whether the tenant was in arrears or had paid rent in advance. Those aspects were not considered by the appellate Court.
13. Since, however, the petitioner succeeds on the main ground of non compliance of Section 12(3)(b) of the Bombay Rent Act, the appellate Court’s order is required to be set aside and consequently, I pass the following order:
ORDER
Petition allowed. Rule made absolute. Judgment and order dated 20-4-1985 passed in Civil
Appeal No. 475 of 1983 and Civil Revision Application No. 2 of 1984 passed by District Judge, Nasik is quashed and set aside and the judgment and Decree dated 7-10-1983 passed by the 3rd Joint Civil Judge, Junior Division, Nasik, in Regular Civil Suit No. 638 of 1978 and Civil Misc. Application No. 148 of 1978 is confirmed. Respondents will bear the cost of the petition throughout.