JUDGMENT
R.M. Doshit, J.
1. Heard the learned advocates.
2. RULE returnable today. Learned advocate Mr. Desai waives service of rule.
3. The petitioner-defendant has preferred the present Revision Application under Section 29(2) of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947 (hereinafter referred to as “the Rent Act“) against the judgment and order dated 23rd September, 2004 passed by the learned Joint District Judge, Surat in Regular Civil Appeal No. 10/2000.
4. The petitioner-defendant is a tenant in the suit premises comprising a residential room situated at Surat. The suit room was leased to the defendant for a monthly rent of Rs. 50=00. The defendant raised dispute as to the standard rent of the suit room in Rent Application No. 1250/1977. The said Rent Application was decided on 18th July, 1983. The standard rent of the suit room was fixed at Rs. 50=00 per month exclusive of permitted increases. The said order was confirmed by the learned Assistant Judge, Surat in Civil Revision Application No. 4/1983.
5. Since then, the plaintiffs, the respondents-landlords, gave notice of demand for recovery of the amount of arrears of rent. As the defendant failed to pay in answer to the said notice of demand, the plaintiffs instituted Small Cause Suit No. 142/1985 in the court of Small Causes, Surat for recovery of the amount of arrears of rent and possession of the suit room. The suit was contested by the defendant by written statement Exh.11. The defendant denied that the monthly rent of the suit room was Rs. 50=00 and raised dispute as to the standard rent. He denied that he was in arrears of rent since 1st March, 1966 as alleged. He stated that he had deposited a sum of Rs. 3,240=00 in the Court pending the Rent Application. He also stated that the plaintiffs had, under the notice dated 23rd March, 1984, demanded the municipal taxes which the defendant was not liable to pay. The learned Additional Judge, Small Causes Court, by judgment and order dated 31st December, 1999, held that the defendant was in arrears of rent. As the defendant failed to tender the amount of arrears of rent within one month from the date of the receipt of the suit notice and that the dispute as to the standard rent raised by the defendant was not bonafide, the plaintiffs were entitled to decree for eviction under Section 12(3)(a) of the Rent Act. Accordingly a decree for eviction was passed by the trial Court. The said judgment and order have been confirmed by the lower appellate Court.
6. Learned advocate Mr. Vyas has submitted that both the Courts below have erred in holding that the plaintiffs were entitled to decree for eviction under Section 12(3)(a) of the Rent Act. He has submitted that as the defendant was liable to pay municipal taxes, Section 12(3)(a) of the Rent Act would not be attracted. The defendant was, therefore, entitled to protection under Section 12(3)(b of the Rent Act. As the defendant had deposited the amount of rent pending the Rent Application and as the defendant had deposited the rent pending the suit and the appeal, he is entitled to protection under Section 12(3)(b) of the Rent Act and that the decree for eviction ought to have been refused.
7. It is indisputable that in the aforesaid Rent Application No. 1250/1977 the standard rent of the suit room was fixed at Rs. 50=00 exclusive of permitted increases. It is also not disputed that the defendant was liable to pay municipal taxes, education cess, etc. As the municipal taxes and education cess are payable every year, as held by catena of decisions of this Court, the rent cannot be said to be payable by the month. Section 12(3)(a) of the Rent Act envisages a situation where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases. Undoubtedly, the dispute as to the standard rent raised by the defendant in the present proceeding was not genuine or bonafide. However, as recorded hereinabove, the rent could not have been said to be payable by the month. Both the Courts below have held that as the plaintiffs did not demand the amount of taxes under the suit notice the case was covered by Section 12(3)(a) of the Rent Act. I am of the opinion that both the Courts below have manifestly erred in passing decree for eviction against the defendant under Section 12(3)(a) of the Rent Act. Whether the landlord has demanded municipal taxes and education cess under the suit notice is not relevant. What is relevant is whether the tenant is liable to pay such municipal taxes and education cess, etc. In the present case, it is not disputed that the defendant was liable to pay municipal taxes and education cess. In the circumstances, the provisions contained in Section 12(3)(a) of the Rent Act would not be attracted.
8. The question, therefore, shall arise whether the defendant was entitled to protection under Section 12(3)(b) of the Rent Act. As recorded hereinabove, neither of the Courts below has examined whether the defendant was entitled to protection under Section 12(3)(b) of the Rent Act. It does appear that the defendant deposited monthly rent at Rs. 30=00 and not at Rs. 50=00 as determined in the Rent Application. However, neither of the learned advocates is in a position to state precisely whether the entire amount of arrears of rent was deposited by the defendant in the trial Court on the first day of hearing of the suit and, whether or not the defendant continued to tender in Court such monthly rent and permitted increases pending the suit and the appeal.
9. In above view of the matter, the Revision Application is allowed. The impugned judgment and order dated 23rd September, 2004 passed by the learned Joint District Judge, Surat in Regular Civil Appeal No. 10/2000 is quashed and set aside. The judgment and order dated 31st December, 1999 passed by the learned Additional Judge, Small Causes Court, Surat in Small Cause Suit No. 142/1985 is quashed in so far as the matter is held to be covered by Section 12(3)(a) of the Rent Act and the decree for eviction has been passed under Section 12(3)(a) of the Rent Act. The Small Cause Suit No. 142/1985 is remanded to the trial Court for determination whether or not the defendant is entitled to protection under Section 12(3)(b) of the Rent Act. The enquiry pursuant to this order of remand shall be confined to the aforesaid question alone. Neither of the parties shall be allowed to lead further evidence. The learned trial Judge shall consider and record its finding whether the defendant had deposited the entire amount of arrears of rent on the first day of hearing of the suit and whether he continued to pay or tender in Court the monthly rent and permitted increases pending the suit, pending the appeal, pending this Revision Application and till the date of decision afresh pursuant to this order of remand.
10. Rule is made absolute to the aforesaid extent. The parties shall bear their own cost. Registry shall send the writ forthwith. Both the parties shall cooperate in early hearing of the suit.