Bombay High Court
Ishwar Niwruti Danane vs Laxman Fakirsa Burbure on 30 July, 2004
Equivalent citations: 2005(1)BOMCR738, 2004(4)MHLJ1066
Author: D.G. Karnik
Bench: D.G. Karnik
JUDGMENT D.G. Karnik, J.
1. A decree for possession passed against the petitioner-tenant on the ground of default in payment of rent is impugned in this petition.
2. By a notice of demand dated 2nd July, 1992 the respondent demanded from the petitioner arrears of rent from 1st July, 1990 to June, 1992. The petitioner neither paid the arrears demanded nor filed an application for determination of the amount of standard rent within a period of one month. A decree for possession has been passed against the petitioner on the ground of default. Relying upon the decision of the Supreme Court in Ibrahim Abdul Rahim Shaikh v. Krishnamurari Sripatlal Agarwal , learned counsel for the petitioner contends that the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short "the Act") only requires the dispute about the standard rent to be raised within one month and it is not necessary that an application for determination of the standard rent must be filed within a period of one month. The contention is fallacious. In Harbanslal Jagmohandas v. Prabhudas Shivlal reported in AIR 1976 SUPREME COURT 205 the Supreme Court has laid down that in order to avoid the operation of Section 12(3)(a) of the Act the dispute in regard to standard rent or permitted increases must be raised at the latest before the expiry of one month from the date of receipt of the notice by filing an application for determination of the amount of standard rent or permitted increases. In Ibrahim Abdul Rehman Shaikh (supra) the Supreme Court only laid down that after an application for fixing the standard rent is made, it is not necessary for the tenant to further make an application under Section 11(3) of the Act for fixation of interim rent within one month. Therefore, the said judgments is of no assistance to the petitioner.
3. Sub-section 3 of Section 12 was amended in the year 1987 to give a relief to a tenant if he pays on or before the first date of hearing or on such other date as may be fixed by the court, all the arrears of rent with interest and costs. The first date of hearing means the date when the issues are framed. In the present case, the issues were framed on 15th January, 1994. On 23rd January 1995 issues were recast and further recast on 3rd January 2001. Admittedly, the petitioner did not deposit the arrears of rent with interest on or before 15th January, 1994 when the issues were framed. He however, claims to have deposited the arrears before the issues were first recast. Learned counsel for the petitioner submits that the first date of hearing should be treated as the date on which the issues were recast. I am unable to agree. It is not disputed that the issues can be recast at any time and even after the evidence has been led. To hold that the first date of hearing would be the date when the issues are recast would mean that earlier hearings held before recast of issues were held before the first date of hearing. If the contention is accepted a dishonest tenant may simply amend the written statement necessitating recast of the issues and thereby the defeat the vested right accrued to a landlord of obtaining the possession of the premises on failure of the tenant to deposit the arrears of rent with interest on or before the first date of hearing.
4. For these reasons, there is no merit in the petition which is hereby rejected.
5. Learned counsel for the petitioner requests for time to vacate the premises. Learned counsel for the respondent has no objection for granting reasonable time subject to usual terms. Taking an overall view of the matter, the petitioner is given one years time to vacate the suit premises subject to his paying to the respondent all arrears within 4 weeks and future compensation equivalent to rent regularly on or before 10th of each month in advance and on his filing of an usual undertaking of himself and his family members within a period of four weeks. Learned counsel for the respondent states that before communication of the order for interim stay passed by this court, the execution petition was filed and keys are in possession of the respondent. The respondent through his counsel has today handed over the keys of the suit premises to the petitioner's advocate on his assurance and that the petitioner would file the undertaking as indicated above.
6. Authenticated copy allowed.