Case Note & Summary
The dispute arose from a landlord-tenant relationship where the respondent-landlord sought eviction of the petitioner-tenant on the ground of default in payment of monthly rent of Rs. 70. The landlord issued a demand notice dated 9 July 1981, terminating the tenancy, and filed Regular Civil Suit No. 435 of 1981 on 14 September 1981. The tenant undisputedly filed an application for fixation of standard rent (No. 99 of 1981) within one month from receipt of the notice, invoking protection under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The trial court decreed the suit on 22 September 1989, holding the tenant in default and fixing standard rent at Rs. 80 per month with arrears of Rs. 2,400. The tenant's appeal was dismissed by the Additional District Judge, Malegaon, on 18 February 1993, confirming the eviction. The tenant then filed the present writ petition before the High Court, contending that the appellate court failed to consider the crucial application for standard rent which, under Sections 11(3) and 12(3)(b) of the Bombay Rent Act, could shield the tenant from eviction. The High Court noted the absence of any reasoning regarding the impact of the said application and the regularity of deposit of interim rent. Observing that the omission went to the root of the matter, the court set aside the appellate judgment and remanded the case for reconsideration of all aspects of Application No. 99/81 and related issues, directing disposal of the appeal within six months. The writ petition was allowed with no order as to costs.
Headnote
A) Rent Control - Eviction for Default - Protection to Tenant - Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, Sections 11(3) and 12(3)(b) - Tenant filed application for fixation of standard rent within one month of receipt of notice - Held that appellate court committed error by not considering this application and its effect on tenant's protection from eviction, matter remanded for reconsideration of application and related issues (Paras 4-6).
Issue of Consideration
Whether the appellate court erred in confirming eviction decree without considering the tenant's application for fixation of standard rent filed within one month of demand notice, which could afford protection under the Bombay Rent Act
Final Decision
Writ petition allowed. Impugned judgment of appellate court dated 18/2/1993 set aside and matter remanded back to Additional District Judge, Malegaon for reconsideration of all aspects of application No. 99/81 and related issues under Bombay Rent Act, with direction to dispose of the appeal within six months. No order as to costs.
Law Points
- Protection to tenant from eviction on ground of default under Bombay Rent Act sections 11(3) and 12(3)(b) if tenant files application for standard rent within one month
- necessity of reasoning on regular deposit of rent after order
- consideration of application for standard rent in eviction suit
Case Details
2005 LawText (BOM) (07) 160
WRIT PETITION NO. 1378 OF 1993
A.N. Mulla, S.M. Gorwadkar
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Nature of Litigation
Civil eviction suit by landlord against tenant on ground of default in payment of rent
Remedy Sought
Tenant seeks quashing of eviction decree and order of appellate court and remand to appellate court for reconsideration
Filing Reason
The appellate court dismissed the tenant's appeal against eviction decree without considering the tenant's application for standard rent filed within one month of demand notice, which could afford protection under Bombay Rent Act.
Previous Decisions
Trial court decreed suit for eviction and arrears of rent; appellate court affirmed.
Issues
Whether the appellate court erred in confirming the eviction decree without considering the tenant's application for fixation of standard rent (No. 99/1981) filed within one month of the demand notice, which could provide protection from eviction under the Bombay Rent Act.
Submissions/Arguments
Tenant argued that the appellate court failed to consider the application for standard rent, which is crucial for protection under Sections 11(3) and 12(3)(b) of the Bombay Rent Act.
Ratio Decidendi
An appellate court in an eviction suit under the Bombay Rent Act must consider the tenant's application for fixation of standard rent filed within one month of the demand notice, as it could provide the tenant protection from eviction on the ground of default under Sections 11(3) and 12(3)(b); failure to do so vitiates the decision and warrants remand.
Judgment Excerpts
the tenant however, undisputedly filed an application for fixation of standard rent No. 99/1981, within one month from the receipt of the notice.
One thing which is missing in the reasoning of the appellate Court is that there is no reference or consideration given to the M.A.No. 99/81, which was filed by the tenant within one month from the receipt of the notice in question.
Considering the view taken by the Bombay High Court, on the basis of provision of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ( for short Bombay Rent Act) section 11(3), 12(3) and (b), the protection to the tenant from eviction on the ground of default under these provisions, if the case is made out by the tenant, it decide the substantial rights of the parties.
the matter needs to be remitted back for reconsideration on all aspects of application No. 99/81 and related issues, under the Bombay Rent Act.
Procedural History
Landlord issued demand notice dated 9/7/1981; landlord filed Regular Civil Suit No. 435/1981 on 14/9/1981; tenant filed application for standard rent No. 99/1981 within one month of notice; trial court decreed suit on 22/9/1989; tenant appealed to Additional District Judge, Malegaon (Civil Appeal No. 484/1989) which was dismissed on 18/2/1993; tenant filed present writ petition in High Court; High Court allowed writ petition on 21/7/2005 and remanded the appeal.
Acts & Sections
- Bombay Rents, Hotel and Lodging House Rates Control Act, 1947: 11(3), 12(3), 12(3)(b)
