Case Note & Summary
The petitioner-landlord filed a suit for eviction against the respondent-tenant on the ground of irregular payment of rent. The trial court decreed eviction, holding that the tenant had failed to diligently pursue his application for fixation of standard rent and thus was not entitled to protection under Section 12(3)(b) of the Bombay Rent Act. The appellate court set aside the decree and remanded the matter for fresh trial. The landlord challenged this remand order under Article 227 of the Constitution. The High Court allowed the petition, setting aside the appellate order and restoring the trial court's decree. The court held that the tenant's mere filing of an application for standard rent fixation without pursuing it diligently does not entitle him to protection. The appellate court's remand was unjustified as the trial court had correctly applied the law.
Headnote
A) Rent Control - Eviction - Standard Rent Fixation - Section 12(3)(b) Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - The tenant's mere filing of an application for fixation of standard rent within one month of demand notice is not sufficient; the tenant must diligently pursue the application to get the rent determined. Failure to do so disentitles the tenant to protection under Section 12(3)(b). (Paras 2-3)
B) Rent Control - Appellate Court's Power - Remand - Section 12(3)(b) Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - The appellate court erred in setting aside the trial court's decree and remanding the matter for fresh trial when the trial court had correctly applied the law and the tenant had not shown diligence in getting the standard rent fixed. (Paras 2-3)
Issue of Consideration
Whether the tenant is entitled to protection from eviction under Section 12(3)(b) of the Bombay Rent Act when he has filed an application for fixation of standard rent but has not diligently pursued it, and whether the appellate court was justified in remanding the matter for fresh trial.
Final Decision
The High Court allowed the writ petition, set aside the appellate court's order dated 11/1/1993, and restored the trial court's decree dated 7/3/1987.
Law Points
- Standard rent fixation
- Eviction for non-payment of rent
- Section 12(3)(b) Bombay Rent Act
- Tenant's obligation to pay rent as determined
- Diligence in pursuing rent fixation application
Case Details
2005 LawText (BOM) (07) 168
Writ Petition No. 4858 of 1993
Mr. V.S. Gokhale i/b Mr. B.P. Apte for the petitioner; Shri N.V. Bandiwadekar for respondent Nos. 1 to 3
Shri Datta Nagosa Solanki
Shri Madhukar Dattoba Adnik (since deceased by heirs: Smt. Anusaya Madhukar Adnaik, Dilip Madhukar Adnaik, Mahesh Madhukar Adnaik)
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Nature of Litigation
Civil writ petition under Article 227 challenging appellate court's remand order in a rent control eviction suit.
Remedy Sought
The petitioner-landlord sought to set aside the appellate court's order remanding the matter for fresh trial and restore the trial court's eviction decree.
Filing Reason
The appellate court set aside the trial court's eviction decree and remanded the case for fresh trial, which the landlord challenged as erroneous.
Previous Decisions
Trial court (II Jt. Civil Judge, J.D., Kolhapur) decreed eviction on 7/3/1987. Appellate court (Additional District Judge, Kolhapur) set aside the decree and remanded on 11/1/1993.
Issues
Whether the tenant's mere filing of an application for fixation of standard rent within one month of demand notice is sufficient to claim protection under Section 12(3)(b) of the Bombay Rent Act.
Whether the appellate court was justified in remanding the matter for fresh trial when the trial court had correctly applied the law.
Submissions/Arguments
Petitioner-landlord argued that the tenant did not diligently pursue the application for standard rent fixation and therefore was not entitled to protection under Section 12(3)(b).
Respondent-tenant argued that the filing of the application itself was sufficient and the appellate court's remand was proper.
Ratio Decidendi
The mere filing of an application for fixation of standard rent within one month of the demand notice under Section 12(2) is not enough; the tenant must diligently pursue the application to get the rent determined. Failure to do so disentitles the tenant to the protection under Section 12(3)(b) of the Bombay Rent Act.
Judgment Excerpts
The empty formality of moving an application for determination of standard rent within one month of the 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.
There is no evidence to show that the tenant was in hurry to get the order contemplated by Section 12(3) of the Act.
Procedural History
The landlord filed a suit for eviction in the trial court, which decreed eviction on 7/3/1987. The tenant appealed to the Additional District Judge, Kolhapur, who set aside the decree and remanded the matter on 11/1/1993. The landlord then filed a writ petition under Article 227 in the Bombay High Court, which was allowed on 21/7/2005.
Acts & Sections
- Bombay Rents, Hotel and Lodging House Rates Control Act, 1947: Section 11(3), Section 12(a), Section 12(b), Section 12(2), Section 12(3)(b)
- Constitution of India: Article 227
