Jiwaba Baherwade & Anr Vs. Bapurao Dodappa Tandale  Insc 394 (17 September 2002)
N. Variava & Brijesh Kumar. S. N. Variava, J.
Appeal is against an Order dated 18th August, 2000.
stated the facts are as follows:
On 18th May, 1963 the Respondent let out the suit
premises to the Appellants for a period of five months on a monthly rent of Rs.
Note was executed which, inter alia, provided that the Municipal taxes were to
be paid by the Respondent. On the expiry of the period of five months the
Appellants continued to remain in the premises.
in 1970 the Respondent constructed a floor above the suit premises. A part of
the additional construction was let out to another tenant and the rest was
occupied by the Respondent. On 10th December, 1977 the Respondent served a notice to the Appellants claiming arrears of
rent amounting to Rs. 1,400/- at the rate of Rs. 175/- per month for the period
from 1st January, 1977 to 31st August, 1977. In this Notice a sum of Rs. 940.13 was also claimed
towards increase in Municipal taxes. The Appellants sent a reply dated 13th September, 1977. Along with the reply the
Appellants paid Rs. 1,400/- by way of a Bank Draft. In regard to Rs. 940.13 the
Appellants asked the Respondent to explain as to what would be their share in
the increases which would be allocable to the premises in their occupation. The
Respondent sent no reply to this notice.
Respondent then filed Regular Civil Suit No. 1291 of 1977 seeking eviction of
the Appellants on grounds of default, subletting and bonafide personal
requirement. The trial Court held that none of the ground had been proved and
dismissed the Suit on 17th
Respondent then filed an Appeal. The Appeal was dismissed on 10th December, 1987.
Respondent then filed Writ Petition No. 4805 of 1988. This Writ Petition came
to be allowed by the impugned Judgment dated 18th August, 2000. The High Court did not interfere with the findings of both
the courts below on the grounds of sub-letting and bona-fide personal
requirement. The only ground on which the Writ Petition was allowed is that
there was default of payment of increase in the Municipal taxes. It is held
that as a result of such default the Respondent landlord was entitled to a decree
of eviction under Section 12 (3).
the submissions of the parties are considered the relevant provisions need to
be set out. Sections 10, 11 and 12 of the Bombay Rents, Hotel and Lodging House
Rates Control Act, 1947 read as follows:
Increase in rent on account of payment of rates, etc.
and after the commencement of the Bombay Rents, Hotel and Lodging House Rates
Control (Amendment) Act, 1986, where a landlord is required to pay to
Government or to any local authority or statutory authority, in respect of any
premises any fresh rate, cess, charges, tax, land assessment, ground rent of
land or any other levy on lands and buildings, or increase in rate, cess,
charges, tax, land assessment, ground rent of land or any other levy on lands and
buildings, he shall, notwithstanding anything contained in any other provisions
of this Act but save as otherwise expressly provided in any other law for the
time being in force, be entitled to make an increase in the rent of such
that, the increase in rent shall not exceed the amount of any such rate, cess,
charges, tax, land assessment, ground rent of land or any other levy on lands
and buildings, as the case may be.
Where the rent is inclusive of charges for electricity and water and the
landlord is required to pay any increase in these charges in respect of any
premises, he shall be entitled to make an increase in the rent of such premises
by an amount not exceeding the additional amount payable by him in respect of
such premises on account of such increase.
The amount of the increase in rent recoverable from each tenant under
sub-sections (1) and (2) shall bear the same proportion as the rent payable by
him in respect of his premises bears to the total amount of any such rate, cess,
charges, tax, land assessment, ground rent of land or any other levy on lands
and buildings, or increase in electricity or water charges, as the case may be.
Court may fix standard rent and permitted increases in certain cases (1)
Subject to the provisions of Section IIA in any of the following cases the
Court may, upon an application made to it for that purpose, or in any suit or
proceedings, fix the standard rent at such amount as, having regard to the
provisions of this Act and circumstances of the case, the Court deems just -
(a) where any premises are first let after the first day of September 1940, and
the rent at which they are so let is in the opinion of the Court excessive; or
(b) where the Court is satisfied that there is not sufficient evidence to
ascertain the rent at which the premises were let in any one of the cases
mentioned in paragraph (i) to (iii) of sub-clause (b) of clause (10) of section
5; or (c) where by reason of the premises having been let at one time as a
whole or in parts and at another time in parts or as a whole, or for any other
reason, any difficulty arises in giving effect to this Part; or (d) where any
premises have been or are let rent- free or at a nominal rent or for some
consideration in addition to rent; or (d-1) without prejudice to the provisions
of sub- section (1A) of section 4 and paragraph (iii-a) of sub- clause (b) of
clause (10) of section 5, where the Court is satisfied that the rent in respect
of premises referred to therein exceeds the limit of standard rent laid down in
the said paragraph (iii-a); or (e) where there is any dispute between the
landlord and the tenant regarding the amount of standard rent.
there is any dispute between the landlord and the tenant regarding the amount
of permitted increases, the Court may determine such amount.
any application for fixing the standard rent or for determining the permitted
increases is made by a tenant who has received a notice from his landlord under
sub-section (2) of section 12, the Court shall forthwith specify the amount of
rent or permitted increases which are to be deposited in Court by the tenant,
and make an order directing the tenant to deposit such amount in Court or at
the option of the tenant make an order to pay to the landlord such amount
thereof as the Court may specify, pending the final decision of the
application. A copy of the order shall be served upon the landlord. Out of any
amount deposited in Court, the Court may make an order for payment of such
reasonable sum to the landlord towards payment of rent or increase due to him
as it thinks fit. If the tenant fails to deposit such amount or, as the case
may be, to pay such amount thereof to the landlord, his application shall be
Where at any stage of a suit for recovery of rent, whether with or without a
claim for possession of the premises, the Court is satisfied that the tenant is
withholding the rent on the ground that the rent is excessive and standard rent
should be fixed, the Court shall, and in any other case if it appears to the
Court that it is just and proper to make such an order the Court may, make an
order directing the tenant to deposit in Court forthwith such amount of the
rent as the Court considers to be reasonably due to the landlord, or at the
option of the tenant an order directing him to pay to the landlord such amount
thereof as the Court may specify. The Court may further make an order directing
the tenant to deposit in Court periodically, such amount as it considers proper
as interim standard rent, or at the option of the tenant an order to pay to the
landlord such amount thereof as the Court may specify, during the pendency of
the suit. The Court may also direct that if the tenant fails to comply with any
order make as aforesaid, within such time as may be allowed by it, he shall not
be entitled to appear in or defend the suit except with leave of the Court,
which leave may be granted subject to such terms and conditions as the Court
appeal shall lie from any order of the Court under sub-section (3) or (4).
application under this section may be made jointly by all or any of the tenants
interested in respect of the premises situated in the same building.
ejectment ordinarily to be made if tenant pays or is ready and willing to pay
standard rent and permitted increases.
landlord shall not be entitled to the recovery of possession of any premises so
long as the tenant pays, or is ready and willing to pay, the amount of the
standard rent and permitted increases, if any, and observes and performs the
other conditions of the tenancy, in so far as they are consistent with the
provisions of this Act.
suit for recovery of possession shall be instituted by a landlord against
tenant on the ground of non-payment of the standard rent or permitted increases
due, until the expiration of one month next after notice in writing of the
demand of the standard rent or permitted increases has been served upon the
tenant in the manner provided in section 106 of the Transfer of Property Act,
decree for eviction shall be passed by the Court in any suit for recovery of
possession on the ground of arrears of standard rent and permitted increases
if, on the first day 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 together with simple interest on the amount of
arrears of such standard rent and permitted increases at the rate of nine per
cent per annum; and thereafter continues to pay or tenders in Court regularly
such standard rent and permitted increases till the suit is finally decided and
also pays cost of the suit as directed by the Court.
that, the relief provided under this sub- section shall not be available to a
tenant to whom relief against forfeiture was given in any two suits previously
instituted by the landlord against such tenant." Thus under Section 10 the
tenant is bound to pay to the landlord the increase in rate, cess, charges,
tax, land assessment, ground rent or any other levy. The amount of increase,
the tenant is bound to pay, has to be in the same proportion as the rent
payable by him bears to the total amount of such rate, cess, charges, tax, land
assessment, ground rent or any other levy. Section 11 gives the Court the power
to fix the standard rent and/or the amount of the permitted increases.
to be noted that under Section 11(1) the Court may fix the standard rent either
upon an application made to it for that purpose or in any suit or proceeding.
Thus the dispute regarding standard rent need not necessarily be by way of an
application. However, under sub-clauses (2) and (3) of Section 11 if there is
any dispute between the landlord and the tenant regarding the amount of
permitted increases, it can be decided by the Court only on an application made
by the tenant who has received a notice from his landlord. Thus in a Suit for ejectment
it would not be open for the tenant to raise a dispute regarding the permitted
increases. If on receipt of a notice the tenant has either not paid the amount
of the permitted increase and not raised a dispute by filing an application
then, by virtue of Sections 12(2) and (3), the landlord would be entitled to a
decree for eviction.
case of Harbanslal v. Prabhudas reported in AIR 1976 SC 2005, it has been held
that in order to avoid operation of Section 12(3)(a) the dispute in regard to
the standard rent or permitted increase must be raised, at the latest, before
the expiry of one month from date of service of notice. It has been held that
it is not enough to raise a dispute for the first time in the written
this case the Appellants did not, within one month of receipt of notice, file
any application raising a dispute regarding the permitted increase. They only
sent the reply dated 13th
September, 1977. The
High Court would thus have been right in coming to the conclusion that this
amounted to default in payment of permitted increase and that the landlord was
entitled to a decree for eviction except that the High Court has overlooked a
vital aspect. The vital aspect being that in pursuance of the notice dated 10th September, 1977 the Appellants paid to the
Respondent arrears of rent amounting to Rs. 1,400/- at the rate of Rs. 175/-
per month for the period from 1st January, 1977
to 31st August, 1977. Thereafter the Appellants have
been depositing rent at the rate of Rs. 175/- per month in Court. Both the
trial Court as well as the first Appellate Court held that the
Respondent-landlord has not shown whether the sum of Rs. 940.13, claimed by
him, was in respect of the entire premises or it was proportionate share of
increase payable by the Appellants. The High Court did not enquire whether the
sum of Rs.940.13 claimed by the Respondent was the share payable by the
Appellants or it was the increase in respect of the entire premises. The trial
Court has, on an application by the Appellants, fixed standard rant at Rs.
108.34. Thus the Appellants have in fact paid and deposited more than the
amount of standard rent. If the extra amount, which has been paid and/or
deposited in Court, is sufficient to cover the increases payable by the
Appellants then in fact payment has been made even of the permitted increase.
there is no ground for ejectment available. In our view, it was necessary to
ascertain what actually was the permitted increase which was payable by
Appellants under Section 10. It is only then that it can be ascertained whether
the amounts already paid and/or deposited by the Appellants are sufficient to
cover the increase payable by the Appellants. If the amounts are sufficient
then the decree passed by the High Court cannot be sustained. On the other
hand, if the amounts are not sufficient then a ground for eviction would have
been made out.
therefore, remand the matter back to the first Appellant Court, who may, if necessary, allow the parties to lead evidence,
oral or documentary, on this aspect only. The Court will ascertain whether the
additional amounts paid/deposited by the Appellants (over and above the sum of Rs.
108.34 per month fixed by the trial Court as standard rent), are sufficient to
cover the increase payable by the Appellants. If the amount is found sufficient
then the Suit of the Respondent will be dismissed without any further or other
enquiry. If the amount is found to be insufficient then the Suit must be
decreed without any further or other enquiry.
Appeal stands disposed of accordingly. There will be no order as to costs.