LexDEVKARAN NENSHI TANNA (DEAD) BY LRS. versus MANHARLAL NENSHI AND ANR.
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DEVKARAN NENSHI TANNA (DEAD) BY LRS. v. MANHARLAL NENSHI AND ANR. JULY 4, 1994 (K. RAMASWAMY AND q.N. RAY, JJ) Bombay Rents, Hotel & Lodging House Rates Control Act, 1947-Sec- A B tion 11 ( 1 )(e )-Claim for arrears of rent-Tenant's application u/s 11 for deter- mination of standard rent-Whether maintainable-Held, yes-No need for a pre-existing dispute to subsist before invoking jurismction of coult u/s 11 ( 1) ( e ). C Bombay Rents, Hotel & Lodging House Rates Control Act, 1947-Sec- tion 12(3)(a) & ll(l)(e)-Claimforarrears of rent-Tenant' application u/s 11 for determination of standard rent-Fixation of rent on compromise between partie:r-Suit for possession and for aman-Defence u/s 12(3)(a}- Whether available to tenant-Held, yes, determination of standard rent being D on basis of compromise. The appellant landlord filed a claim for arrears of rent and the tenant filed an application u/s 11 of the Bombay Rents, Hotel & lodging House Rates Control Act, for determination of the standard rent. On a E compromise, the standard rent was fixed and the application was dis- missed as not pressed. Later the landlord filed regular suit for possession and for arrears. The tenant made an application u/s 12(3)(a) r/ws lt(l)(e), pleading that there was a bona fide dispute as to standard rent. Before an adjudication was made, the tenant deposited the arrears subject to fixation of standard rent. Civil Court deereed the suit holding that the application F would not lie u/s 12(3)(a) and the tenant was liable to eviction. In the revision, the High Court held that the standard rent raed on earlier occasion was illegal and actordingly the defence u/s 12(3)(a) would be available to determine the standard rent. This appeal had been filed against the judgment of the High Court. G The appellant contended that raatlon of standard rent by order of the court was on a consideration of the facts and circumstances of the case. It was an adjudication on application of mind by the court and that, therefore, the standard rent fixed having been allowed to become final the respondent committed default in the payment of the rent. It was alleged H 679 680 SUPREME COURT REPORTS (1994] SUPP. 1 S.C.R. A that unless there was a dispute in fact, existed as on date, the tenant was not entitled to make an application u/s 11 of the Act and it could not be used as a device to avoid decree of eviction. Having filed an application after fixation of the rent under a compromise and allowed it to be withdrawn, it was permissible for the respondent to plead that there was B no default. Application for fixation of the standard rent would, therefore, be an abuse of the process of the court. Dismissing the appeal, this Court HELD : 1.1. There is no need for a pre-existing dispute to subsist C before invoking the jurisdiction of the court under section ll(l)(e) of the Bombay Rents, Hotel and Lodging House Rates Control Act. Filing an application for determination of the standard rent itself is a dispute entitling the tenant to take the benefit of Section 12(3)(a) of the Act. (683-G) D 1.2. Once a standard rent has been determined by the Court, after applying its mind to all the facts and circumstances after adjudicating the dispute under Section ll(i)(e) or permitted increases, then unless that order is reversed or set aside by the appropriate appellate court or the revisional court or on appeal by this Court, parties are bound by the E adjudication of the standard rent and to make payment thereafter. But in a case where adjudication was merely passed on a compromise between the parties, the tenant Is not precluded to invoke the defence u/s 12(3)(a) of the act. [684-B] F Prithvichand Ramchand Sab/ok v. S. V. Sinde, [1993) 3 SCR 271, relied on. 1.3. The order of fixation of standard rent should disclose the application of court's mind to the facts. In this case, while adjudicating satisfaction was not reached by the court below. The respondent is not G precluded to make an application when the notice was issued by the appellant demanded payment of the arrears of the standard rent. Thereby, it is not a case where the tenant bad abused the process of the court and made any successive application despite the standard rent Oxed by the court. Therefore, the defence u/s 12(3)(a) is available to the H tenant. [685-C-D] D.N. TANNAv. M. NENSHI 681 CIVIL APPELLATE JURISDICTION : Civil appeal No. 2946 of A 1977
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