1. In a landlord's suit for possession simpliciter against the tenant on the ground of default in payment of rent in breach of Section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the Act"), without any claim of recovery of rent, the tenant amongst other defences raised the plea of the rent of Rs. 90/- p.m. being in excess of the standard rent of Rs. 25/- or Rs. 30/- p.m. During the pendency of the trial the learned Judge of the Small Cause Court of Bombay directed the tenant on 4th February, 1975, to deposit in Court a sum of Rs. 8,460/- towards the arrears of rent and compensation due up to February, 1975, and thereafter to deposit every month a sum of Rs. 90/- p. m. from 15th April 1975, onwards.
2. The tenant challenged the legality of this order in Revision. The Appellate Bench dismissed the revision with costs on 6th January, 1977 and upheld the (impugned order relying on a Division Bench judgment of this Court dated 15th February, 1970, in Civ. Appln. No. 40 of 1970 in the case of Shera Haveliwala v. Rash Samson. The contrary view of the Full Bench in Dattu Subhana v. Gajanan Vithoba was
found to have been overruled by the Supreme Court in Harbanslal v. Prabhudas . This order is challenged in this revision. The learned single Judge (S. K. Desai, J.) of this Court before whom the revision came up for hearing, found the view of the Division Bench in Haveliwala's case to be open to doubt. He, therefore, referred the case to the Division Bench which in turn has referred the same to the Full Bench. This is how the case has come up before us.
3. The question that arises for consideration is, whether the Court is competent to pass any such order when the suit is merely for possession and is admittedly not for recovery of rent. The answer turns on the true interpretation of the words "and in any other case" occurring in the first sentence of Subsection (4) of Section 11 of the Act Mr. Panday, the learned Advocate for the petitioner, supports the view of the referring Judges. Mr. Abhyankar, appearing amicus curiae supports the impugned order contending that such a suit for possession simpliciter is yet "another case" covered by the words "and in any other case" of Section 11(4) of the Act.
4. Section 11 of the Act authorises the Court to fix the quantum of the "standard rent" and "permitted" increases as defined in Section 5(7) and (10) of the Act. Section 7(2) of the Act prevents the landlord from claiming or recovering anything in excess thereof Sub-sections (1) and (2) of Section 11 of the Act provide for such fixation presumably on the application of the interested tenant or even the landlord. Sub-section (3) enables the tenant to so apply within one month of the receipt of the landlord's notice for payment of arrears of rent for more than six months, if non-payment of such arrears is due to any dispute about the standard rent or permitted increases. This enables him to get the interim standard rent or permitted increases fixed and also an order for depositing the arrears of that rent and further order for payment of the same or any part thereof to the landlord. This is aimed at (1) saving him from the consequences of the failure to comply with Section 12(3)(a) of the Act and, (2) raising a fiction of his being ready and willing to pay the rent under Explanation I to Section 12 of the Act. Non-compliance with such order itself results in outright rejection of such applications and the protection against the consequence of non-compliance with Section 12(3)(a) of the Act. Sub-sections (3) and (4) of Section 11 and Explanation I to Section 12 and amendment of the phraseology of Section 12(3)(a) of the Act was introduced in the Act by Maharashtra Act 14 of 1963 at one and the same time indicating how these amendments form part "of the same legislative scheme and the intendment.
5. Then comes Sub-section (4) of Section 11 of the Act. The first relevant part of sub-section (4) reads as follows:
"(4) 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 pround 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 qf the tenant an order directing him to pay to the landlord such amount thereof as the Court may specify."
It is unnecessary to quote the remaining part of the sub-section providing for directions, (1) to pay future interim standard rent periodically and, (2) to prevent his appearance and defence on non-compliance, excepting under certain conditions.
6. This sub-section authorises the Court to direct the tenant to deposit such amount of the rent forthwith in the Court as it considers to be reasonably due to the landlord and, at the option of the tenant, direct him to pay to the landlord such amount thereof as it may specify. This authority can he exercised by the Court, as the opening words of the sub-section indicate, "at any stage of the suit for recovery of rent". The words that follow, namely, "whether with or without a claim for possession" indicate how relief of possession or omission thereof in the suit is absolutely irrelevant for the Courts exercising this power to so direct. Thus the Court's power to make such directions is conditional to the suit being for "recovery of rent", In other words, such power cannot be exercised in any other suit between the landlord and the tenant. It is not possible to trace any such power if the suit is for possession of the premises simpliciter.
7. Secondly, the words, "the Court shall" and "the Court may" are clearly suggestive of exercising of such power being obligatory in one case and discretionary in the other. The Courts (being satisfied that, (1) rent was withheld on account of its being excessive and, (2) fixation of standard rent is necessary, makes the exercising of the power obligatory. Appearance to the Court that it is just and proper "in any other case" of withholding of rent by the tenant make the exercising of such power discretionary, Withholding of rent by the tenant can be under a variety of genuine disputes. Thus the rent also is withheld when it is claimed to have been satisfied by raising construction at the behest of the landlord or by paying taxes or other dues payable by him and there is dispute about the same. These are merely illustrations of what "other cases" of withholding the rent can be. The words "in any other case' thus go with the words "the tenant is withholding rent on the ground that".
8. The legislative intent appears to us to be clear. It is to fix interim liability towards rental arrears and monthly payments etc., pending the disposal of the suit for recovery of rent on the pain of right to defend being struck oft". Any such order is conditional on the Court's satisfaction that rent is withheld due to the dispute as to the standard rent or some such withholding appears to it to be on some other good grounds to justify such order. The intention seems to be to protect the tenant from the possible consequences of default in rent under the Act in cases where Section 11(3) is not attracted and also to protect the landlord from the requirement of filing suit after suit to save limitation when withholding the rent is on the same ground. The question of such protection to either of them does not arise when the suit is merely for possession without claim of rent. Section 11(3) already protects the tenant if the suit is for default in payment of rent, The legislature seems to have assumed, and not without justification, that such protection is not necessary when the suit for possession is on other grounds and the landlord is not required to claim rent, The contention of Mr. Abhyankar that the landlord or the tenant needs such protection even in other cases not involving claim for recover of rent does not appear to us to be correct or well founded.
9. Mr, Abhyankar contends that the words "in any other case" mean, (1) the suits other than suits for recovery of rent and also (2) proceedings other than the suits. In Haveliwala's case (Civ. Appln, No. 40 of 1970. D/- 5-2-1970 (Bom) the Division Bench has no doubt taken this view. Mr. Abhyankar's reliance thereon is not without some basis. The tenant in that case had failed to comply with the order for payment of part of the rental dues passed by Court on the tenant's own application for fixation of the standard rent and interim standard rent, The tenant neither complied with the order so passed at ad interim stage nor with the subsequent consent order to that effect. In the landlord's suit for possession, some other person was held to be a subtenant and the tenant was held not liable to pay for the entire premises. The landlord filed Special Civil Application against the said order and also made an application under Sec, 11 (4) in his Special Civil Application to dismiss the tenant's standard rent fixation application then pending, on the ground of the tenant's failure to comply with the interim order. It is not clear if the application of the tenant was under Section 11(1) or under Section 11(3) of the Act and what was the occassion for the High Court for making an order under Section 11(4) if the tenant's application was under Section 11(3) and an identical order could have been parsed therein itself, The Division Bench however, did hold that the words "in any other case" in Section 11(4) of the Act are wide enough to cover the tenant's application for standard rent and an order of dismissal of such application for non-payment of the amount so ordered can also be passed even if the proceedings do hot happen to be the "suit for recovery of rent".
10. With respect, the view of the Division Bench does not appear to us to be correct, Firstly, the words "with or without possession" go to emphasize how the contemplated directions are intended to be made in suits for recovery of rent alone and in no other suits or proceedings, Secondly, the occasion to direct payment towards rent ordinarily can arise only in suits for rent and not otherwise. The special situation in which direction for fixation of interim standard rent can arise even in claim for possession for breach of Section 12(3)(a) is covered by Section 11(3) of the Act and no provision to meet such contingency was necessary under Section 11(4) of the Act. Thirdly, the words "and in any other case" are sandwiched between the words "the Court shall" and the Court may" demonstrating how the words "and in any other case" are intended to refer to other cases than in which standard rent is required to be fixed for withholding of the rent on account of its being excessive. Fourthly, the said words cannot be assumed to go with the words "suit for recovery of rent" by the sheer force of the grammar and syntax. Shorn of all the unnecessary verbiage, the sentence would read, "where at any stage of a suit for recovery of rent, ..... and in any other case .....". The sentence sounds incongruous and the groups of words do not fit in with each other. And fifthly, the suggested interpretation would require division of cases into (1) suits for recovery of rent and (2) other proceedings under the Act, and it would necessarily prevent division by reference to the ground of withholding the rent. Resultantly, relief of interim arrears of rent will have to be restricted to the tenant's withholding rent only on the ground of its being excessive. No such relief will be competent if rent is withheld on any other ground. Nothing could have been farther from the legislative intendment.
11. The referring judgments do refer to the ratio of the Full Bench of this Court in Dattu Subhana's case . The question that essentially arose in Dattu Subhana's case was whether the dispute with regard to the standard, rent also could be raised in the written statement by the tenant even if he did not so raise it by filing an application for fixation of standard rent under Section 11(3) of the Act within one month of the receipt of the notice contemplated under Section 12(2) of the Act. Affirmative answer of the Full Bench is now expressly overruled by the Supreme Court in Harbanslal's case Section 11(4) of the Act is relied on by the Full
Bench and its interpretation thereof to that extent must be deemed to be not good law. While analysing the language of Section 11(4) of the Act the Pull Bench also further held that the power under Section 11(4) of the Act to direct the tenant to pay arrears at rent and fix the interim standard rent for that purpose can be exercised by the Court only when the suit happens to be "for recovery of rent". This pan of the process of reasoning is not the integral part of the interpretation of Section 11(4) or that which, is overruled in Harbanslal's case (supra). It can still have persuasive effect, if not binding on us. Suffice it to note that our conclusion accords with the said view.
12. The result is, the direction of the trial Judge is clearly without any authority of law. The Civil Revision Application succeeds and the orders of the trial Court and that of the Appellate Bench of the Small Cause Court are set aside. In the circumstances of the case, there will be no order as to costs.
We are grateful to Mr. Abhyankar for assisting us as also to Mr. Panday, who appeared for the petitioner.
13. Revision allowed.