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TMI Blog1963 (10) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... Division, Baroda under s. 11(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, called for the sake of brevity 'the Act', for an order fixing the standard rent of the premises occupied by him and also for an order under s. 11(3) specifying interim rent. By letter dated January 7, 1957 the defendant informed the plaintiff about the application moved by him and requested the plaintiff to appear in the proceeding, and expressed his willingness to pay such amount as the Court ordered him to pay. On January 8, 1956 the defendant deposited in Court ₹ 500 to the credit of the plaintiff. On January 27, 1957 the plaintiff instituted a suit in the Court of the Civil Judge, Junior Division, Baroda, for a decree in ejectment on the ground of non-payment of rent. On February 14, 1957 the defendant applied to the Court for an order specifying the rate at which interim rent may be deposited in Court so long as the standard rent of the suit property was not fixed, and submitted that the dispute between the parties related to fixation and payment of standard rent, and that without prejudice to his contentions he was ready to deposit the amount ordered by the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reversed the decree of the District Court, and ordered the defendant to hand over vacant and peaceful possession of the premises to the plaintiff within four months from the date of the order . In the view of the High Court the defendant was not ready and willing to pay the standard rent and permitted increases at the date of the suit and that he did not comply with the requirements of s. 12(3)(b) of the Act, because he had deposited in Court the amount of standard rent at the rate determined by the order of the District Court and had not paid event the interim rent at the rate fixed by the Court of First Instance and that he had not paid costs of the suit which he was bound under s. 12(3)(b) to pay. 6. Section 12(1) of the Act confers, subject to certain provisions contained in s. 13, protection upon tenants. It provides : A 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 the Act. 7. The clause ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 5 recourse must ordinarily be had to the Court for fixation of standard rent, under s. 11 of the Act. Section 11 provides : (1) In any of the following cases the Court may, upon an application made to it for that purpose, or in any suit or proceeding, fix the standard rent at such amount as, having regard, to the provisions of this Act and the 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 no sufficient evidence to ascertain the rent at which the premises were let in any one of the cases mentioned in sub-clauses (i) to (iii) of clause (b) of sub-section (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 reasons, any difficulty arises in giving effect to this Part; or (d) where any premises have been or at let rent-free or at a nominal rent or for some consideration in addition to rent; or (e) where there is any dispute between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndlord against a 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, 1882. 12. It enacts a restriction upon the right of the landlord to sue the tenant in ejectment on the ground of non-payment of standard rent or permitted increases, by requiring him to give one more opportunity to the tenant to pay rent due by him. Clause (3)(a) of s. 12 specifies the circumstances in which the tenant is deemed to forfeit the protection. It provides : Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-section (2), the Court may pass a decree for eviction in any such suit for recovery of possession. 13. In the context the expression may has a mandatory c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment erroneous. 15. But in the practical working of clause (3)(b) some difficulty may arise. Where there is no dispute as to the amount of standard rent or permitted increases, but rent is not payable by the month, or the rent is not in arrears for six months, by paying or tendering in Court the standard rent and the permitted increases and continuing to pay it till the suit is finally decided the protection granted by the clause is made effective. Where there is a dispute as to the standard rent, the tenant would not be in a position to pay or tender the standard rent, on the first date of hearing, and fixing of another date by the Court for payment or tender would be ineffectual, until the standard rent is fixed. The Court would in such a case on the application of the tenant, take up the dispute as to standard rent in the first instance, and having fixed the standard rent, call upon the tenant to pay or tender such standard rent so fixed, on or before a date fixed. If the tenant pays the standard rent fixed, on or before the date specified, and continues to pay or tender it regularly till the suit is finally decided, he qualifies for the protection of clause (3)(b). If in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may qualify for protection of his occupation, and one of the important conditions is the readiness and willingness to pay the standard rent and permitted increases, which may be proved by obtaining an order of the Court fixing the rate of standard rent and complying therewith or by complying with the Explanation to s. 12 or otherwise. 19. The claim made by the defendant fell within the terms of s. 12(3)(b) and not s. 12(3)(a). The defendant had contended by his reply dated December 7, 1956, to the notice served by the plaintiff, that the contractual rent was excessive : he had then raised the same contention in the application filed for fixation of standard rent and in his written statement filed in the suit. There is nothing in s. 12 to support the contention raised by Mr. Chatterjee on behalf of the plaintiff that the dispute concerning standard rent contemplated by clause (b) of sub-s. (3) is one which must have been raised before service of the notice under s. 12(2). The entire tenor of the section is against that interpretation. 20. On the view we have expressed, the District Court was apparently in error in assuming that by tendering in Court rent at the rate specified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only if it appears that in a case decided by a Subordinate Court in which no appeal lies thereto the Subordinate Court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity. As observed by the Privy Council in Balakrishna Udayar v. Vasudeva Aiyar L.R. 44 IndAp 261. : ....... the section (s. 115 of the Code of Civil Procedure) applies to jurisdiction alone, the irregular exercise or non-exercise of it, or illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved. 22. Therefore if the Trial Court had jurisdiction to decide a question before it and did decide it, whether it decided it rightly or wrongly, the Court had jurisdiction to decide the case, and even if it decided the question wrongly, it did not exercise its jurisdiction illegally or with material irregularity : Rajah Amir Hassan Khan v. Sheo Baksh Singh L.R. 11 IndAp 237.. 23. Mr. Chatterjee for the plaintiff contended that the District Court in declining to pass a decree in ejectment refus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the judgment in Joy Chand Lal's case L.H. 76 I.A. 131., the Court observed : These remarks are not applicable to the facts of the present case. They apply to cases in which the law definitely ousts the jurisdiction of the Court to try a certain dispute between the parties and not to cases in which there is no such ouster of jurisdiction under the provisions of any law, but where it is left to the Court itself to determine certain matters as a result of which determination the Court has to pass a certain order and may, if necessary, proceed to decide the dispute between the parties. The distinction between the two classes of cases is this. In one, the Court decides a question of law pertaining to jurisdiction. By a wrong decision it clutches at jurisdiction or refuses to exercise jurisdiction. In the other, it decides question within its jurisdiction. In the present case, the question whether there was a sufficient cause was exclusively within the jurisdiction of the Court and the Court could decide it rightly or wrongly. 25. Section 12(1) does not affect the jurisdiction of the Court to entertain and decide a suit in ejectment against a tenant. It merely confers ..... X X X X Extracts X X X X X X X X Extracts X X X X
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