S.12(3)(b) Bombay Rent Act | Tenant Must Prove Readiness To Pay Rent Including Interim Standard Rent To Claim Protection: Gujarat High Court

The Gujarat High Court has ruled that to claim protection from eviction under Section 12(3)(b) Bombay Rents, Hotel and Lodging House Rates Control Act a tenant has to prove that he was "ready and willing" to pay the standard rent and permitted increases, which "also includes interim standard rent" fixed by the court.

For context, Section 12 of the Act states that no ejectment ordinarily to be made if tenant pays or is ready and willing to pay standard rent and permitted increases. 

Referring to the provisions of the Act, Justice JC Doshi in his order observed that in Section 12(1) the lawmakers had used the word "shall" followed by the word "not" which means that it is giving mandatory protection to the tenant, and landlord shall not be entitled to recover possession of rented premises so long as tenant "pays or is ready and willing to pay amount of standard rent and permitted increases". 

The court thereafter noted that Section 12(3)(a) of Rent Act states that if landlord has demanded arrears of rent for more than six months by issuing statutory notice as defined in section 12(2) and if tenant within one month from the date of receipt of notice fails to pay standard rent or permitted increases as the case may, decree for eviction should be crystallized.

"Section 12(3)(b) of the Rent Act applies to any other cases, but again starts with negative clause...no decree for eviction shall be passed in any suit if, on the first day of hearing 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 as directed by Court," the court noted. 

The court in its order noted that the tenant had argued that since he had raised contention on standard rent, which cannot be equated with interim standard rent, he was not aware of what would be the final arrears of standard rent and he fell short by a few rupees; however this would not mean that tenant is not ready and willing to pay standard rent.

To this the court said:

"Explanation to section 12 of the Rent Act casts obligation upon the tenant to make application to the Court under sub-section (3) of section 11 to claim that he shall be deemed to be ready and willing to pay such amount and thereafter, pays or tenders the amount of rent or permitted increases specified in the order made by Court. Tenant cannot run away from the mandate...of section 12 of the Rent Act on the ground that since learned Trial Court has only fixed interim standard rent and he was not aware what could be standard rent. Tenant was obliged to pay interim standard rent before first date of hearing to sustain his claim, that he is ready and willing to pay standard rent. In any case, if standard rent is less than interim standard rent, tenant would be at liberty to claim set off and if it is fixed higher than interim standard rent, then tenant would be at liberty to deposit standard rent.

To show readiness and willingness, tenant is required to pay interim standard rent as fixed by the Court on the first date of hearing. Explanation to section 12 of Rent Act is bridging link between section 11 and 12(3)(b) of the Rent Act. Therefore, tenant cannot escape from liability to pay interim standard rent on the first date of hearing on the ground that he was not aware about what would be standard rent. In order to claim protection under section 12(3)(b) of the Rent Act, tenant is required to prove that he was ready and willing to pay standard rent and permitted increases which includes interim standard rent fixed by the Court".

The court also observed that it was an admitted position that on the date of fixing issues before the trial court the tenant on his own calculation had fallen short of paying arrears of rent.

"If we go by words of tenant that rent is arrears from 01.06.1993, then it would be arrears of 55 months on the date of first hearing. The total amount would be Rs.5170/- as per interim standard rent fixed by the learned Court below. Tenant has deposited Rs.4606/- prior to first date of hearing. Tenant fell short of amount of Rs.564/-. If we go by claim of arrears of rent made in statutory notice by landlord, on the date of first hearing, it comes to arrears of 110 months i.e. arrears of Rs.10,340/- deducting Rs.4606/- paid by tenant before first date of hearing, thus, total arrears would come to Rs.5734/-. In these circumstances, in either of the situation, tenant fell short in paying standard rent or interim standard rent, which itself proves that tenant was not ready and willing to pay arrears of rent," the court said.

The respondent landlord had purchased residential premises situated in Hethan Faliya area of Junagadh district in 1995, wherein the ground floor was rented to the tenant at monthly rent of Rs.100. Landlord sent a notice under section 12(2) to the tenant demanding arrears of rent due from 01.05.1989 and also local and municipal tax, water tax, education tax etc. 

According to the landlord, even after 1 month of receiving statutory notice, tenant did not pay rent due. There were arrears of rent of over six months, thus the landlord sought eviction of the tenant under section 12(3)(a).

Tenant in his reply to the notice contended that the rent of Rs.100 was exorbitant and not the standard rent. Raising dispute that the contractual rent is not the standard rent, tenant filed a plea under section 11 to decide Standard rent. By order dated 21.02.1996, the Civil Judge (JD), Junagadh fixed the interim standard rent at Rs.94 per month and directed the tenant to pay arrears of rent and to pay standard rent regularly as and when it becomes due.

In this background, the Trial Court observed that the case pleaded by landlord falls under section 12(3)(b) of the Rent Act. Further, since the tenant fell short of paying standard rent on the first date of hearing i.e. on the date of framing issues, he is liable to be evicted.

Accordingly, the Trial Court passed judgment in favour of the landlord and directed the tenant to hand over possession of within 3 months from the date of judgment and further directed tenant to pay Rs.7018 and fixed standard rent at Rs.100 per month.

Against this the tenant moved an appeal before Joint District Judge/5th Fast Track Court, Junagadh, wherein the landlord filed cross objections. The appellate court dismissed the tenant's appeal and confirmed the trial court's order. Against this the tenant moved the high court. 

Case title: VAIKUNTHRAI RAMNIKRAI VASAVDA SINCE DECD. THRO HIS HEIRS & ORS. v/s  KASTURBEN DAYALAL PANDYA (DECD. THRO'LEAGAL HEIRS) & ORS

R/CIVIL REVISION APPLICATION NO. 221 of 2004

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