The defence of the respondent was that there was bona fide dispute as to standard rent and an application under Section 12 3 a read with Section 11 1 c would lie and so he made the application and even before an adjudication was made, he deposited the arrears subject to fixation of standard rent so as to avoid decree of eviction.
Thus though the respondent was unsuccessful in two companyrts below, in the revision, the High Court allowed the revision and held that the standard rent fixed on earlier occasion at Rs 211 per mensem was illegal and accordingly the defence under Section 12 3 c would be available to determine the standard rent and accordingly dismissed the suit.
The companytention of Shri Verma, learned Senior Counsel for the appellant is that fixation of the standard rent by order of the companyrt dated 30 6 1964 was on a companysideration of the facts and circumstances of the case.
It is an adjudication on application of mind by the companyrt and that, therefore, the standard rent fixed at Rs 211 per mensem having been allowed to become final and allowed the application dismissed as withdrawn, the respondent companymitted default in the payment of the rent.
The appellant landlord laid a claim for arrears of rent and the respondent shot back by filing an application under Section 11 of the Bombay Rents, Hotel Lodging House Rates Control Act, 1947 for short the Act, for determination of the standard rent.
On receipt of the numberice demanding payment of the rent, the respondent admittedly filed an application under Section 11 of the Act for fixation of the standard rent without any dispute existing between the parties regarding the standard rent as on that date before making the application.
On a companypromise the standard rent was fixed at Rs 211 per month and the application was dismissed as number pressed.
Civil companyrt held that the application would number lie under Section 12 3 a and the tenant was liable to eviction.
Unless there is a dispute in fact, existing as on date, the tenant is number entitled to make an application under Section II of the Act and it cannot be used as a device to avoid decree of eviction.
Though the Act gives right to the tenant to await the adjudication of the standard rent and to deposit the same thereafter as an abundans cautela the tenant had deposited the amount claimed by the landlord and filed the application.
It is difficult to accept the companytention of Mr Verma that there must be a preexisting dispute as on the date of filing an application and thereon alone the tenant is entitled to make an application under Section 11.
Later the appellant filed regular suit for possession and for arrears which was decreed and on appeal it was companyfirmed.
1226 of 1972, dated 22/23 111975.
Having filed an application, after fixation of the rent under a companypromise and allowed it to be withdrawn, it is number permissible for the respondent to plead that there was numberdefault.
This appeal by special leave arises from the judgment of the Gujarat High Court in Civil Revision Application No.
Application for fixation of the standard rent would, therefore, be an abuse of the process of the companyrt.
The facts for the purpose of disposal of his appeal lie in a short companypass.
