The last submission of mr. Diwan is that Section 12(3)(a) does not specifically state whether the dispute referred to is by the tenant or by the landlord, and, therefore a question may arise as to whose bona fides are required to be considered. Section 12(3)(a) deals with the rights of a landlord to eject a tenant on fulfilment of certain conditions. Theoretically, Mr. Diwan is right that even a landlord is entitled to raises such a dispute, there would be no question of his bona fides being considered, because, by his own volition, he takes the case out of Section 12(3)(a). Such a contingency, however, cannot arise when a landlord seeks possession of the premises from a tenant on the ground of non-payment of rent. By making out a case that the rent charged by the landlord is not the standard rent, what the tenant desires is that his case should be brought under Section 12(3)(b). In the context, therefore, the "dispute" referred to in S. 12(3)(a) would mean 'a dispute raised by the tenant and not by the landlord'. When the landlord himself raises a dispute, and , in our opinion, such a contingency will never arise, it can only be for asking more rent than he has been changing to his tenant. If the landlord raises such a dispute seeking to charge more amount of rent and permitted increases to the regnant,. it would, in any case, ipso facto mean that the tenant has a bona fide dispute about the standard rent and permitted increases,Looked at form any angle, we do not see that the problem posed by Mr. Diwan about the consideration of the "bona fides" is acceptable on the interpretation of the word 'dispute" in Section 12(3)(a).
59. In the result, we hold that the "dispute" contemplated under Section 12(3)(a) must be a "bona fide" dispute to enable a tenant to claim benefit under Section 12(3)(a).
IN THE HIGH COURT OF BOMBAY
Special Civil Appln. No. 2353 of 1968 with Spl. C.A. Nos. 89 of 1968 and 693 of 1969
Decided On: 24.09.1973
Yeshbai and Anr. Vs. Ganpat Irappa Jangam and Anr.
Hon'ble Judges/Coram:
Balkrishna Narhar Deshmukh and I.G. Shah, JJ.
Citation: AIR 1975 Bom 20
1. This reference raises an important question as to the meaning of the word "dispute" in Section 12(3)(a) of the Bombay Rents. Hotel and Lodging House Rates Control Act, 1947 (Act LVII of 1947). The Special Civil Application No.2353 of 1968 was originally heard by a single Judge who referred it to a Division Bench for its views" on the following point:
"whether the dispute as contemplated under section 12(3)(a) must be a bona fide dispute in order to claim benefit under Section 12(3)(a)."
2. Since a pure question of law, and not the entire petition, has been referred, it is unnecessary to consider the case on facts. However, with a view to understand the question that has been referred, we will briefly set out the facts giving rise to this petition.
3. Since prior to 1958, one Aher was a tenant of the open plot of land in dispute at the rent of Rs.12/- per month. He put up a flour mill. On February 14, 1958, by a deed of assignment, he had assigned his tenancy rights together with the running business of the flour mill to the petitioners. The Petitioners fell in arrears for more than six months, and, therefore, by notice dated January 27, 1965, the landlord called upon them to vacate the premises on the ground of non-payment of rent for over six months. By a reply the petitioners challenged the quantum of rent as well as the period from which they were liable. Nothing, however, was paid by them towards the arrears of rent, and, therefore, the respondent-landlord filed the instant suit on August 25, 1965, for recovery of possession of the suit premises as also for arrears of rent. The petitioners filed their written-statement contending inter alia that the rent demanded was excessive and requested for determination of the standard rent. By the time issues were framed on December 10, 1965, the petitioners deposited all the arrears of rent. The trial Court found that the agreed rent of Rs.12/- p.m. was the standard rent of the suit premises. It, however, found that the notice to quit was not valid on the ground that excessive renter was claimed therein. The trial Court came to the conclusion that the petitioners were not liable to be evicted from the premises as they were ready and willing to pay the rent, and, therefore, passed the decree only for arrears of rent and dismissed the suit for possession. The decision was challenged by the landlord in the Appellant Court. The Appellate Court inter alia held that there was no genuine dispute regarding the standard rent, and, the case fell under Section 12(3)(a) of the Bombay Rent Act and consequently decreed the suit for possession. The petitioners have filed this Special Civil Application challenging the order passed by the Appellate Court.
4. When the petition came up before Wagle, J., he noticed that this Court has consistently taken the view that the dispute could be raised by a written-statement but such a dispute regarding the standard rent and permitted increases had necessarily to be a bona fide dispute" and not a dispute which could be styled as a frivolous false or mala fide dispute. In his order of reference, he has mentioned some of the judgments of the Division Benches and Single Judges which have taken this view . He, however, noticed that there were two judgments of Vaidya, J,. which have take the view that the word "dispute" has no such limitations in regard to its character, and it must be given its plain grammatical meaning without any qualifications. The order of reference further indicate that Wagle, J. would have followed the decision of the Division Benches which have consistently taken the view that the dispute must be necessarily a "bona fide" dispute in preference to the contrary view expressed by Vaidya, J. However on behalf of the landlord, it was contended before him that the earlier decisions of the Court including those of the division Benches, which took the view that the 'dispute contemplated by Section 12(3)(a) was required to be a "bona fide" dispute, were no longer good law in view of the recent division of Full bench of this Court in Dattu Subhana v. Gajanan Vithoba, MANU/MH/0066/1971 : AIR1971Bom396 (FB). It was under these circumstances that Wagle, J. has referred this matter to a Division Bench.
5. There are other two Special Civil Applications viz. Nos. 89 of 1968 and 693 of 1969 which have been ordered to be placed for hearing with this Special Civil Application No. 2353 of 1968, as the question referred to by Wagle, J, is also involved in those two petitions.
6. With a view to facilitate the understanding of the rival points of view, it would be necessary to consider the scheme of the Rent Act of 1947 with a particular reference to the rights of the landlord to evict the tenant. The preamble shows that one of the objects in enacting the law is to control rents of premises and eviction of tenants. With the object of preventing the landlords from charging excessive rent, provisions have been made for fixation of stand are rent in relation to the premises. Section 5(10) defines "standard rent". According to this definition contained in Section 5(10)(a), the standard-rent that may have been fixed by the Court and the Controller respectively under the Bombay Rent Restriction Act, 1939, or the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944, is deemed to be the standard rent of the premises under the Act of 1947 as well. If, however, the standard rent has not been so fixed, Section 5(10)(b) comes into play. It runs as under:
"5. In this Act unless there is anything repugnant to the subject or context-
(10) 'standard rent' in relation to any premises means (a) .............. or
(b) where the standard rent is not so fixed-subject to the provisions of Section 11,
(i) the rent at which the premises were let on the first day of September 1940, or
(ii) where they were not let on the first day of September 1940, the rent at which they were last let before that day, or
(iii) where they were first let after the first day of September 1940, the rent at which they were first let, or
(iv) in any of the cases specified in Section 11, the rent fixed by the Court":
According to Section 5(7) , "permitted increase" means an increase in rent permitted under the provisions of the Act of 1947, The Act makes provisions to enable a landlord to make increase in rent on account of various factors, such as, improvements or structural alternations of the premises, additional amenities provided for the premises, heavy repairs to the premises carried on by the landlord, or payment of additional rates, cess, or taxes to the local authorities by the landlord. These provisions are contained in Section 9 to 10G. Section 10C makes a special provision to enable the landlord to make an increase in the rent of premises let on or before the first day of September 1940 by an addition to the rent at the rate specified in that section.
7. Section 11 (1) and (2) empowers the Court to fix the standard rent and permitted increases in certain cases. This jurisdiction of the Court is limited and can be exercised only subject to the provisions of Section 11-A which bars the jurisdiction of the Court to fix the standard rent and permitted increases over again if the same has been duly fixed by a competent Court on the merits of the case. Section 11A runs as under:
"No Court shall upon an application or any suit or proceeding fix the standard rent of any premises under S. 11, or entertain any plea that the rent or increases are excessive, if the standard rent or the permitted increases, in respect of the same premises have been duly fixed by a competent Court on the merits of the case, without any fraud or collusion or an error of the facts, and there has been no structural alterations or change in the amenities or in respect of any other factors which are relevant to the fixation of the standard rent, or change in such increases thereafter in the premises".
It would, therefore, appear that a new application for fixation of standard rent or permitted increases is not permissible except in certain special circumstances such as the fixation was made as a result of fraud or collusion or an error of the facts, or any structural alterations or change in amenities or change in such increase after the original fixation of standard rent and permitted increases by the Court. Section 11A is thus nothing but an extension of the principle of res judicata to fixation of the standard rent and permitted increases. Subject to the provisions of Section 11A. Section 11(1) enumerates the cases where the Court has the power to fix the amount of standard rent of any premises. Section 11(2) relates to the powers of the Court to fix the amount of permitted increases in cases of the dispute between the landlord and the tenant. It would be clear from the provisions of Section 11(1) that the Court has the power of fix the standard rent upon an application made to it for that purpose or in any suit or proceeding, Section 11(3) enables the Court to pass interim orders directing the tenant to deposit the amount of rent or permitted increases in Court, in cases where an application for fixation of the standard rent or permitted increases is made by a tenant who has received a notice from his landlord under Sub-section (2) of Section 12, Under this sub-section, the Court can also pass an order for payment of the amount deposited by the tenant to the landlord towards payment of rent or increases due to him from the tenant, and in case the tenant fails to deposit such amount as directed by the Court, the Court has to dismiss the application of the tenant for fixation of the standard rent or permitted increases. Section 11(4) comes into play where the landlord has filed a suit for recovery of rent with or without a claim for possession of the premises, and in such a suit, the Court can under certain circumstances direct the tenant to deposit such amount in Court as the Court considers to be reasonably due to the landlord, as well as pass an order directing the tenant to deposit in Court periodically such amount as it considers proper as interim standard -rent . This sub-section empowers the Court even to strike out the defence if the tenant fails to comply with the order of deposit. It may be stated here that sub-section (3) to (6) were substituted for the original sub-section (3) by the Maharashtra Act 14 of 1963.
8. Section 12 deals with the rights of the landlord to eject a tenant for non-payment of rent and permitted increases under certain circumstances. Section 12(1) and the Explanation I give a complete protection to the tenant from being evicted on the ground of non-payment of rent and permitted increases so long as he pays, or is ready and willing to pay the amount of the standard rent and permitted increases and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provision of this Act. Section 12(2) puts a restriction on the landlords' right to file an ejectment suit on the ground of non-payment of standard-rent or permitted increases by providing that such a suit would not be instituted until the expiration of one month next after notice in writing of the demand of the standard rent and permitted increases has been served on the tenant. Section 12(3)(a) gives a right to the landlord to obtain possession from the tenant provided the conditions laid down in that subsection are satisfied. If all or anyone of the conditions laid down in Section 12(3)(a) do not exist, or are not satisfied, a further protection from eviction is given to the tenant by Section 12(3)(b), provided he pays or tenders in Court the standard rent and permitted increases then due on the first day of the hearing of the suit, or on or before such other date as the Court may fix, and also pays costs of the suit as directed by the Court. The grounds other than the ground of non-payment of rent, which entitle the landlord to recover possession of the premises, are contained in Sections 13 and 13A, and if the landlord satisfies anyone of the grounds enumerated in the said sections, he gets a right to recover possession of the premises.
9. Section 14, 15 and 15A give protection to certain sub-tenants and licenses. We may observe that the original Section 14 and 15 dealt with the rights of sub-tenants only. By the Maharashtra Amendment Act 17 of 1973, the said sections were amended so as to give protection to the licensees. Section 15A is also introduced by the said Amending Act conferring tenancy rights on certain licensees in occupation of the premises.
10. Provisions of Section 16 to 17C are incidental to passing of decrees for possession of premises on certain grounds mentioned in Sections 13 and 13A.
11. Section 7 makes it illegal to recover rent, license-fees or charges in excess of the standard-rent. We have not mentioned some other provisions of the Act in relation to the illegal recovery of rent, licence fees or charges, as they are unnecessary for our purpose.
12. Since the arguments advanced before us have, to a large extent, centered round to the interpretation of Section 11 and 12, we set out below the said provisions in extenso for ready reference:
"11(1) Subject to the provisions of Section 11A in any of the following cases the Court may, upon an application made to it for that purpose, or in any suit or proceedings, 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 a whole, or for any other reasons, any difficulty arises in giving effect to the part; or
(d) where any premises have been or are let rent-free or at a nominal rent or for some consideration in addition to rent or'
(e) where there is any dispute between the landlord and the tenant regarding the amount of standard rent
(2) If there is any dispute between the landlord and the tenant regarding the amount of permitted increases the Court may determine such amount.
(3) If any application for fixing the standard rent or for determining the permitted increases is made by a tenant who has received a notice from his landlord under sub-section (2) of Section 12, the Court shall forthwith specify the amount of rent or permitted increases which are to be deposited in Court by the tenant and make an order directing the tenant to deposit such amount in Court or at the option of the tenant make an order to pay to the landlord such amount thereof as the Court may specify, pending the final decision of the application. A copy of the order shall be served upon the landlord . Out of any amount deposited in Court the Court may make an order for payment of such reasonable such to the landlord towards payment of rent or increases due to him as it thinks fit. If the tenant fails to deposit such amount or, as the case may be to pay such amount thereof to the landlord his application shall be dismissed.
(4) Where at any stage of a suit for recovery of rent, whether with or with out a claim for possession of the premises, the Court is satisfied that the tenant is withholding the rent on the ground 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 of the tenant an order directing him to pay the tenant an order directing the tenant to deposit in Court periodically, such amount as it considers proper as interim standard rent, or at the option of the tenant an order to pay to the landlord such amount thereof as the Court may specify, during the pendency of the suit. The Court may also direct that if the tenant fails to comply with any order made as aforesaid, within such time as may be allowed by it, he shall not be entitled to appear in or defend the suit except with leave of the Court, which leave may be granted subject to such terms and conditions as the Court may specify.
(5) No appeal shall lie from any order of the Court under sub-sections (3) and (4).
(6) An application under this section may be made jointly by all or any of the tenants interested in respect of the premises situated in the same building."
Section 12 runs as under -
"(1) A landlord shall not be entitled to the recovery of possession of any p[remises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, any observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act.
(2) No suit for recovery of possession shall be instituted by a landlord against 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.
(3) (a) 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 sub-section (2), the Court shall pass a decree for eviction in any such suit for recovery of possession.
(b) In any other case, no decree for eviction shall be passed in any such suit if, on the first day of hearing of 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 and thereafter continues to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed and also pays costs of the suit as directed by the Court.
(4). Pending the disposal of any such suit, the Court may out of any amount paid or tendered by the tenant pay to the landlord such amount towards payment of rent or permitted increases due to him as the Court thinks fit.
Explanation I. In any case where there is a dispute as to the amount of standard rent or permitted increases recoverable under this Act the tenant shall be deemed to be ready and willing to pay such amount if, before the expiry of the period of one month after notice referred to in sub-section (2), he makes an application to the Court under sub-section (3) of section 11 and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court.
Explanation II. - For the purposes of sub-section (2), reference to 'standard rent' and to 'permitted increase' shall include reference to 'interim standard rent' and 'interim permitted increase' specified under sub-section (3) or (4) of Section 11."
13. On behalf of the landlord, Mr. R. B. Kotwal has advanced the arguments, and Mr. Diwan argued the matter on behalf of the tenant-intervenor. Since the Counsel on both sides have drawn our attention to some decisions of the Divisions Benches and Single Judges of this Court, which have made observations on the point in question, we would make a brief mention to these decisions before considering the arguments advanced on behalf of the landlord and the tenant regarding the true meaning of the word "dispute" in Section 12(3)(a) of the Act.
14. It would appear from the decisions cited before us that all along till 1968, it has been the consistent view expressed both in the decisions of the Division Benches and Single Judges that the "dispute" contemplated by Section 12(3)(a) must be a dispute which can be styled as mala fide, false or frivolous. There is another set of decisions of Vaidya J. sitting singly which has taken a contrary view.
15. In Civil Revn. Appln. No. 1766 of 1958 (Bom.) Jhaverbai v. Nilkiram Sabanmal decided on 3.8.1960, V. S. Desai, J. has observed in his judgment as follows:
"Now, the dispute referred to in Section 12(3)(a) must be real and genuine and not false, frivolous or mala fide. It may be that even if the dispute is not raised before the suit is filed but is taken for the first time in the written statement nit may still be a real and bona fide dispute. But a mere assertion in the written statement as to the existence of the dispute may not, however, be sufficient to hold that a real and bona fide dispute exists. Whether the dispute, which is set up for the first time in the written statement in real and genuine or false or frivolous must depend upon the circumstances of each case."
16. In Special Civil Appln. No. 459 of 1965 (Bom). Dr. Chandrakant R. Joshi v. Sumant Ramdutt Desai decided on 14/15-12-1965 by a Division Bench consisting of Tambe, Acting C. J. and Abhyankar, J., it was sought to be argued on behalf of the landlord that even if the tenant was entitled to plead that there was a dispute regarding the amount of the standard rent without filing an application within the period of one month in order to take out the case from the provisions of Section 12(3)(a), it was incumbent on him to establish that the dispute about the standard rent raised by him in his written statement was a "bona fide" dispute and as in that case the dispute was not bona fide, the landlord was entitled to possession of the premises. This contention was not decided by the Division Bench on the Group that the question Bench on the ground that the questions raised by the landlord were questions of fact and were not considered by the Appellate Court. The Court, therefore, set aside the order of the Appellate Court and remanded the case for a fresh decision after considering the issues raised on behalf of the landlord. If the Division Bench was of the opinion that a mere raising of a dispute, whether bona fide or otherwise, in a written statement by the tenant was sufficient to give protection to the landlord, and the provisions of Section 12(3)(a) were not applicable it was not necessary to remand the matter for fresh decision. It would, therefore, appear that the Division Bench proceeded on the basis that it was of the view that the word "dispute" in Section 12(3)(a) implies a "bona fide" dispute .
17. In Civil Revn. Appn. No. 1569 of 1964 (Bom.) Smt. Mohini M. Jaya v. Mrs. Pauline Correa) decided on 17.4.1968 by a Division Bench of this Court consisting of Palekar and Nathwani, JJ. a similar view was taken. After pointing out the requirements which entitled a landlord to get a decree for eviction under Section 12(3)(a), the Division Bench observed -
"It is clear from the record that this dispute was never raised till the tenant filed his defences in the suit. No attempt was also made to adduce necessary evidence to support of the defence. Having regard to these facts, the appellate court came to the definite conclusion that this dispute which was raised for the first time in the written statement was not a bona fide dispute. Where there is no bona fide dispute, the case would obviously come under Section 12(3)(a) of the Act. It is not disputed that if the case falls under Section 12(3)(a), the order passed by the Appellate court is Correct.
18. In Civil Revn. Appln. No. 1822 of 1957 (Bom), Raghunath Ganpat Ghuge v. Sakarchand Bhaguji Shilavane decided on 12.11.1959. Tarkunde, J. reversed the decision of the two courts below and the decision of the two courts below and came to the conclusion that the provisions of Section 12(3)(a) were not applicable to the facts of the case as the dispute about the standard rent raised by the tenants was a genuine dispute. This would show that Tarkunde, J. was of the view that if the dispute raised by the tenant was a genuine dispute the provisions of section 12(3)(a) could not apply and the tenant was entitled to the protection from eviction under Section 12(3)(b).
19. Reference was also made to a decision in special Civil Appln. No.512 of 1966 Dhanraj Sukhraj v. Premchand Jesraj decided on 2.4.1968 = (reported in ILR (1970) Bom 1335 by the Division Bench of Patel and Nain, JJ. In that case the tenant raised a dispute about the standard rent for the first time in his written statement. The trial court fixed the standard rent at the agreed rate and came to the conclusion that the tenant being in arrears for a period exceeding six months was not entitled to protection under Section 12(3)(b). This decision of the trial court which was confirmed in appeal was challenged in the petition under appeal was challenged in a petition under Article 227 of the Constitution of India. It was contended before the Division Bench that there was a bona fide dispute regarding the amount of standard rent, and therefore, his case would fall under Section 12(3)(b). The Division Bench held on facts that the contention raised by the tenant was not bona fide. It appears from the judgment of the Division Bench that the aforesaid decisions of Tarkunde, J. in Civil Revn. Appln. No. 1822 of 1957 , D/- 12-11-1959 (Bom.) and that of Tambe, Acting C. J. and Abhyankar J. in (Spl. C.A. No.459 of 1965 decided on 14/15-12-1965 (Bom.)) were relied on by the tenant in support of his contention that the dispute about the standard rent could be raised for the first time in the written statement and if the dispute is bona fide and genuine, the tenant was entitled to protection. However, relying on a decision of the Supreme Court in Dhansukhlal Chhaganlal v. Dalichand Virchand, MANU/SC/0166/1968 : [1968]3SCR346 , the Division Bench came to the conclusion that the said two decisions of Tarkunde, J, and Tambe, Ag. C. J. and Abhyankar, , were no longer good law. The Division Bench was of the view that the tenant can claim protection from the tenant can claim protection from eviction only it before the expiry of one month after notice referred to in section 12(2), he makes an application under Section 11(3) and not otherwise, However, this decision was based on both the grounds viz., that the dispute was not bona fide and the tenant failed to make an application for fixation of standard rent under Section 14(3) even after receipt of notice under Section 12(2). The Division Bench observed.
"In this case as apart from the fact that there was no bona fide dispute as to amount of standard rent, the petitioner made no application for fixation of a month of the receipt of the notice under Section 12(2), we have no hesitation in coming to the conclusion that Section 12(3)(a) of the Rent Act ;applied and not the lower courts are correct ........"
It may be noticed that the view taken by the Division Bench that the tenant can claim protection from eviction only if he makes an application under Section 11(3) within one month of the receipt of the notice under Section 12(2) and raising of a contention about the standard rent for the first time in his written statement is of no avail, is no longer good law in view of the decision of the Full Bench in MANU/MH/0066/1971 : AIR1971Bom396 (FB); but the fact remains that the Division Bench rejected the claim of the tenant on the ground that the disputed raised by him was not bona fide.
20. In Civil Revn. Appln. No. 809 of 1961 (Bom). Premji Gulabji v. Mayaku Badalu, decided on 18.7.1962 by Chandrachud, J., (as he then was) it was observed -
"The question here is not whether the tenant is ready and willing to pay rent; the question is whether the dispute raised by the tenant with regard to the standard rent or the permitted increases is a bona fide dispute or not."
21. The view that the dispute contemplated under Section 12(3)(a) must be a bona fide dispute is also taken by Mudholkar, J. in Civil Revn. appln. No. 268 of 1958 decided on 25.1.1960 (Bom.). It was urged on behalf of the tenant before him that the tenant having raised the contention about the standard rent in the written statement and the court having raised the issue on the point, it must be held that the case fell under clause (b) of Section 12(3) and not clause (a) of that Section. However, it seems that the tenant made no attempt to prove his case. Mudholkar, J., therefore, held that there was no bona fide dispute regarding the standard rent, and the case fell under clause (a) of Section 12(3).
22. The last judgment in the series taking the view that the dispute, which entitled the tenant to take his case out of the clutches of Section 12(3)(a) must be a "bona fide" dispute is of Bal, J, in Special Civil Appln. No.781 of 1968 Dattu Subhana v. Gajanan Vithoba decided on 5.8.1968 (Bom), by which judgment, he referred the matter to a Division Bench, which in its turn, made a reference to the Full Bench for deciding the question "whether in a proceeding to which Section 12(3)(a) of the Act would otherwise apply, the tenant-defendant can prove that a dispute k about standard rent exists without following the procedure laid down in Explanation I to Section 12? and "whether he can also take a defence that Section 12(3)(a) does not apply and Section 12(3)(b) applies?' This reference was decided by the Full Bench in MANU/MH/0066/1971 : AIR1971Bom396 (FB)., It appears from the referring judgment of Bal, J. that he was unable to agree with the view expressed No.512 of 1966 decided on 2.4.1968 = ILR (1970) Bom 1335 that the decisions of Tarkunde J., in C. R. A. No. 1822 of 1957 (Bom.) and of Tambe, Ag. C. J. and 1965 (Bom) were no longer good law. Bal, J. was of view that if the dispute about the standard of rent and/or permitted increases, though raised for the first time in the written statement, is bona fide and the tenant satisfies the other requirements of Section 12(3)(b), the protection of that section cannot be denied to him. There are observations in the referring judgment to the effect that the dispute about standard rent or permitted increases referred to in Section 12(3)(a) means only a bona fide dispute, as a dispute, which is not bona fide, is no dispute at all.
23. Our attention, however, has been drawn to a contrary view expressed by Vaidya, J. in Special Civil Appln No. 1257 of 1967 (Bom). Shankar Ramkrishna Bhasme v. Bhalchandra decided on 7.4.1971. Relying on the full Bench decision in Dattu Subhana Panhalkar's case, Vaidya, J. took the view that the tenant could raise a dispute about the standard rent in the written statement, and whether such a dispute is bona fide or not or barred by res judicata is wholly irrelevant for considering whether Section 12(3)(a) applies or not.
In Para 7 of his judgment. Vaidya, J. has also observed -
"Mr. Pratap, the learned counsel for the landlord-respondent No.1 contended that the word 'dispute which is capable of (a) means a dispute which is capable of being adjudicated by a Court and not a being adjudicated by a Court and not a dispute which cannot be raised on account of the operation of the principle of estoppel or res judicata as in the present case. It is not possible for me to add any case. It is not possible for me to add any such words of restriction to the word 'dispute' in Section 12(3)(a) would include a dispute which would be barred by res judicata. As stated above, the Court has only to ascertain whether there was a dispute and if it finds that there was a dispute and if it finds that there was a dispute, then Section 12(3)(a) cannot have an application to such a suit."
In short, it may be stated that Vaidya, J. was a dispute, then Section 12(3)(a) depends on the facts and circumstances of each case. The nature of the dispute raised by the tenant, tenability of his plea under law, conduct of the landlord and the tenant prior to the suit and at the hearing of the suit are undoubtedly some of the factors to be taken into consideration. The Court cannot ignore the provisions of Section 11-A and Section 10."
26. Mr. Kowtow, the learned counsel for the landlord, places considerable reliance on the category of cases which have consistently taken the view that when the tenant chooses to raise a dispute about the standard rent or permitted increases for the first time in his written statement, it is necessary that such a dispute about the standard rent or permitted increases for the first time in his written statement, it is necessary that such a dispute must be bona fide to enable him to claim the protection under Section 12(3)(b) of the Act, Mr. Diwan, the learned counsel for the tenant, however, contends that these decisions have no binding force as precedents, and this Division Bench is entitled to take a contrary view. Mr. Diwan's objections to the decided cases being considered as having binding cases are these. Firstly, according to him, these judgments are per incuriam as they were rendered ignoring the plain statutory provision of Section 12(3)(a) which only uses the word 'dispute' and not the words "bona fide dispute'. Secondly, these judgments are sub silentio in the sense that the particular point of law involved in the decision was not perceived by the court or present to its mind while deciding these cases and also because the point in issue was not fully argued. Thirdly, the observations were made on an assumed position of law, and some of the observations, in the cases were obiter, as it was not necessary to go into the question as to whether the dispute must necessarily be "bona fide". Fourthly, the said decisions do not take into account the scheme of the provisions of Sections 11 and 12 which leads 'to the inference that the Legislature did not intend to provide that the dispute referred to in Section 12(3)(a) must be "bona fide" or a "genuine" dispute. Lastly, he says that all these decisions, though not expressly overruled by the Full Bench decision in MANU/MH/0066/1971 : AIR1971Bom396 (FB), cannot stand with the ratio decided of the Full Bench decision and must be deemed to be impliedly overruled.
27. Now, a precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute. The rule apparently applies even though the earlier court knew of the statute in question, if it did not refer to and had not present to its mind, the precise terms of the statute. Similarly, a court may know of the existence of a statute and yet not appreciate its relevance to the matter in hand: such a mistake is again such incuriam as to vitiate the decision. These are the commonest illustrations of decision being given per incuriam. In order that a case can be decided per incuriam, it is not enough that it was inadequately argued. It must have been decided in ignorance of a rule of law binding on the Court, such as a statute ..... (See the observation in "Salmond on Jurisprudence", Twelfth Edition, pages 150 and 169).
28. Mr. Diwan drew our attention to a decision of the Court of Appeal in Young v. Bristol Aeroplane Co. Ltd., (1944) 1 KB 718 of the Report it is observed -
"Where the court has construed a statute or a rule having the force of a statute its decision stands on the same footing as any other decision on a question of law, but where the court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute, the position is very different. It cannot, in our opinion, be right to say that in such a case the court is entitled to disregard the statutory provision and is bound to follow a decision of its own given when that provision was not present to its mind. Cases of this description are examples of decisions given per incuriam. We do not think that it would be right to say that there may not be other cases of decisions given per incuriam in which this court might properly consider itself entitled not to follow an earlier decision of its own. Such cases would obviously be of the rarest occurrence and must be dealt with in accordance with their special facts ..."
"On a careful examination of the whole matter we have come to the clear conclusion that this court is bound to follow previous decisions of its own as well as those of courts of co-ordinate jurisdiction. The only exceptions to this rule (two of them apparent only) are those already mentioned which for convenience we here summarise:
(1) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow.
(2) The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot in its opinion, stand with a decision of the House of Lords.
(3) The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam."
29. The counsel contends that all the decisions of this court referred to above, which in effect, take the view, that the dispute referred to in Section 12(3)(a) must be a "bona fide" or a "genuine" dispute, are not binding on this court as precedents, as they were given per incuriam in ignorance of the plain wording of Section 12(3)(a). He also says that the precise terms of the section do not seem to be present to the mind of the learned Judges were unmindful of the precise terms of the section, or that they did not appreciate the relevance of the absence of the words "bona fide dispute" in Section 12(3)(a). We particularly feel so, because these decisions have been spread over a long period and are rendered by different Judges sitting singly and in Division Benches. The distinction of a "bona fide" dispute as against merely a "dispute" (which is the plain word in the section) has ben emphasized in the judgments for the simple reason that the learned Judges seem to be quite aware of the absence of the word "bona fide" in Section 12(3)(a). It is, therefore, not possible to accept Mr. Diwan's submission that all those decisions are decisions per incuriam, and as such not binding as precedents.
30. Mr. Diwan, however, is on stronger grounds in the submission that the said decisions were precedents subsilentio, since they were decided without arguments on the basis of the position in law which was assumed by the Court. The circumstances in which a decision is said to be arrived at sub silentio have been described in "Salmond on Jurisprudence", Twelfth Edition. The learned author observes (at pages 153 - 154) -
" A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the Court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B, point B is said to pass sub silentio.
A good illustration is Gerard v. Worth of Paris Ltd., (1936) 2 All ER 905. There, a discharged employee of a company, who had obtained damages against the company for wrongful dismissal, applied for a garnishee order on a bank account standing in the name of the liquidator of the company. The only point argued was on the question of the priority of the claimant's debt, and, on this argument being heard, the Court of Appeal granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When therefore, this very point was argued in a subsequent case before the Court of Appeal, Lancaster Motor Co. v. Bremith Ltd., (1941) 1 KB 675 - the court held itself not bound by its previous decision. Sir Wilfrid Greene, M. R., said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided. He went on to say that the point had to be decided by the earlier court before it could make the order which it did; never the less, since it was decided without argument, without reference to the crucial words of the rule, and without any citation of authority, it was not binding and would not be followed".
31. On going through the decisions (taking the view that the dispute must be "bona fide") rendered by both the single Judges as well as Division Benches of this Court, it does appear that the point was not decided on arguments. It was assumed that the word "dispute" in Section 12(3)(a) necessarily implies a "bona fide" or a "genuine" dispute. A question as to whether the word 'dispute" should be given its plain grammatical meaning, as argued by Mr. Diwan, or whether it should be given a restricted meaning was not considered or argued in those cases. Where the case was decided on the position of law which was assumed by the court, the decision is not an authority for what was assumed. In none of the said decision, the counsel on behalf of the tenant raised a contention that the word 'dispute" in Section 12(3)(a) must be given its plain grammatical meaning and the court should not restrict its plaint meaning by construing the word "dispute" as "a bona fide dispute". We do not find that any of the said decisions decided the point of law on argument.
32. So far as the decisions in - (1) Civ. Revn. Appln. No. 1766 of 1958 decided on 3-8-1960 (Bom.) by V. S. Desai, J.: (2) Civil Revn. Appln. No. 1822 of 1957 decided on 12-11-1959 (Bom.) by Tarkunde, J.: (3) Civil Revn, Appln, No. 809 of 1961 decided on 18-7-1962 (Bom.) decided by Bal. J. on 5-8-1968, are concerned, they will not be binding as precedents on a larger bench. This Bench will, therefore, not be bound by the above decision even if they were to decide the point of law in question, Moreover, as stated earlier, the view expressed in the judgments is based on the assumed position of law and not on arguments.
33. Coming to the decision of Tambe, Acting C. J. and Abhyankar, J. in Special Civil Appln. No. 459 of 1965 decided on 14/15-12-1965 (Bom.) it would appear that the counsel for the landlord contended that the dispute about the standard rent raised by the tenant in his written statement not being bona fide, the landlord was entitled to possession of the premises. In that case, the matter was remanded to the trial court on the assumption that the dispute that can be raised by the tenant to protect himself from eviction must be a bona fide dispute, and this question of fact was not considered by the Appellate Court. However, the question of law as to whether the word 'dispute" should be interpreted is mean "a bona fide dispute" was not argued or decided.
34. With regard to the decision of Palekar and Nathwani, JJ. in Civil Revn. Appln. No. 1569 of 1964, decided on 17-4-1968 (Bom.), again it would appear that the question of law raised before us was not considered by the Bench, nor were any arguments advanced. Here too, the Division Bench proceeded on the assumption that the word "dispute" in Section 12(3)(a) must mean a "bona fide dispute" and not merely a 'dispute".
35. Mr. Kotwal submits that the observations and the view taken in the various decisions relied on by him has been consistently expressed over number of years, and even if technically, they cannot be considered as binding precedents on the Division Benches, they are entitled to weight. He says that it is not likely that this view would not be consistently taken without due consideration to the language of the section and the meaning to be given to the word "dispute" in Section 12(3)(a). Since we fee that Mr. Diwan is right in his submission that those judgments cannot be considered as binding precedents, we are inclines to decide the point referred to us afresh on the basis of arguments advanced before us.
36. Before we proceed to the actual consideration of the point of law referred to us, it is necessary to dispose of one more argument of Mr. Diwan. The learned counsel argued that not only the view in favour of construing the word "dispute' as a 'bona fide dispute' is impliedly overruled by the Full Bench decision in MANU/MH/0066/1971 : AIR1971Bom396 (FB), but such an interpretation cannot stand with the ratio of the Full Bench decision. As we have already observed that those decisions cannot have the fore of binding precedents, it is unnecessary to discuss the contention that those decisions have been impliedly overruled be the Full Bench decision. However, his argument goes a step further by raised a contention that the ratio of the Full Bench decision is such that it is not in favour of the restricted meaning of the word "dispute" in Section 12(3)(a). The accept the view that the word "dispute" means a "bona fide" dispute would amount to taking a view contrary to the one expressed by the Full Bench. If his contention were to be accepted, and if we come to the conclusion that the word 'dispute must be construed as a "bona fide" dispute, the only alternative before us would be to refer the matter to a larger Bench.
37. Before we come to the consideration of the question as to what has been actually decided by the Full Bench in Dattu Subhana's case, MANU/MH/0066/1971 : AIR1971Bom396 (FB), we may at this stage refer to a passage from halsbury's Laws of England, Third Edition, Volume 22, paragraph 1682 on page 796. It is as follows:
"1982. Ratio decided. The enunciation of the reasons or principle on which a question before a court has been decided is alone binding as a precedent. This underlying principle is often termed the ratio decidendi, that is to say, the general reasons given for the decision or the general grounds on which it is based, detached or abstracted from the specific peculiarities of the particular case which gives rise to the decision. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding; but, if it is not clear, it is not part of a tribunal's duty to spell out with difficulty a ratio decidendi in order to be bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. If more reasons than one are given by a tribunal for its judgment all are taken as forming the ratio decidendi".
It would be clear from the above quoted passage that it is the enunciation of the reason or principle or the process of reasoning on which a question before a Court has been decided can be said to be binding as a precedent. A mere logical decoction or corollary on the ratio of a decision cannot be binding as a precedent; for, generally, the exposition of law in the judgment must be qualified by the particular facts of the case. The ratio of the case must mean a decision on issue which is a live issue between the parties, and the law should result from being applied to live issues raised between actual parties and argued on both sides. We must not forget that very often general words and expressions are used invariably, but the same is always controlled by the facts of that particular case. It would, therefore, be necessary to bear in mind the distinction between the ratio decided of a decision and the logical corollary which may seem to follow from it. In the Commissioner of Income Tax, Bombay City I v. Bai Shirinbai K. Kooka, MANU/MH/0289/1956 : [1956]30ITR753(Bom) , a Division Bench of this Court observed at p. 716 = (at p. 590 of AIR). "It has been very strongly urged by the Advocate - General that it is our duty, whatever our own views may be, to give effect to the decision of the Supreme Court. With very great respect, a decisions of the highest Court is a decision which is true with regard to the facts on which that decision is based. Logical corollary may follow from that decision and a Court may be asked k to accept the logical corollary and to extend the principle of that decision, but the binding nature of the decision depends upon what is the ratio which applies not only to the facts in that particular case but would be applicable to other facts as well. It is perfectly true that no tow decisions can have identical facts and it is not in that sense that one decision should be distinguished from another. But once the ratio is discovered, then the case is not an authority for a proposition that may seem to follow logically from it, as was stated by Lord Halsbury in Quinn v. Leathem. (1901) AC 495".
38. We will now proceed to consider whether we can spell out a ratio in the Full Bench decision which would prevent us from taking a view that the words "dispute" in Section 12(3)(a) must be construed to mean a "bona fide dispute" and not a dispute of any kind whatsoever. In order to properly appreciate Mr. Diwan's submission about the binding nature of Full Bench decision so far s the question of law before us is concerned, we think it necessary to briefly refer to the facts of the case which led the matter being referred to the Full Bench and the actual decision therein. In that case, the landlord gave a notice to the tenant alleging that he was in arrears of rent for over six months and was guilty of certain acts of waste and nuisance and terminated his tenancy on those counts. In the reply to the notice, the tenant, inter alia, contended that the agreed rent and permitted increases of the premises. The landlord thereafter filed an ejectment suit on all the three counts including- non-payment of rent for over six months. The tenant had not filed any application for fixation of standard rent before the filing of the suit by the landlord. By his written statement, however, he raised a dispute about the standard rent and also requested the court to fix the same. He applied for fixation of interim rent pending fixation of the standard rent, and the interim rent was accordingly fixed by the court. The trial court, in view of the contention taken up in the written statement, raised an issue about the standard rent. Ultimately, the trial court held that the standard rent of the premises was Rs. 26 p. m. In view of the deposit of the arrears of rent and costs of suit, the trial court dismissed the landlord's suit for possession. The landlord's allegation about waste and nuisance was rejected by the trial court. The appeal filed by the landlord relating to the recovery of possession was dismissed. This was again challenged by the landlord by a writ petition under Article 227 of the Constitution. When the matter came up k for hearing before Bal, J., he found that there was a conflict of decisions of the Division Benches of this Court on the question as to whether a tenant was entitled to raise a dispute about standard rent for the first time by way of written statement. Bal J. took the view that if the dispute about standard rent and/or permitted increases though raised for the first time in the written statement is bona fide and the tenant satisfies the other requirements of Section 12(3)(b) of the Rent Act, the protection of that section cannot be denied to him. In view of the importance of the question involved, he referred the matter to a Division Bench which could consider whether the matter should go before a larger bench. The reference made by Bal. J. came up before the Division Bench of Patel and Wagle, JJ., who also noticed the conflict of views expressed in the various judgments, though it desirable to direct the papers to be placed before the learned Chief Justice for constituting a larger bench for deciding the following questions:
"1. Whether in a proceeding to which Section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act. 1947, would otherwise apply, the tenant - defendant can prove that a dispute about standard rent exists without following the procedure laid down in Explanation I to Section 12?
2. Can he then also take the defence that Section 12(3)(a) does not apply and Section 12(3)(b) applies?"
The Full Bench answered both these questions in the affirmative.
39. We have given the background of the decision of the Full Bench in some detail as Mr. Diwan Seriously submitted before us that the view that the dispute must be bona fide is impolitely overruled by the Full bench, and that to uphold such a view would be contrary to the ratio of the decision. In support of his contention, the counsel has relied on some of the passages in the judgment of the Full Bench. On a careful consideration of the decision of the Full Bench, we do not think it possible to uphold this submission. The issue referred to the Full Bench related to a narrow question viz., about the competence of the tenant-defendant to prove the existence of a dispute of standard rent without following the procedure laid down in Explanation I to Section 12; and secondly, whether, if he so raises a dispute, he can take up a defence that Section 12(3)(a) does not apply and Section 12(3)(v) applies to his case. In short, the question raised was whether a tenant can take his case out of Section 12(3)(a) and seek relief under Section 12(3)(b). In his referring judgment, bal J. specifically observed that the dispute must be a "bona fide" dispute, because a dispute which is "not bona fide" is nt a dispute at all. We, however, find that the Full bench has not said anything to show that this view was wrong. It seems to be so because the Full Bench was to called upon to consider the question as to whether the dispute must be a "bona fide" dispute and not any dispute. The two questions, viz., whether the dispute could be raised for the first time in the written statement and whether such a dispute should necessarily be a "bona fide" dispute are different. The Full Bench was concerned only with the first one. If the Full Bench had in its mind the question of "bona fide", it would certainly have referred to that question and expressed their view one way or the other. The absence of any such consideration of the question by the Full Bench in the case shows that they did not apply their mind to this aspect. It is significant to note that none of the counsel appearing before the Full Bench seem to have thrashed out this point. Mr. Diwan, however, lays stress on the following observations of the Full Bench at page 385 of the Report 73 Bom LR 371:
"Secondly, it is at once clear upon the terminology of the Explanation that it can never apply to a case under sub-section (3) (a) because the whole basis of the applicability of the explanation is the existence of a dispute as to the creases whereas the essential pre-condition to the applicability of sub-section (3) (a) is that 'there is no dispute as to the standard rent or permitted increases while the dispute. Since the ambits of the two provisions are distinct and indeed contradictory the Explanation can never to the sub - section .........."
Mr. Diwan wants us to consider the above observations along with the following observations on page 387 of the Report-
"Both Explanation I and Explanation II of section 12 refer to the provisions of Section 11 and we may now deal with those provisions in so as they impinge up on the construction of Section 12. Sub-section (1) gives the general power to the Court to fix standard rent and permitted increases in certain cases which are specified in clauses (a) to (e) of that sub- section. we are not concerned with any refers to a case 'where there is any dispute between the landlord and the tenant regarding the amount of standard rent'. Sub-section (2) of Section 11 Similarly gives power to the Court to determine the amount of permitted increases 'if there is any dispute between the landlord and the both the sub-sections fixes the nature of the dispute referred to in sub-s. (3) (a) and in Explanation I of S. 12."
On the basis of these observations, Mr. Diwan has advanced the argument that the nature of a dispute about standard rent and permitted increases which can be raised by the tenant is the same in both sub-section (1) and sub-section (2) of the section 11 as well as in Sub-section (a) of the section 11 as well as in sub-section (a) and Explanation I of Section 12. His submission in short is that we cannot make a distinction between the nature of the dispute in sub-section (3) (a) from the one that may be raised under sub-sections (1) and (2) of section 11 and Explanation I to Section 12. He points out that a tenant can make an application for fixation of standard rent and permitted increases under Section 11 irrespective of the provisions of Section 12, and such an application need not necessarily be "bona fide". He also points out that it is immaterial to find out whether a dispute raised under Explanation I to Section 12 is bona fide or not. Relying on the observation of the Full Bench to the effect that the word 'dispute' in both the sub-sections fixes the nature of the dispute referred to in sub-section (3) (a) and in Explanation I of S. 12, Mr. Diwan contends that the Full Bench by necessary implication has come to the conclusion that it is immaterial whether the 'dispute' under Section 12(3)(a) is bona fide or not. According to him, the ratio of the Full Bench expressed in the above referred to passages is that the nature of the dispute in Section 12(3)(a) cannot be different from the one contemplated in sub-sections (1) and (2) of Section 11. If the bona fides or otherwise of the tenant in making an application under sub-sections (1) and (2) of Section 11 are irrelevant, they would be equally irrelevant in the case of a dispute referred to in sub-section (3) (a). We are unable to accept these submissions of Mr. Diwan. It is true that the word 'dispute" in relation to standard rent and permitted increases occurs in sub-sections (1) and (2) of Section 11 and sub-section (3) (a) and Explanation I to Section 12. It is true that in a broad sense, all the four cases contemplate of raising a dispute by the tenant, and such a dispute necessarily relates to the standard rent and/or permitted increases. It appears to us that it is only in a broad context and for the limited purpose of deciding whether the tenant can for the first time raise a dispute about standard rent and permitted increases by way of written statement that the above observations have been made by the Full Bench. It appears that on behalf of the landlord, it was principally contended that Explanation I to Section 12 applies to Section 12(3)(a), and that therefore, the 'dispute' contemplated in Section 12(3)(a) must mean a dispute raised by an application for fixation of standard not and / or permitted increases within one month of the receipt of notice under Section 12(2) . It was urged that if these steps are not taken, the tenants are precluded from raising a dispute for the first time in the written statement in order to take the case out of the clutches of Section 12(3)(a) and seek protection of Section 12(3)(b). These arguments were referred to by the Full bench by pointing out that Section 12(3)(a) postulates a case "where there is no dispute", while Explanation I postulates a case "where there is a dispute, and, therefore, the one provision cannot apply to the other. having rejected the argument that Explanation 'I' applies to Section 12(3)(a), the Full Bench came to the conclusion that a tenant could raise a dispute about standard rent and permitted increases in a suit for eviction filed by the landlord, although he could not take advantage of Explanation 'I' to Section 12, which contemplates a statutory provision creating a fictional case of readiness and willingness to pay in contrast to the provision of sub-section (1) of Section 12 which contemplates a case of genuine readiness and willingness to pay. Moreover, some of the observations at page 389 of the report do not support Mr. Diwan's contentions. After enumerating the four conditions, viz. - (1) the rent is payable monthly; (2) there is no dispute regarding the standard rent and permitted increases; (3) the standard rent shooed be in arrears for a period of six months or more; and (4) the tenant has neglected to pay the same until the expiration of one month from the notice under sub-section (2), which are required to be fulfilled for the applicability of Section 12(3)(a), the Full Bench goes on to observe-
"Now if all the conditions are to be fulfilled there is no doubt that in the present case there was a dispute raised. The two Courts below actually fixed the standard rent at the rate of Rs.26 per month when the contractual rent agreed upon was Rs.28 per month. Such a case cannot fall under Section 12(3)(a)".
These observations tend to indicate that even the Full Bench assumed for the purposes of the reference before them that the dispute raised by the tenant was "bona fide". Taking into consideration all the aspects of the matter, we are unable to accept Mr. Diwan's contention that the ratio decidendi of the Full bench decision binds us to the conclusion that the word "dispute" in Section 12(3)(a) means any dispute, whether "bona fide" or otherwise. It would not be proper to deduce such a ratio by taking into consideration a few observations out of a long and elaborate judgment of the Full Bench. The observations relied on by Mr. Diwan may at best from a basis for a logical argument in support of his contention that the word "dispute" must not be given a restricted meaning. But the logical corollary that may seem to follow from such observations cannot be said to be the ratio decidendi of the decision of the Full Bench which will be a binding precedent. More over, we do not think that the Full Bench ever considered the question about the proper interpretation of the word "dispute" in Section 12(3)(a). We are, therefore, inclined to reject Mr. Diwan's submissions on this point.
40. Having disposed of the preliminary objections raised by Mr. Diwan, we proceed to the consideration of the question referred to us for our views.
41. The controversy raised is whether the word 'dispute' in Section 12(3)(a) should be read or construed to mean only "a bona fide dispute". and not "any dispute". Mr. Kotwal for the landlord contends that in the context in which the word "dispute" occurs in Section 12(3)(a), it must be given a restricted meaning. According to him, the primary consideration for the construction of a statutory provision by the legislature is to have regard to the subject-matter of the statute and the object which it is intended to achieve. He says that it would not be proper to place exclusive reliance on the bare dictionary meaning of the word "dispute". If one considers the object as well as the scheme of the Act, the intention of the Legislature would be defeated if the word 'dispute" is read with its mere plain grammatical meaning. he says that the Court can, if need be, add words or even subtract words in order to give a restricted or enlarged meaning with the purpose of finding out the intention of the Legislature. According to him, on a reasonable construction of the scheme of Sec.12 of the Act, it would appear that the protection given to a tenant from the eviction on the ground of non-payment of rent and permitted increases is withdrawn by stages, and considered from that point of view, it would be essential that the word "dispute" must be read as "bona fide dispute". According to him, a dispute must be a "bona fide" dispute, and what is mala fide can have no existence in law. He further contends that the word "dispute" used in different places in Section 11 and 12 has different meanings.
42. Mr. Diwan, on the other hand, has made the following submissions; He firstly contends that the ordinary rule of construction of a statutory provision is that the words used must be given their plain and grammatical meaning, and it is not the function of the Court to go on a voyage of discovery as in that case the Court would be usurping the legislative function of the Legislature. His next submission is that it is not permissible for a Court to read words in the Act not found there unless strong and compelling reasons are found within the four corners of the Act itself. he further submits that the only possible way of construing the word "dispute" in Section 12(3)(a) is merely to find out whether "there is a dispute" or there is no dispute": and there is no justification whatsoever to add the word "bona fide" in the sub-section which is not there. He further submits that there is intrinsic evidence in the Act itself that whenever the Legislature intended to bring in the concept of bona fides, it has used the word in other section of the Act. According to him, "dispute" means that somebody alleges one way and the other party may allege in the other way. The question of the allegation being bona fide or not is irrelevant. He says that Section 12(3)(a) is a special case and provides for an exception, and as such, it must be strictly construed and its area should nt be unduly enlarged. The word "dispute" in Section 11(1)(e), 11(2), Explanation 'I' to Section 12, and in Section 12(3)(a) must be attributed the same meaning; if Section 11(1)(e), 11(2) and Explanation 'I' do not contemplate that the dispute raised should be "bona fide", there is no reason why a k different concept should be introduced in construing Section 12(3)(a). He further says that no vested right arises in favour of a landlord after notice of termination of tenancy nd even after expiry of one month referred to in Section 12(3)(a), but he gets right only if the conditions postulated by Section 12(3)(a) are strictly fulfilled by the landlord, and adding the word "bona fide" would be contrary to such a construction of Section 12(3)(a). he submits that the Statute being a beneficial legislation of which the object is clear beyond all doubt, any ambiguity must be resolved in favour of the tenant. He submits that if two reasonable and possible constructions are available, then the one which does not expand the ambit of the sub-section should be selected; and in this case, if both the constructions, viz., the plain grammatical meaning and the restricted meaning are reasonably possible, the Court should attribute the plain and literal meaning to the word "dispute", because the plain language of a section should override in a case of a conflict. Lastly, he contended that it ways easy for the Legislature to prefix the word 'dispute" by the word "bona fide" if it was so intended by them.
43. The learned counsel on both sides have cited several decisions and drawn our attention to passages from Maxwell on the Interpretation of Statutes and Halsbury's Laws of England, regarding the principles for the interpretation of statutory provisions. In the instant case, the principal question that arises for consideration is whether the word "dispute" in Section 12(3)(a) should be given its plain, literal and grammatical meaning, or whether it is permissible to construe it as meaning only "a bona fide dispute". The relevant well established principles for interpretation of a statutory provision of this nature that emerge on a consideration of the law relating to interpretation of statutes are these:
44. Normally, the words used in a statute have to be construed in their ordinary meaning. In the absence of adequate grounds, it is wrong to add or subtract words. But in many cases, judicial approach finds that the simple device of adopting the ordinary meaning of words does not meet the ends of fair and reasonable construction. Exclusive reliance on the bare dictionary meaning of the words sometimes may not necessarily assess a proper construction of a statuary provision in which the words occur. often enough, it becomes necessary to have regard to the subject-matter of the statute and the object which it is intended to achieve. The words should be construed in the light of their context rather than what may be either their strict etymological sense or their popular meaning apart from their context ..... (See Sheikh Gulfan v. Sant Kumar, MANU/SC/0273/1965 : [1965]3SCR364 ). It is also well settled that the intention of the Legislature has clearly to be gathered from the actual words used by it, giving to the words their plain, normal grammatical meaning. But when there is doubt about their meaning, the words of a statute are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the Legislature has in view ......... (See State of U. P. v. C. Tobit, MANU/SC/0048/1961 : 1958CriLJ809 - the Head note). Before adopting any proposed construction of a passage susceptible for more than one meaning, it is important to consider the effects or consequences which would result from it, for they often point out the real meaning of the words. These are certain objects which the legislature is presumed not to intend, and a construction which would k lead to any of them is therefore to be avoided. It is not infrequently necessary, therefore, to limit the effect of the words contained in an enactment (especially general words), and sometimes to depart, not only from their primary and literal meaning, but also from the rules of grammatical construction in cases where it seems highly improbable that the words in their wide primary or grammatical meaning actually express the real intention of the legislature........(See Maxwell on the Interpretation of Statutes, 12th Edition, p. 105). It is also well-settled rule that if in any legislation, the general object of which is to benefit a particular class of persons, any provision is ambiguous so that it is capable to two meanings, one which preserves the benefit and another which would take it away, the meaning which preserves it should be adopted....... (See Mahadeolal v. Administrator General of W. B., MANU/SC/0294/1960 : [1960]3SCR578 . It is generally reasonable to presume that the same meaning is implied by the sue of the same expression in all parts of the Act. This rule of construction is only one element in deciding what the true import of the enactment is, to ascertain which it is necessary to have regard to the purpose behind the particular provision and its setting in the scheme of the statute. Such a presumption is however very slight, and it is proper, if sufficient reason can be assigned to construe a word in one part of an Act in a different sense from that which it bears in another part of an Act.......(See MANU/SC/0012/1956 : 1957CriLJ5 in the case of S. V. Parulekar .v Dist. Magistrate Thana). Maxwell (Interpretation of Statutes, twelfth edition, page 279) observes that the presumption as to identical meaning is, however, not of much weight, and the same word may be used in different sense in the same statute, and even in the same section. It is also an important rule of construction that if a strict grammatical interpretation gives rise to an absurdity or inconsistency, such an interpretation should be discarded and an interpretation which will give effect to the purpose the Legislature may reasonably be considered to have had will be put on the words, if necessary even by modification of the language.........(See MANU/SC/0294/1960 : [1960]3SCR578 . Similarly in construing an enactment and determining its true scope, it is permissible to have regard to all such factors as can legitimately be taken into account to ascertain the intention of the legislature such as the history of the Act, the reason which led to its being passed the mischief which had to be cured as well as the cure as also the other provision of the statute.........(See S. C. Prashar v. Vasantsen, MANU/SC/0203/1962 : [1963]49ITR1(SC) .
45. Having regard to the rules of construction referred to above, the intention of the Legislature assumes paramount importance. For this purpose, the statute has to be construed as a whole. We have already noted above the broad features of the scheme of the Rent Act. The preamble of the Act indicates that the intention is to control rents and evictions. The object appears to be not to put a complete ban on evictions of tenants, but only to control eviction. By enacting the various provisions of the Rent Act, the Legislature has in effect modified the general law as contained in Section 106 and the subsequent provisions of the Transfer of Property Act, and imposed certain condition under which alone the tenants can be evicted from the premises occupied by them. The provisions regarding eviction are contained primarily in Section 12 and 13 of the Act. Section 13 gives a right to the landlord to recover possession of the premises on satisfying the Court on anyone or the other of the grounds for eviction mentioned in the section . The provision of Section 13 are clearly consistent with the object of controlling eviction and not banning them altogether. In fact, Section 13 confers a right on the landlord to get possession on proof of the various grounds mentioned din the section. Section 12 primarily deals with eviction on the ground of non-payment of rent. Sub-section (1) of Section 12 gives a general protection to the tenant from being evicted so long as he 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 this Act. For the purposes of this reference, it is assumed that the tenant observes and performs the other conditions of the tenancy except with regard to the payment of rent and permitted increases. So long as the tenant pays or is ready and willing to pay the amount of the standard rent and permitted increases, the landlord does not get a right to recover possession. The simplest illustration of readiness and willingness to pay is the actual payment, or offer to make payment. This officer to pay can be demonstrated, for instance, by sending a money-order or by actually offering the money in cash to the landlord who may choose to accept or refuse the same. if the tenant is able to prove this objective fact, he will be protected from being evicted. There is a further protection given to the tenant by
sub-section (2) of Section 12 which disentitles the landlord from filing a suit for recovery of possession until the expiration of one month after notice in writing of the demand of standard rent or permitted in creases and further makes an application to the Court under sub-section (3) of Section 11 within the period of one month laid down in Section 12(2) and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court. In effect, the compliance of the requirements of the provisions of Explanation I by the tenant creates a statutory presumption, or as is often called, a conclusive evidence of the tenant's readiness and willingness to pay. Thus, Explanation I gives a further protection to the tenant. It would appears from the provisions of sub-section (1) that the Legislature intended to give protection to a bona fide tenant who actually wanted to pay or was ready and willing to pay. These provisions of sub-section (2) and Explanation I have been enacted with a view to give a further chance to honest tenants to make payment by clearing off the arrears or resorting to the machinery provided by Explanation I. Failure of the tenant to pay in spite of the notice by the landlord under sub-section (2) results in the curtailment of the protection given to him, subject, however to his taking advantage of the machinery provided. If he avails of the Explanation I, he continues to be protected as by legal fiction, he is deemed to be ready and willing to pay. Section 12(3)(a) deals with cases to which Section 12(1) does not apply and a vested right is created in a landlord on fulfillment of the four conditions mentioned therein. The four conditions are, - (1) that the rent is payable monthly; (2) that there is no dispute regarding the amount of the standard rent or permitted increases; (3) that such rent or increases should be in arrears for a period of six months; and (4) that the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-section (2). If these conditions are fulfilled, then it is mandatory on the court to pass a decree for eviction as no discretion is left in the Court to give relief to the tenant from being evicted. If, however, the conditions laid down in Section 12(3)(a) are not established by the landlord, a further protection is given to the tenant by Section 12(3)(b) which prevents the Court from passing a decree for eviction if on the first day of hearing of 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 and thereafter continues to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court. It would be clear that sub-s. (3) (b) comes into pay only if the case is taken out of sub-s. (3)(a) of Section 12. It would appear that the whole scheme of Section 12 is to withdraw the general protection given to the tenant by stages. The Legislature has given ample opportunity to the tenant to pay or to show his readiness and willingness to pay, for the landlord is precluded from filing a suit for one month after notice and the tenant conclusively proves his readiness and willingness to pay by the legal fiction created by Explanation I, even if the landlord chooses to life a suit for eviction after one month. After this stage is gone, the Legislature has chosen to create a vested right in the land lord on his fulfilling the four conditions laid down in Section 12(3)(a). It would be clear that sub-section (3)9a) and sub-section (3) (b) are complementary to each other and have k to be read together. Both these sub-sections deal with a case where the tenant has defaulted to pay rent or permitted increases; the notice contemplated in sub-section (2) is already served upon him; the one month's period mentioned in the notice has expired; and the tenant has failed to take advantage of the enabling provision of Explanation I. It would appear that sub-section (3) (b) is couched in negative language in contrast to the wording of Section 3(a) which makes if mandatory upon the Court to pass decree for eviction if the conditions laid down therein are fulfilled. We may now assume that the landlord has been able to establish the three conditions laid down in sub-section (3) (a), viz., (i) the rent is payable monthly; (ii) the rent or increases are in arrears for a period of six months; and (iii) the tenant neglects to make the payment until expiration of one month after notice referred to in sub-section (2), The bone of contention between the parties relates to the fourth condition, viz., that there is no dispute regarding the amount of standard rent or permitted increases. In view of the judgment of the Full Bench in MANU/MH/0066/1971 : AIR1971Bom396 FB), there can be no dispute that the tenant is entitled to raise a contention about the standard rent and permitted in creases for the first item in his written statement.
46. The crucial point for consideration is whether the dispute contemplated by Section 12(3)(a) should necessarily be a "bona fide" dispute. Can it be said to be the intention of the Legislature to give protection to a tenant who just raises the contention about the standard rent or permitted increases in the written statement, although the plea may be frivolous, baseless or mala fide? The learned counsel for the tenant naturally submits that we should follow the ordinary rule of giving a plain grammatical meaning to the word "dispute" would be contrary to the intention of the Legislature, as expressed by the scheme of Section 12. We see considerable force in the submission made on behalf of the landlord. As stated earlier, Section 12(3)(a) creates a vested right in the landlord to get possession of the premises on fulfillment of the four conditions enumerated therein. For this purpose, the landlord has to prove that there is no dispute about the standard rent and permitted increases. In our opinion, the landlord can prove that there is no dispute if he is able to satisfy the Court that the plea taken in the written statement about the standard rent and permitted increases is not genuine or bona fide.
47. In this connection, we may contrast the provisions of Explanation I with those of Section 12(3)(a). The Legislature has chosen to create by legal fiction a conclusive evidence of readiness and willingness on the part of the tenant if he chooses to make an application for fixation of standard rent before the expiry of the period of one month after notice referred to in sub-section (2) or further complies with the orders of the Court under Section 11(2). In view of the wording of Explanation I, the Court will not go into the question of bona fides or otherwise of the tenant, for the very compliance of the provisions thereof is considered to be a demonstration of his readiness and willingness to pay within the meaning of sub-section (1) of Section 12. Such is not the case with the provisions of Section 12(3)(a). The landlord will be able to show that the dispute raised by the tenant is nt at all bona fide or a genuine dispute. To hold that the word "dispute" should be given its plain and grammatical meaning would mean that the tenant can with impunity with hold payment of rent and increases even till the filing of the suit by the landlord and then by merely taking a plea about the standard rent in the written statement he can protect himself from eviction. In our opinion, such an interpretation of the word "dispute: in Section 12(3)(a) would in most of the cases render the effect of the provisions of S. 12(3)(a) nugatory, Even though the tenant may now full well that what is charged by the landlord is nothing but the standard rent and permitted increases, still what was required of him to defect the vested right of the landlord is only to raise a plea about the standard rent in his written statement. It would be unreasonable to hold that such was the intention contemplated by the Legislature. The scheme of Section 12 would show that the protection is extended to honest tenants. We find that there are other indications as well to support the view that we are inclined to take.
48. Section 11-A precludes a Court from entertaining a plea of standard rent or permitted increases being excessive if the same are already fixed on merits by the Court except on proof of fraud or collusion or an error of the facts, and there has been no structural alterations or change in circumstances. Now, it is difficult to hold that even if a tenant is barred from raising a plea about standard rent or permitted in creases in the written statement and take the case out of the provisions of Section 12(3)(a) . If a literal meaning is given to the word 'dispute" in Section 12(3)(a), in such a case absurd results would follow; for, although he is precluded by the judgment of the Court and barred from raising a plea under Section 11-A, he would be free to merely raise such a plea howsoever dishonest it may be with a view to get out of the clutches of Section 12(3)(a). The Court will have to harmonise the provisions of Section 11-A and Section 12(3)(a) by not adopting the ordinary rule of literal or grammatical meaning being given to a word in a statutory provision. The Court will be justified in restricting the meaning of the word "dispute: by holding that the dispute to be raised by the tenant must be one which could be raised by him and not barred by the provisions of Section 11-A is to give protection to dishonest tenants from withholding payment of rent and permitted increases by raising false and frivolous contentions without the risk of being evicted. We see no difficulty in holding that the k dispute contemplated by Section 12(3)(a) must be a dispute which is capable of being adjudicated by a Court, and not a dispute which cannot be raised on account of the bar under Section 11-A.
49. The next question, however, is whether it would make any difference if the dispute is not barred by consideration of res judicate or otherwise under Section 11-A and still is not a bona fide dispute. Whether the dispute is barred by the provisions of Section 11-A or is not a genuine dispute, the landlord will be justified in saying that there is in fact no dispute regarding the amount of standard rent or permitted increases. To hold that the Court is not entitled to go into the question as to whether the dispute is bona fide would be frustrating the scheme of Section 12 of the Act. It would be unreasonable to hold that the Legislature intended that the right given to the landlord under Section 12(3)(a) could be frustrated by allowing a tenant to raise k a false, frivolous, or mala fide dispute about the standard rent and permitted increases. We cannot forget that the Legislature has given full protection to the tenant who pays or is ready and willing to pay the amount of standard rent as contemplated by Section 12(1). The Legislature seems to have given sufficient protection to honest tenant who on account of certain difficulties could nt pay the rent in time and has a dispute about the standard rent and permitted increases by enacting sub-section (2)and Explanation I. The tenant is given one month's period after he receives a notice from the landlord during which he can pay off the asrrears. By inserting Explanation I, a fictional case of readiness and willingness in favour of the tenant has been introduced giving protection to him where he has a dispute about standard rent and permitted increases. The very fact that the tenant resorts to the machinery provided by Explanation I read with Section II within the prescribed period would prima facie show that he was ready and willing to pay rent but had a genuine reason for withholding payment . The Legislature has deliberately created a case of conclusive evidence of readiness and willingness to pay to give protection to the tenant. There can be no dispute that the protection is further extended to honest tenant who had a genuine dispute about standard rent and permitted increases, about standard rent and permitted increases, but who for some reason could not take the advantage of the machinery provided by Explanation I, and such a tenant six allowed to raise the dispute for the first time in his written statement under Section 12(3)(a) Can it be said that the Legislature intended to extend this protection to dishonest tenants who have no genuine and bona fide dispute about standard rent or permitted increases but still raise such a dispute for the first time in the written statement? The scheme of Section 12 does not warrant the extension of protection to dishonest tenants whose contention about the standard rent and permitted increases raised for the first time in the written statement is found to be nt bona fide. The internal evidence disclosed by the scheme of Section 12 strongly indicates that the Legislature intended to use the word "dispute" in Section 12(3)(a) as meaning a bona fide dispute and not any dispute.
50. In this connection, we may note the amendments made to Section 12 from time to time. There has been no change in Sub-sections (1) and (2) and Explanation I to Section 12. Explanation II was added by maharashtra Act 14 of 1963. However, it makes no difference for consideration of the point in issue. Sub-section (4), which has been added by Bombay Act 61 of 1953, is also not very material for considering the point in issue. The important changes have been made in original Section 12(3) by Bombay Act 61 of 1963, Original Section 1 (3) was as under:
"No decree for eviction shall be passed in any such suit if, at the hearing of the suit, the tenant pays or tenders in Could the standard rent or permitted increases the due together with the costs of the suit."
It would be clear from the provisions of original Section 12 that the tenant would be protected from eviction if he paid or tender ed in Court the standard rent or permitted increases together with the costs of the suit at the hearing of the suit, although he has not resorted to the machinery provided in Explanation I within the prescribed time. The provision was obviously beneficial to the tenant, inasmuch as, mere payment of standard rent and permitted increases and costs of the suit at the date of the hearing of the suit at the date of the hearing of the suit was sufficient compliance to claim protection from eviction. The amendment of 1953, however, made a substantial departure from the original provision by making it mandatory on the Court to pass a decree for eviction on the proof of the four conditions laid down in Section 12(3)(a) by the k landlord. It is only in cases which are not covered by Section 12(3)(a) that Section 12(3)(b), which is in pari materia with the original Section 12(3), would be attracted .it may incidentally be noted that Section 12(3)(a) as amended by Act 61 of 1953 provided that "the Court may pass a decree for eviction" in the circumstances mentioned in the section. The word "may" has been substituted by the word "shall" by Maharastra Act 14 of 1963; but this change has not made any change in the legal position. Even when the word "may" found place in Section 12(3)(a), it was construed to mean "shall". It would, therefore, be clear that the Legislature intended to confer a vested right in the landlord a and also made it mandatory on the Court to pass a decree for eviction. On fulfilment of the four conditions. On fulfilment of the four conditions load down in Section 12(3)(a), the Court is bound to pass a decree, and no option is left to the Court. It may further be noted that even with regard the tender in Court of the standard rent and permitted increase,s the original provisions of Section 12(3) were liberal, for the tender could be made at the hearing of the suit. This was interpreted to mean that the tent could deposit the amount at any time till the disposal of the suit, and evening appeal, for the appeal is considered to be a continuation of the suit. However, Section 12(3)(b), on the other hand, makes the provision less liberal by providing that the tenant must pay or tender in Court the standard rent or permitted increases on the first day of hearing of the suit, or on or before such other date as the Court may fix. Under Section 12(3)(b), the tenant has a right to claim protection by depositing the amount on the first days of hearing of the suit. It would be only in the discretion of the Court to extend the time for payment. The comparison of the original Section 12(3) with the present Section 12(3)(a) and (b) would indicate that the Legislature intended to curtail the protection given the a tenant and also to create rights, in the landlord to get a decree for possession. We must not lose sight of the fact that Section(a) deals with a gross case of a tenant who is in arrears for over six months, and it would be legitimate to infer that the Legislature intended to give protection only to a tenant who has a bona fide dispute about standard rent and permitted increases.
51. The historical data of the changes made in Section 12(3) by amendments lends support to the view that the Legislature intended to use the word "dispute" as meaning bona fide" dispute and not "any" dispute. It appears to us that if it is held that the Legislature intended to convey in Section 12(3)(a) the dispute of "any kind" including the one which may be described as mala fide or false, it would lead to ambiguous or absurd results .When the Legislature intended to confer a right on the landlord to get possession on his fulfilling the four conditions incorporated in Section 12(3)(a), to give an enlarged meaning to the word "dispute" would amount to frustrating that intention. The tenant has simply to raise a contention in his written statements howsoever false or frivolous it may be about the standard rent and permitted increases, and the case would be taken out of Section 12(3)(a). Such a construction would be nothing but to reduce the amended Section 12(3)(a) and Section 12(3)(a) to the original Section 12(3) for all practical purposes.
52. It is true that the normal rule of construction of a statutory provisions is to give to the words and expressions used therein their plain, grammatical meaning. However, this presumption would be very slight. One must have regard to the intention of the Legislature which can be gathered from the scheme of the relevant provision, and its setting in the scheme of the Act. We have already indicated that not only that there is internal evidence of the intention of the Legislature to give a restricted meaning to the word "dispute" but giving an enlarged or plain or grammatical meaning to the word "dispute" would lead to absurd results, and it is also likely to render the provisions of Section 12(3)(a) incorporated by amendments by the Legislature infructuous and nugatory.
53. Mr. Diwan, however, submits that there was no reason why the Legislature should not have made its intention clear by using the word "bona fide" in Section 12(3)(a). In this connection, he has drawn our attention to the provisions of sub-clauses (g),(h) and (hh) of sub-s. (1) of Section 13 of the Act, where the legislature has used the word "bona fide". The said provisions of Section 13 relate to the requirements of the landlord for certain purposes. In that context, the Legislature has used the word "bona fide" in Section 13. Section 30 deals with the powers of the Court to award compensation to the defendant or the opponent by the plaintiff or applicant in any suit, proceeding or application , if the same is not instituted or made bona fide, or is false, frivolous or vexatious. If appears that these powers are similar to those under Section 35-A of the Code Civil Procedure. Merely because the Legislature has used the word "bona fide" in other provisions of the Act, it does not necessarily indicate that it has not used the same word in Section 12(3)(a) , because it intended to give the unrestricted and plain grammatical meaning to the word "dispute" in Section 12(3)(a).
54. Mr. Diwan has emphasised that the word "dispute" which has been used in Section 11(1)(e), 11(2), 12(3)(a) and Explanation I to Section 12 must be given the same meaning, for, if the word 'dispute" in Section 12(3)(a) is construed to mean a "bona fide" dispute, the same meaning will have to be given to the word "dispute" in Section 11 and Explanation I. He says that it cannot be suggested that the word "dispute" in Section 11 and Explanation I to Section 12 implies a "bona fide" dispute. According the him, the sme meaning to the word 'dispute: should be given in all the aforesaid provisions including Section 12(3)(a) , According to him further, "dispute" means nothing brut an assertion or affirmation by one party which is controverted or disapproved by the other, and it would be unreasonable by the other, and it would be unreasonable to introduce a concept of a "bona fide" dispute in Section 12(3)(a). It is true that so far as the provisions of Section 11(1)(e) and Section 11(2) are concerned, the Court is not called upon to consider the question as to whether the dispute, which gives rise to the application for fixation of standard rent or permitted in creases, is "bona fide" or not. Whether the dispute raised in the application for fixation of standard rent or permitted increases is bona fide or not , the Court has to decide and fix the same. Even if the Court finds that the dispute raised in the application is fraise and vexatious, the Court would declare the agreed rent or increases to he the standard rent or permitted increases. The Court will not reject the application as not main taint ail on the ground that the dispute raised is not bona fide. Similarly, so far as Explanation I to Section 12 is concerned, the Court is not called upon to consider the question as to whether the dispute raised by the tenant is bona fide or not. Under the provisions of Explanation I to Section 12 as well as Section 11(1)(e) and 11(2) a dispute about the standard rent and permitted increases is initiated by making an application. In fact, Explanation I specifically refers to the making of an application by the tenant under Section 11(3). As stated earlier, the very fact that the tenant has made an application for fixation of standard rent within one month from the date of the receipt of the notice under Section 12(2) and continues to pay or tender the amount specified in the order made by the court is a conclusive evidence of his readiness and willingness to pay. If a tenant takes the advantage of Explanation I, it is irrelevant for the Court to consider whether the dispute raised by the tenant is bona fide or not, and, therefore, the Legislature cannot have intended that the word "dispute" in Explanation I should be given a restricted meaning. It would, therefore, appear that the word "dispute" in Explanation I should be given a restricted meaning. it would, therefore, appear that the word 'dispute" in Section 11(1)(e), 11(2) and Explanation I has to be given its plain and grammatical meaning. It is true that in a broad sense, the dispute raised by the tenant by an application under Sections 11(1)(e), 11(2) or Explanation I, as well as the dispute raised by the tenant in his written statement under Section 12(3)(a) postulates the raising of a controversy regarding the standard rent and permitted increases by the tenant. The nature of the dispute in all such cases naturally relates of the standard rent and permitted increases, but that does not mean that the 'dispute" contemplated by Section 12(3)(a), which creates a vested right in the landlord, must also be construed in the same seas in which it is found to be used in Section 11(1)(e), 11(2) and Explanation I. In our opinion, the tenanting of the Legislature gathered form the scheme of Sections 11 and 12 of the Act would justify the construction that the 'dispute" in Section 12(3)(a) implies a "bona fide" dispute although it may not sbe so with the word "dispute" in Section 11(1)(e), 11(e) and Explanation I to Section 12.
55. Mr. Diwan Contends that the statute under consideration being a beneficial legislation of which the object is clear beyond doubt, any ambiguity or doubt about the construction of the statutory provisions thereof must be resolved in favour of the tenant. Now, the word "dispute" itself may imply a "bona fide" dispute or a 'mala fide' dispute. Mr. Diwan, therefore, says that there being two possible constructions of the word 'dispute", the rules of interpretation require that the construction should go in favour of the tenant. We have shown above on an analysis of the provisions of Section 12 and the scheme of the Act that the legislative intent of a restrictive meaning being given to the word 'dispute" in Section 12(3)(a) is clear and that the construction suggested by the Counsel would lead to absurd and ambiguous results. By incorporating Section 12(3)(a) in the Act, the Legislature has created vested right in the landlord on fulfilment of the four conditions deducible from the said provisions. To entitle himself to a decree for eviction, the landlord has to prove that there is no dispute regarding the amount of standard rent or permitted increase. This can be proved not only by showing that the tenant has not taken up a plea about standard rent and permitted increase, but also by the landlord by showing that the so-called dispute raised k by the regnant is not genuine or bona fide. Of course, the burden of proving that the dispute raised by the tenant is not bona fide would be on the landlord.
56. The other contention is that Section 12(3)(a) is an exception to the general rule laid down in Section 12(1) and the rule of interpretation requires that such, a provision must be strictly construed; and if two reasonable and possible construction are available then the one which does not expand the ambit of the sub-section should be selected. Once we come to the conclusion that the Legislature intended to use the word "dispute" as a "bona fide" dispute, this argument too can have no force. To us, it appears that the only reasonable and proper construction of the word "dispute" in Section 12(3)(a) would to be construe the sand as a "bona fide dispute". and not "any" dispute.
57. It is further urged on behalf of the tenant that the expression "bona fide" is vague and uncertain and incapable of application by a Court of law in a rational manner to the facts of a given case, as the word has neither been defined in the Act nro are there any guidelines in the Act nor are there any guidelines in the provisions of the Act on the basis of the which the Court would be able to decide whether the dispute raised by a tenant is bona fide or otherwise. We are unable to see any force in this contention. In our opinion, the question as to whether the dispute raised by the question of fact to be decided on evidence led by the parties in each case. We have already noticed above that the word "bona fide" occurs in sub-clause (g),(h) and (hh) of sub-section (1) of Section 13 of the Rent Act. We may also refer to Section 31 and 33-B of the Bombay Tenancy and Agricultural Lands Act, 1948, which gives a right to the landlord to get possession of an agricultural land in possession of an agricultural land in possession of a tenant if he bona fide requires the land for personal cultivation. The Tenancy Act also does not define the word "bona fide". The said provisions have been on the statute book since long, and the Courts have not found any difficulty in deciding whether the requirement of the landlord is bona fide or not. If that is so, there is no valid reason to suppose that it cannot do so in cases falling under Section 12(3)(a) of the Rent Act. Although Section 12(3)(a) , which is on the statute book since 1953, does not expressly refer to "a bona fide Dispute", in view of the consistent view about the standard rent and permitted increases raised by the tenant for the first time in the written statement is a bona fide dispute or not, sand they have found no difficulty to decide the question on evidence led before them. Ordinarily, a "bona fide dispute" would mean a dispute which cannot be said to be false, vexations, mala fide, fraudulent or dishonest. As stated earlier, the question has to be decided on evidence led by the parties in the suit.
58. The last submission of mr. Diwan is that Section 12(3)(a) does not specifically state whether the dispute referred to is by the tenant or by the landlord, and, therefore a question may arise as to whose bona fides are required to be considered. Section 12(3)(a) deals with the rights of a landlord to eject a tenant on fulfilment of certain conditions. Theoretically, Mr. Diwan is right that even a landlord is entitled to raises such a dispute, there would be no question of his bona fides being considered, because, by his own volition, he takes the case out of Section 12(3)(a). Such a contingency, however, cannot arise when a landlord seeks possession of the premises from a tenant on the ground of non-payment of rent. By making out a case that the rent charged by the landlord is not the standard rent, what the tenant desires is that his case should be brought under Section 12(3)(b). In the context, therefore, the "dispute" referred to in S. 12(3)(a) would mean 'a dispute raised by the tenant and not by the landlord'. When the landlord himself raises a dispute, and , in our opinion, such a contingency will never arise, it can only be for asking more rent than he has been changing to his tenant. If the landlord raises such a dispute seeking to charge more amount of rent and permitted increases to the regnant,. it would, in any case, ipso facto mean that the tenant has a bona fide dispute about the standard rent and permitted increases,Looked at form any angle, we do not see that the problem posed by Mr. Diwan about the consideration of the "bona fides" is acceptable on the interpretation of the word 'dispute" in Section 12(3)(a).
59. In the result, we hold that the "dispute" contemplated under Section 12(3)(a) must be a "bona fide" dispute to enable a tenant to claim benefit under Section 12(3)(a).
60. The question referred to us is answered in the affirmative.
61. Answered in the affirmative.
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