Skip to content


Klim Plastic Products and ors. Vs. Paradise Industrial Corporation and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 2778 of 1969
Judge
Reported inAIR1973Bom249; (1973)75BOMLR224
ActsBombay Rents, Hotel and Lodging House Rates Control Act 1947 - Sections (3), 11 (4) and 12(1)
AppellantKlim Plastic Products and ors.
RespondentParadise Industrial Corporation and ors.
Appellant AdvocateD.Y. Lovekar, Adv.
Respondent AdvocateD.R. Dhanuka, Adv.
Excerpt:
.....the defence of the tenant merely on the ground that the tenant had failed to deposit the interim standard rent in time when the tenant's petition for fixation of fair rent was still pending ; b) the case debated on whether the landlord had the right to recover possession of the premises from the tenant merely on the ground that he had failed to pay the contractual rent to the landlord - it was held that failure to pay the contractual rent could not result in eviction of the tenant from the premises, as he was paying the interim standard rent ordered by the court and his application for fixation of standard rent was still pending - - there is nothing in section 11(4) which indicates that the legislature intended the defences of the tenant to be struck off and ex parte hearing to be..........order for deposit of rent was not complied with by the tenant. it is not disputed that an standard rent application was filed by the tenant even before the eviction suit was filed by the landlord and that the application for fixation of standard rent is still pending for hearing before the court of small causes.3. the relevant portion of s. 11(4) runs as follows : -'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.'4. the only order which can be passed by a court under section 11(4) is therefore an order directing, after fixing.....
Judgment:
ORDER

1. This is a tenant's petition under Article 227 of the Constitution of India challenging an ex parte decree passed by a Judge of the Small Causes Court on August 6, 1969 which was confirmed by an appellate Bench of that Court on October 27, 1969. The said decisions are challenged on the ground that the ex parte decree was passed contrary to law and without jurisdiction on the erroneous basis that an interim order passed under Section 11(4) of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947, was not complied with by the tenants. The tenant has deposited by now all that was ordered to be deposited by now all that was ordered to be deposited and all the rent that is due up to date either in the small Causes Court or in this Court as ordered by this Court during the pendency of the above special civil application.

2. The only question which arises in this petition is as to whether sub-s. (4) of Section 11 justified the Small Cause Court to pass an ex parte decree merely because an order for deposit of rent was not complied with by the tenant. It is not disputed that an standard rent application was filed by the tenant even before the eviction suit was filed by the landlord and that the application for fixation of standard rent is still pending for hearing before the Court of Small Causes.

3. The relevant portion of S. 11(4) runs as follows : -

'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.'

4. The only order which can be passed by a Court under Section 11(4) is therefore an order directing, after fixing within a particular time 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.' The section does not authorise the Court to strike the defences straightway. No such direction can be given under S. 11(4). The Court, therefore, acted without (4). The Court, therefore, acted without jurisdiction in striking out the defences which it did on June 2, 1969 if the tenant made a default.

5. The Legislature has not given a power to Courts to decide matters ex parte against tenants merely because the tenants made default in complying with the orders passed under Section 11(4). In spite of the default, it is still open to the Court to consider whether leave to defend should be given to the tenant having regard to the facts and circumstances of the case. The Court has no power to make the tenant's right to seek leave to defend subject to a condition precedent that the tenant should deposit whatever has been ordered by the Court. That would amount to abdication of the power to give leave despite defaults though such power is vested in the Court. It is difficult to understand how the Court could pass an order on June 2, 1969 as follows :

'The defendant No.2 to deposit the balance amount of Rs. 14,607/- in Court within a month and continue to deposit Rs. 308/- per month as per order passed by scrutiny Court in default. Notice absolute and defences to be struck off and suit be fixed for ex parte hearing on 15th July 1969. Defendant No.2 to pay Rs. 30/- to the plaintiffs.'

6. The only order which the Legislature wanted the Court to pass when directing deposit of the amount was to further direct that if the tenant fails to comply with the order, '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.' This does not mean that the Court can even before the default was committed, impose a condition that the defences will be struck off in spite of the fact that the defendant has filed a written statement, engaged an Advocate and is contesting the suit on various grounds and his petition for fixation of standard rent is pending in the Court. The Court must interpret the law as it stands. It has no power to add words to it or to subtract words from the section. It is difficult to understand where from the learned Judge got the words 'strike off the defences' in Section 11(4).

7. The order is tried to be supported by Mr. Dhanuka the learned counsel for the respondent on the ground that the above order passed on June 2, 1969, by the learned Judge in fact amounts to an order under Section 11(4): and it should be read as an order made under that section reading for the words 'defences to be struck off' the words that the tenant 'is directed to comply with the order and if he fails to do so 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'. Mr. Dhanuka further urged that as the Court could impose terms, it could, having regard to the previous conduct of the tenant, impose the terms of striking off defence and ex parte hearing as was done in this case. Without doing violence to the words of the section, it is impossible to construe the words 'defences to be struck off' to mean the words as are contained in S. 11(4). Leave could not be refused as a term of the order even before the tenant committed defaults. The Legislature knew the words 'strike off the defences' and if it wanted the Court to pass such an order the Legislature would have conferred the powers on the Courts.

8. The ordinary rule of construction is to intend the Legislature to have meant what they have actually expressed. The intention of the Legislature must be deduced from the language used. The Legislature has used clear and unequivocal language with regard to the order which can be passed by the Court under Section 11(4). The duty of the Court is to expound the law as it stands and not to imagine that the legislature has intended something else. There is nothing in Section 11(4) which indicates that the Legislature intended the defences of the tenant to be struck off and ex parte hearing to be ordered even before the tenant failed to deposit as ordered by the Court.

9. The order passed by the Court on June 2, 1969, being illegal and without jurisdiction every step that was taken by the Court subsequently must be considered to be without jurisdiction and illegal. Mr. Dhanuka relied on the applications made by the tenant for giving leave to defend which were rejected and argued that as the tenant had not challenged the said orders, it is not open to the tenant to contend that the Court was not competent to pass an ex parte decree. As stated above everything that was done by the Court including entertaining the applications, passing orders on the applications made by the tenant and passing the impugned ex parte decrees must be considered to be without jurisdiction as the Court had no jurisdiction, before the tenant committed defaults to strike off the defences and to direct ex parte hearing under Section 11(4). Hence the decrees passed by the two Courts below must be set aside.

10. The next question is what is the proper order to be passed in this petition. The petitioners have admittedly deposited by now all amounts as ordered by the trial Court from time to time previous to the aforesaid order dated June 2, 1969 striking out their defence. The petitioners have also deposited monthly rent at the interim rate of Rs. 308/- as directed by the trial Court up-to-date. As stated above, the standard rent application filed by the petitioners prior to the eviction suit is still pending in the Court of Small Causes. Thus there is still existing a dispute between the parties with regard to the amount of standard rent and permitted increases. The two Courts below erred in law in applying the provisions of Section 12(3)(a) despite the dispute. They ought to have applied the provisions of Section 12(1), 12(3)(b) and Explanation I to Section 12. As the tenants have deposited by now all amounts as ordered by the trial Court and this Court it must be held that the provisions of Section 12(3)(b) are complied with. No decree for eviction can be passed in favour of the landlords in the suit. The suit in so far as it is for eviction is liable to be dismissed.

11. Mr. Dhanuka, however, submitted that the plaintiffs suit is not merely for possession but also for arrears of rent on the basis of the contractual rent. He, therefore, submitted that if the standard rent application filed by the petitioner is dismissed, the tenant would be liable to pay contractual rent and even assuming that Section 12(3)(b) applies it will be the duty of the tenant to deposit in Court the arrears of rent on the basis of the contractual rent and also costs of the suit and if he fails to do so he would be failing to comply with the provisions of Section 12(3)(b) and the plaintiffs would be entitled to a decree for eviction. He further submitted that in the appeals filed before the appellate Bench of the Court of Small Causes and even in the petition filed here all that the petitioners have prayed is that the suit should be retried and not that the suit should be dismissed. I do not think that this is enough to keep the suit alive on the record of the Small Cause Court and to allow further time of that Court to be wasted, during the pendency of a standard rent application.

12. Under Explanation I to Section 12, in any case where there is a dispute as to the amount of standard rent or permitted increases recoverable under the 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. The tenants in this case have undisputedly complied with Explanation I to S. 12. As they have complied with that Explanation, under Section 12(1), the landlords shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay the amount of standard rent and permitted increases if any, and observers and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of the Act. The submissions of Mr. Dhanuka ignore this provision of law. having regard therefore to the deposits made by the tenant in compliance with the orders of the Court, it must be held that the landlords have no cause of action to recover possession.

13. It may be that as and when the standard rent application is decided, he may still have a right to terminate the tenancy for non-payment of rent. That is a different matter. At present his cause of action has come to an end. I think, therefore, that the ends of justice require that the suit of the plaintiffs should be dismissed with costs with liberty to the plaintiffs to resort to such remedies as are available to them in respect of the arrears of rent if any, arising form the decision of the Small Cause Court in the standard rent application. The contention of Mr. Dhanuka that the petitioner has not prayed in the petitioner filed in this Court for setting aside of the decree is not correct. The prayer in the petition is for setting aside not merely the decree for possession but the entire decrees passed by the two Courts below. They have not prayed merely for retail of the suit as contended by Mr. Dhanuka.

14. In the result, the petition succeeds. The decree passed by the Judge of the Small Cause Court on August 6, 1969 and the decree passed by the appellate Bench on October 27, 1969 are both set aside. However, having regard to the fact that the tenants took considerable time to pay all the arrears of rent they must be ordered to pay the costs of the plaintiffs in the trial Court as also the costs of this petition. As the plaintiffs had to appear several times in this case at interlocutory stage of the special civil application through advocates, the costs of the petition shall be quantified at Rs. 300/-. The plaintiffs will be at liberty to withdraw all amounts deposited by the tenant in this Court and in the Small Cause Court subject to accounts to be made after the decision of the standard rent application filed by the tenants.

15. Petition allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //