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Mohanlal Gokulchandji Vs. Khimraj Bhagaji - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 142 of 1977
Judge
Reported in(1978)80BOMLR378; 1978MhLJ611
AppellantMohanlal Gokulchandji
RespondentKhimraj Bhagaji
Excerpt:
.....case is no longer good law, then with respect, i would be bound by that judgment. 13. i am, therefore, satisfied that there is an error apparent in the judgment of the appeal court below inasmuch as the learned trial judge held contrary to the clear-cut discretion exercised by the trial court that the tenant was not ready and willing to pay the rent......and the amount of rs. 200 was paid on the same day i.e. on january 29, 1974 and the learned trial judge passed an order as follows : 'filed'.5. while answering the issue, which was issue no. 6 in the trial court, regarding the readiness and willingness of the petitioner to pay rent, the learned trial judge in para. 17 of his judgment has mentioned that the petitioner has from time to time deposited amounts calculated at the rate of rs. 200 p.m. and till january 28, 1974 he had deposited a sum of rs. 7,600. the learned trial judge also took note of the fact that another rs. 200 was deposited on january 29, 1974. after noting the payments made by the petitioner in his court and after examining the submissions made on behalf of the respondent, the learned trial judge has mentioned as.....
Judgment:

Jahagirdar, J.

1. Despite the fact that there is a somewhat long history of litigation between the parties, it would be enough for the purpose of the disposal of this petition to narrate only few facts. The petition arises out of the proceedings under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as 'the Bombay Rent Act'). The petitioner is the tenant and the respondent is the landlord of the suit premises which are one Gala in House No. 85 at village Bhaindar, in Thana taluka of Thana District. It may also be mentioned that the petitioner is the son-in-law of the respondent but his wife is dead for some years. Originally there was an agitation about the character of the holding of the petitioner as to whether it was a licence or a lease. That controversy no longer survives and the parties have now proceeded on the basis that the petitioner is the tenant and the respondent is the landlord of the suit premises.

2. The respondent filed a suit, being Regular Civil Suit No. 17 of 1971, in the Court of the Civil Judge, Junior Division, of Thana for possession of the suit premises from the petitioner on various grounds. Among those grounds was one that the petitioner was in arrears of the rent of the suit premises for three months and he was not a person ready and willing to pay the amount of standard rent and permitted increases within the meaning of Section 12(1) of the Bombay Rent Act. The other grounds which were pressed into service by the landlord have been rejected by both the Courts below and it is not necessary for me to refer to the same. The defence set up by the petitioner included the dispute about the standard rent which was raised for the first time in the written-statement. He denied that he was not ready and willing to pay the rent and some defences appropriate to the grounds which had been urged by the respondent for eviction were also taken.

3. The trial Court by its judgment and order dated January 31, 1974 dismissed the suit by holding that the petitioner was ready and willing to pay the rent. By the same order the trial Court also fixed standard rent of the suit premises at Rs. 35 p.m. together with Rs. 16 on account of hire charges of furniture making up a total of Rs. 51. It may be mentioned at this stage that by treating the contention relating to the reasonableness of the standard rent raised by the petitioner as a contention under Section 11(4) of the Bombay Rent Act, the trial Court fixed, on an application made by the petitioner, the interim rent at Rs. 200 which was the rent claimed by the respondent himself. The application for fixing interim rent was exh. 15 before the trial Court and was filed on September 20, 1971. The trial Court while fixing the interim rent of Rs. 200 per month also directed that the arrears shall be deposited within two months and thereafter to continue to pay the rent on or before tenth of every month.

4. On September 17, 1973, i.e., nearly two years after the interim rent was fixed by the trial Court, the respondent presented an application to the Court at exh. 26 wherein he pointed out that for thirty-five1 months upto the date of that application nearly Rs. 7,000 were due as arrears of rent and the petitioner had paid only Rs. 4,800. The petitioner thus remained in arrears of rent of nearly eleven months. On this application the learned advocate appearing for the petitioner made his submission on the same day and on the same day the learned Judge passed an order that the application 'be heard'. I have already mentioned above that the trial Court dismissed the suit on January 31, 1974 but before that happened, by an application at exh. 74 the advocate of the petitioner pointed out to the Court that the rent upto the end of December 1973 had been paid except for the amount of Rs. 200 which remained to be paid because of a mistake in the calculation and the amount of Rs. 200 was paid on the same day i.e. on January 29, 1974 and the learned trial Judge passed an order as follows : 'filed'.

5. While answering the issue, which was issue No. 6 in the trial Court, regarding the readiness and willingness of the petitioner to pay rent, the learned trial Judge in para. 17 of his judgment has mentioned that the petitioner has from time to time deposited amounts calculated at the rate of Rs. 200 p.m. and till January 28, 1974 he had deposited a sum of Rs. 7,600. The learned trial Judge also took note of the fact that another Rs. 200 was deposited on January 29, 1974. After noting the payments made by the petitioner in his Court and after examining the submissions made on behalf of the respondent, the learned trial Judge has mentioned as follows:.The present suit falls under Section 12(3)(b) of the Bombay Rent Act. There was dispute over the standard rent. The dispute is adjudicated by the proper court finally in the suit. The tenant-defendant is ready and willing to pay the amount as per the standard rent. He has deposited accordingly in the court from time to time.

From this it is obvious that though the petitioner had not strictly complied with the initial order, he has subsequently paid various amounts due and he had by the time the judgment came to be passed paid the entire amount. While he paid the final amount of Rs. 200 on January 29, 1974, he prayed for an indulgence of the Court for the delay caused in paying the amount.

6. From the above narration of facts, it appears to me that the petitioner undoubtedly did not strictly obey the terms of the order passed initially on September 20, 1971 but his subsequent payments have been accepted by the Court as if they were payments made pursuant to its order. In any case, the trial Court, which could have treated those payments as payments made otherwise than in accordance with the terms of the order passed on September 20, 1971, could have treated the petitioner as a defaulter and could have penalised him for the default. On the other hand, in the present case I find that the trial Court not only condoned the delayed payments but has in terms held that because of the payments made from time to time by the petitioner, he was ready and willing to pay the rent.

7. The respondent preferred an appeal being Civil Appeal No. 141 of 1974 which was heard and allowed by the Joint Judge of Thana by his judgment and order dated December 26, 1976. While so allowing the appeal preferred by the respondent, the learned Joint Judge set aside the order of the trial Court fixing the standard rent at Rs. 36 and in turn fixed it at the rate of Rs. 200 per month. Relying upon a judgment of this Court in Sd. Umar v. Dadamiya : AIR1976Bom336 , the learned Joint Judge took the view that the petitioner had not proved by his conduct that he was a person ready and willing to pay the standard rent and permitted increases within the meaning of Section 12(3)(b) of the Bombay Rent Act. Accordingly, he decreed the suit of the respondent for possession and made consequential order for inquiry into mesne profits under Order XX, Rule 12(1)(c) of the Civil Procedure Code.

8. In my opinion, the reliance placed by the learned Joint Judge on Sd. Umar's case is not correct. It is not correct to read into the words of Section 12(3)(b) a schedule of payments which once fixed by the order of the Court remains inflexible without any power in the Court to make variations in it. The judgment in Sd. Umar's case apparently follows the judgment of the Supreme Court in Dhansukhlal v. Dalichand Virchand : [1968]3SCR346 , which has in the opinion of Mr. Tipnis, appearing for the respondent, impaired the authority contained in Kalidas Bhavan v. Bhagvandas : (1958)60BOMLR1359 . According to Mr. Tipnis, to whose submission I will make further reference, the judgment of the Supreme Court in Dhansukhlal's case itself fully covers the facts and circumstances of this case and the judgment in Sd. Umar's case only follows the Supreme Court judgment in Dhansukhla Vs case. Before I consider the judgment of the Supreme Court in Dhansukhlal's case or the judgment of this Court in Sd. Umar's, it would be convenient to refer to the judgments of this Court delivered by Chagla C.J. They are : (1) Gulam Hussein v. Mahomed Umar (1958) 60 Bom. L.R. 927 and (2) Kalidas Bhavan v. Bhagvandas.

9. In the first of these cases, the tenant had not on the first day of hearing made payments of the arrears as was apparently required under Section 12(3)(b) of the Bombay Rent Act. Few days after the issues were settled, the tenant made an application stating that he should be permitted to pay the arrears of rent. The learned trial Judge thought that after the first date of the hearing, he had no jurisdiction to permit the tenant to make payment of the rent in the Court and accordingly he disallowed the tenant's application. The learned appellate Judge took contrary view and allowed the tenant in the appeal itself to make payments. The learned appellate Judge thought that the trial Judge had discretion to allow the tenant to make payments even after the first day of hearing and if the trial Court had not exercised that discretion at the trial stage he was free to exercise that discretion at the appellate stage. When the matter came up before the High Court in revision, Chagla C.J. repelled the contention raised on behalf of the landlord that the tenant must pay the arrears of rent and costs on the first day of hearing or at least he must apply on the first day of hearing to the Court to fix some other date by which this payment should be made. In other words, it was suggested that either payment of the arrears should be made on the first day of the hearing or an application must be made for fixing a date on which payment could be made. Chagla C.J. pointed out that two conditions laid down in Section 12(3)(b) were that the arrears of rent and costs must be paid on the first day of hearing or on or before such other date as the Court may fix. The section does not lay down that the Court must fix such other date on the first day of the hearing. He proceeded to lay down (p. 974) :.There is no restriction on the power of the Court to fix such other day at any time before the decree is passed, and inasmuch as in this case the application was made before the hearing was completed, the Court was competent to exercise Its discretion in favour of the tenant.

10. In the case of Kalidas Bhavan v. Bhagvandas the facts were slightly different. There the tenant had not made any application in the trial Court but had deposited, various amounts in the Court from time to time before the trial Judge passed a conditional decree on August 31, 1955. The conditional decree stipulated that if all the arrears of rent till the end of September 1955 and the cost of the suit were deposited by the defendant in the Court before September 30, 1955, the decree for possession which the Judge was passing, should not be executed. The decree was challenged by the landlord in the District Court unsuccessfully and that is how the matter came up before this Court in its revisional jurisdiction. Discussing the merits of that case and after analysing the provisions of Sections 12(3)(a) and 12(3)(b) of the Bombay Rent Act, Chagla C.J. pointed out that what the Legislature intended was that arrears should be paid before the judgment was delivered in the suit. He also pointed out that if the tenant does not pay the arrears of rent on the first day he must take permission of the Court and deposit the arrears on such subsequent day as the Court may fix. Referring to the facts before him, the learned Chief Justice observed that the tenant had made the deposit of the full amount of arrears before the judgment was delivered. It was true, he noted, that the tenant did not deposit this amount on the very first day nor did he formally apply to the Court for fixing some other date nor did the Court pass any formal order fixing some other date on which he could make the payment. He concurred with the view taken by the learned Assistant Judge that when the Court accepted the two deposits, in the eye of the law the Court had permitted the tenant to make these deposits and to make them on the dates on which these deposits were accepted. It was pointed out that deposit could not be made in the Court without the permission of the Court and the Court if knowing that the tenant has not made the deposit on the first day permits him to make the deposit on the subsequent date, it would in doing so, in substance if not in form, be permitting the tenant to make the deposit on the date on which it accepted the deposit.

11. Mr. Tipnis, the learned advocate appearing on behalf of the respondent, predictably relied upon the judgment of Joshi J. in Sd. Umar's case wherein there is an observation to the effect that the authority of Kalidas Bhavarts case is considerably shaken by the judgment of the Supreme Court in Abbasbhai v. Gulamnabi : [1964]5SCR157 . Mr. Tipnis referred to a more recent decision of the Supreme Court in Dhansukhlal v. Dalichand Virchand, and contended that a careful reading of the decision of the Supreme Court would show that Chief Justice Chagla's judgment cannot any longer be good law and in any case Joshi J. having found that the authority of Kalidas Bhavan's case is considerably impaired by the later decision of the Supreme Court, it would be in the fitness of things that I follow the judgment of Joshi J. and not of Chagla C.J. If there are observations in the judgment of the Supreme Court in Dhamukhlal's case which would in any manner dilute the authority of Kalidas's case, I would be, with all respect be bound by the same. If there is in the judgment of Joshi J. a firm view that the judgment in Kalidas's case is no longer good law, then with respect, I would be bound by that judgment. But as I will show presently, in neither of these judgments there is a reference to the material parts of the judgments in the case of Gulam Hussein v. Mahomed Umar and Kalidas Bhavan v. Bhagvandas decided by Chagla C.J. As I have mentioned above, both the judgments of Chagla C.J. lay down that though there is provision for regular compliance with the terms mentioned in Section 12(3)(b) before a tenant can ask for protection, that compliance will necessarily be inferred if the tenant has, from time to time, deposited the amounts which have been accepted by the Court or at any rate which have not been treated by the Court as not in accordance with the terms of the order made under Section 12(3)(b). It is true, as Mr. Tipnis rightly points out, that in Dhansukhlal's case, examining the scheme of the Bombay Rent Act the Supreme Court pointed out (p. 718):

To be within the protection of that provision, the tenant must not only pay all the arrears due from him on the first day of hearing of the suit, but he must thereafter continue to pay or tender in Court regularly the rent and the permitted increases till the suit is finally decided.

This is in fact the language of the section itself but nowhere has the Supreme Court even suggested that the Court before which the suit is pending cannot allow the tenant to make payment on a date other than the first day of hearing. Nor is it suggested that once the dates are fixed by the trial Court those dates cannot be altered to meet the requirement of justice or the exigencies of the situation that may later on arise in the suit.

12. Similarly, Joshi J. in Sd. Umar's case has referred to another decision of the Supreme Court in Abbasbhai v. Gulamnabi, and has mentioned what has been pointed out by the Supreme Court in that decision viz. that the tenant cannot remain content by raising a defence of there being a dispute about the standard rent so as to bring the case within the four corners of Section 12(3)(b), It is further mentioned that if the tenant is keen on getting the protection under the said section, he must move the Court at the earliest-soon after the written statement is filed-to fix the interim rent and should go on making deposits till the disposal of the suit at the rate of the interim rent. In Abbasbhai's case there is a general review of the provisions contained in Section 12 of the Bombay Rent Act but nothing inconsistent with the view in Kalidas's case. The words of Section 12(3)(b) themselves are clear and they allow the tenant to pay or tender in the Court the arrears of rent on the first day of hearing of the suit or on or before such other date as the Court may fix. The payment on the very first date of the hearing of the suit, therefore, can be dispensed with if the Court allows the payment on or before any other date. I do not see how this section presupposes the fixation of an inflexible schedule of payment which cannot be altered by the Court. It is true that Joshi J. pointed out that from the observations of the Supreme Court in Dhansukhlal's case it appears that the emphasis is on regular payment of rent and permitted increases as ordered by the Court and not consolidated payment just before the delivery of the judgment. From these observations it does not, in my opinion, follow that a consolidated payment cannot be made at all if the Court so desires or so directs or so allows. The crux of the ratio of Kalidas's case is this that if the Court allows explicitly or by necessary implication the payment of rent on dates other than the first day of hearing and the tenant makes payments which are treated as payments as per its order, it would be compliance with the provisions contained in Section 12(3)(b) of the Bombay Rent Act. This central part of the judgment in Kalidas's case has riot been referred to at all by Joshi J. and therefore it cannot be said that Joshi J. doubted the validity or authority of that part of the judgment. As I have already mentioned, neither in Abbasbhai's case nor in Dhansukhlal's case is there any prohibition against the Court from allowing the tenant from making payments on dates other than the first day of hearing. If the payments are made even after the dates fixed for the payment and the Court accepts the same without treating them as defaults, I do not see how there is no compliance with the provisions of Section 12(3)(b) because ultimately all the payments are made into the Court and are accepted by the orders of the Court. I am, therefore, of the opinion that the learned Joint Judge was in error in holding that the petitioner was not ready and willing to pay the rent. This is especially so when the learned trial Judge has specifically mentioned in his judgment that he is treating the tenant as a person ready and willing to pay the rent after noticing that the tenant had from time to time deposited the entire amount due before the judgment was delivered. The ratio in Kalidas's case relating to the acceptance of the rent by the Court and then the Court treating various payments as in compliance with a fresh schedule of payments is, in my opinion, not considered in, let alone shaken by any of the judgments of the Supreme Court. Indeed, it would be unfortunate if one holds that the Court will be completely helpless if after it fixes the schedule of payments or makes an order for any payment, the tenant is for unforeseen or accidental reason unable to obey and that the Court is rendered helpless in giving relief warranted by any alteration in the circumstances. That could not be the intention of the Legislature viz. to tie down the hands of the Court after it makes an initial order for the payment of the rent.

13. I am, therefore, satisfied that there is an error apparent in the judgment of the appeal Court below inasmuch as the learned trial Judge held contrary to the clear-cut discretion exercised by the trial Court that the tenant was not ready and willing to pay the rent. The order for possession passed by the appeal Court below will have to be set aside. Mr. Khilnani, the learned advocate appearing for the petitioner, has, not very seriously challenged the fixation of the standard rent at Rs. 200 by the appeal Court. In any case, I do not think that in exercise of the jurisdiction under Article 227 I can legitimately interfere with the finding about the standard rent which is essentially a finding of fact.

14. In the result, the petition is partly allowed. The decree passed by the learned Joint Judge of Thana in Civil Appeal No. 141 of 1974, in so far as it relates to possession of the suit premises, is set aside. Rest of the decree relating to the standard rent and costs is maintained. Parties in this petition shall bear their respective costs.


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