Skip to content


Gulam HusseIn Kalumia Vs. Mahomed Umar Azizulla - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application No. 1261 of 1956
Judge
Reported in(1958)60BOMLR972
AppellantGulam HusseIn Kalumia
RespondentMahomed Umar Azizulla
DispositionApplication dismissed
Excerpt:
.....and lodging house rates control act (bom. lvii of 1947), section 12(3)(b) - suit for arrears of rent--application to court made by tenant permitting him to pay arrears of rent before hearing completed--court whether can exercise its discretion permitting tenant to pay arrears of rent--whether court must fix date for payment of rent on first day of hearing of suit--trial court vested with discretion failing to exercise it--whether appellate court to which appeal lies from, trial court can itself exercise that discretion.; the two conditions laid down by section 12(3)(b) of the bombay rents, hotel and lodging house rates control act, 1947, are that the arrears of rent and costs must be paid by the tenant on the first day of hearing of the suit or on or before such other date as the..........rent. he also stated in his application that he should be exempted from the payment of costs. the learned judge held that, looking to the time when the application was made, he had no discretion to permit the tenant to pay the arrears, so that the tenant should be saved from the consequences of section 12(3)(b). in appeal, the learned district judge came to the conclusion that, if the learned judge had exercised his discretion, he would not have interfered with that discretion; but inasmuch as the learned judge had failed to exercise that discretion-and in his opinion, he did have the discretion under the law, he would consider the matter himself and having reviewed all the circumstances, he held that the tenant was a poor man, that the arrears were not much, that he has made payments.....
Judgment:

M.C. Chagla, C.J.

1. The question that arises in this Civil Revision application is with regard to the power possessed by the Court in relieving a tenant against forfeiture entailed by reason of his failure to pay rent in due time. It is not necessary to state all the facts. It would be sufficient to state that the landlord filed a suit against his tenant for eviction on two grounds: (1) that he needed the premises for his own bona fide requirements, and (2) that the tenant was in arrears of rent. The trial Court held against the landlord on the first ground. On the second ground it held that the tenant was in arrears of rent and decreed the suit. In appeal, the learned District Judge reversed the decision of the trial Court and relieved the tenant against forfeiture.

2. It is a well established principle of law that provisions with regard to relief against forfeiture must be liberally construed. Under English Law, relief is granted on principles of equity and the Equity Courts have always assumed wide powers in relieving a tenant against the consequences of his default in paying the rent. It is true that under the Rent Act we are not concerned with any equitable principles. The principles are embodied in the sections of the Act and what the Court has got to do is to construe those sections.

3. At the date when the suit was filed; admittedly, the tenant was in arrears to the extent of Rs. 102-8-0. We need not go into the past history of how the notice was served, the amount was paid, the money-order was sent by the tenant and it was refused by the landlord. There is one important fact in favour of the landlord and I am stating it, namely, that an amount of Rs. 102-8-0 was due on account of arrears of rent at the date when the suit was filed. The first date of hearing of the suit was fixed on August 18, 1954. Then the defendant filed his written statement. The plaintiff filed his list of documents. Issues were settled on December 7, 1954. On December 23, 1954, the tenant made an application stating that he should be permitted to pay the arrears of rent. He also stated in his application that he should be exempted from the payment of costs. The learned Judge held that, looking to the time when the application was made, he had no discretion to permit the tenant to pay the arrears, so that the tenant should be saved from the consequences of Section 12(3)(b). In appeal, the learned District Judge came to the conclusion that, if the learned Judge had exercised his discretion, he would not have interfered with that discretion; but inasmuch as the learned Judge had failed to exercise that discretion-and in his opinion, he did have the discretion under the law, he would consider the matter himself and having reviewed all the circumstances, he held that the tenant was a poor man, that the arrears were not much, that he has made payments from time to time and, as a matter of fact, when the decree was passed not only that he had paid off all the arrears, but he had paid a few rupees more. This decision is challenged by Mr. Vakil on three grounds. Perhaps it would be better to dispose of the first ground first as there is not much substance in it.

4. It is urged by Mr. Vakil that, assuming that the trial Court had not exercised its discretion, it was not competent to the Appellate Court to exercise that discretion. The matter should have been remanded to the trial Court for the exercise of its discretion. Now, that proposition is not sound in law. If a trial Court is vested with a discretion and an appeal lies from the decision of the trial Court, the discretion is subject to appeal. The Appellate Court has a right to interfere with that discretion, although ordinarily it would not do so, and therefore, if the trial Court fails to exercise its discretion, the Appellate Court has equally the power to exercise the discretion itself. The discretion being subject to the appeal, the Appellate Court has the samepowers which the trial Court has.

5. But the more important question that has been agitated at the Bar is as to the proper construction of Section 12(3)(b). That section runs as follows:

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 by the Court.

6. Now, what is urged by Mr. Vakil is that the tenant must pay the arrears of rent and costs on the first day of the hearing or he must apply on the first day of hearing to the Court to fix some other date by which this payment should be made. But what is emphasised is that the application in any event must be made on the first day of hearing. If the tenant neither pays the arrears of rent on the first day of hearing, nor does he apply to the Court for the extension of time, then, the Court has no discretion to relieve the tenant against forfeiture. I am unable to accept this view of the section. The two conditions laid down by this sub-section are 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. 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. Therefore, the learned trial Judge was clearly in error when he took the view that he had no discretion under this sub-section.

7. Relianee has been placed by Mr. Vakil on the decision of Mr. Justice Shah reported in Laxminarayan Nandkishore v. Keshardev Narsaria : (1956)58BOMLR1041 . In that case the learned Judge was dealing with a ease where no application at all was made by the tenant and notwithstanding that the trial Court passed a conditional decree providing that if the rent in arrears was paid within a certain time, then no decree for eviction. The learned Judge took the view-and, with respect, rightly-that the Court had no jurisdiction to pass such a conditional decree, there being failure to pay the standard rent and the permitted increases and no application having been made as contemplated by Section 12(3)(b), it was obligatory on the Judge to pass a decree for eviction. Therefore, the point that arises before me did not arise before the learned Judge. But Mr. Vakil relies on certain observations which Mr. Justice Shah has made at page 1045. I must consider these observations with respect. At page 1045 the learned Judge says:.What Clause (b) of Sub-section (3) of Section 12 contemplates is the payment on the first day of the hearing of the suit of the standard rent and the permitted increases, or, if the Court so orders, on such future date as may be fixed by the Court.

Now, the learned Judge does not here indicate his opinion as to when the Court ean so order. If the Court orders, certainly the amount must be paid on the date fixed by the Court. In the next sentence the learned Judge says:.If on the date fixed for the first hearing the tenant does not pay the standard rent and the permitted increases, he must apply to the Court to fix a date for making the payment.

Again, the learned Judge does not lay down the time at which the application must be made to the Court to fix a date for making the payment. Then, the last sentence relied npon is:

.If, however, the tenant does not pay the standard rent and the permitted increases on the date of the first hearing of the suit, and goes to trial without making an application asking the Court to fix a date for payment of the standard rent and the permitted increases and does not continue to pay during the pendency of the suit the standard rent, he cannot claim the benefit of Sub-section (3)(b) of Section 12.

I read the sentence to mean that if the tenant without paying or without making an application goes to trial in the sense that he allows the suit to be heard and disposed of, then, undoubtedly, he would not be entitled to the benefit of Section 12(3)(b). But that is not the position here. As I have already pointed out, the application was made by the tenant before the trial concluded and it cannot be said in the language of Mr. Justice Shah that he went to a trial without making the necessary application.

8. The final point urged by Mr. Vakil is that in his application the tenant did not apply to pay the costs of the suit as required by Section 12(3)(b). Now, it is perfectly true that an application by the tenant is not merely to pay the standard rent and the permitted increases, but also the costs of the suit. But whatever the application of the tenant was, if the learned Judge had exercised his discretion, he could have fixed a date and called upon the tenant to pay both arrears of rent and costs of the suit. We must not forget that we are dealing with poor, illiterate people and all procedure must subserve ultimately to the doing of justice. This is not a case where the tenant was recalcitrant and did not comply with the order made by the learned Judge. This is a case where the learned Judge did not make any order at all enabling the tenant to make the payment and escape the consequences of defaulted payment of rent. I, therefore, agree with the learned District Judge in the view that he has taken.

9. The result is, the revision application fails. Rule discharged with costs.


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