A.N. Surti, J.
1. The present civil revision application is directed against the impugned judgment and decree of eviction passed by the learned District Judge, Baroda in Civil Appeal No. 1'41 of 1977, whereby the lower Appellate Court took the view that the decree of eviction must be passed against the petitioner-tenant as he was a tenant who was not ready and willing to pay rent to the landlord. It may be stated that in this behalf in the original suit a decree for eviction was passed by the Additional Small Cause Judge, Baroda in Small Cause Suit No. 10 of 1977 (Old Regular Civil Suit No. 1313 of 1967).
2. On a prior occasion this matter had come to the High Court in Civil Revision Application No. 824 of 1071, whereby this Court took the view that a decree under Section 12(3)(a) of the Bombay Rent Act could not have been passed, but this was a fit case where the matter should be remanded to the trial Court with a direction to ascertain whether the defendant-tenant was entitled to the protection of Section 12(3)(b) of the Rent Act. The lower Appellate Court, after the remand, took the view that as the tenant did not deposit the rent regularly, the tenant was not entitled to the protection of Section 12(3)(b) of the Rent Act.
3. It is under these circumstances, that the present civil revision application is filed by the tenant in this Court and the same is placed for hearing before me.
4. This is a case where the rent of the suit premises is Rs. 12/- per month. This is a case, where even before the filing of the aforesaid suit, the tenant did send money order of Rs. 560-50 ps., but the landlord did not accept the same. This conduct on the part of the tenant of sending money even before the filing of the suit is a very relevant factor. It may be emphasised once again, that the rent of the suit premises is only Rs. 12/- per month.
5. But look at the subsequent conduct of the tenant. Even before the first date of hearing of the suit which was October 23, 1967, about a week before the said date, the tenant did deposit Rupees 580/- in the Court by way of arrears of rent due and payable by the tenant to the landlord.
6. It is true, that subsequently thereafter, the tenant did not deposit the money in the Court regularly. Under these circumstances, I requested Mr. Zaveri, a senior advocate practising in this Court as to what the tenant has to say for irregular deposits, and if the defendant had deposited the rent irregularly notwithstanding the provisions of Section 12(3)(b) of the Rent Act, a decree of eviction must follow. But Mr. Jhaveri stated at the bar, that in the instant case, the tenant paid the requisite funds to his advocate to deposit the same in the trial Court; but his advocate did not deposit the same, and hence irregular deposits were made in the trial Court. Should a tenant who paid the money to his advocate for the purpose of depositing the same in the Court be stigmatised as a tenant not ready and willing to pay rent? After all the tenant pays money to his advocate who is an officer of the Court, and hence, it is difficult to say that he is a tenant not ready and willing to pay, particularly when he pays money to his advocate who is also an officer of the Court.
7. Under the circumstances what could the tenant do? It may be open to the tenant to file a suit against his advocate, and the advocate may indemnify the tenant. The tenant, after having secured a money decree against his advocate for his wrongful conduct, will he get back a roof over his head? But surely, getting of a money-decree against an advocate will not solve the problem. Will the tenant get a roof over his head, which he is to lose in pursuance to an eviction decree passed in favour of the landlord, on account of the aforesaid wrongful conduct of an advocate who is an officer of the Court.
8. But the question which also troubles me is, should the landlord lose his pucca crystallised right which he has judicially secured by obtaining an eviction decree against the tenant? Should he also not get the property back which he had demised only for a small monthly rent of Rs. 12/-?
9. Suffice it to say from the aforesaid view point, the feelings on both the sides are bound to run high. It is in the context of these facts, that I am required to dispose of this matter.
10. It may be stated that Mr. Jhaveri made a statement at the bar, that to-day, full amount has been paid by the tenant to the landlord. On the other hand Mr Oza, the learned advocate for the landlord urged before me, that this is a case where the landlord must get the benefit of the legal position. He urged, that this is a case where the tenant's advocate misappropriated money or did not deposit any money in the court, and the landlord's legal right should not be defeated.
11. On the other hand, Mr. Zaveri urged that because the advocate did not deposit the amount, why should the tenant be a sufferer. My conscience was sandwiched between the two situations. An Advocate's mistake is very clear and apparent, and I am convinced that when a tenant has paid full funds to his advocate and accordingly, I have reason to come to the conclusion having regard to the past conduct of the tenant. What was the past conduct of the tenant? The past conduct of the tenant was that he sent the aforesaid money order; but the same was not accepted by the landlord. The tenant also deposited the aforesaid huge amount in Court even before the first date of the hearing of the suit, particularly when the tenant has to pay Rs. 12/- per month. Judging the whole matter on these facts. I must say that it was a big amount for the tenant to send by money order, but the landlord did not accept the money order. Under these circumstances, the suit was filed, and even before the first date of hearing of the suit, Rs. 580/- full amount of arrears of rent were deposited in the Court, These two circumstances lead me to believe, that this is a case where the tenant was sufficiently conscious in any event not negligent for not paying full rent to the landlord in time. Under the circumstances, when Mr. Jhaveri makes a statement at the bar, that his client did pay the requisite amount to the concerned advocate, I must believe that statement to be a truthful statement.
12. Under the aforesaid circumstances should an advocate's mistake or an error or an intentional lapse on the part of an advocate deprive the tenant of a small roof over his head, the rent of which is Rs. 12/- per month? Should a citizen in the State, on account of the said neglect of the advocate, particularly when the facts clearly show that here is a tenant who could only pay monthly rent of Rs. 12/- in a big city of Baroda suffer, and that he should be deprived of his roof over the head? If an eviction decree is executed, possibly the tenant will be on the streets. On the other hand, Mr. Oza vigorously resisted the aforesaid view pointy and urged that if law confers a right on the landlord to get an eviction decree, I must see, that the said right is protected, and hence, an eviction decree must be confirmed.
13. In the facts and circumstances of the case, Mr. Oza further urged that there is nothing on the record of the case to show that the tenant had paid any amount to his advocate. No doubt there is nothing on the record of the case as urged by Mr. Oza, but I have no reason to disbelieve Mr. Zaveri, the learned advocate for the tenant. Faced with the aforesaid situation, I did take the assistance of Mr. G. N. Desai a very senior advocate practising at the bar and the Ex-Government Pleader, and he has also readily agreed with the view which I am taking. In the facts and circumstances of the case, real justice will be to protect the roof of the tenant rather than to pass an eviction decree.
14. In the result, I must accept the revision application with a request to Mr. Zaveri, who is also the Chairman of the Bar Council of Gujarat to see that the concerned advocate is told to behave properly in future if circumstances so require.
15. When I was about to finish my judgment, Mr. Zaveri without any suggestion from the Court, made a statement at the bar, that on and from January 1, 1983, the, petitioner-tenant will pay Rs. 25/- per month as rent of the suit premises in stead of Rs. 12/- per month.
16. The result of the aforesaid discussion is that the revision application is allowed. Rule is made absolute with no order as to costs. The suit of the landlord for possession is dismissed. I thank Mr. G. N. Desai for assisting the Court as amicus curiae.