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Laxmandas Chelaram Vs. Hemdas Hauromal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. Nos. 1862 and 1874 of 1980
Judge
Reported inAIR1984Guj154
ActsBombay Rents, Hotels and Lodging House Rates Control Act, 1947 - Sections 11(4)
AppellantLaxmandas Chelaram
RespondentHemdas Hauromal
Appellant Advocate K.V. Shelat, Adv.
Respondent Advocate G.J. Ajrani, Adv.
Cases ReferredPirubhai Ramjubbai Mamomedah v. Trikamlal Nanjibbai
Excerpt:
.....to the court that it, is just and proper to make such an order court may, make all order directing tenant to deposit in count forthwith such amount of rent as he court to be reasonably due to the landlord. the order of 6-2-1980 while directing deposit did not lay down the consequences of failure or default. he has not deposited the arrears of rent and electric charges as per court's order and electric charges that fell due thereafter till october, 1980. as he has failed to comply with the court's order, his defence has to be struck down and the application seeking time is hereby dismissed and the defence is hereby struck off. even so, the act itself makes a provision by way of safeguard t, 0 relieve a litigant of the disastrous consequences that may befall on him, perhaps by reason of..........the discretion exercised by the trial judge but extended the time for deposit by three months. civil revision application no. 1874 of 1980 is against that order.2. no reasons other than those indicated by the extra assistant judge who dismissed revision application no. 3 of 1980 are necessary to dismiss this revision application. what amount should be directed to be deposited as standard rent must necessarily be a matter of estimated depending upon various factors available in the case and an assessment has rightly been made by the trial judge which calls for no interference under s. 115 of the c. p. c. therefore, that order of 6-2-198c siands confirmed.3. '.'the real grievance of the petitioner, which raised in civil revision application no. 1862 of 1980 arises from further.....
Judgment:

1. These two revision applications were heard together since the matters arise out of the same suit and

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*Against judgment and order of N. L.Solanki, Extra Asstt. Judge. Narol. D/-14-8-1980.

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are allied in nature. The revision Petitioner in both these petitions is a tenant of a building. During the pendency of the suit for recovery of arrears of rent with possession, the Court proceeded to direct deposit by the tenant in Court such amount as it considered proper as interim standard rent payable during the pendency of the suit, in exercise of its power under See. 11(4) of the Bombay Rents, Hotels and Lodging House Rates Control Act, 1947 (Bombay Act No. LVII of 1947). Since the question in controversy turns on the construction of Section 11(4), 1 may extract that sub-section here.

'Where at any stage of a suit for recovery of ren', whether with or without a claim for possession of the premises, the Court is satisfied that the tenant is withholding the rent on the ground that the rew 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 Court may, make all order directing tenant to deposit in Count forthwith such amount of rent as he Court to be reasonably due to the landlord. The Court may further make an order directing the tenant to deposit in Court, monthly or periodically, such amount as it considers proper as interim standard rent during the pendency of the suit. The Court may also direct that if the tenant fails to comply with any such order within such due 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.'

There was a dispute as to the quantum of rent payable by the tenant to the landlord, Naturally, for the purpose of S. 11(4), the Court had to come to a decision one way or the other and it did, by fixing the rent payable for the purpose of S. 11(4) at Rs. 90/- per month and in addition directed payment of light charges of' Rs. 10/- per month. The amount due from 1-7-1976 to 1-2-60 (sic) was directed to be deposited after deducting the amount already deposited by the tenant. Future deposit at the same rates was also directed. nis was by order dt. 6-2-1980 passed by the Joint Civil Judge (Jtmior Division), Ahmedabad (Rural) at Narol. The tenant took up the matter in revision before the Court of the Extra Assistant Judge, Ahmedabad (Rural) at Narol. This Revision Application No. 3 of 198() was disposed of by the learned Judge. He held that, in exercise of revisional jurisdiction, he found no reason to interfere with the discretion exercised by the trial Judge but extended the time for deposit by three months. Civil Revision Application No. 1874 of 1980 is against that order.

2. No reasons other than those indicated by the Extra Assistant Judge who dismissed Revision Application No. 3 of 1980 are necessary to dismiss this revision application. What amount should be directed to be deposited as standard rent must necessarily be a matter of estimated depending upon various factors available in the case and an assessment has rightly been made by the trial Judge which calls for no interference under S. 115 of the C. P. C. Therefore, that order of 6-2-198C siands confirmed.

3. '.'The real grievance of the petitioner, which raised in Civil Revision Application No. 1862 of 1980 arises from further developments. The order of 6-2-1980 while directing deposit did not lay down the consequences of failure or default. Nevertheless by an order dt. 24-11-1980 on an application by the tenant to extend the time for deposit, the Court passed all order on 24-11-1980. 'He has not cared to comply with the Court's order even though his revision application has been dismissed. He has not deposited the arrears of rent and electric charges as per Court's order and electric charges that fell due thereafter till October, 1980. As he has failed to comply with the Court's order, his defence has to be struck down and the application seeking time is hereby dismissed and the defence is hereby struck off.' This direction to strike off the defence is under challenge in Civil Revision Application No. 1862 of 1980 and it is the propriety of that direction that I am concerned with in this revision petition.

4. But, before I consider such propriety, it may be necessary to refer to certain further developments. Evidently, the revision before this Court was belated and an application to excuse the delay was pending. That application wallowed on 8-12-1980 and thereupon the revision came on file. In the meantime, pursuant to the striking off of the defence by the order impugned in this revision, the learned Civil Judge seems to have proceeded with the suit so that he may dispose it of ex parte. To avert this catastrophe, the petitioner here, as soon as the delay was excused, moved this Court and while issuing Rule on the revision petition, this Court granted inter rim relief staying the further proceedings in the suit by order dated 9-12-1980. Nevertheless the Court which had taken up the case for disposal on 8-32-1980 as if there was Do defence, proceeded to deliver the judgment and it is said that on 1.0-12-1980 such judgment was delivered in terms of the plaint. By, order made in Civil Application No. 3624 of 1980 filed in Civil Revision Application No. 1862 of 1980, the drawing Up Of the decree and execution of the decree was stayed by this Court.

5. Evidently, in passing the order impugned in this revision application on 24-11-1980, the learned judge acted in contravention of the provisions of S. 11(4) of the Bombay Rents, Hotel and lodging house Rates Control Act, 1947 (Bombay Act No. LVII of 1947). Every litigant is entitled to a fair trial and a fair trial envisages an opportunity to make a defence and the trial of a case en the defence. The stringent provision in S. 11(4) is intended as a deterrent lo a tenant who fails to deposit what is determined by the Court by way of an interim measure as 'standard rent' payable by him. Even so, the Act itself makes a provision by way of safeguard t, 0 relieve a litigant of the disastrous consequences that may befall on him, perhaps by reason of sheer inability 'o comply with the order of deposit. The provision has to be understood and applied in its true spirit, viewing it as a deterrent provision and, at the, same time, assuring all safeguards envisaged by the section to the tenant. These safeguards include a clear notice by the order of the Court that, if a tenant fails to comply with the order directing deposit within the time specified, or within such further time as may be allowed by the Court, the tenant will I not be entitled to appear in or to defend the suit except with the leave, of the Court. In such an event, he knows the consequences of his default. A mere direction to make a deposit within a particular time does not visit the consequence of the 'defence being struck: off unless it' be that there is a further direction by the Court that this would be done if compliance is necessary made within a time to be specified. In that event, a tenant, unable t o comply has an opportunity to show that the specified reasons he has not been able to make the deposit and still he may be relieved of 'the consequence of the order. Where a Court does not pass an order that failure to deposit within a specified time will result in the consequence of the defellce being struck off, there can be no order striking off the defence for reason of non-deposit. That would be to go against the express language of the statute and to seriously nfringe the safeguard envisaged against the application of the stringent provision in S. 11(4) of the Act. The learned. Civil Judge (Junior Division) was, theregore evident ly in error in proceeding to pass an order strjking off the defence, of be party when the earlier order dated 6-2-1980 did hot specify the con-sequiences of non-deposit. It only directed the deposit within the time specified. I make it clear that whenever a Court is called upon strike off a defence, the Court should ask itself the question whether-the tenant has been told earlier by a specific cyder that if be did not make the' dependency as directed, his defence will be struck off. Unless there is such an order, his defence cannot be struck off. The Court will -have to pass such an order and only on non-compliance thereafter coifed the Court proceed to strike off the defence under- S' 11 (4). The view' that have expressed here is consistent with view expressed earlier by this Court in Pirubhai Ramjubbai Mamomedah v. Trikamlal Nanjibbai, (1969) 10 Guq LR 747 : (AIR 1969 Gui 285).

6. In the result, while dismissing Civil Revision Application No. 1874 Of 1980, Civil Revision Application No. 1862 of 1980 is allowed the order under challenge striking off the defence is' set aside and consequently the subsequent proceedings would stand automatically vacated. The matter will go, back to the trial court to pass necessary appropriate directions so that the matter may have proceeded with in accordance' with law after earring the parties. Rule in Civil Revision Application No. 1874 of '1980 is discharged. Rule in Civil Revision.

7. Order accordingly.


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