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Lalchand Jernatmal Vs. Nanabhai Ranchhoddas and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 959 of 1968
Judge
Reported inAIR1976Guj122; (1976)1GLR1
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 12(3); Constitution of India - Article 133(1)
AppellantLalchand Jernatmal
RespondentNanabhai Ranchhoddas and ors.
Appellant Advocate V.P. Shah, Adv.
Respondent Advocate S.B. Vakil, Adv.
Cases ReferredVora Abbashhai v. Haji Gulamnabi
Excerpt:
tenancy - protection - section 12 (3) of bombay rents, hotel and lodging house rates control act, 1947 and article 133 (1) of constitution of india - whether in order to earn protection of section 12 (3) (b) tenant must continue to pay standard rent and permitted increase during pendency of appeal filed by landlord - main idea behind section 12 (3) (b) is to see that tenant continues to pay rent till suit is finally decided - tenant to avail protection of section 12 (3) (b) has to deposit standard rent in appellate stage also. - - 3. in order to appreciate the scope of section 12(3)(b), it would be better to look into the historical background of the provisions of section 12(3)(a) and section 12(3)(b). section 12(3) in the form as it stands to-day was substituted for the original.....divan, c.j. 1. this civil revision application has been referred to us by the division bench consisting of m. u. shah and b. k. mehta jj. the matter came up before that division bench, though ordinarily a civil revision application is disposed of by a single judge, because a. a. dave j., by his order dated april 27, 1973 referred the civil revision application to a larger bench because he felt that he was unable to agree with the reasoning of t. v.mehta, j., in civil revision application no. 1215 of 1968 decided on february 2, 1973 (reported in (1974) 15 gui lr 238). the question before us is relating to the interpretation of section 12(3)(b) of the bombay rents, hotel and lodging house rates control act, 1947 (bombay act no. lvii of 1947) hereinafter referred to as 'the rent act') and so.....
Judgment:

Divan, C.J.

1. This Civil Revision Application has been referred to us by the Division Bench consisting of M. U. Shah and B. K. Mehta jj. The matter came up before that Division Bench, though ordinarily a Civil Revision Application is disposed of by a Single Judge, because A. A. Dave J., by his order dated April 27, 1973 referred the Civil Revision Application to a larger Bench because he felt that he was unable to agree with the reasoning of T. V.Mehta, J., in Civil Revision Application No. 1215 of 1968 decided on February 2, 1973 (reported in (1974) 15 Gui LR 238). The question before us is relating to the interpretation of Section 12(3)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bombay Act No. LVII of 1947) hereinafter referred to as 'the Rent Act') and so far as Section 12(3)(b) applies to an appeal filed by the landlord after dismissal of the landlord's suit for recovery of possession on the ground of non-payment of rent, M. U. Shah and B. K. Mehta felt that apart from the disagreement between A. A. Dave J., & T. U. Mehta J., there was also apparent conflict between the views expressed by two Division benches of this Court in Ratilal v. Ranchhodbhai, (1968) 9 Guj LR 48 = (AIR 1968 Guj 172) and Nanji Pancha v. Daulal Naraindas, (1970) 11 Gui LR 285. We will examine the provisions of law on the different decisions cited -before us in order to ascertain what the correct interpretation of Section 12(3)(b) is.

2. Section 12 provides by sub-section (1) that a landlord 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 the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of the Rent Act. Under sub-section (2) of Section 12, no suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non-payment of the standard rent or permitted increases due, unless one month after a notice mentioned in sub-section (2) has expired and the notice must contain in writing demand of the standard rent or permitted increases. Period of one month has to be calculated from the time the notice has been served upon the tenant in the manner provided in Section 106 of the Transfer of Property Act, 1882. Clause (a) of Section 12(3) deals with a situation where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permit to increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month referred to in sub-section (2) and under these circumstances the Court must pass a decree for eviction in any suit for recovery of possession. By Dow, as a result of several decisions on the point, including decisions of the Supreme Court, it is we settled law that if different factors mentioned in Section 12(3)(a) are cumulatively present, the Court must pass a decree for eviction. Section 12(3)(b) deals with a situation which is not covered by Section 12(3)(a) and is in these terms :-

'(b). 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 there after continues to pay or tender in Court regularly such rent and permitted in creases till the suit is finally decided and also pays costs of, the suit as directed by the Court.'

The question, as we have referred to earlier, turns on the interpretation of Section 12(8)(b) and the question that we have. to decide in the present case is, whether in view of the language of Section 12(3)(b) in order to earn the protection of that clause, the tenant whose case falls under that clause must continue to pay the standard rent and permitted increases and continue to pay or tender in Court regularly such rent and permitted increases during the pendency of the appeal filed by the landlord after dismissal of the landlord's suitl for recovery of possession on the ground of non-payment of rent.

3. In order to appreciate the scope of Section 12(3)(b), it would be better to look into the historical background of the provisions of Section 12(3)(a) and Section 12(3)(b). Section 12(3) in the form as it stands to-day was substituted for the original sub-section (3) by Bombay Act 61 of 1953. As pointed out by a Division Bench of the Bornbay High Court consisting of Gajendragadkar and Chainani Jj., as they then were, in Kurban Hussen v. Ratikant, (1957) 59 Bom LR 158 at 162 = (AIR 1959 Bom 401 at p. 403):-

'As it originally stood, sub-section (3) of Section 12 had provided that no decree for eviction shall be passed in any such suit if, at the hearing of such suit, the tenant pays or tenders. in Court the standard rent or permitted increases then due together with costs of the suit. This sub-section provided one more safeguard in the interests of the tenant. If the tenant paid or tendered in Court the rent due at the hearing of the suit, a decree for his eviction would not be passed. It is a matter of history that this sub-section was construed by this Court as giving an opportunity to the tenant to pay or tender rent even at the appellate stage.'

4. In Dayaram Kashiram v. Bansilal, (1953) 55 Bom LR 30 = (AIR 1953 Bom 214), a Division Bench consisting of Rajadhyaksha and Vyas JJ., held that the words 'at the hearing of the suit' in Section 12(3) of the Rent Act included the hearing of the appeal arising from that suit and, therefore, under Section 12(3) of the Act, an appeal Court cannot confirm a decree for eviction if before the passing of the order in appeal the tenant paid or tendered in Court the standard rent or permitted increases then -due together with the costs of the suit and also appeal. It is because of this interpretation in Dayaram Kashiram v. Bansilal (supra) and other cases that the legislature in 1953 amended that Rent Act by substituting the original sub-section (3) by the new sub-section which consists of clauses (a) and (b). The present Section 12(3)(b) has existed in the statute book in the same form since 1953. As pointed out by the Division Bench in Kurban Hussen v. Ratikant (supra) (AIR 1959 Bom 401).

'It was presumably because of this interpretation of Section 12, sub-section (3), that legislature thought of making suitable amendments in the structure of Section 12 itself.'

Two sub-divisions were introduced in sub-section (3) of Section 12.' Section 12(3)(a) provides for one set of eventualities. Section 12(3)(b) deals with cases not falling under Section 12(3)(a) and provides that 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. The Division Bench observed in Kurban Hussen v. Ratikant (supra)-

'It would be noticed that for the expression 'at the hearing of the suit' Legislature has introduced different expressions in this sub-section by the amendment. The payment in question has to be made 'on the first day of hearing of the suit or on or before such other date as the Court may fix. If the payment is made during this period, then a decree for ejectment would not be passed. It is thus clear that in cases falling under Section 12, sub-section (3) (b), a decree for ejectment cannot be passed if the other requirements of this sub-section are satisfied.'

It. has been further pointed out in Kurban Hussen v. Ratikant that in respect of cases falling under sub-section (3) (b), the Legislature has provided that no decree for ejectment shall be passed provided the payment of rent is made as provided in the sub-section. Having given adequate protection to tenants who are not in arrears, for such a long period as six months, legislature appears to have taken the view that where tenants are in arrears for such a long period as six months, if the tenants do not take steps to pay the rent within one month after receiving notice from the landlord, they are not entitled to any further protection and the landlord would be entitled to obtain a decree as a matter of right

5. In Ambalal v. Babaldas, (1962) 3 Cuj LR 625 = (AIR 1964 Guj 9) a Division Bench of this Court consisting of Shelat J., as he then was and M. R. Mody J., considered the historical background of Section 12(3)(a) and Section 12(3)(b) of the Rent Act. At page 643, the Division Bench has pointed out the history of original Section 12(3) and the present Sections 12(3)(a) and 12(3)(b) as we have culled out from Kurban Hussen v. Ratikant (supra) (AIR 1959 Bom 401).

6. The entire scheme of Section 12(3)(b) was fully considered by the Supreme Court in Vora Abbasbhai v. Haji GulamnabL (1964) 5 Guj LR 55 = (AIR 1964 SC 1341). Shah J., delivering the judgment of the Supreme Court has observed at page 61 (of GuJ LR) = (at p. 1345 of AIR)~

'The clause (clause (b) of Section 12(3)) deals with cases not falling within clause (3) (a) i. e., cases (i) in which rent is not payable by the month, (ii) in which there is a dispute regarding the standard rent and permitted increases, (iii) in which rent is not due for six months or more. In these cases the tenant may claim protection by paying of or tendering in Court on the first day of the hearing of the suit or such other date as the Court may fix the standard rent and permitted increases and continuing to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also by paying costs of the suit as directed by the Court. What the tenant has to pay or tender in Court to comply with the conditions of clause (b) of sub-section (3) is standard rent and permitted increases, and the Court has under clause (b) of sub-section (1) merely the power to fix the date of payment or tender, and not the rate at which the standard rent is to be paid. Power to fix the standard rent of premises is exercisable under Section 11 (1) alone. To bring his claim within Section 12(3)(b) the tenant must pay or tender the standard rent and permitted increases on or before the first day of hearing, or on or before such other date as the Court fixes, and also costs of the suit as may be directed by the Court. It may be noticed that the statute imposes upon the tenant obligation to pay or deposit the amount of costs, if the Court so directs, and not otherwise. The observation made by the High Court to the contrary, viz:-

It is, therefore, clear that the tenant in order to be entitled to claim the protection of Section 12(3)(b) must deposit cost of the suit along with the arrears of standard rent and permitted increases'.

is in our judgment erroneous.

But in the practical working of clause (3) (b) game difficulty may arise, where there is no dispute as to the amount of standard rent or permitted increases, but rent is not payable by the month, or the rent is not in arrears for six months, by paying or tendering in Court the standard rent and the permitted increases and containing to pay it till the suit is finally decided. the protection granted by the clause is made effective. Where there is a dispute as to the standard rent, the tenant would not be in a position to pay or tender the standard rent, on the first date of hearing, and fixing of another date by the Court for payment or tender would be ineffectual, until the standard rent is fixed. The Court would in such a case on the application of the tenant, take up the dispute as to standard rent in the first instance, and having fixed the standard rent, call upon the tenant to pay or tender such standard rent so fixed, on or before the date specified, and continues to pay or tender it regularly till the suit is finally decided, he qualifies for the protection of clause (3) (b). If in an appeal filed against the decree, the standard rent is enhanced, the appeal Court may fix a date for payment of the difference, and. if on or before that date the difference is paid, the requirement of Section 12(a)(b) would be complied with.'

Again at page 62 (of Guj LR) = (at p. 1345 of AIR) Shah J., observed-

'Section 12(3)(b) requires the tenant to pay the standard rent and not interim rent, and for the purpose of that clause the expression 'standard rent' may not be equated with 'interim rent specified under Section 11(3). Compliance with an order for payment of interim rent is made by the Explanation to Section 12 conclusive evidence of the readiness and willingness to pay the standard rent, but that by itself is not a ground for holding that the interim rent which may be specified under sub-section (3) of Section 11 is standard rent fixed under sub-section (1) of Section 11. It is true that the statute requires the tenant to pay or tender in Court standard rent at the rate which may still remain to be fixed by order of the Court-such order itself being liable to be varied or modified by an order of a superior Court. But that is not a ground for departing from the definition supplied by the statute. The legislature has prescribed conditions on which the tenant may qualify for protection of his occupation, and one of the important conditions is the readiness and willingness to pay the standard rent and permitted increases, which may be proved by obtaining an order of the Court fixing the rate of standard rent and complying therewith or by complying with the Explanation to Section 12 or otherwise'.

And finally at page 64 (of Guj LR) = at p. 1346 of AIR) it was pointed out by Shah J.,

'Section 12(1) does not affect the jurisdiction of the Court to entertain and decide a suit in ejectment against a tenant. It merely confers a protection upon a tenant if certain conditions are fulfilled, and clauses (2), (3) (a), (3) (b) and the Explanation deal with certain specific cases in which readiness and willingness to pay standard rent, may either be presumed or regarded as proved'.

7. The passage at page 61 in paragraph 10 clearly indicates that once the trial Court has fixed the standard rent and permitted increases and the tenant has been called upon to pay or tender such standard rent so fixed on or before the date specified by the trial Court, the tenant must pay or tender in Court the amount of the standard rent and permitted increase on or before the date specified and be must continue to pay or tender it regularly till the suit is finally decided and then only be would qualify for the protection of Section 12(3)(b). Shah J., has further pointed out that if in an appeal filed against the decree, the standard rent is enhanced by the appellate Court, the appellate Court may fix a date for payment of the difference, and if on or before that date the difference is paid, the requirement of Section 12(3)(b) would be complied with. By necessary implication, therefore, it is obvious that if the appellate Court does not enhance the standard rent by an order passed by it, in order to qualify for the protection of Section 12(3)(b), the tenant must continue to pay or tender in Court regularly such standard rent and permitted increases. If that is not done, then the protection of Section 12(3)(b) would not be available to him according to this decision of the Supreme Court. By enacting that if the standard rent is enhanced, the appellate Court has to fix a date for payment of the difference, that is, the difference between the standard rent and permitted increases paid at the rate fixed by the trial Court and the enhanced rate for the same fixed by the appellate Court and what the appellate Court has to fix is the date for the payment of the difference and not for the payment of the standard rent and permitted increases at the enhanced rate. The word 'difference' occurring in paragraph 10 on page 61 of the report clearly indicates that in order to earn the protection of Section 12(3)(b), not only must the tenant continue to pay during the pendency of the suit before the trial Court the standard rent and permitted increases fixed by the trial Court but once it has been brought to his notice by the notice served by the appellate Court that an appeal has been filed against that decree, be must pay or tender in Court and continue to pay or tender in Court the standard rent and permitted increases in the appellate Court until the appeal is decided. Section 11 provides, as pointed out by the Supreme Court, for the fixation of standard rent and permitted increases and sub-section (1) of Section 11 sets out the different circumstances in which the Court may, upon an application made to it for that purpose, or in any suit or proceeding, !ix the standard rent at such amount as, having regard, to the provisions of the Act and the circumstances of the case, the Court deems just and Section 5 sub-section (10) clause (iv) defines 'standard rent' to mean in any of the cases specified in Section 11, the rent fixed by the Court. It is, therefore, in consonance with the definition of 'standard rent' in Section 5(10)(iv) that once the trial Court fixes the standard rent under Section 11(1) that is the standard rent of the premises and the permitted increases and under Section 12(3)(b) the tenant must pay or tender in Court the standard rent so fixed by the trial Court and continue to pay the standard rent thus fixed by the trial Court. If, however, the appeal is filed and at the appellate stage the standard rent fixed by the trial Court is enhanced, then he has to pay the difference which has become necessary because of the enhancement of the standard rent. The emphasis on the word 'difference' is necessary because that clearly goes to indicate that once the trial Court has fixed the standard rent, until enhanced or altered by the appellate Court, that is the standard rent of the premises and in order to earn the benefit of Section 12(3)(b), the tenant must pay and continue to pay or tender in Court regularly such standard rent and permitted increases till the suit is finally decided.

8. In Ratilal v. Ranchhodbhai (1968) 9 Guj LR 48 = (AIR 1968 Guj, 172), a Division Bench of this Court consisting of Bhagwati J. as he then was and Bakshi J, pointed out that the expression 'till the suit is finally decided', in Section 12(3)(b) refers to the decision of the suit in appeal by the appellate Court, and when therefore, an appeal is preferred by the landlord against a decree passed by the trial Court dismissing ids suit and the question arises before the appellate Court whether the tenant is entitled to the protection of Section 12(3)(b), the appellate Court would have to consider whether the tenant has, after the first day of hearing of the suit or on or before such other date as might have been fixed by the Court~ continued to Pay or tender in Court regularly the standard rent and permitted increases till the decision of the appeal The Division Bench further pointed out that where a tenant has been regularly depositing in Court standard rent and permitted increases at the mere determined by the trial Court, it would be most unfair and unjust to the tenant to deprive him of the protection of Section 12(3)(b) which would inevitably be the result if the standard rent is enhanced by the appellate Court and no opportunity is given to the tenant to pay up the difference. In such a case the appellate Court must in the exercise of its discretion fix a date for payment of the difference by the tenant so that by making payment of the difference on or before such -date, the tenant may qualify for the protection of Section 12(3)(b). The Court can fix 'such other date' suo motu and in a case where a tenant has regularly deposited in Court standard rent and permitted increases according to the rate determined by the trial Court, the appellate Court, if it enhances the standard rent, must suo motu in the exercise of its discretion fix a date for payment of the standard rent 'then due' according to the enhanced rate and, if the tenant makes payment of the same on or before such date. the tenant must be given the protection of Section 12(3)(b) and no decree for eviction can go against him. The passage which we have quoted above from the decision of the Supreme Court in Vora Abbasbhai v. Haft Gulamnabi (AM 1964 SC 1341) (supra) particularly where the payment of difference has been emphasized the Supreme Court was relied upon by Bhagwati J., speaking for the Division Bench in Ratilat v. Ranchhodbhai~ 9 Q4 LA 48 at page 58 = (AIR 1968 Gtij 172 at p. 176) of the Toport and the Division Bench laid down as above in Ratilal v. Hanchhodbhai in the light of the observations of the Supreme court Vora Abbasbhai v. Haft Gulamnabi.

9. Miss Shah for the petitioner in this Civil Revision Application has relied upon the decision of the Supreme Court in Jashwantrai V. Anandilal, AIR 1965 SC 1419 in support of her contention that the provisions of Section 12(3)(b) contemplate merely the stage of the trial Court and did not require the tenant by pay or tender in Court and continue to pay or tender in Court regularly the standard rent and permitted increases during the pendency of the appeal. Jashwantrai's case merely decides that once there is a dispute regarding the amount of standard rent, clause (a) of Section 12(3) does not apply and the case would be governed by clause (b) of Section 12(3). It was held in Jashwantrai's case that clause (b) comprehends all cases other than those falling within clause (a) and a case in which there is a dispute about the standard rent must obviously fall not in clause (a) but in clause (b). It was further pointed out that where, though the final order of standard rent is passed by the Court of Small Causes, neither the landlord nor the tenant accepts the determination, but each side questions the amount by filing revision petitions, particularly the landlord files one revision after another to get the amount increased, it would be strange for him to claim that there was no dispute subsisting. The case will be governed not by clause (a) but by clause (b). Now it is obvious that the point which arose before the Supreme Court in Jashwantrai ' s case was an altogether different point than the point before us. What the Supreme Court in Jashwantrai's case was called upon to deal with and in fact dealt with was the question whether the fixation of the standard rent and permitted increases by the trial Court automatically took the matter out of Section 12(3)(b) of and the Supreme Court said that nonacceptance of the rate of standard rent and permitted increases fixed by the trial Court itself would mean that there was a dispute as to the standard rent and, therefore, the case would fall within Section 12(3)(b). The circumstance which has been pointed out in Vora Abasbhai v. Haji Culamnabi, (AIR 1964 SC 1341) as to what is to happen at the appellate stage after the trial Court has fixed the standard rent and permitted increases was not dealt with by Jashwantrai's case and hence this decision cannot help the petitioner in this case.

10. In Dayawati v. Inderjit, AIR 1966 SC 1423, which was also relied upon by the learned advocate for the Supreme Court, dealt with the question of an appeal being a continuation of the suit. In paragraph 11 at page 1427, Hidayatullah J., as he then was, delivering the judgment of the Supreme Court has observed-

'An appeal has been said to be 'the right of entering a superior Court, and invoking its aid and interposition to redress the error of the Court below ........The only difference between a suit and an appeal is this that an appeal 'only reviews and corrects the proceedings in a cause already constituted but does not create the cause'. As it is intended to interfere in the cause by its means, it is a part of it, and in connection with some matters and some statutes it is said that an appeal is a continuation of a suit.'

It is true that an appeal is a continuation of the suit in the context of some statutes only but after the decision of - th6 Supreme Court in Vora Abbashbhai v. Haji Gulamnabi (AIR 1964 SC 1341) and the observation of Shah J., delivering the judgment of the Supreme Court in that case that when the appellate Court enhances the standard rent and permitted increases after the same has been fixed by the trial Court, only the difference has to be paid clearly goes to show that in the context of this particular statute before us, the Supreme Court has clearly taken the view that an appeal is a continuation of the suit.

11. In NaDji Pancha v. Daulal, (1970) 11 Guj LR 285, a Division Bench consisting of J. B. Mehta and B. C. Thakore JJ. held that-.-

'Where there is a dispute as to standard rent, the tenant would not be in a position to pay or tender the standard rent, on the first date of hearing, and fixing another date by the Court for payment or tender would be ineffectual until the standard rent is fixed. When, therefore, there is a dispute of standard rent which is resolved by the Court at the end, because both the proceedings were consolidated at the request of the parties, the tenant would not be in a position to pay or tender standard rent. Even the Court would not be in a position to fix another date, because the fixing of such date would be in fructuous until the standard rent was fixed on resolving the dispute in the final judgment. The Court could in such cases on application of the tenant take up the dispute as to the standard rent in the first instance and having fixed the standard rent call upon the tenant to pay or tender the standard rent so fixed on or before the date so specified. The tenant has two opportunities either to comply with the explanation by getting interim rent fixed by moving the Court for the purpose or he may move the Court for resolving this dispute at the earlier date to enable him to make the necessary payment for complying with this statutory provision. Such an application might be made by the tenant or the landlord or even the Court could suo motu extend the date after the date of the first hearing'.

The passage from Vora Abbasbhai v. Hail Gulamnabi (AIR 1964 SC 1341) which we have cited in connection with the difficulties arising in the practical working of Section 12(3)(b) has been cited by the Division Bench at page 291. The question which has arisen before us and which arose before the Division Bench in Ratilal v. Ranchhodbhai (AIR 1968 Guj 172) did not in terms arise before the Supreme Court in Nanji Pancha v. Daulal (1970) 11 Guj LR 285 (supra). There was no question of payment of standard rent and permitted increases by the tenant during the pendency of the appeal. We see no basic conflict between the two decisions, namely, Ratilal v. Ranchhodbhai on the one hand and Nanji Pancha v. Daulal on the other. If at all there is any conflict between these two decisions, we would in the light of the observations of the Supreme Court in Vora 2kbbasbhai v. Haji Gulanulabi be inclined to accept the view taken in Ratilal v. Ranchhodbhai rather than conflicting view, if any, expressed in Nanji Pancha v. Daulal.

12. Miss Shah for the petitioner has relied upon the decision of T. U. Mehta J., in Civil Revision Application No. 1215 of 1968 = (reported in (1974) 15 Guj LR 238). In paragraph 16 of his judgment, our learned brother, after referring to 'the decision in Ratilal v. Ranchhodbhai, (AIR 1968 Guj 172) (supra). has observed-

'This decision is binding on me sitting as a Single judge and, therefore, it should follow that the deposits which are contemplated by clause (b), are required to be made regularly even in the appellate Court till the appeal is finally decided. But the question which now arises before me is whether the tenant would lose the protection of clause (b) of Section 12(3) if he deposits the rent in an irregular manner in absence of any suitable directions by the Court. The proper answer to this question would be found on proper in interpretation of the language of clause (b), which is quoted above. This clause (b) does contemplate some directions of the Court and that fact is evident by reference to the last words 'as directed by the Court,' which are found at the end of the clause.'

The contention of Mr. Shah for the petitioner in that case however was that the directions contemplated by these words are the directions relating to the payment of costs and not to the payment or tender of standard rent and permitted increases or to the regularity of the said payment or tender. In other words, his contention was, that the Court's directions are required only with reference to the costs of the suit and not to any other matter referred to by clause (b). On close scrutiny of the language employed by the legislature in clause (b) the Court found that it was not possible to agree with the interpretation canvassed by Mr. Shah. After considering the entire language, he held that the words 'as directed by the Court' govern the whole of clause (b) and not merely the question of costs. He went into the question of intention of the Legislature and ultimately held in paragraph 20-

'Under these circumstances, I conclude that the expression 'as directed by the Court' applies not only to the payment of costs, but also to the quantum of rent and permitted increases to be deposited, and the day on which the tenant should continue to make that deposit in order to make it 'regular'.'

With great respect to our learned brother, we are unable to agree with his conclusions. The last portion of Section 12(3)(b) runs: 11 and also pays costs of the suit as directed by the Court'. Now a complete new notion is introduced by these last words, namely payment of the costs and it is with reference to this payment of costs that the words 'as directed by the Court' have been provided by the Legislature. Obviously until an order for costs is actually drawn up, a litigant will not know what costs he has to pay or tender or deposit in Court and hence, if the Court so. directs, he has to pay the quantum of costs as directed by the Court. It is only for this limited purpose of payment of costs that the words 'as directed by the Court' have been laid down by the Legislature. Whatever doubt there might have been regarding the interpretation, of these words 'as directed by the Court' occurring in the language of Section 12(3)(b), has been removed by the Supreme Court in Vora Abbasbhai v. Haii Gulamnabi, (AIR 1964 SC 1341) (supra). In paragraph 9 of the judgment at page 61 Shah J. has observed-

'To bring his claim within Section 12(3)(b) the tenant must pay or tender the standard rent and permitted increases on or before the first day of hearing, or on or before such other date as the Court fixes, and also costs of the suit as may be directed by the Court.' It has also been observed at page 61-

'In these cases (in cases I falling under Section 12(3)(b)) the tenant may claim protection by paying off or tendering in Court on the first day of the hearing of the suit or such other date as the Court may fix the standard rent and permitted increases and continuing to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also by paying costs of the suit as directed by the Court.' In view of these two passages from the decision of the Supreme Court in Vora Abbasbhai v. Haji Gulamnabi (supra) it is obvious that the words 'as directed by the Court' occurring at the end of S. 12(3)(b) merely governed the costs of the suit and -not any other portion of Section 12(3)(b). With respect, we are unable to hold that the words 'as directed by the Court' refer to the question of regularity of the payment because the Court has not to direct regularity of the payment If the standard rent and permitted increases were not previously fixed by the Court, the Court may, as pointed out by the Supreme Court in Vora Abbasbhai v. Haji Gulan-mabi take up the issue of standard rent at the first opportunity and decide what the standard rent and permitted increases are and once it so decides and fixes the standard rent and permitted increases, it must also fix the date on or before which the standard rent and permitted increases must be paid and thereafter, in order to earn the benefit of Section 12(3)(b), the tenant must continue to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided. In our opinion, after the date fixed by the Court as referred to in the judgment of the Supreme Court, there is no question of any other direction having to be given by the Court in any other connection. The Court has done its work by fixing the standard rent and permitted increases and in order to be fair to the tenant since the first date of hearing would already be gone, it has to fix a date on or before which the tenant must pay the standard rent and permitted increases and all arrears thereof and thereafter the tenant must 90 on paying regularly or tendering in Court regularly such standard rest and permitted increases. We are unable to understand, in the light of the decision in Vora Abbasbbai v. Haji Gulamnabi as to what other directions regarding the payment of standard rent and permitted increases the Court is expected to give in order to enable the tenant to pay. It is in accordance with the grammatical meaning of Section 12(3)(b) that the costs of the suit as directed by the Court may have p be paid by the tenant even before the decree is passed. Ordinarily the amount of costs would be known only after the decree is passed and the amount of costs is fixed by an order of the Court but S. 12(3)(b) contemplates that the tenant, in order to earn the benefit of Section 12(3)(b), over and above the amount of the standard rent and permitted increases may have to pay the costs of the suit also. Since the amount of costs is not known to the tenant in advance, that is, before the suit is decided and the decree of the trial Court is passed, the Court may have to give directions regarding the quantum of costs and if the Court gives directions as to costs, the tenant has to pay such costs also before the suit is decided. The words 'as directed by the Court', therefore, can only apply to the costs and not to any other part of Section 12(3)(b). Under these circumstances, we are unable to agree with the conclusions of learned brother T. U. Mehta J., that even as regards the regularity of the payment, the directions have to be given by the Court and if directions are not given, the tenant is not bound to Pay regularly.

13. Miss Shah for the petitioner before us has also relied upon the decision of M. P. Thakkar J., in Civil Revision Application No. 1208 of 1969 decided by our learned brother on July 13, 1973. Our learned brother observed after referring to Ratilal v. Ranchbodbhai (AIR 1968 Guj 172) (supra).

'Now, the expression 'first day of hearing' embodied in Section 12(3)(b) is referable to the date on which the issues are framed in a suit. So far as an appeal is concerned, there cannot be a first day of hearing. When the matter comes up for admission it cannot be said that it is the first date of hearing, for on that date the Court might even summarily reject the matter. When the matter, however is admitted, a notice is issued on the other side and thereafter the matter would come up for final hearing. It is not possible to posit that this would be the first date of hearing in the case of an appeal. It is possible to argue that the requirement regarding deposit of future rent will apply only during the pendency of the suit and not during the pendency of the appeal. It can be argued that a tenant cannot at all comply with the provision to deposit the rent falling due from time to time regularly in the Court in some situations. For instance, in a case where the landlord has appealed against a decree dismissing the suit, the preparation of the certified copies may take some time and the matter may come up for admission after a few months. How is the tenant expected to know that the landlord has appealed and that be is required to deposit the future rent from month to month regularly? And in which Court should be deposit the amount even if he were considered liable to deposit it in anticipation of such an appeal? The decision in Retails case may well require reconsideration'.

With respect to our learned brother, it must be pointed out that the main idea behind Section 12(3)(b) as it stands on the statute book is to see that the tenant pays and continues to pay regularly the amount of standard rent and permitted increases after the trial Court has once decided the quantum of standard rent and permitted increases. Once that amount is fixed, it is not open to the tenant to decline to pay or tender in Court the standard rent regularly and still claim the benefit of Section 12(3)(b). If the appeal is filed and the tenant comes to know about it, he has to pay or tender in Court regularly at the appellate stage the standard rent and permitted increases as fixed. By the trial Court and if the appellate Court enhances the quantum of standard rent and permitted increases, be has to pay the difference on or before such other date as the Court may fix. It is obvious that if he has not been paying regularly the standard rent and permitted increases during the pendency of the appeal, there will be no question of his paying the difference in the event of the appellate Court enhancing the standard rent and permitted increases. In view of the observations of the Supreme Court in Vora Abbasbhai v. Haji Gulamnabi (AIR 1964 SC 1341) no difficulty whatsoever would arise. The tenant, in order to earn the benefit for himself, must go on paying regularly even during the pendency of the appeal. We do not see any reason to reconsider the effect of the decision in Ratilal v. Ranchbodbhai (AIR 196.S Guj 172) (supra) because, in our opinion, what has been laid down in that decision of the Division Bench, fully carries out the effect of Section 12(3)(b) as explained by the Supreme Court in Vora Abbasbhai v. Haii Gulamnabi. Under these circumstances we are unable to agree with our learned brother M. P. Thaklar J. that requirement regarding deposit of future rent will apply only during the pendency of the suit and not during the pendency of the appeal. In view of the decision of the Supreme Court in Vora Abbasbhai v. Haji Gularnnabi that contention must be rejected and any such possible argument cannot be entertained.

14. Lastly Miss Shah for the petitioner drew our attention to the decision of the Supreme Court in Abdul Hamed Yousuff Sait v. Smt. Kalavati, 1969 Ren CJ I (SC) The Supreme Court in that case was dealing with the provisions of Section 29 of the Mysore Rent Control Act. Sub-section (4) of Section 29 was as follows-.-

'If any tenant fails to pay or deposit the rent as aforesaid, the Court, the District judge, or the High Court, as the case may be, shall, unless the tenant shows sufficient cause to the contrary, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the premises or dismiss the appeal or revision petition, as the case may be.'

Dealing with this provision it was held that failure to pay rent by the tenant during the pendency of the revision petition filed by the landlord is not covered by Section 29 (4) of the Act. It was found that there was no provision in the Act before the Supreme Court empowering the Appellate Court or the High Court to do so. We are unable to see bow this decision of the Supreme Court based on the Particular language of another statute can be binding on us when we have a clear decision of the Supreme Court directly dealing with the provisions of Section 12(3)(b) and the effect thereof. Under these circumstances we are unable to accept the contention of Miss Shah that the tenant is not required in the light of this decision of the Supreme Court in Abdul Hamed Yousuff Sait v. Smt. Kalavati to deposit in Court or to pay regularly the standard rent and permitted increases during the pendency of the appeal.

15. Our conclusion, therefore, is that the Division Bench in Ratilal v. Ranchhodbhai (AIR 1968 Guj 172) has correctly explained the legal position and the provisions of Section 12(3)(b) and the decision of T. U. Mehta J., in Civil Revision Application No. 1215 of 1968 = (reported in (1974) 15 Guj LR 238) was, with respect to him, not correct. We are also unable to agree with the observations of M. P. Thakkar J. in Civil Revision Application No. 1208 of 1969.

16. In the light of the above discussion we hold that Section 12(3)(b) of the~ Rent Act applies even at the appellate stage and the words 'till the suit is finally decided' occurring in Section 12(3)(b) refer also to the decision of the suit in appeal by the appellate Court when an appeal is preferred by the land lord against a decree passed by the trial Court dismissing his suit and the question arises be fore the appellate Court whether the tenant is entitled to the protection of Section 12(3)(b), the appellate Court would have to consider whether the tenant has, after paying or tendering in Court the arrears of standard rent and permitted increases on the first day of hearing of the suit or on or before such other date as might have been fixed by the Court. Continued to pay or tender in Court regularly the standard rent and permitted increases till the decision of the appeal. If he has not paid the amount of standard rent and permitted increases as fixed by the trial Court and in case the appellate Court has enhanced the standard rent and permitted increases has not paid the difference arising because of such enhancement on or before such date as the appellate Court might fix and after such date continued to pay regularly the enhanced rent and permitted increases, the tenant would be deprived of the protection of Section 12(3)(b). in the light of the historical background and in the light of the decisions which we have referred to above, this is the only conclusion which can be drawn. The matter will now go back before the learned Single judge taking up Civil Revision Applications for final decision in the light of our judgment. Costs of the bearing before the Full Bench to be costs in the Civil Revision Application.

17. After the above judgment was delivered, Miss Shah for the petitioner orally applied for leave to appeal to the Supreme Court under Article 133(1) of the Constitution. Though the question regarding the applicability of Section 12(3)(b) at the appellate stage is a substantial question of law, in our opinion, since the matter is covered by a decision of the Supreme Court in Vora Abbasbhai v. Haji Gulamnabi, (AIR 1964 SC 1341) (supra)it cannot be said that the question is one which is needed to be decided by the Supreme Court. Miss Shah has stated that against the decision of T. U. Mehta J., in Civil Revision Application No. 1215 of 1968 which we have overruled by this judgment, an appeal with special leave granted by the Supreme Court has been filed and is pending before the Supreme Court and we should, therefore, grant leave to appeal to the Supreme Court. However, the decision in Vora Abbashhai v. Haji Gulamnabi (Supra) was not considered by T. U. Mehta J., and the full impact of that decision of the Supreme Court was not appreciated by T. U. Mebta J. Since in our opinion the point is already covered by a decision of the Supreme Court, we are rejecting this application. This oral application is, therefore, rejected.

18. Order accordingly.


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