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Sureshchandra Bhulabhai Jariwala and ors. (Heirs of Deceased Bbulabhai Nathubhai Jariwala) Vs. Maganlal Lallubhai - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1967)8GLR1003
AppellantSureshchandra Bhulabhai Jariwala and ors. (Heirs of Deceased Bbulabhai Nathubhai Jariwala)
RespondentMaganlal Lallubhai
Cases ReferredPrinters (Mysore) Private Ltd. v. P. Joseph
Excerpt:
- - , 7th november 1953 and failed to pay the arrears in spite of repeated demands made by the original petitioner. 988/-deposited by the respondent in court during the pendency of the suit was more than sufficient to cover the amount of standard rent and permitted increases upto the date of the judgment and the question might, therefore, well have arisen whether the respondent was entitled to claim the protection of section 12(3)(b), but the learned trial judge on the view that section 12(3)(b) did not apply to the case of the respondent, did not consider whether the respondent was entitled to the protection conferred under section 12 {3)(b) and passed a decree for eviction against the respondent on the ground that the respondent was not ready and willing to pay the amount of the.....p.n. bhagwati, j.1. one bhulabhai natnubhai jariwala, hereinafter referred to as the original petitioner, was the owner of a house bearing no. 3638 situate in ward no. 7, rampura, surat. the respondent was a tenant of the original petitioner in respect of the first floor of the house to which we shall for the sake of convenience refer as the premises. according to the original petitioner the contractual rent of the premises was rs. 14/-per month calculated according to the hindu calendar. the respondent fell in arrears of rent from kartak sudi samvat year 2010 i. e., 7th november 1953 and failed to pay the arrears in spite of repeated demands made by the original petitioner. the original petitioner ultimately gave a notice to quit dated 12th april 1955 terminating the tenancy of the.....
Judgment:

P.N. Bhagwati, J.

1. One Bhulabhai Natnubhai Jariwala, hereinafter referred to as the original petitioner, was the owner of a house bearing No. 3638 situate in Ward No. 7, Rampura, Surat. The respondent was a tenant of the original petitioner in respect of the first floor of the house to which we shall for the sake of convenience refer as the premises. According to the original petitioner the contractual rent of the premises was Rs. 14/-per month calculated according to the Hindu calendar. The respondent fell in arrears of rent from Kartak Sudi Samvat Year 2010 i. e., 7th November 1953 and failed to pay the arrears in spite of repeated demands made by the original petitioner. The original petitioner ultimately gave a notice to quit dated 12th April 1955 terminating the tenancy of the respondent with effect from Vaishakh Vad30, Samvat Year 2011, i.e., 21st May 1955, and calling upon the respondent to pay up the arrears of rent. The respondent by his letter in reply dated 14th April 1955 raised a dispute in regard to the standard rent of the premises and claimed that the contractual rent was excessive and that the standard rent which he was liable to pay to the petitioner was only Rs. 6 per month. Since the respondent did not hand over possession of the premises in compliance with the notice to quit, the original petitioner filed a suit against the respondent in the Court of the Civil Judge, Junior Division, Surat, on 13th June 1955 claiming possession of the premises and arrears of rent. There were two grounds on which the original petitioner sought to recover possession of the premises from the respondent. One was that the original petitioner required the premises reasonably and bona side for occupation by himself. This ground, however, does not survive any longer and we will, therefore, say no more about it. The second ground which is material for our purpose was that the respondent was in arrears of rent and was, therefore, not entitled to the protection of Bombay Act 57 of 1947, hereinafter referred to as the Rent Act. On the same day on which the suit was filed the respondent preferred an application in the Court of the Civil Judge, Junior Division, Surat, for fixation of the standard rent of the premises. Thereafter a written statement was filed by him in answer to the suit in which he disputed the claim of the original petitioner to recover possession of the premises and also contended that the contractual rent was excessive and that the standard rent should be fixed at Rs. 6 per month. During the pendency of the suit the respondent deposited a sum of Rs. 100/- in Court on 13th June 1955. The date of settlement of issues in the suit was fixed on 4th October 1955 and on that date the issues were settled by the learned trial Judge. The result was that at the date of the settlement of issues, the only amount deposited by the respondent in Court was Rs. 100/- whereas the arrears of rent even if calculated at the rate of Rs. 6/- per month which was the rate at which the respondent wanted the standard rent to be fixed, were more than the said amount of Rs. 100/-. The respondent thereafter deposited in Court from time to time various amounts as per the following particulars:

Rs. 88/- on 14th March 1956.Rs. 200/-on 21st June 1956.Rs. 500/- on 21st November 1957 andRs. 100/-on 19th March 1958.

The aggregate amount deposited by the respondent in Court inclusive of the amount of Rs. 100/- deposited prior to the date of settlement of issues thus came to Rs. 988/-. After the evidence was taken the hearing of the arguments commenced and it was concluded on 13th August 1958. Thereafter while the suit was pending for judgment, the respondent presented an application to the learned trial Judge on 4th September 1958 requesting him to fix a date for payment of the amount of standard rent and permitted increases under Section 12i, 3)(b) of the Rent Act. The respondent pointed out in the application that the respondent had deposited an aggregate sum of Rs. 988/- in Court in respect of standard rent and permitted increases due to the original petitioner and that the 'said amount was more than sufficient to cover the full amount of standard rent and permitted increases, but since it was contended on behalf of the original petitioner that the said amount was not deposited by the respondent on or before the first date of hearing of the suit, the respondent was making the application for fixation of a date under Section 12(3)(b) in order to regularise the deposit of the said amount already made by him. The learned trial Judge by an order made on the same day rejected the application mainly on the ground that it was too late to make such an application and that he was not entitled to grant it. The learned trial Judge thereafter proceeded to deliver his judgment on 11th October 19S8. The learned trial Judge held that inasmuch as the respondent had disputed the standard rent of the premises, his case was governed by the Explanation to Section 12 and neither Section 12(3)(a) nor Section 12(3)(b) applied inasmuch as these last two provisions applied only where there was no dispute raised by the tenant in regard to the standard rent of the premises. The learned trial Judge then proceeded to consider whether the respondent had complied with the Explanation to Section 12 and he held that inasmuch as the respondent had not obtained an order from the Court specifying the amount of interim rent or permitted increases under Section 11(3) and regularly paid or tendered the amount of interim rent or permitted increases as required by the Explanation, the respondent was not entitled to the protection of Section 12(1) and was, therefore, liable to be evicted. So far as the dispute in regard to the standard rent was concerned the learned trial Judge held that the contractual rent was excessive and that the standard rent of the premises was Rs. 6/~ per month. Now,, according to the rate of Rs. 6/- per month the amount of Rs. 988/-deposited by the respondent in Court during the pendency of the suit was more than sufficient to cover the amount of standard rent and permitted increases upto the date of the judgment and the question might, therefore, well have arisen whether the respondent was entitled to claim the protection of Section 12(3)(b), but the learned trial Judge on the view that Section 12(3)(b) did not apply to the case of the respondent, did not consider whether the respondent was entitled to the protection conferred under Section 12 {3)(b) and passed a decree for eviction against the respondent on the ground that the respondent was not ready and willing to pay the amount of the standard rent within the meaning of Section 12(1) and was, therefore, not entitled to the protection under that section.

2. The respondent being aggrieved by the decree for eviction passed against him preferred an appeal in the District Court, Surat. The learned District Judge who beard the appeal held that the Explanation to Section 12 was not the only provision which conferred protection on the respondent but that even apart from the Explanation, the respondent was entitled to invoke the protection of Section 12(1) and Section 12(3)(b). The learned District Judge then proceeded to examine the validity of the claim of the respondent to protection under Section 12(3)(b) and held that inasmuch' as the full amount of the standard rent had been deposited by the respondent in Court before the date of the judgment and an application had been made by the respondent to the learned trial Judge to fix a date under Section 12(3)(b), the respondent was entitled to the protection of Section 12(3)(b) and the original petitioner was not entitled to obtain a decree for eviction against him. So far as the finding of the learned trial Judge in regard to the standard rent of the premises was concerned, the learned District Judge confirmed the same and determined the standard rent of the premises to be Rs. 6/- per month. The learned District Judge accordingly allowed the appeal in part and set aside the decree for eviction passed against the respondent. The original petitioner thereupon preferred the present Revision Application in this Court. During the pendency of the Revision Application the original petitioner died and the present petitioners are the heirs and legal representatives of the original petitioner were accordingly brought on record in place and stead of the original petitioner.

3. When the revision application originally came up for hearing before me sitting as a single Judge, one of the questions agitated before me was whether the application made by the respondent to the learned trial Judge to fix a date under Section 12(3)(b) was rightly rejected by the learned trial Judge. It was contended before me on behalf of the petitioners that the learned trial Judge was not only justified but was bound to reject the application inasmuch as the application was made after the first day of hearing of the suit. The argument urged on behalf of the petitioners was that an application for fixation of a date under, Section 12(3)(b) had to be made on the first day of hearing of the suit and could not be made subsequently and that the application made by the respondent was, therefore, rightly rejected by the learned trial Judge. The petitioners in support of this contention relied on a decision of Raju J. in Allanur v. Balchand (1962) III G.L.R. 182. I found some difficulty in agreeing with the view taken by Raju J. in this decision and I, therefore, made an order referring the revision application to a Division Bench and that is how the revision application now comes before us.

4. The main argument urged by Mr. Patwari, learned advocate on behalf of the petitioners, was that the learned District Judge had acted contrary to law in granting the protection of Section 12(3)(b) to the respondent. He urged that the respondent had failed to pay or tender in Court the arrears of standard rent and permitted increases on the first day of hearing of the suit and had not even applied to the learned trial Judge on the first day of hearing of the suit for fixing another date within which he might pay or tender in Court the arrears of rent and permitted increases then due to the original petitioner and the respondent was, therefore, not entitled to the protection of Section 12(3)(b). He agreed that an application was undoubtedly made by the respondent to the learned trial Judge on 4th September 1958 to fix a date for payment of the amount of standard rent and permitted increases under Section 12(3)(b) but he contended that that application was not maintainable inasmuch as it was made subsequent to the first day of hearing of the suit and was, therefore, rightly rejected by the learned trial Judge. He conceded that the respondent had deposited the full amount of standard rent and per. milled increases before the date of the judgment but that, he submitted, was not sufficient to confer the protection of Section 12(3)(b) for the deposit was not made in compliance with the requirements of Section 12(3)(b) and it was only if the requirements of Section 12(3)(b) were satisfied, that the respondent could claim protection of that section. This argument of course proceeded on the basis that the only provision of law under which the respondent could on the facts of the case claim protection from eviction was that contained in Section 12(3)(b). Mr. N.R. Oza, learned advocate appearing on behalf of the respondent, however, disputed the validity of the assumption that the respondent could claim protection from eviction only if he succeeded in bringing his case within the terms of Section 12(3)(b). He contended that the respondent claimed a two-fold protection against the petitioners' claim for eviction. He relied on the Explanation read with Section 12(1) and urged that he had done whatever was required of him under the Explanation and that he must, therefore, be deemed to be ready and willing to pay the amount of standard rent or permitted increases so as to be entitled to the protection of Section 12(1). He also contended that in any event he had complied with the requirements of Section 12(3)(b) and, therefore, entitled to the protection under that section. He urged that an application for fixing a date under Section 12(3)(b) could be made at any time even subsequent to the first day of the hearing of the suit and that the learned trial Judge was, therefore, wrong in rejecting the application and the learned District Judge was right in relying on the application for the purpose of holding that the respondent had complied with the requirements of Section 12(3)(b). Both the Explanation to Section 12 and Section 12(3)(b) were thus relied on in support of the respondent's claim to protection against dispossession, but it is not necessary for us to consider the validity of the claim to protection based on the Explanation to Section 12 since we are of the view that the claim of the respondent to be protected under Section 12(3) (b) is well-founded and we will, therefore, confine ourselves only to a consideration of the provisions of Section 12(3)(b).

5. Now Sub-section (3)(b) of Section 12 confers protection on the tenant in the following terms:

12. (3)(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 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 words 'in any other case' obviously refer to a case other than that covered by Sub-section (3)(a) of Section 12. We must, therefore, first consider whether Section 12(3)(a) applies to the facts of the present case for if Section 12(3)(a) applies, the applicability of Section 12(3)(b) would be clearly excluded and the respondent would not be entitled to claim the protection of Section 12(3)(b). Now one of the conditions which must be satisfied to attract the applicability of Sub-section (3)(a) of Section 12 is that there should be no dispute regarding the amount of standard rent or permitted increases but in the present case this condition was not satisfied since within two days of the receipt of the notice dated 12th April 1955 which was the notice under Section 12(2), the respondent by his lefter dated 14th April 1955 raised a dispute regarding the amount of standard rent. The present case therefore did not fall within Section 12(3)(a) and the respondent could claim the protection of Section 12(3)(b) by carrying out its requirements. Now under Section 12(3)(b) the tenant could claim protection only if he paid or tendered in Court the standard rent and permitted increases then due on the first day of hearing of the suit or on or before such other date as the Court might fix and thereafter continued to pay or tender in Court regularly such rent and permitted increases till the final decision of the suit and also paid costs of the suit as directed by the Court. In the present case there was no question of payment of costs of the suit since no direction was given by the Court in regard to such payment. The only question, therefore, was whether the respondent paid or tendered in Court the standard rent and permitted increases then due on the first day of hearing of the suit or on or before such other date as the Court might fix and thereafter continued to pay or tender in Court regularly such rent and permitted increases till the suit was finally decided. Now it is settled by the decision of this Court in Ambalal v. Babaldas (1962) III G.L.R. 625 that the first day of hearing of the suit means the day on which the Court applies its mind to the case which would ordinarily be the time when either the issues are determined or evidence taken. The issues were settled on 4th October 1955 and that was, therefore, the first day of hearing of the suit. By this date the respondent had deposited in Court only a sum of Rs. 100/- and that was not sufficient to cover the amount of standard rent and permitted increases due on that date. The respondent could not, therefore, be said to have paid or tendered in Court the standard rent and permitted increases then due on the first day of hearing of the suit. But that would not be enough to disentitle the respondent to protection for the respondent could pay or tender in Court the standard rent and permitted increases on or before such other date as the Court might fix and according to the respondent, he paid the full amount of the standard rent and permitted increases on different dates after the first day of hearing of the suit and applied to the Court for fixing a date under Section 12(3)(b) so that the full amount of standard rent and permitted increases deposited by him in Court could be said to have been tendered by him in Court on or before the date so fixed by the Court. The application for fixing a date was made by the respondent on 4th September 1958 after the first day of hearing of the suit and the argument on behalf of the petitioners was that such application was not maintainable under Section 12(3)(b). It was urged on behalf of the petitioners that an application for fixing a date under Section 12(3)(b) could be made only on or before the first day of hearing of the suit and since the application of the respondent was made subsequent to the first day of hearing of the suit, the application was rightly rejected and the respondent was, therefore, not entitled to the protection of Section 12(3)(b). That raises the question as to what on a true construction of Section 12(3)(b) is the time when an application for fixing a date for payment or tender of the standard rent and permitted increases should be made by the tenant.

6. One thing is clear on a plain reading of Sub-section (3)(b) of Section 12, namely, that that sub-section does not talk of any application to be made by the tenant. As a matter of fact it does not talk of any application at all and the only provision it makes is that the tenant must pay or tender in Court the standard rent and permitted increases 'on or before such other date as the Court may fix'. There is no provision that the Court shall fix the date only on the application of the tenant or that such application shall be made by the tenant on or before the first day of hearing of the suit. Ordinarily of course the tenant would be interested in requesting the Court to fix a date for payment or tender of the standard rent and permitted increases for he would want to claim the protection of Section 12(3)(b), but there is no such limitation in the section that the date shall be fixed only on the application of the tenant and the Court may even, in a proper case, fix the date suo motu or on the application of the landlord. Section 12(3)(b) on its plain terms does not insist on any application by the tenant and much less on such application being made on or before the first day of hearing of the suit. The only provision which it enacts is that the Court may fix a date other than the first day of hearing of the suit for payment or tender of the standard rent and permitted increases by the tenant. Now it was conceded on behalf of the petitioners that such date may be fixed by the Court at any time after the first day of hearing of the suit, but the argument was that the application to be made to the Court for fixing such date should be on or before the first day of hearing of the suit. This requirement is not to be found in the words of Section 12(3)(b) and to import this requirement in the section would be to rewrite the section by adding words such as 'on the application of the tenant made on or before the first day of hearing of the suit' after the words 'on or before such other date as the Court may fix' in the section which would be clearly impermissible under any known canons of construction. On a plain and grammatical construction of the language employed in Section 12(3)(b), it is clear that the Court may fix some date other than the first day of hearing of the suit for payment or tender of the standard rent and permitted increases by the tenant and the order fixing such date may be passed at any time whether on or before or subsequent to the first day of hearing of the suit and such order may be passed on the application of the tenant or the landlord or even suo motu and the application for such order may be made by the tenant or the landlord at any time, whether on or before or subsequent to the first day of hearing of the suit. There is no reason to limit the plain and natural meaning of the words used in Section 12(3)(b) by introducing a requirement that the order fixing a date other than the first day of hearing of the suit can be made by the Court only on the application of the tenant made on or before the first day of hearing of the suit. We are, therefore, unable to agree with the decision of Raju J. in Allanur v. Balchand (supra) and with the greatest respect to the learned Judge, we must express our dissent from it.

7. This view which we are inclined to take on principle is clearly supported by the observations of the Division Bench of this Court in Ambalal v. Babaldas (supra). The scheme of the various sub-sections of Section 12 was analysed by the Division Bench in that case and dealing with Sub-section (3)(b) of Section 12, Shelat J., as he then was, speaking on behalf of the Division Bench said:

It is clear from Sub-section (3)(b) that if the tenant has failed to pay the arrears due on the first day of the hearing of the suit, it is for him to apply to the Court to fix another date for payment and also to apply to the Court for the determination of costs of that suit in order to enable him to pay or tender in Court such amount

These observations clearly show that the Division Bench contemplated an application by the tenant for fixing another date for payment after the first day of hearing of the suit. The decision of the Supreme Court in Vora Abbasbhai v. Haji Gulamnabi (1964) V G.L.R. 55, also supports the view we are taking. In that case the Supreme Court interpreted Sub-section (3)(b) of Section 12 and pointed out how that sub-section was to be worked out in its practical application. Shah J., speaking on behalf of the Supreme Court said:

But in the practical working of Clause (3)(b) some 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 continuing 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(3)(b) would be complied with.

It is clear from these observations that an application for fixing a date for payment or tender of the standard rent and permitted increases may be made by the tenant even after the first day of hearing of the suit. After the issues are settled on the first day of hearing of the suit, the Court would on the application of the tenant take up the issue as to standard rant in the first instance and determine the standard rent. The Court would then proceed to fix a date and call upon the tenant to pay or tender such standard rent on or before the date fixed. Now this date may be fixed by the Court suo motu or on an application made by the tenant when the Court determines the standard rent. Such an application would be clearly an application after the first day of hearing of the suit. Where the standard rent is enhanced in appeal, the appeal Court also can fix a date for payment of the amount of the difference in the standard rent and an application for that purpose made by the tenant in the appeal would be clearly an application made long after the first day of hearing of the suit. It is, therefore, clear that an application for fixing a date under Section 12(3)(b) can be made by the tenant at any time even after the first day of hearing of the suit and the Court can on such application fix a date for payment or tender of the standard rent and permitted increases by the tenant.

8. Now what happened in the present case was that the respondent deposited in Court the full amount of standard rent and permitted increases prior to 4th September 1958 but he did so without obtaining an order of the Court fixing a date for payment or tender of such amount. This was not strictly in accord with the provisions of Section 12(3)(b). The respondent, therefore, made an application dated 4th September 1958 to the Court for fixing a date under Section 12(3)(b) and the obvious reason why the application was made was to bring the deposit of the full amount of standard rent and permitted increases made by him withing the terms of Sub-section (3)(b) of Section 12. Now at one time a view was taken and that was also the view taken by Chagla C. J. in Gulam Hussein v Mahomed Umar, 60 Bom. L.R. 972-a view subsequently overruled by this Court in Ambalal v. Babaldas (supra) that if deposits are made by the tenant and accepted by the Court, the acceptance of the deposits would be tantamount to an order having been passed by the Court fixing a date as contemplated in Section 12(3)(b). If this view were correct, no application for fixing a date was necessary and the respondent could be held to have complied with the requirements of Section 12(3)(b). But the legal position was not free from doubt and the respondent, therefore, made the application dated 4th September 1958 to fix a date under Section 12(3)(b), so that on such date being fixed, the full amount of standard rent and permitted increases deposited by the respondent could be said to have been tendered in Court by the respondent on or before such date fixed by the Court and the requirements of Section 12(3)(b) would be satisfied. The learned trial Judge, however, rejected the application on the view that the application could not be made after the first day of hearing of the suit. This was, for reasons which we have pointed out above, clearly wrong. The application was competent under Section 12(3)(b) and the learned trial Judge should have granted the application. If the learned trial Judge had granted the application and fixed any date prior to the date of delivery of the judgment, the respondent would have been within the protection of Section 12(3)(b). The learned District Judge was, therefore, right in according the protection of Section 12(3)(b) to the respondent.

9. It was contended on behalf of the petitioners that the learned trial Judge having rejected the application of the respondent for fixing a date under Section 12(3)(b) in the exercise of his discretion, the learned District Judge was not entitled to interfere with the exercise of the discretion unless he came to the conclusion that the discretion was exercised unreasonably or capriciously or that in the exercise of that discretion the learned trial Judge had adopted an unjudicial approach and in support of this contention reliance was placed on the decision of the Supreme Court in Printers (Mysore) Private Ltd. v. P. Joseph : [1960]3SCR713 . This decision no doubt lays down the principle on which an appellate Court would be entitled to interfere with the exercise of discretion of the trial Court, but it is difficult to see how that principle has any application to the facts of the present case. Here we find that the learned trial Judge rejected the application of the respondent for fixing a date under Section 12(3)(b) on the ground that the application was made after the first day of hearing of the suit. This was clearly an erroneous ground based on misinterpretation of Section 12(3)(b). Moreover, even if we take the view that in rejecting the application the learned trial Judge exercised his discretion, the learned trial Judge clearly acted unreasonably or capriciously in exercising his discretion since he overlooked the fact that a large amount in excess of the amount of standard rent and permitted increases due upto the date of the application had already been deposited by the respondent in Court and the Court had accepted the deposit of such amount and all that the respondent sought by the application was merely fixation of a date for the purpose of bringing the deposit of such amount within the terms of Section 12(3)(b). We must, therefore, hold that the respondent was entitled to the protection of Section 12(3)(b) and the learned District Judge was right in taking the view that the original petitioner was not entitled to obtain a decree for eviction against the respondent.

10. We, therefore, dismiss the Revision Application and discharge the rule with costs.


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