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Gangaben Poonjabhai AmIn Vs. Narayan Sonia and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1974)15GLR310
AppellantGangaben Poonjabhai Amin
RespondentNarayan Sonia and anr.
Cases ReferredAkbarali Hussainbhai v. Abdulgafar Mohmadkhan
Excerpt:
- - 8. now on these facts the contention raised on behalf of the petitioner by her learned advocate shri shah was that the matter clearly falls under clause (a) of section 12(3) of the bombay rents, hotel and lodging house rates control act, 1947 (which is hereinafter referred to as 'the act'). according to shri shah the opponent-tenant was bound to pay the whole arrears of six months within one month 'after the receipt of the suit notice but, since he has not done so, and since no dispute of standard rent was raised by him in reply to the suit notice, the case fell under clause (a) of section 12(3) and if that be so, a decree for eviction ought to have been granted by the lower courts. part payment of rent in response to the notice demanding six months' arrears would obviously wipe.....t.u. mehta, j.1. this revision application arises out of the eviction suit filed by the petitioner against the opponents in the court of civil judge, junior division, baroda where the said suit was registered as civil suit no. 106 of 1966.2. the facts of the case are that the petitioner land-lady is the owner of a chawl in which one room is occupied by the opponent no. 1 as her tenant. the contractual rent for this room is rs. 13.50 and as a result of the trial the lower court has determined its standard rent at the same figure.3. opponent no. 2 is joined in this revision application because, according to the petitioner he is the person in whose favour a portion of the premises has been sub-let.4. eviction was claimed by the petitioner in the trial court on two grounds:(i) non-payment of.....
Judgment:

T.U. Mehta, J.

1. This Revision Application arises out of the eviction suit filed by the petitioner against the opponents in the Court of Civil Judge, Junior Division, Baroda where the said suit was registered as Civil Suit No. 106 of 1966.

2. The facts of the case are that the petitioner land-lady is the owner of a Chawl in which one room is occupied by the opponent No. 1 as her tenant. The contractual rent for this room is Rs. 13.50 and as a result of the trial the lower court has determined its standard rent at the same figure.

3. Opponent No. 2 is joined in this Revision Application because, according to the petitioner he is the person in whose favour a portion of the premises has been sub-let.

4. Eviction was claimed by the petitioner in the trial court on two grounds:

(i) Non-payment of arrears of rent;

(ii) Sub-letting.

Since on the question of sub-letting the findings recorded by both the courts are based purely on facts. Shri Shah on behalf of the petitioner-land-lady has not claimed eviction on that ground during the course of the hearing of this revision application. He has, however, pressed for an eviction decree on the ground of non-payment of arrears of rent.

5. Facts as regards this ground for eviction are that the opponent-tenant fell in arrears of rent from 1-7-65. According to the terms of tenancy as found by both the lower courts the opponent tenant was expected to pay one month's rent in advance. On 1st December, 1965 the petitioner land-lady gave a notice of eviction on the ground of non-payment eft rent of six months from 1-7-65 to 31-12-65. This notice is found in record of the case at Ex. 40. The period for which the arrears were claimed was of six months. At the rate of Rs. 13.50 six months' rent comes to Rs. 81.00. However, Rs. 9/- were already paid by the opponent-tenant towards this rent and, therefore, the notice made the demand only of Rs. 72/- as arrears falling due. This notice was served on the opponent-tenant on 2-12-65. Reply thereto was given by the opponent on 28-12-65 and it is an admitted position that within one month after the service of notice the tenant made a payment of Rs. 21/- towards the rent in arrears. This payment obviously did not cover the rent of six months which was found to be in arrears as on 31-12-65.

6. The petitioner thereafter filed the present suit on 18-1-65. It is an admitted fact that in reply to this suit, the opponent tenant raised a contention as regards standard rent, though he had not raised any such contention in his reply to the notice of eviction given on 28-12-65 (vide Ex. 41). It is an admitted position that first date of hearing of the suit was on 27-6-67. By this time the opponent-tenant had deposited in court an amount of Rs. 175/-. Adding to this amount of Rs. 175/-, the payment of Rs. 30/- made before the institution of the suit the total amount of Rs. 205/- was paid or deposited before the first date of hearing as against the arrears of Rs. 324/- which fell due on the first date of hearing. Thus it is an admitted position that the total amount which was paid or deposited by the first day of hearing was short by Rs. 119/-.

7. Though the opponent-tenant had raised the question of standard rent in his written statement and the court had framed an issue about the standard rent, it is an admitted position that the learned Trial judge did not treat that issue as a preliminary issue with the result that till the suit was decided the question as to what was the standard rent of the premises was hanging in the air. The Trial court disposed of the case on 29-2-68 and at that time the trial court gave its judgment that the contractual rent was the standard rent but, before that judgment was given i.e. on 26-12-67 the opponent-tenant gave an application which is found at Ex. 27 stating the different deposits made by him on different dates in the suit and further requesting the court that though the rent due as on 31-12-67 was Rs. 375/- he had deposited an amount which was more than that amount, and he was also ready and willing to pay up any balance if the same was found due, even after giving credit of the total deposits made by him. As against the total rent of Rs. 375/- as due on 31-12-67 the opponent-tenant is found to have deposited an amount of Rs. 403/-, as stated in his application Ex. 27. On this application the plaintiff's advocate made an endorsement that the same should be decided at the time of deciding the entire suit. In view of this endorsement the court did not pass any order on that application, but the facts of the case show that whole of the amount of the rent in arrears was deposited at the time when the decree was passed. It is also an admitted position that the rent in arrears, even after the decree, has been paid upto the time the appellate court disposed of the appeal preferred by the petitioner.

8. Now on these facts the contention raised on behalf of the petitioner by her learned Advocate Shri Shah was that the matter clearly falls under Clause (a) of Section 12(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (which is hereinafter referred to as 'the Act'). According to Shri Shah the opponent-tenant was bound to pay the whole arrears of six months within one month 'after the receipt of the suit notice but, since he has not done so, and since no dispute of standard rent was raised by him in reply to the suit notice, the case fell under Clause (a) of Section 12(3) and if that be so, a decree for eviction ought to have been granted by the lower courts.

9. It is of course true, that if the case falls under Clause (a) of Section 12(3) of the Rent Act the decree for eviction should follow in spite of the fact that the tenant has raised the question of standard rent in his written statement because that is the view which is consistently taken by this Court. The question whether to obtain the protection contemplated by Clause (a) of Section 12(3) of the Rent Act it is sufficient to raise the question of standard rent for the first time in the written statement is at present pending before the Supreme Court and in view of that, many similar matters are kept in this Court on sine die list. I would have preferred to keep even this matter on the sine die list but, I find that this is not case which is covered by Clause (a) of Section 12(3) of the Rent Act and, therefore, I prefer to dispose of this matter.

10. Clause (a) of Section 12(3) of the Rent Act would apply when on the date of the suit the rent is found to be in arrears for six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after the service of notice referred to in Sub-section (2) of Section 12. Therefore, before this clause would apply to the facts of this case it would be pertinent to consider whether on the date of the filing of this suit the tenant was, in fact, found to be in arrears of rent for six or more months. Reply to this question is supplied by an event which took place before the suit was instituted. As already noted above, in reply to the petitioner-plaintiff's notice Ex. 40 which demanded the arrears of six months, the opponent tenant has paid up the amount of Rs. 21/-. Adding to this amount the previous admitted payment of Rs. 9/- he is found to have paid up the total amount of Rs. 30/- towards six months' rent which comes to Rs. 81/-. Thus, if the credit of Rs. 30/- is given towards the arrears of Rs. 81/-, the arrears which would remain to be paid are found to be of Rs. 51/-. This was, therefore, the amount due when the suit was filed. Of course, at the time when the suit was filed the rent for the month of January was also due, but for that due, no notice as contemplated by Sub-section (2) of Section 12 was given. Therefore, it follows that at the time when the suit was filed the rent in arrears was not of six months and if that is so, it cannot be said that the matter is governed by Clause (a) of Section 12(3) of the Rent Act.

11. Shri Shah, however, contended that in order to take the case out of the purview of Clause (a) of Section 12(3) of the Rent Act, the tenant ought to have paid the whole of the arrears of rent within one month from the date of the receipt of the suit notice and, therefore, if he is found to have paid the rent of less than six months it would not help him to take the case out of the purview of Clause (a). In support of this contention Shri Shah relied upon the decision given by a single Judge of Bombay High Court in Hirachand Sonu Bhavsar v. Mahadeo Woman Upasani reported in 63 B.L.R. 855 wherein it is held that a tenant who is served with a notice to make payment of six months' rent in arrears must make the payment of the entire amount of rent if he wishes to prevent the operation of the provisions of Clause (a) of Section 12(3) of the Rent Act.The learned Judge has further observed in that case that part payment of the arrears of six months before the expiry period of one month after the receipt of the notice will not save the tenant from the consequences of the Clause (a).

12. The above referred decision relied upon by Shri Shah completely cover the facts of the present case. The facts of that case were that on July 3, 1956 the landlord served the tenant with a notice terminating the tenancy and asking for possession on the ground that the tenants were in arrears of rent from October 1, 1955 to June 30th, 1955. The rent of the premises was Rs. 12/- per month. The notice demanded payment of Rs. 108/- in respect of the arrears of above stated 9 months' rent. Immediately on receipt of the notice i.e. on 4th July, 1956 the tenants paid Rs. 24/- and thereafter on August 1, 1956 they paid another amount of Rs. 24/-. Thus, within one month from the receipt of the notice they paid up a total amount of Rs. 48/- towards the arrears of Rs. 108/-. One of the contentions raised on behalf of the tenant in that matter was that in view of part payment of Rs. 48/- the rent which was in arrears was not for a period of six months and, therefore, Clause (a) of Section 12(3) of the Act was not applicable. This contention was rejected by Gokhale J. in the following words:

This argument is devoid of any substance. The mere fact that a tenant makes a part payment in respect of rent or permitted increases in arrears, about which a notice is given to him under Section 12(2) of the Act before the expiration of the period of one month, will not protect him. The wording of Section 12(3)(a) that '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 after notice referred to in Sub-section (2)' must imply in the context that the' tenant must make payment of the entire amount of rent or increases which are in arrears for a period of six months or more if he wishes to avoid the consequences of his earlier default.

Relying upon these observations Shri Shah contended that the instant case should also be considered as covered by Clause (a) of Section 12(3) of the Rent Act.

13. With due respect to the Learned Judge who has decided the above Bombay case I find myself unable to be convinced of the view that even though, the rent for a particular period is actually paid by the tenant and received by the landlord, the rent for that period should be considered as in arrears. In order to appreciate the position properly it would be necessary to quote Clause (a) which is in the following terms:

Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted 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 after notice referred to in Sub-section (2), the Court may pass a decree for eviction in any such suit for recovery of possession.

Now in the Bombay case the learned Judge has put emphasis on the following sentence of this clause:

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 after notice referred to in Sub-section (2)

Quoting this portion of the Clause (a) the learned Judge has held that this sentence must imply that the tenant must make payment of rent or increases which are in arrears for a period of six months if he wishes to avoid the consequences of his earlier default. Since the learned Judge has not elaborated how the above quoted sentence brings out the implication referred to by him it would be necessary to consider whether this sentence does in any manner take away the effect of the part payment of rent which is found to be in arrears of six months. It is obvious that the word 'such' which appears in the opening of the sentence refers to that rent which is payable by month and about which there is no dispute regarding the amount of standard rent. This word 'such' therefore has no reference to the arrears of six months and if that be so, how can it be contended that even though rent of six months is not found to be in arrears on the date of the suit Clause (a) would have application to the facts of the case? Part payment of rent in response to the notice demanding six months' arrears would obviously wipe out the arrears of a few months and if as a result of the wiping out of these arrears, the rent which is found due on the date of the suit is less than six months' arrears, then obviously one of the requirements of Clause (a) remains totally unsatisfied. In that view of the matter the above quoted sentence of the clause on which the learned Judge has based his interpretation does not appear to be of any help to the petitioner in bringing the case within the consequences of Clause (a).

14. Shri Shah, however, contended that the expression 'thereof which is found used in the above quoted sentence refers to the payment of the arrears of six months and, therefore, if the tenant fails to make payment of the whole of the arrears of six months within one month after the receipt of the notice of demand the clause would come into operation inspite of the fact that he has preferred to make a part payment. Even this contention is not acceptable because the moment the landlord accepts the part payment of the arrears which have fallen due for six months the consequence is that the period for the arrears is reduced to the extent to which the part payment is made and, therefore, it cannot be said that the tenant is found to be in arrears of six months. The above quoted sentence of the clause stipulates two things namely (1) there should be arrears of rent for a period of six months; and (ii) there should be a neglect to make payment of the arrears within one month after the receipt of the notice. Unless both these conditions are satisfied it cannot be said that Clause (a) would come into operation. Now in a case where after finding that a tenant has fallen in arrears of six months, landlord accepts part payment of the rent in arrears and thereby reduces the period of arrears to something less than six months, the first of the two conditions mentioned above remains totally unsatisfied and in that view of the matter, Clause (a) of Section 12(3) would have no operation at all. In view of this, I do not find it possible to follow the line of reasoning adopted in the above referred Bombay decision.

15. Shri Shah also relied upon some of the observations made by a Division Bench of this Court in Shah Ambalal Chhotalal v. Shah Babaldas Dahyabhai reported in 3 G.L.R. 625. In that case a contention was raised before this Court that in case which otherwise falls under Clause (a) of Section 12(3) of the Rent Act if a tenant pays up arrears at any time before passing of the decree he would be saved from eviction. This contention was rejected by this Court in the following words:

It is obvious that such arrears must be for six months or more and must be due at the date of the notice because in order to avoid Sub-section (3)(a), the tenant has to pay the arrears before the expiry of one month from the date of notice under Sub-section (2). That being so, any payment made subsequently, that is, after the expiry of one month after the date of service of notice cannot save the tenant from the operation of Sub-section (3)(a). Consequently the provisions of Sub-section (3)(a) would be rendered nugatory and would be of no effect if the tenant were said to be protected by Sub-section (1) even when he pays up such arrears at any time before the passing of the decree.

All that these observations go to show is that payment made subsequently after the expiry of one month from the date of the service of notice cannot save the tenant from operation of Clause (a). These observations have no application to the facts of this case because here part payment towards arrears has been made not after the expiry of one month from the date of the service of notice but, before that period of one month expired. In fact, in Ambalal's case the tenant had made absolutely no payment till the suit was instituted. But the above observations were made in reply to the contention raised on behalf of the tenant that payment of arrears at any time before the decree was passed could save the tenant from the operation of Clause (a). I am, therefore, of the opinion that even the observations made in Ambalal's case do not help the petitioner.

16. Shri Shah then relied upon the decision given by Supreme Court in Manorama v. Dhanlaxmi : [1967]1SCR135 . In that case the Supreme Court has held that if conditions under Section 12(3)(a) are not satisfied the tenant cannot claim any protection from eviction under the Rent Act and that by tendering the arrears of rent after the expiry of one month from the service of the notice under Sub-section (3) he cannot claim the protection under Sub-section (1) of Section 12. It is further observed that it is immaterial whether the tender was made before or after the institution of the suit. In a case falling within Sub-section (3)(a), the tenant must be dealt with under the special provisions of Sub-section (3)(a), and he cannot claim any protection from eviction under the general provisions of Sub-section (1). These observations are relevant for the purpose of considering whether in a case falling under Section 12(3) of the Rent Act a tenant can claim any general protection contemplated by Sub-section (1) of Section 12. The Supreme Court has answered this question in the negative. Of course the observations are clear enough to show that even if the tender is made after the expiry of one month from the service of the notice but before the suit was filed that would not save the case from the consequences of Clause (a), but, these observations would obviously not apply to the case in which the landlord himself has accepted the part payment of six months' arrears of rent before the period of one month from the service of demand notice has expired. In cases where landlord accepts such part payment what he does in effect is to wipe out to an extent the arrears of six months with the result that he cannot claim advantage of Clause (a) of Sub-section (3) of Section 12 on the ground that on the date of the suit six months' rent was in arrears. In my opinion, therefore, so far as the peculiar facts of this case are concerned even the decision given by the Supreme Court in Manorama's case does not help the petitioner.

17. Shri Shah put further reliance upon the decision given by this Court in Jagmohan Ratilal v. Jayantilal reported in (1973) 14 G.L.R. 161. The facts of that case were that the tenant was in arrears of rent from September 1, 1967. The amount of rent in arrears came to Rs. 350/- on April 26, 1968. Thus it came to arrears for seven months. On that day i.e. on 26th April, 1968 the tenant sent a money order for Rs. 200/- which amount was sufficient to cover only four months rent as against the arrears of seven months. In the Money Order coupon he stated that the rent sent was to cover four months from November 1st, 1967. This money order was, however, refused by the landlord. It was this act of the tenant in sending money order for a lesser period of seven months, and the refusal of the landlord to accept the same, which gave rise to the question as to the legal effect of the tender of a few months' rent to the landlord by a tenant who was admittedly on the date of the tender in arrears for a period greater than the period covered by the amount tendered. The facts of that case further show that after the above referred refusal of the money order the rent for the month of April became due. Landlord thereafter gave an eviction notice no May 13, 1968 to the tenant terminating the tenancy with effect from June 30, 1968 coupled with the demand for payment of rent in arrears upto that date. That notice was received by the tenant on May 14, 1968. On May 30, 1968 the tenant sent Rs. 300/- only towards the arrears and then on June 18,1968 i.e. a few days after the expiry of one month after the receipt of the eviction notice the tenant sent by money order an amount of Rs. 450/- which covered the full amount of rent due as on June 1st, 1968 i.e. the amount of seven months from 1st September, 1967 to May 31, 1968.

18. On these facts my learned brother Shri D.P. Desai J. observed that the tender of a portion of the rent in arrears made by the tenant on April 26, 1968 by Money Order was not a proper tender as in his opinion by tendering rent of smaller amount the tenant could not show that he had paid the rent or that he was ready and willing to pay the rent within the meaning of Section 12(1) of the Act. The reason for this proposition is given by the learned Judge as under:

This is so for the simple reason, that the default contemplated by Section 12(1) which would for the time being enable the landlord to proceed further in accordance with the scheme of that section has continued, inasmuch -as the full amount of rent in arrears has not been paid or tendered by the tenant. Such a default would, therefore, entitle the landlord to take recourse to Section 12(2) of the Act and give a notice of demand. Now, it is true that tender of full amount of rent would be equivalent to payment. But, to say by analogy that tender of part of the amount of rent would be equivalent to part payment is neither logical nor rational. If once we proceed on the basis that the whole of the amount of rent which had fallen into arrears becomes payable in a lump sum to the landlord by the tenant by virtue of a single contract, that the tenant has entered into with the landlord or by virtue of a similar obligation, arising under the statute, it is clear that sending of the amount of four months' rent by money order on April 26, 1968 was nothing but part payment towards this lump sum. Such part payment is not effective for the purpose of Section 12(3)(a) of the Act. It is obvious that the law of procedure treats periodical rent which has fallen into arrears for a number of years or months as a single debt arising upon one cause of action viz. the contract to make payment periodically contained in the contract of tenancy.

Thus this proposition proceeds on the principle that tender of a part of the amount of rent in arrears is not a proper tender and, therefore, the landlord would be entitled to refuse to accept the amount so tendered. It is obvious from the facts of that case that these observations apply to a case in which the tender of a part of the rent in arrears by a tenant is not accepted by the landlord. That case does not consider the legal consequences which would ensue from the acceptance by the landlord of such a tender made by a tenant. In fact, the learned Judge has been careful enough to note the distinction between the two situations, namely, the case in which the tender of a part of the rent in arrears is refused by the landlord, and the case in which such a tender is accepted by the landlord. This is evident from what the learned Judge himself has said in paragraph 10 of his reported judgment. Reference to this paragraph shows that the learned Advocate who argued the case of the tenant before the learned Judge put reliance upon the Bombay decision in Isabel M. Rebello v. Kasarchand Anandram Banthfa reported in 74 Bombay Law Reported 114 wherein a single Judge of Bombay High Court has taken a view that where a tenant in arrears of rent of six months or more pays to his landlord within one month of the receipt of notice under Section 12(2) of the Bombay Rent Act, sufficient rent so as to reduce the arrears of rent to less than six months, the principles of Clause (b) and not Clause (a) of the Sub-section (3) of Section 12 of the Rent Act would apply. This Bombay decision is found to be on all fours with the facts of the present case. Shri D.P. Desai J., therefore, referred to this decision and distinguished it from the facts of the case before him in the following words:

It appears that the observations reproduced above were based on the peculiar facts of that case viz. that the landlord, by a subsequent act of acceptance of part payment towards arrears, reduced the arrears from six months or more to less than six months. I am not called upon to decide whether Section 12(3)(a) would yet be applicable in such a case in the circumstances of the present case. But from these observations, it cannot be argued that the tender of part of the arrears of rent even if refused by the landlord can operate to reduce the arrears to less than six months.

In my opinion the distinction pointed out by Shri Desai J. is very material because the very fact of acceptance of a part payment of rent in arrears by the landlord would obviously suggest that the landlord himself has not preferred to treat the rent in arrears as a 'lump sum' due and has, by the very act of acceptance, reduced the arrears from six months to less than six months and if such a reduction is proved from the conduct of the landlord himself then it is difficult to apply the provisions of Clause (a) of Section 12(3) of the Rent Act to such a case. I, therefore, find that even this decision of Jagmoham Ratilal v. Jayantilal is of no help to the petitioner in this case.

19. Shri Divetia who appeared on behalf of the opponent tenant contended that even when the notice Ex. 40 was given by the landlord the rent of six months was not in arrears in view of the admitted position that an amount of Rs. 9/- was already credited to the account of the tenant towards his arrears. The learned Judge of the lower appellate court seems to have been impressed by this contention of the tenant and has, therefore, held that even on the date of the notice Ex. 40 the tenant was not in arrears of full six months' rent. In my opinion this contention of the tenant is not acceptable because in a monthly tenancy, suit for payment of rent is the whole month and cause of action for the recovery of a particular month's rent would arise only at the expiration of that month. Therefore, the rent which the tenant is bound to pay for the whole month represents a distinct cause of action and if that be so, paid payment of the rent for a month cannot be considered as the payment of rent for that month. In other words, even if a tenant makes part payment towards the rent of a particular month it cannot be said that he is not in arrears of rent for that month. Under the circumstances, the learned appellate Judge was not right in holding that on the date of the notice Ex. 40 the tenant was not in arrears of six months' rent.

20. It follows from the above discussion that this is not a case which is governed by Clause (a) of Section 12(3) of the Rent Act. But this does not solve the matter because it was contended on behalf of the petitioner that the tenant would still be liable to eviction inasmuch as he has not fulfilled the conditions of Clause (b) of Section 12(3) of the Act because, it is an admitted position that on the first day of hearing he has not paid up the whole amount of the rent in arrears which was found due on that date. As already stated above, rent deposited by tenant on the first day of the bearing was short by Rs. 119. Therefore, prima facie it cannot be disputed that the tenant has not deposited the rent in arrears on the first day of the hearing of the suit, though he has deposited the whole amount of rent in arrears on subsequent dates. Therefore, the question is what is the effect of this position? While considering this question it should be remembered that in his written statement the tenant had raised a question as regards the standard rent, and had requested the court to fix the same. However, the court did not fix any interim standard rent and even after the tenant moved the court by his application Ex. 25 the court, at the request of the other side decided to dispose of the question of standard rent at the time of disposing the suit itself. The question which therefore, arises to be determined is the legal effect of the want of court's order as regards interim standard rent so far as Clause (b) of Section 12(3) of the Rent Act is concerned. The answer to this question is supplied by two decisions of this Court. One given by a single judge in Harnamsing Lafsing v. Gangaram : (1968)9GLR323 and the other a Division Bench in Nanji Pancha v. Daulal : (1970)11GLR285 . In both these decisions it is held that where there is a dispute about 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 another date by the Court for payment or tender would be ineffectual until the standard rent is fixed. It is further observed that in the absence of the Court acting suo motu to regularise payments or for fixing some other date for payment, the tenant would never be able to chain protection under Section 12(3)(b) as the first date of hearing had already gone and the subsequent payments could only be made under the order of the court. According to both these decisions law imposes a fetter on the power of the court to pass a decree for eviction without considering whether the tenant was protected under Section 12(3)(b). It has further taken the view that when the benefit of Section 12(3)(b) could be only availed of if the court fixes the amount of standard rent, it becomes the mandatory duty of the court to exercise the above said power of suo motu so that the benefit of that Section 12(3)(b) is not rendered illusory. According to these decisions even at the stage of appeal or revision the court would have suo motu to exercise power to give time to the tenant to pay up the dues before passing any decree for eviction. It is thus obvious that both these decisions of the court cast a duty on the court to fix the amount of standard rent in cases where the dispute of standard rent is raised by the tenant and that unless this duty is performed by the court the tenant cannot be held liable for eviction on the ground that he has not complied with the provisions contained in Clause (b) of Section 12(3) of the Rent Act. Since in the instant case the court has failed to perform its duty in fixing the standard rent suo motu even though the tenant had raised a dispute as regards the standard rent, it cannot be said that the tenant has lost the protection even by Clause (b) of Section 12(3).

21. Mr. Shah, however, contended that both the decisions above referred to are contrary to some specific observations made by the Division Bench of this Court in Ambalal v. Babaldas (1962) 3 G.L.R. 625. The argument which was advanced on behalf of the tenant in that case was that under Sub-section 3(b) of Section 12 even if the tenant does not satisfy the conditions therein laid down, the court has discretion not to pass a incree for eviction. This argument was repelled in the following words

It is true that Sub-section (3)(b) does not provide that a decree shall be passed if the conditions therein laid down are not performed by the tenant. But that do mean also that there is any discretion left in the Court, statutory or otherwise not to pass a decree where under the general law of landlord and tenant, or under the Transfer of Property Act, the landlord is entitled to a decree, unless there thing in that law or the terms of the lease which debars the landlord to obtain a decree.

Thereafter speaking about the scheme provided by the legislature in Clause (b) of Section 12(3) of the Rent Act the court has observed as under

Sub-section (3)(b) does not contemplate two dates to be fixed by the court to enable the tenant to pay the arrears or tender them in Court. If the tenant were to avail of the protection provided to him by Sub-section (3)(b), he has to deposit all arrears due either on the first day of the hearing of the suit or to pay or tender in Court such arrears on a date fixed by the Court and to continue to pay regularly such tent and permitted increases till the suit is finally decided and also pay costs of the suit as provided by the Court. It is clear from Sub-section (3)(b) that if the tenant has failed to pay 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. It is obvious that Sub-section (3)(b) does not contemplate more than one date for the payment of arrears or tender thereof in Court. With the greatest respect, it is difficult to understand how making partial deposits of arrears due on two different dates without applying for a date would constitute compliance of the conditions laid down in Sub-section (3)(b).

These observations do give support to the contentions raised by Shri Shah on behalf of the petitioner but, the subsequent two decisions referred to above are based on the interpretation given by this Court to some of the observations made by the supreme Court in Vora Abbasbhai v. Haji Gulamnabi : [1964]5SCR157 . In particular, Mehta J. who has decided the case of Harnamsing Gangaram has referred to these observations in paragraph 3 of his judgment and has put emphasis on the following observations taken from Vora Abbasbhai's case:

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.

Relying upon these observations Mehta J. has observed that they clearly lay down that where there is a dispute about the standard rent the tenant would not be in a position to pay or tender the standard rent on the first day of the hearing and, therefore, m cases where the tenant makes an application to take up the issue of standard rent at an early stage or where no such application is made, the tenant can be protected under Section 12(3)(b) only if the court acts suo motu to regularise payment made or by giving some time for payment of arrears on the basis of standard rent fixed by it under Section 11(1). In the subsequent decision of the Division Bench given in Nanji Pancha (supra) exactly the same view is taken by Mehta J. who has spoken for the Division Bench. Under the circumstances it follows that these decisions are primarily based on what the Supreme Court is found to have laid down in Vora Abbasbhai's case and if that is so, the previous decision of this Court given in Ambalal's case cannot provide a binding authority so far as this limited question is concerned.

22. In this connection it would not be out of place to refer to another aspect of this very question. It should be noted that Clause (b) of Section 12(3) ends with the expression 'as directed by the court'. In C.R.A. No. 1215 of 1968 Akbarali Hussainbhai v. Abdulgafar Mohmadkhan XV G.L.R. 238 I had an occasion to consider whether these words govern the whole of Clause (b) or only the requirement as to the payment of cost. After analyzing the provisions of Clause (b) I have taken a view that these words govern the whole of the clause. So far as the first date of the hearing is concerned, effect of these words are considered in that case in the following observations

On close scrutiny of the language employed by the Legislature in Clause (b) I find that it is not possible to agree with the interpretation canvassed by Shri Shah. Before interpreting this clause and finding out the intention of the Legislature as evidenced from its language, one important fact which is required to be borne in mind is that Clause (b) applies to those cases wherein there is a dispute either as regards the amount of standard rent or as regards the amount of permitted increases. Now in case of such disputes, Clause (b) contemplates that if the tenant wants to save himself from eviction he should pay or tender in court the amount of standard rent and permitted increases then due on the first day of hearing of the suit. It is obvious that in cases where there is a dispute between the parties either as regards the standard rent or as regards the permitted increases, it is difficult to comprehend what amount of standard rent or permitted increases a tenant should deposit in court on the first day of hearing without the directions of the court. The very fact that he is supposed to deposit nothing more than the amount of standard rent and permitted increases suggests, that if this amount is in dispute between the parties, the intervention of the court is necessary, because, the fate of a statutory protection cannot be left to the vagaries of the judgment of a litigant interested in the result of the suit. Therefore, the directions of the court would be necessary in order to enable the tenant, who disputes the amount of standard rent and permitted increases, to make a proper payment or tender thereof in court on the first day of hearing. This? one very important reason why the words 'as directed by the court' which appear at the end of the Clause (b) should govern the whole of this clause. If it is found that these words cover only the payment of costs, as is contended by Shri Shah, and if it is believed that it is for the tenant to decide what standard rent and permitted increases he would pay or tender in the court on the first day of hearing, then obviously the provisions of Clause (b) would be rendered meaningless.

Since in the instant case it is an admitted position that the Trial court bad not given any directions for the deposit to be made by the tenant, the present case is completely covered by the above observations.

In my opinion, therefore, this is not a case in which the tenant can be said to have lost the protection conferred on him by Clause (b) of Section 12(3). This Revision Application, therefore, fails and the rule is discharged without any order as to costs.


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