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Nanji Pancha Vs. Daulal Naraindas - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1970)11GLR285
AppellantNanji Pancha
RespondentDaulal Naraindas
Cases ReferredShah Bhojrajkuar Oil Mills v. Subhashchandra
Excerpt:
- - the appellate court also held that it was well settled after the decision of the supreme court in vora abbasali v. 55 that after the court resolved the dispute about the standard rent it had to fix the date for depositing arrears of standard rent along with the costs of the suit and the decree of eviction could be passed only after the tenant failed to comply with the said order. ) 868) by the full bench of seven judges, it is now well settled that the present revision application which was filed on 4th april 1964 would have to be disposed of under section 115 of the civil procedure code because the amendment which was introduced by section 29(2) of the act and which conferred wider jurisdiction on this court had no retrospective effect. nanavati vehemently relied upon the last.....j.b. mehta, j.1. this revision application has been referred to the division bench by my learned brother thakor j. on 13th march 1968. this revision application was filed on 4th april 1964 against the order of the district judge, kutch, dated 23rd january 1964 by which he allowed the tenant's appeal and dismissed the plaintiff's suit for possession both on the ground of arrears of rent and subletting. the learned district judge had confirmed the finding of the trial court as regards the standard rent of the suit premises.2. the short facts which have given rise to this petition are as under: the suit shop is situated in gandhidham. it was purchased on 13th september 1961 by the plaintiff for rs. 6,000 and at that time the defendant-tenant was attorney to the plaintiff. the contractual.....
Judgment:

J.B. Mehta, J.

1. This revision application has been referred to the Division Bench by my learned brother Thakor J. on 13th March 1968. This revision application was filed on 4th April 1964 against the order of the District Judge, Kutch, dated 23rd January 1964 by which he allowed the tenant's appeal and dismissed the plaintiff's suit for possession both on the ground of arrears of rent and subletting. The learned District Judge had confirmed the finding of the trial Court as regards the standard rent of the suit premises.

2. The short facts which have given rise to this petition are as under: The suit shop is situated in Gandhidham. It was purchased on 13th September 1961 by the plaintiff for Rs. 6,000 and at that time the defendant-tenant was attorney to the plaintiff. The contractual rent was Rs. 35 per month. As the defendant was in arrears of rent, notice under Section 12(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, hereinafter referred to as 'the Act' was served by the plaintiff on the defendant on 15th December 1961. On 20th December 1961 the defendant-tenant made an application before the trial Court for fixation of the standard rent and for determining the interim rent which he should deposit in the Court. No order was however passed by the Court specifying the amount of the interim rent. On 26th February 1962 the plaintiff filed the present suit for eviction on the grounds that the defendant was in arrears of rent to the tune of Rs. 161 for the period from 13th September 1961 to 31st January 1962, and that he had illegally sublet the suit premises. The defendant filed his written statement on 19th April 1962 denying all these contentions of the plaintiff. By a joint purshis of the parties on 25th April 1962; both these proceedings regarding the fixation of the standard rent and the suit for eviction were consolidated by the trial Court. On 30th April, 1962 defendant-tenant deposited Rs. 200 which would cover standard rent till 8th May, 1962. There was no further deposit till 3rd August 1962, when issues were framed. On 3rd August 1962 the total dues in respect of standard rent came to Rs. 266-66P, while the deposit as aforesaid was Rs. 200 only. Thereafter the defendant continued to deposit the rent in Court and upto 9th April 1963 he had deposited a sum of Rs. 450. There is no dispute that at the rate of this standard rent which is fixed by the trial Court at the time of judgment the amount which was deposited was in excess of the amount due to the plaintiff. The trial Court, however, held that the defendant was in arrears at the date of the first hear-ing and so he had not complied with Section 12(3)(b) of the Act. The trial Court also held him guilty of subletting and on both these grounds passed a decree of eviction. In the other application it fixed the standard rent at Rs. 25 per month. The appellate Court, however, reversed this decree. The appellate Court held that no sub-letting was proved. The appellate Court also held that there was no obligation on the tenant to pay or deposit the amount of costs, unless the Court had issued any direction. The appellate Court also held that it was well settled after the decision of the Supreme Court in Vora Abbasali v. Haji Gulamnabi V G.L.R. 55 that after the Court resolved the dispute about the standard rent it had to fix the date for depositing arrears of standard rent along with the costs of the suit and the decree of eviction could be passed only after the tenant failed to comply with the said order. As such an opportunity was not given to the tenant in question, the decree for possession could not be sustained. The appellate Court also observed that in the present case the defendant had applied for fixation of standard rent and had applied to get the interim rent fixed and the only irregularity on his part was that he did not press his request for fixation of the interim rent before the suit proceeded for trial. Merely because of this irregularity, however, the Court could not refuse to exercise its discretion to regularise all these payments and as all the arrears of rent had been deposited before the suit was finally disposed of. The appellate Court has, therefore, reversed the decree of the trial Court as aforesaid. The plaintiff has, therefore, challenged the said order in this revision application.

3. In view of the latest decision of their Lordships of the Supreme Court in Keshavlal Jethalal v. Mohanlal Bhagwandas, in Civil Application No. 1271 of 1967, decided on 2nd April 1968 (IX G.L.R. (S.C.) 868) by the Full Bench of seven Judges, it is now well settled that the present revision application which was filed on 4th April 1964 would have to be disposed of under Section 115 of the Civil Procedure Code because the amendment which was introduced by Section 29(2) of the Act and which conferred wider jurisdiction on this Court had no retrospective effect. Therefore, all the revision applications which were filed before the said amendment which was introduced on 17th June 1965 would have to be disposed of under Section 115 of the Code. Mr. Nanavati can, therefore, succeed only by showing that the error committed by the appellate Court was a jurisdictional error which can be corrected in the exercise of the powers of jurisdictional control under Section 115 of the Code.

4. Mr. Nanavati argued that the appellate Court had ignored the binding law which was laid down by this Court in the case of Ambalal v. Babaldas III G.L.R. 625, by the Division Bench consisting of J.M. Shelat J. (as he then was) and Modi J. That would of course be a jurisdictional error in the exercise of jurisdiction and if the contention of Mr. Nanavati is correct that a binding decision of this Court is not followed by the subordinate Court, the error could be corrected even under Section 115 of the Code. Mr. Nanavati argued that the appellate Court had held that the tenant complied with the provisions of Section 12(3)(b) even though the conditions mentioned in the explanation or in Section 12(3)(b) were not fulfilled as interpreted in the aforesaid decision. Mr. Nanavati vehemently relied on the observations at page 646. Section 12(3)(b) provides as under:

In any other case, no decree for eviction shall be passed in any such suit, if on the first day of the 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 explanation provides that in any case where there is a disputed as to the amount of standard rent or permitted increases recoverable under this Act the tenant shall be deemed to be ready and willing to pay such amount if, before the expiry of the period of one month after notice referred to in Sub-section (2), he makes an application to the Court under Sub-section (3) of Section 11 and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court. While interpreting this section the Division Bench pointed out at page 646 as under:

The words 'in any other case' mean in their ordinary connotation a case which does not fall under Sub-section (3)(a). Therefore, if the rent is not a monthly or the arrears, at the date of notice, of standard rent or permitted increases are not for six months or more, or there is a dispute as regards the standard rent or permitted increases at the date of the notice or before the expiry of one month from the date of service of such notice, the case would fall under Sub-section (3)(b). Sub-section (3)(b) furnishes a further safeguard in favour of the tenant even if the tenant is one who has committed default but not for a period of six months or more. Therefore, even if he has not paid inspite of locus poenitentiae having been given to him by necessitating a notice under Sub-section (2), and even if he has not availed of the explanation to show readiness and willingness and by paying the amount fixed thereunder, if he makes the payment of the arrears due, of standard rent or permitted increases and costs on the first day of the hearing, no decree of eviction can be passed against him. Even if such a tenant does not pay on the first day of hearing but has raised a dispute and applies to the Court for a date and the Court fixes a date for payment and he pays on such date the arrears and costs and continues to pay on the due date thereafter until the suit is finally decided, Sub-section (3)(b) gives him the protection. It would appear from the scheme of the section that if he raises a dispute as to the standard rent or permitted increases on receipt of the notice and resorts to the explanation to Section 12 and complies with the terms thereof, he would be protected under Sub-section (1). If he has not done so but establishes his readiness and willingness to pay the standard rent and permitted increases, otherwise than under the explanation, even then he would be protected under Sub-section (1). If he does not do so that even and pays the arrears of due and the costs of the suit, provided the arrears are not for six months or more, and his case does not fall under Sub-section (3)(a), on the first day of the hearing or on such other day fixed by Court and thereafter continues to pay on the due dates till the suit is disposed of, he would be protected under Sub-section (3)(b). Even if he does not do any of these things but raises a dispute after the service of the notice and applies under Section 11(3) for the fixation of the standard rent and pays thereunder as ordered by the Court, he would be protected. But if he does not do any of these things, he cannot get protection and it would seem that the Court has no jurisdiction to deny to the landlord the decree for possession.

Mr. Nanavati vehemently relied upon the last line and he argued that if the tenant did not comply with the explanation by making an application under Section 11(3) for fixation of standard rent and paying the amount hereunder and if he failed to pay at the first hearing the Court would have no jurisdiction to deny to the landlord a decree for possession. Mr. Nanavati also relied on further observations of the Division Bench as under:

If there is a dispute with regard to the standard rent or permitted increases, the tenant can resort to explanation and pay as directed thereunder or if he does not wish to resort to the explanation, he may file an application for fixation of the standard rent after receipt of the notice under Sub-section (2), under Sub-section 11(3) and pay as directed by the Court thereunder. If he finds that such an order is not likely to be passed by the Court before the first day of the hearing, he may ask for a subsequent date for such payment. If he does none of these things, it seem that the Court has no discretion in such a case to deny a decree to the landlord for possession. No discretion has been left to the Court under Sub-section (3)(b) to refuse such a decree. Mr. Nanavati, therefore, argued that the appellate Court completely ignores

these binding directions in refusing decree to the landlord even when tenant did not do anything to claim protection as envisaged in this decision by bringing his case within the four corners of the Act. In the present case there is no dispute that immediately after the notice under Section 12(2) was received on 15th December 1961 the tenant made an application for fixation of the standard rent and also for fixation of interim rent to be paid by him on 20th December 1961 during the period of one month under Section 11 (3). Mr. Nanavati argued that would be compliance of the first condition of the explanation to Section 12. If the tenant wanted to comply with both the conditions of the explanation, it was obligatory on his part to obtain an order from the Court fixing interim rent and to continue paying rent so fixed. The Legislature having laid down a rule of evidence in this explanation for showing the readiness and willingness, the tenant who seeks protection of the Act must get an order of fixation of interim rent in order to enable him to get this protection. Mr. Nanavati vehemently relied upon that part of the observations where the Division Bench held that if the tenant found that such an order of interim rent was not likely to be passed before the first date of the hearing, he might ask for a subsequent date for such payment and if he did none of those things the Court had no discretion to deny the decree to the landlord. We cannot agree with this contention of Mr. Nanavati that the explanation casts such an obligation on the tenant. The explanation only provides that within one month after the receipt of notice under Section 12(2) the tenant must apply to the Court under Section 11 (3) and thereafter he must pay or tender the amount of rent or permitted increases as specified in the order made by the Court. If, therefore, the Court passes no order on his application for fixation of standard rent including payment of interim rent, the tenant cannot be said to have failed to comply with the explanation. A similar question was considered by Their Lordships of the Supreme Court in the context of this Section 12(3)(b) in so far as the question of payment of costs of the suit as directed by the Court was concerned. In Vora Abbasali v. Haji Gulamnabi V G.L.R. 55 at page 61 their Lordships in terms held that the observation made by this 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.. .. ..

were in their Lordships' judgment erroneous.

Their Lordships found that the statute imposes upon the tenant obligation to pay or deposit the amount of costs if the Court so directed and not otherwise. In that view of the matter, even for considering the compliance with the explanation to Section 12 if the Court has not specified in the order under Section 11(3), the amount of interim rent to be paid or deposited by the tenant, it cannot be held that the tenant has not complied with the explanation merely because he did not press his request before the trial Court. Mr. Nanavati argued that in that event the tenant who was claiming protection should have asked the Court to extend the time by fixing another date for payment as envisaged in the aforesaid observations of the Division Bench. Those observations are obviously in the context of Sections 12(3)(b). Their Lordships of the Supreme Court in the aforesaid decision in Vora Abbasbhai v. Haji Gulamnabi V G.L.R. 55 at page 61 have pointed out the difficulties in the practical working of Sections 12(3)(b) in the following words;--

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 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 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 a date fixed. If the tenant pays the standard rent 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.

Thereafter Their Lordships referred to the explanation in Section 12 as enacting a rule of evidence and observed: 'If after the service of notice upon the tenant by the landlord under Section 12(2) the tenant makes an application under Section 11(3) and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court till the disposal of the suit, the Court is bound to presume that the tenant is at the date of the decree ready and willing to pay the standard rent and permitted increases'. Their Lordships have, therefore, held that the compliance with the order for payment of the interim rent would under the explanation be conclusive evidence of readiness and willingness to pay the standard rent which would be fixed only under Section 11(1) of the Act and which was liable to be verified or modified as per the order of the superior Court. Their Lordships also observed 'The Legislature had prescribed conditions on which the tenant might qualify for protection of his occupation, and one of the important conditions was the readiness and willingness to pay the standard rent and permitted increases, which might 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'. From the portion which we have put in the italics it is apparent that in their Lordships' view when 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 day of the hearing and fixing another date for payment or tender would be ineffectual until the standard rent is fixed. When therefore there is a dispute of standard rent where 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 infructuous until the standard rent was fixed on resolving the dispute in the final judgment. Their Lordships have no doubt pointed out that 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 up or tender the standard rent so fixed on or before the date specified. Thus the tenant has two opportunities either to comply with the explanation by getting interim rent fixed by moving Court for that purpose or he may move the Court for resolving this dispute at the earlier date to enable him the necessary payment for complying with this statutory provisions. This question had arisen before the Division Bench consisting of Bhagwati J. (as he then was) and Bakshi J. in Sureshchandra v. Maganlal VIII G.L.R. 1003. At page 1009 the Division Bench disagreed of our learned brother Raju J. in Allanur v. Balchartd III G.L.R. 182, and held that there was no reason to limit the plain and natural meaning of the words used in Section 12(3)(b) by in reducing 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, and that such application could be made even after first day of the hearing. The Division Bench further pointed out that 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.

5. In the case before the Division Bench the concerned tenant was in arrears on the date of the first hearing but he had subsequently paid up all the arrears. In order to regularise the payment made without the order of the Court, he had made an application for fixing the date for payment. The trial Court held this application to belated application. In these circumstances, the Division Bench held that 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 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). In these circumstances, the learned District Judge was found right in taking the view that the original petitioner was not entitled to obtain a decree for eviction against the respondent. Mr. Nanavati no doubt had urged that in that case an application had been made by the tenant. But that application was not for resolving the dispute of standard rent at an early date in the first instance the application was only for fixation of date for payment of the standard rent which was completely ineffectual application, as held by Their Lordships of the Supreme Court in Vara Abbasbhai's case until the standard rent was fixed. The view of the Division Bench, therefore, clearly proceeds on the footing that ignoring all technicalities the trial Court ought to have held that the tenant who had made full payment of all arrears of the standard rent and permitted increases without the order of the Court should be treated as one having protection under Section 12(3)(b) by regularising payments which were made by him. The same Division Bench in Ratilal v. Ranchhodbhai IX G.L.R. 48 at pages 58-59 held that where a tenant had been regularly depositing in Court standard rent and permitted increases at the rate 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 was enhanced by the appellate Court and no opportunity was given so 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 on or before such date so that the tenant might qualify for the protection of Section 12(3)(b). The Court could fix 'such other date' suo motu and in a case where a tenant had regularly deposited in Court standard rent and permitted increases according to the rate determined by the trial Court, the appellate Court if it enhanced 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 made 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 could go against him. In that case also it must be noted that the Court had suo motu exercised power in order to do justice between the parties. This question has also arisen before me as a Single Judge in Harnamsing Lalsingh v. Gangaram Ichharam C.R.A. No. 407 of 1963 decided on 9/10th October 1967 and since reported in IX G.L.R. 323. At the outset I had considered the aforesaid passage in Vora Abbasbhai's case and pointed out that it must be kept in mind while considering those observations of their Lordships that even if a tenant were to apply for fixation of the standard rent in the first instance before the trial Court, this could be done only after the issues were framed i.e. after the first day of the hearing and even in such a case, the Court would have to act suo mom to regularise the payments made till the date of the fixation or give the tenant some time after the fixation of standard rent to make up the deficit by paying arrears. In the absence of the Court acting suo motu to regularise payments or for fixing some other date for payment the tenant would not be able to claim protection under Section 12(3)(b) as the first date of hearing had already gone and the subsequent payments could only be made under order of the Court. Therefore, in both the cases where the tenant makes an application to take up this issue at earlier stage or when no such application is made, the tenant cannot be protected under Section 12(3)(b) unless the Court acts suo motu to regularise payments or by giving time to make payments of the arrears after the standard rent is fixed under Section 11(1). Besides in appeal if this fixation was altered, the Court would have to exercise its discretion suo motu to give time to the tenant for paying up the difference Before passing any decree of eviction. I also proceeded in that case on two settled principles (1) The first was that the law does not compel the doing of impossibilities and so performance of impossible duty must be excused. Lex non cogit ad impossibiluia, C.S.P. and L. Corpn. v. Kerala State A.I.R. 1965 S.C. 1689 at page 1691. The Court must consider the fact that none need apply in vain. If the application was bound to be ineffective, as observed by Their Lordships of the Supreme Court in Vora Abbasbhai's case, it would be obvious that where the Court postpones resolution of the dispute till the date of the judgment, there would be no opportunity for the tenant to apply under Section 12(3)(b) until the Court fixes the standard rent. (2) Another well settled principle was that no litigant ever suffers by any mistake of the Court and so if the Court had postponed resolution of the standard rent dispute till the end, the tenant could not be deprived of his statutory protection under Section 12(3)(b), merely on the ground of a technicality that he could have moved the Court earlier to resolve this dispute. The Legislature has itself conferred discretion on the Court to meet with such a situation by providing that the Court might only in its discretion fix another date for payment and by arming it suitably to direct even costs being paid by the tenant. This discretion is, therefore, conferred on the Court for doing justice between the parties. The only material question which the Court must always keep in mind is the question of the readiness and willingness of the tenant to pay which must continue till the date of the decree. This readiness can be proved by the tenant by resorting to the explanation read with Section 12(1) or by obtaining order under Section 11(1) and complying with it or by complying with the provisions of Section 12(3)(b) or otherwise. Even if the tenant did not avail of the first opportunity within one month after the first notice under Section 12(2), in such a case where there was dispute about the standard rent he could show his willingness by complying with the explanation or even if he had not done that, by showing that he had complied with Section 12(3)(b). It is only in cases where there is a dispute of standard rent that the case presents practical difficulties as pointed out by Their Lordships. Because Section 12(3)(b) by its very terms is incapable of compliance until the standard rent dispute is resolved. The whole contention of Mr. Nanavati is that the settled position of law envisages a further obligation on the tenant to apply for resolution of the standard rent dispute at an early stage for getting protection of Section 12(3)(b) even though there is nothing in the words of Section T2(3)(b) to justify any such construction; In view of the aforesaid Division Bench decisions it is clear that in all such cases the Court can fix another date not only on the application of the tenant but on the application of the landlord as well, or even suo motu and even after the first date of hearing has passed. If, however, the Court has postponed the resolution of this dispute till all the issues are settled in the case, the Court must consider the question about the exercise of its discretion which must be exercised in the light of special circumstances in the case so that no injustice is done to the tenant because this dispute was taken up at the end of the case and because the tenant was not in a position to comply with Section 12(3)(b) until the standard rent was fixed. If the amount paid by the tenant came up to the amount required to be paid up on the basis of the standard rent fixed by the Court would only have to consider the question of regularising payments made by the tenant after the date of the hearing. In certain cases the Court might have to consider whether it should fix another date for making good difference if it was otherwise satisfied of the tenant's readiness and willingness to pay. The law, however, imposes a fetter on the power of the Court to pass a decree for eviction, without considering this material question as to whether the tenant was protected under Section 12(3)(b). If, therefore, benefit of Section 12(3)(b) could be availed of only after the Court fixes the standard rent, it would be the mandatory duty of the Court to exercise its power suo motu so that the benefit of Section 12(3)(b) is not rendered illusory. Without applying its mind to this relevant question the Court cannot pass a decree for possession straight 'way on the mere assumption that Section 12(3)(6) was not complied with even though that the tenant was not in a position to comply with Section 12(3)(b). The question being one of discretion, in proper cases the Court can refuse to fix another date for paying the deficit, if that is the only way in which justice can be done as in cases where the Court would not be satisfied at all of the tenant's readiness and willingness. Therefore, we cannot agree with the broad proposition advanced by Mr. Nanavati that there is no power in the Court to proceed suo motu in such cases and that the ratio of the decision in Ambalal's case or in Vora Abbasbhai's case is that the tenant must apply for the earlier fixation of the date if he wants to get benefit of Section 12(3)(b) and if he failed to so the Court is left with no discretion and that it must pass a decree for eviction. In fact Ambalal's case lays down general principles which are applicable to all cases where the tenants are in arrears of rent, while this question assumes importance only in cases where there is a dispute about standard rent and the tenant is not in a position to comply with Section 12(3Xb) until standard rent is fixed. It is in such cases that it would be a mere technicality to insist that the tenant must have moved the Court to resolve the dispute at an early stage. The Court must look to the question of doing substantial justice by satisfying itself as to whether it is a case where it must exercise discretion suo motu as it had postponed resolving the dispute about standard rent till the decision of all the issues. In, cases where only thing required is regularising payments made the Court would readily exercise its discretion while in other cases it can even order costs when it gives further time for making good the deficit in payments or it may even totally refuse to exercise discretion. But in all cases the Court has to exercise discretion judicially on the facts and circumstances of the case. Mr. Nanavati had also pointed out the latest decision of their Lordships in Shah Dhansukhlal v. Shah Chhaganlal Valichand, C.A. 455 of 1965 decided on 1st March 1968 (IX G.L.R. 759). In that case Their Lordships only negatived the contention based on the decisions of Their Lordships in Shah Bhojrajkuar Oil Mills v. Subhashchandra 1962(2) S.C.R. 159, that the provisions of Section 12(1) were applicable throughout the suit and throughout the hearing and that the tenant was protected even if he paid up all the arrears due at that stage of passing of the decree. Their Lordships held that Section 12(1) must be read along with the explanation. Therefore, to be within the protection of Section 12(1) where the tenant raises dispute about the standard rent within one month of the service of the notice under Section 12(2) he must make application to the Court under Section 11(3) and thereafter pay or tender the amount of standard rent or permitted increases, if any, specified in the interim order made by the Court. Mr. Nanavati vehemently relied upon the further observations, 'if he does not approach the Court under Section 11(3) it is not open to him thereafter to claim protection under Section 12(1). 'These observations of Their Lordships are only to be understood in the context of that case. Their Lordships, however, never meant to hold that even if the tenant made an application under Section 11(3) for fixation of standard rent and for fixing interim rent and if the Court did not specify any such amount, the tenant must be held not to have complied with the explanation and that he was not within the protection of Section 12(1). Until interim rent was specified by the Court the tenant could not be said to have not complied with the explanation and Section 12(1) when read together. In that case Their Lordships had in fact found that the tenant did not make any application under Section 11(3) and, therefore, he was not entitled to protection under Section 12(1). He was also not entitled to protection of Section 12(3)(b) as at the first date of hearing there were arrears and even subsequently the tenant failed to pay or tender any amount in the Court. In these circumstances, Their Lordships held that the tenant was not ready and willing to pay. It is clear from this decision that no such principle has been laid down as contended by Mr. Nanavati that unless the tenant made an application asking the Court to resolve earlier the dispute about the standard rent, the Court had no jurisdiction to exercise its discretion suo motu to fix the time after it resolved dispute even for regularising the payments. In fact, this question was not before Their Lordships. In this view of the matter, we cannot agree with any of the two contentions raised by Mr. Nanavati that the tenant in the present case had not complied with the explanation even though he made an application under Section 11(3) and when no amount of interim rent was fixed by the Court. Similarly also we cannot agree with him that under the settled law the Court has no jurisdiction to exercise discretion suo motu if the tenant did not move the Court at earlier stage to resolve the dispute of standard rent. The lower appellate Court had, therefore, proceeded on the right principle and had not committed any error, much less a jurisdictional error, in holding that it would be a mere technicality and if the matter was looked from the substance regularisation of payments which were made could be done by the Court by extending time and it must be held that the tenant had complied with Section 12(3)(b). In that event, in view of this., finding of the lower appellate Court there is no jurisdictional error whatever, on the basis of which the decision can be interfered with. As regards the last contention of Mr. Nanavati, the finding on the question of subletting was clearly a finding of fact which cannot be challenged in revision.

6. Therefore, no ground has been made out which would justify our interference in this revision. The revision application, therefore, fails and is dismissed. Rule discharged with costs.


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