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Harnamsing Lalsing Vs. Gangaram Itchharam - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1968)9GLR323
AppellantHarnamsing Lalsing
RespondentGangaram Itchharam
Cases ReferredSureshchandra v. Maganlal
Excerpt:
.....date of hearing, if the amount paid comes up to the amount arrived at on the basis of the standard rent fixed or to extend time for making good the difference. , 1003. in that case also there was a dispute about the standard rent which was resolved only at the time of the judgment and not at any earlier stage, as neither the tenant nor landlord bad moved the court nor the court had suo motu resolved the dispute about the standard rent at earlier stage. the division bench also pointed out that where the standard rent is enhanced in appeal, the appeal court also could 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 bearing of the..........such standard rent so fixed, on or before the date specified. 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 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 the aforesaid section 12 as enacting a rule of evidence. if after service of the notice by the landlord the tenant makes an application under section 11(3) before the expiry of a month and thereafter pays or tenders.....
Judgment:

J.B. Mehta, J.

1. This revision application raises an interesting question of protection under Section 12(3)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, hereinafter referred to as 'the Act', in case of a tenant in whose case the dispute about standard rent raised by him in the reply to the notice under Section 12(2) has been resolved by the Court only at the time of the judgment and who is not in arrears on that day. Both the lower Courts had held that the present case was covered by Section 12(3)(a) of the Act. The lower appellate Court had further held, in the alternative, that the tenant was not entitled to protection under Section 12(3)(b) of the Act. On that basis as both the Courts have passed a decree of eviction against the tenant, the tenant has filed the present revision application.

2. Turning first to the question of Section 12(3)(a) of the Act it is clear that in the present case the most important ingredient of that section viz. that there must be no dispute regarding the amount of standard rent or permitted increases is not fulfilled. The lower Courts have only considered the later part of the tenant's reply at Ex. 39 where he had sought from the plaintiff particulars about standard rent and permitted increases and on that basis it was held that the tenant had not raised any bona fide dispute at all by merely seeking such particulars. If we turn to the reply at Ex. 39, the tenant had specifically raised two main disputes (1) that the Chawk having been taken away from him, his leased area was reduced and to that extent there was an increase of rent, and (2) that the monthly tent of Rs. 12/-, which the landlord in his notice stated to be exclusive of water tax and latrine tax, was inclusive of the said two taxes. It is true that ultimately in both the Courts the tenant was not able to establish that the Chawk had been taken away from his possession. He, however, succeeded in proving the second part of the dispute. The trial Court held on issue No. 4 that Rs. 12/- was the standard rent, inclusive of all taxes. It further held that as the water connection had been discontinued, the plaintiff was entitled to be paid only Rs. 10/- per month from the date of the suit till he restored water connection to the defendants. It is clear, therefore, that not only the tenant had raised the dispute about the standard rent and permitted increases but also succeeded in getting a decision in his favour on the main part of the dispute that the standard rent of Rs. 12/ - was inclusive of taxes and not exclusive of taxes as contended by the landlord. Both the Courts, therefore, obviously erred in holding that Section 12(3(a) of the Act applied to the facts of the present case.

3. The material question which still remains to be considered is whether the tenant was protected under Section 12(3)(b) of the Act. The trial Court had not gone into this question on its finding as regards the applicability of Section 12(3)(a), as no subsequent deposit would be of any avail to the tenant. The lower appellate Court, however, held that the tenant was not protected under Section 12(3)(b) on two grounds: (1) that the tenant had deposited Rs. 150/- on 27-9-60 and so, he was in arrears on the first date of hearing on which the issues were settled viz. 22-12-60, as subsequent deposit of Rs. 150/- was made on 4-4-61, and (2) that the tenant had not deposited costs of the suit. Both these grounds proceed on an obvious misconception of law as I will presently show. The law is now well settled that costs are to be paid only when directed by the Court. Besides, merely because arrears at the contractual rent were not deposited on the first date of hearing, protection under Section 12(3)(b) is not lost. In cases of this kind where there was a dispute about the standard rent, the tenant would not be in a position to pay the standard rent until dispute was determined and the Court had fixed standard rent amount under Section 11(1) of the Act. Therefore, on such fixation of the standard rent amount the Court is duty bound to go into the question whether it should exercise discretion to enable a tenant to comply with Section 12(3)(b) of the Act.

4. Section 12(3)(b) runs as under:

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.. ... ... ... ... ...Explanation. In any case where there is a dispute 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.

In Vora Abbasbhai v. Haji Gulamnabi : [1964]5SCR157 while interpreting this section, their Lordships of the Supreme Court have held that what the tenant has to pay or tender in Court to comply with the conditions of Section 12(3)(b) is the standard rent and permitted increases and not the rent specified as interim rent under Section 11(3). Besides, Section 12(3)(b) merely gives the Court power to fix date for payment or tender and not rate at which the standard rent is to be paid. Power to fix the standard rent of the premises is exercisable under Section 11(1) alone. Their Lordships further held that to bring the claim within Section 12(3)(b), the tenant may pay or tender the standard rent and permitted increases on or before the first date of hearing or on or before such date as the Court may fix and also costs of the suit as directed by the Court. Their Lordships overruled certain observations of this Court and held that the statute imposed upon the tenant obligation to pay or deposit the amount of costs if the Court so directs and not otherwise. Then comes the material part of their Lordships' observations in para 10 as under:

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 continues 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 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. 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 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 the aforesaid Section 12 as enacting a rule of evidence. If after service of the notice by the landlord the tenant makes an application under Section 11(3) before the expiry of a month and thereafter pays or tenders regularly the amount of interim rent specified 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 held that compliance with an order for payment of interim rent was under this explanation made conclusive evidence of the readiness and willingness to pay the standard rent fixed under Section 1.1(1) of the Act, which was liable to be varied or modified as per the order of superior Court. Thereafter, their Lordships observed that the Legislature has prescribed conditions on which the tenant may qualify for protection of his occupation and one of the important conditions is the readiness and willingness to pay the standard rent and permitted increases which may be proved by obtaining an order of the Court fixing the rate of the standard rent and complying therewith or by complying with the Explanation to Section 12 or otherwise. The whole controversy in the present case is as to the true effect of the ratio of the aforesaid decision of their Lordships of the Supreme Court. Mr. Vyas vehemently argued that we should not mix up the two separate concepts: One of making an application for fixation of the standard rent, and the other of only fixing of the date for payment or tender of the standard rent. Mr. Vyas conceded that from the aforesaid decision it was clear that where the standard rent itself was in dispute until the standard rent was fixed, the tenant would not be in a position to comply with Section 12(3)(b) by paying or tendering the standard rent and even fixation of another date by the Court for such payment or tender would be ineffective, until the standard rent was fixed. Mr. Vyas, however, vehemently argued that on the other part of the question their Lordships had clearly answered the question that it was obligatory on the tenant to make an application for fixation of the standard rent at earlier stage if he wanted to avail of an opportunity to comply with the provisions of Section 12(3)(b), in such a case, where there was dispute about the standard rent and if he failed to do so, he would be disentitled from claiming any protection under Section 12(3)(b). In other words, Mr. Vyas seeks to contend that this was the only way in which readiness and willingness to pay the standard rent or permitted increases can be proved by the tenant by obtaining at an early stage an order of fixation of the standard rent under Section 11(1) of the Act. To accept this contention would be to ignore the later part of their Lordships observations which have been already mentioned to the effect that the tenant may show that he was at the date of the decree ready and willing to pay the standard rent and permitted increases by obtaining an order of the Court fixing the standard rent under Section 11(1) and complying therewith or by complying with the Explanation to Section 12 or even otherwise. Therefore, obtaining an order under Section 11(1) by the tenant was not the only method which was indicated by their Lordships, which if not followed, disentitle the tenant from claiming protection under Section 12(3)(b). The judgment of their Lordships, however, clearly lays down in the portion in para 10 already shown in italics by me, 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 of another date by the Court for payment or tender would be ineffective until the standard rent is fixed. After laying down this effect of Section 12(3)(b), their Lordships merely suggest a way out of the difficulty by pointing out that the tenant may request the Court as he would be ordinarily interested to claim protection to take up the dispute as to the standard rent in the first instance and get the standard rent, fixed. In such cases having fixed the standard rent the Court may call upon the tenant to pay or tender such standard rent so fixed on or before the date fixed, which would enable the tenant to comply with the provision of Section 12(3)(b). The most important thing to be noted while understanding these observations of their Lordships is that even when the tenant applies to the Court to take up the dispute about the standard rent for determination in the first instance, this would be done only after the issues were framed, after the first hearing date. Even in such a case the Court would have to regularise the payment made till the date of fixation or give him time on fixation of the standard rent to make up payment of arrears. In absence of the Court acting suo motu to regularize payments or by fixing some other date for payment, the tenant would never be able to claim protection of Section 12(3)(b), as the first hearing date had already gone and subsequent payments could only be under an order of the Court. Therefore, In both the cases, where the tenant makes an application to take up this issue at an early stage or when no such application is made, the tenant can be protected under Section 12 3)(b), only if the Court acts suo motu to regularise payments made or by giving some time for payment of the arrears on the basis of the standard rent fixed by it under Section 11(1). Besides, this decision on the issue of standard rent by the trial Court is liable to be altered in appeal or revision and so, when the said amount is finally settled in appeal or revision, even at that stage the Court would have suo motu to exercise power to give time to the tenant for paying up the difference before passing any decree of eviction. No doubt, the question is left to the discretion of the Court, but the discretion has to be judicially exercised in the light of the special circumstances of such a case. In dealing with a case of this kind, the Court must always keep in mind the settled maxim referred to in C.S.P. & L. Corpn, v. Kerala State 1955 S.C. 1689 at page 1691, Lex non cogit ad impossi-bilia (the law does not compel the doing of impossibilities) under which the performance of an impossible duty must be excused. Similarly, the Court must consider the fact that none need apply in vain, if the application was bound to be ineffective. Proceeding on this basis, the Court must consider that until the standard rent was fixed there was no occasion for the tenant to make payment or tender of the standard rent. Even if any application was made without fixing such date for payment or tender, it would have been ineffective. Besides, even where parties may not have applied, the Court itself could have suo motu resolved the dispute earlier. But where the Court postpones resolution of this dispute till the date of the judgment, there would be no opportunity for the tenant to comply with Section 12(3)(b)-until the Court fixed the standard rent in its judgment. It is well settled that no litigant ever suffers by any mistake of the Court. Therefore, in such cases looking at all the circumstances, when the Court fixes the standard rent, it ought to consider this material question of exercise of its discretion to regularise payments already made, if they come up to the same amount on the basis of the standard rent fixed or to give further time to the tenant to pay up the arrears. The Legislature itself contemplates that while exercising discretion for such Fixation or extension of time under Section 12(3)(b), the Court can require the tenant to pay costs of his suit which would enable the Court to do justice even in such cases where the tenant would be not wanting merely to get payments regularised but where further time would have to be given to make up the difference after such fixation of the standard rent by the Court. The material question is of readiness and willingness to pay at the date of the decree, which if otherwise even is proved by the tenant, the Court would exercise its discretion in his favour ordering him to pay at the most the costs of the suit. The exercise of this discretionary power may be refused only if that is the only way in which justice could be done in cases where any Court would not be satisfied by the readiness and willingness to pay the rent. Therefore, In all such cases when the Court fixed amount of standard rent whether at an earlier stage on the tenant's or landlord's application or even suo motu or in its judgment when disposing of all the issues, it must consider this relevant question to regularise the payments made by the tenant after the date of hearing, if the amount paid comes up to the amount arrived at on the basis of the standard rent fixed or to extend time for making good the difference. The 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). When the benefit of Section 12(3)(b) could be only availed of if the Court fixes the amount of the standard rent, it becomes the mandatory duty of the Court to exercise the power suo motu, so that the benefit of that Section 12(3)(b) is not rendered illusory. Without applying its mind to this relevant question, it is not open to any Rent Court to pass a decree in such a case straightaway for evicting tenant on a mere assumption that Section 12(3)(b) was not complied with, when in fact it was because of the Court's order that all the issues were resolved at the end and the tenant was not in a position to comply with the provisions of Section 12(3)(b). All that was necessary in the present case was simple regularisation of the deposits which the tenant had already made and which were more than that of the standard rent and the permitted increases due till the date of the decree, even of the appellate Court.

5. In this view, as regards the aforesaid passage in para 10 in Vora Abbasbhai's case, I am supported by the decision of the Division Bench consisting of Bhagwati J. (as he then was) and Bakshi J., in C.R.A. No. 688/1960, decided on 16th/17th December 1965 Sureshchandra v. Maganlal VIII G.L.R., 1003. In that case also there was a dispute about the standard rent which was resolved only at the time of the judgment and not at any earlier stage, as neither the tenant nor landlord bad moved the Court nor the Court had suo motu resolved the dispute about the standard rent at earlier stage. The tenant on the first date of hearing deposited only Rs. 100/- and he was In arrears of rent. Before the arguments were concluded on 13th August 1958 the tenant had deposited, various amounts aggregating to Rs. 988/-. Thereafter, while the suit was pending judgment, the tenant by way of abundant caution made an application for fixing the date for payment of the standard rent and permitted Increases under Section 12(3)(b). As he had already deposited Rs. 988/- without obtaining Court's order, he only wanted the same to be regularise by the order of the Court. This application was rejected as too late by the trial Court. The appellate Court, however, held that Inasmuch as full amount of standard rent had been deposited before the date of judgment and the application was made to regularise the payment, he was entitled to the protection of Section 12(3)(b) and. therefore, no decree was passed evicting the tenant. When the matter came up In revision before the Division Bench, the Division Bench first overruled the decision of our learned brother Raju J. In Allanur v. Balchand III G.L.R. 188. that the application for fixation of date under Section 12(3)(b) had to be made on the first date of hearing of the suit and that it could not be subsequently made. The Division Bench also held that 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 was 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. Thereafter the Division Bench referred to the aforesaid passage in para 10 in Vora Abbasbhai's case and held that after the issues were 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 rent 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 dearly an application after the first day of hearing of the suit. The Division Bench also pointed out that where the standard rent is enhanced In appeal, the appeal Court also could 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 bearing of the suit. On this interpretation of the aforesaid passage the Division Bench held that what had happened in the case before It was that the tenant 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 accordance with the provisions of Section 12(3)(b). The Division Bench, therefore, thought it to be a fit case where the trial Court to have exercised discretion in regularising payment and it held by the Division Bench that the tenant was rightly held to be entitled to the protection of Section 12(3)(b). It should be noted, as I have already pointed out, that the case before the Division Bench was also one where the tenant had not at an early stage applied for taking up the issue of standard rent and the application was only an application for 'fixation of the time for payment by regularising payments made which la the words of their Lordships of the Supreme Court was completely an Ineffective application until the standard rent was fixed. Even in such a case the Division Bench had held that ignoring all technicalities the trial Court ought to have held that the tenant who had made full payment of all the standard rent and the permitted increases without the order of the Court must be treated as one protected under Section 12(3)(b). This conclusion would be Inescapable for the simple reason that the readiness and willingness to pay at the date of the decree could be proved by the tenant not only by obtaining an order under Section 11(1) and complying with It or by complying with the explanation to Section 12(3)(b) bat even otherwise. 6. Mr. Vyas, however, vehemently argued that our learned brother M.U. Shah J. In C.R.A. No. 697/63 decided on 24th January 1968 had taken a different view. It is true that our learned brother Shah J. has held that the aforesaid observations of the Supreme Court clearly laid down the procedure to be followed in such contingency and the tenant who had not followed that procedure by inviting the trial Judge to determine the amount of standard rent and who did not ask the Court to fix the date for payment or tender of the standard rent could not claim protection under Section 12(3)(b) if on the date of the first hearing of the suit he was in arrears. My learned brother Shah J. however had not the benefit of the interpretation put by the Division Bench in the aforesaid decision in C.R.A. No. 688 of 60 decided on 17th December 1965 Sureshchandra v. Maganlal VIII G.L.R. 1003 in paragraph 10 in the aforesaid decision of Vora Abbasbhai's case. When the aforesaid decision of the Division Bench was later on pointed out to my learned brother Shah J. in the subsequent decision in C.R.A. No. 94 of 1963 decided on 20th February 1967, he in terms held that it was not necessary for him to consider the question whether the Court can suo motu pass an order extending time for payment. In the said subsequent decision my learned brother considered this question only as regards the power of the Court to extend time after the decree was passed and his answer was that it could be done only prior to the date of the judgment. From this later decision of Shah J. it is clear that he had left open the question as regards the power of the Court suo motu to regularise payments already made till the date of the decree, which was specifically considered only by the Division Bench. Therefore, I cannot agree with Mr. Vyas that the matter as regards the power of the Court to act suo motu is already concluded by the aforesaid decision of Shah J.

6.1 Finally, Mr. Vyas has no doubt sought to urge that the matter may be remanded to the trial Court far going into the question whether the tenant had paid up all the arrears. In the judgment of the lower Court itself it has been stated that the tenant had paid Rs. 150/- on 27-9-60; Rs. 150/- on 4-4-61; Rs. 125/- on 4-7-61; Rs. 50/- on 5-7-61; Rs. 50/- on 12-7-61; Rs. 24/- on 20-9-61; Rs. 50/- on 27-12-61; Rs. 25/-on 25-1-62; Rs. 35/- on 19-6-62; Rs. 12/ - on 23-7-62, thus, an amount totalling Rs. 671/- was paid before the date of the decree i. e. 31-7-62. On the basis of the standard rent fixed, the trial Court had determined arrears as on the date of the suit to only Rs. 213/-. In fact, the direction of the trial Court was that from the date of the suit till the said water connection was restored, the amount should be paid at Rs. 10/-and not Rs. 12/-. Therefore, there is no dispute in the present case that the tenant had paid up all the arrears not only at the date of the decree of the trial Court but even at the date of the appellate decree. If the subsequent rent for the 27 months in the trial Court or 7 months and 22 days in the appellate Court was even added. In the circumstances, I do not think that this is a case where any remand is necessary. It must, therefore, be held that the present case did not fall under Section 12(3)(a) and as in any event, the tenant was entitled to protection of Section 12(3)(b), no decree of eviction could be passed against him.

7. In the result, the revision application must be allowed and the decree of eviction of both the Courts must be set aside. The decree of eviction passed against the tenant is, therefore, set aside, while the rest of the decree of the trial Court is confirmed. Rule accordingly made absolute with costs.


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