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Malganbhai Rasulbhai Vs. Pushpavadan Manilal Desai (Since Decd.) Through His Heirs and Lrs. Jayaben Pushpavadan Desai and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtGujarat High Court
Decided On
Judge
Reported in(1986)2GLR1024
AppellantMalganbhai Rasulbhai
RespondentPushpavadan Manilal Desai (Since Decd.) Through His Heirs and Lrs. Jayaben Pushpavadan Desai and ors
Cases ReferredSureshchandra v. Maganlal
Excerpt:
- - shashikant vishnu reported in (1978) 19 glr 502, the supreme court said that the provisions of section 12(3)(b) must be strictly complied with by the tenant during the pendency of the suit or appeal if the landlord's claim of eviction of the suit premises was to be defeated. one ambiguity was with regard to the discretion of the court even in cases where the tenant failed to comply with the conditions laid down in section 12(3)(b). another such ambiguity was with regard to the 'regular' payment by the tenant during the pendency of the suit. (3) till the decision in kalidas (supra) and till the decision in pravinchandra's case (supra) was good law, there was discretion with the court and the court could refuse decree for eviction to the landlord even though the tenant might have.....a.p. ravani, j.1. despite general atmosphere of non-violent peaceful co existence, sporadic clashes between the two, is the normal feature of the 'legal' relations between landlord and tenant. however, the distinguishing feature of this litigation is that the battle is going on since the year 1964 almost incessantly in the fashion of cold-war skirmishes. on account of certain judicial pronouncements made by the supreme court, when the lethal blow was about to be dealt with by the landlord and the tenants were on the brink of being vanquished, the legislature has stepped in and has amended the provisions of section 12(3)(b) of the bombay rents, hotel and lodging house rates control act, 1947 ('the rent act', for short). how far this amendment has disarmed the landlord and whether it is.....
Judgment:

A.P. Ravani, J.

1. Despite general atmosphere of non-violent peaceful co existence, sporadic clashes between the two, is the normal feature of the 'legal' relations between landlord and tenant. However, the distinguishing feature of this litigation is that the battle is going on since the year 1964 almost incessantly in the fashion of cold-war skirmishes. On account of certain judicial pronouncements made by the Supreme Court, when the lethal blow was about to be dealt with by the landlord and the tenants were on the brink of being vanquished, the Legislature has stepped in and has amended the provisions of Section 12(3)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ('the Rent Act', for short). How far this amendment has disarmed the landlord and whether it is capable of protecting the tenant in proceedings is the question at the centre of controversy between the parties.

First, the facts of the litigation, which has a chequered history.

2. The petitioner-landlord purchased the property in question some time in June 1963. The property is situated at Vadodara and the suit premises consist of two rear rooms on the ground floor, first floor and a loft. In the year 1964, the petitioner filed a suit for eviction against all the tenants who were occupying the property on the ground of bona-fide personal requirements. The suits were dismissed by the trial Court. Similarly, the appeals filed by the petitioner were also dismissed. Thereafter, by way of another round, the petitioner issued notice dated November 22, 1968 and called upon the defendants-tenants to pay arrears of rent from June 1, 1966 to November 30, 1968. The petitioner demanded arrears of rent at the rate of Rs. 110/- per month plus education cess, water charges and property tax.

3. The defendants-tenants filed Civil Misc. Application No. 706 of 1968 on December 26, 1968 and prayed for fixation of the standard rate of rent. The Court passed order on the same day as follows:

The applicant to deposit rent inclusive of taxes at the contractual late of Rs. 110 per month Copy of the order to be sent to the other side. Issue notice.

On the same day, the defendant-tenant paid an amount of Rs. 3,763/- in the Court. The petitioner-landlord filed suit on January 3, 1969 being Civil Suit No. 38 of 1969 for recovery of the possession of the suit premises only on the ground of arrears of rent. The trial Court framed issues on June 22, 1970. Both, the suit and the aforesaid application were consolidated. After recording evidence and after hearing the parties, by a common judgment dated February 24, 1971, the trial court dismissed the suit and determined the standard rate of rent at Rs. 125/- per month exclusive of taxes and accordingly disposed of the suit and the application.

4. Being aggrieved by the said judgment and order passed by the trial Court, the landlord preferred appeal and the learned Jt. District Judge, Vadodara, allowed the same and decreed the suit against which the defendants-tenants preferred Civil Revision Application No. 1417 of 1972 in this High Court. The Civil Revision Application came up for hearing on January 12, 1977 and this Court (Coram: A.N. Surti, J, as he then was) held that the case fell within the scope of Section 12(3)(b) of the Rent Act and not under Section 12(3)(a); because the liability to pay the education cess was on the defendants-tenants and therefore, the decree could never have been passed under Section 12(3)(a) of the Rent Act. The Court remanded the matter to the lower appellate Court with a direction to examine the question with regard to the compliance with the requirements of Section 12(3)(b) of the Rent Act and also indicated that the word 'regularly' occurring in the section was construed by the High Court and in that light the case be examined. The lower appellate Court was also directed to decide the cross-objections filed by the tenants for fixation of the standard rent.

5. Hence the matter was remanded to the learned Jt. District Judge. At the hearing of the appeal, the defendants-tenants submitted a pursis, Exhibit 25, and did not press the cross-objections. So the cross- objections regarding the fixation of standard rent stood dismissed as having not been pressed. The lower appellate court fixed the standard rent of the suit premises at Rs. 125/- per month excluding Municipal tax, educational cess. This was the standard rent fixed by the trial Court as per its judgment dated February 24, 1971. As regards the periodical payment of rent in Court, the lower appellate Court followed the decision of this High Court in the case of Pravinchandra v. Saraswatiben, reported in 18 G.L.R. 8 wherein it is held that the word 'regularly' was not to be construed strictly. It was not required to be meant 'as and when due', or 'month to month' or 'punctually' or 'on a particular date in the next succeeding month', etc. In short, the word 'regularly' was construed to mean only directory and not mandatory. Therefore, the lower appellate Court did not go into further details regarding the regularity of payment in Court and looked at the agreed statement Exhibit 23 filed by the parties showing the payment of rents made by the defendants-tenants on various dates. It was clear that a total amount of Rs. 19,543/- was deposited by the tenants in Court by August 1977. There was no dispute with regard to the fact that the amount deposited by the tenants was in far excess of the amount which had fallen due. Therefore, the lower appellate Court ordered to dismiss the appeal and confirmed the decree passed by the trial Court and also ordered to dismiss the cross objections filed by the defendants-tenants. It is against this judgment and decree dated August 25, 1977' passed by the learned Jt. District Judge, Vadodara, that the present revision application has been filed.

6. Counsel for the petitioner landlord submits that a condition required lo be complied with by the tenants is to the effect that the tenants should continue to pay or tender in court, regularly such rent and permitted increases till the suit is finally decided. Relying on the decision of this High Court in the case of Ratilal v. Ranchhodbhai reported in 9 GLR 48, it is submitted that the tenant is required to pay the rent regularly till the appeal is finally decided because the appeal is the continuation of the suit. On behalf of the defendants-tenants, it is submitted that by Act No. 7 of 1985 the relevant provision of Section 12(3)(b) of the Act has been amended and therefore, this requirement to continue to pay or tender in court, the rent and permitted increases regularly till the suit is finally decided, will not be applicable to the facts of the present case. On behalf of the petitioner landlord it is submitted that the provisions of Act No. 7 of 1985 by which Section 12(3)(b) of the Act has been amended will not apply to the pending proceedings and therefore, the case has got to be decided as per the unamended provisions.

7. In order to decide the controversy as to whether the amended provisions of the Act would be applicable to the pending proceedings or not, history of the legislation may be seen. Section 12 of the Rent Act prior to its amendment by Bombay Act No. 61 of 1953 did not contain the two sub-clauses in Sub-section 3 of Section 12. Section 12(3) as it then stood read as follows:

No decree for eviction shall be passed in any such suit, if, at the hearing of the suit, the tenant pays or tenders in Court the standard rent or permitted increases then due together with the costs of the suit.

Thereafter, Section 12 has been amended by Bombay Act No. 61 of 1953. The amended Section 12(3)(a) and 12(3)(b) and Sub-section (4) are reproduced herein below:

12(3)(a). 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.

(b) In any other case, no decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before other date 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.

(4) Pending the disposal of any such suit, the Court may out of any amount paid or tendered by the tenant pay to landlord such amount towards payment of rent or permitted increases due to him as the Court thinks fit.

Thereafter, again by Amending Act No. 7 of 1985, Section 12(3)(b) has been amended which reads as follows:

12(3)(b). In any other case, no decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter-

(i) continues to pay or tender in Court such rent and permitted increases till the suit is finally decided; and

(ii) pays costs of the suit as directed by the Court.

The relevant part of the statement of objects and reasons for passing the Amending Act No. 7 of 1985 are as follows:

In Ganpat Ladha v. Sasikant Visnu Sinde (1978) 19 G L.R. 502 and Mranalini v. Bapalal Mohanlal : (1978)19GLR1090 the Supreme Court has held that if a tenant does not fulfil the conditions specified in Clause (b) of Sub-section (3) of Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, he cannot claim the protection of that clause and in the event, there being no other protection available to him, a decree for eviction would have to go against him. The said Clause (b) does not confer any discretionary jurisdiction on the Court. The Supreme Court consumed the words, 'regularly' appearing in the said Clause (b) as enjoining a payment or tender characterised by reasonable punctuality, and held that if a tenant persistently makes default during the pendency of the suit or appeal in paying the rent the court has no discretion to treat manifestly irregular payment as substantial compliance with the mandate of the said Clause (b). The hardship caused to tenants on account of aforesaid decisions of the Supreme Court could be removed if a tenant is permitted to pay or tender in Court rent and permitted increases according to the direction of the Court. It is therefore, considered necessary to confer, as suggested by the Supreme Court, a discretionary jurisdiction on a court to give directions in that behalf.

9. The object of the Legislature in passing the Amending Act is very clear. The Legislature wanted to confer jurisdiction upon the Court to relieve the tenant from the consequences of irregularity which may be there in making payment of rent in court during the pendency of the proceedings. The enactment became necessary on account of the conflicting decisions rendered by this High Court and then ultimately resolved by the Supreme Court. Section 12(3)(b) was inserted by Bombay Act No. 61 of 1953, and it remained operative till the Amendment Act No. 7 of 1985 came into force. Prior to amendment, it came up for interpretation before this Court on different occasions. As regards phrase 'the first date of hearing' occurring in this part of the section, there was a long controversy and ultimately it was decided that the day on which the court applied its mind to the facts and circumstances of the case, is the first date of hearing. Then question arose-On which date the trial court applies its mind to the facts and circumstances of the case? It was resolved that the date on which the court frames the issues will be the first date of hearing. The phrase 'then due' was also a matter of controversy and different interpretations were given by the courts. Ultimately the Bombay High Court held that the phrase 'then due' will take within its sweep even the time barred date.

10. The other part of the section namely 'and thereafter continues to pay or tender in court regularly such rent or permitted increases till the suit is finally decided and also pays costs of the suit...' also created controversy (see: 75 GLR 238). A single Judge of this High Court held that the phrase 'as directed by the Court' would cover within its sweep both the things, i. e. the payment or tender in court such rent and permitted increases and also the payment of cost as may be directed by the court. Another single Judge of this High Court (Coram: A.V. Dave, J. as he then was) took the view that the direction part of the court would be applicable only to the cost and not to both the parts (see: 15 GLR 567). The controversy was required to be resolved by a Full Bench of this High Court (see: 17 GLR 1). The Full Bench held that the phrase 'as directed by the court' would be applicable only to the payment of cost and not to the payment or tender in court such rent and permitted increases till the suit is finally decided Thereafter, it appears that the courts interpreted the term 'regularly' in different manners. In the case of Pravinchandra v. Saraswatiben reported in 18 GLR 8, it was held that the term 'regularly' was directory. The controversy had been ultimately resolved by the Supreme Court in the case of Mranalini v. Bapalal Mohanlal reported in : (1978)19GLR1090 . The Supreme Court held that the term 'regularly' was mandatory and the tenant was required to make regular payment in court. In the case of Ganpat Ladha v. Shashikant Vishnu reported in (1978) 19 GLR 502, the Supreme Court said that the provisions of Section 12(3)(b) must be strictly complied with by the tenant during the pendency of the suit or appeal if the landlord's claim of eviction of the suit premises was to be defeated. Earlier, the Bombay High Court in the case of Kalidas Bhavan v. Bhagvandas reported in 60 BLR 1359, had held that even if the tenant did not satisfy the conditions laid down in Section 12(3)(b) the Court had discretion not to pass decree for eviction. This decision has been expressly overruled by the Supreme Court in the case of Ganpat Ladha (supra).

11. Thus, in view of the aforesaid decision of the Bombay High Court and in view of the decision in Pravinchandra's case (supra), ambiguities and/or uncertainties were there as regards the correct meaning of the provisions of Section 12(3)(b) of the Rent Act. One ambiguity was with regard to the discretion of the court even in cases where the tenant failed to comply with the conditions laid down in Section 12(3)(b). Another such ambiguity was with regard to the 'regular' payment by the tenant during the pendency of the suit. Both these ambiguities came to be removed by the aforesaid two decisions of the Supreme Court in the cases of Ganpat Ladha and Mranalini (supra). In the case of Ganpat Ladha, (supra) the Supreme Court observed:

Section 12(3)(b) does not create any discretionary jurisdiction in the Court. It provides protection to the tenant on certain conditions and these conditions have to be strictly observed by the tenant who seeks the benefit of the section. If the statutory provisions do not go far enough to relieve the hardship of the tenant the remedy lies with the legislature. It is not in the hands of Courts.

12. Thus it would be clear that as far as the provisions of Section 12(3)(b) are concerned, there are three to four stages in the history of legislation:

1. Period after the enactment of Transfer of Property Act but before the enactment of Rent Legislation.

2. Rent Legislation. Period of rent Legislation after 1953 and up to Act No. 7 of 1985.

3. Period subsequent to the aforesaid Amendment Act No. 7 of 1985.

During the period when Section 12(3)(b) remained in operation after it was amended by Bombay Act No. 61 of 1953, the position remained doubtful as to the meaning of the word 'regularly' and as to the scope of the powers of the Court to exercise discretion with regard to the refusal or grant of eviction decree. As stated hereinabove, the position became clear in the year 1978 by the two decisions rendered by the Supreme Court in the cases of Ganpat Ladha and Mranalini (supra).

13. As stated in the statement of objects and reasons for enacting the Amendment Act No. 7 of 1985, it was on account of the decision of the Supreme Court that the amendment had become necessary. From this, the intention of the Legislature can be ascertained. The decision of the Bombay High Court in Kalidas Bhavan's case (supra) was rendered as far back as June 25, 1958. That decisions held the field till it was overruled by the Supreme Court in Ganpat's case. Similarly the decision of this High Court in the case of Pravinchandra (supra) held the field till it was implied overruled by the Supreme Court in the case of Mranalini (supra). On account of the decision of the Bombay High Court and the decision of this High Court, the Legislature did not think it necessary to amend the law. The Legislature was quite content with the position of law exposed by the two High Courts. However, after the decision of the Supreme Court and particularly when the Supreme Court said that the Court had no jurisdiction to refuse decree of eviction and the court was compelled to pass decree, in case the conditions laid down in Section 12(3)(b) were not complied with, the Legislature stepped in. The statement of objects and reasons for Amendment Act No. 7 of 1985 states that:

The hardship caused to tenants on account of aforesaid decisions of the Supreme Court could be removed if a tenant is permitted to pay or tender in Court rent and permitted increases according to the direction of the Court. It is, therefore considered necessary to confer, as suggested by the Supreme Court, a discretionary jurisdiction on a court to give directions in that behalf.

14. From the history of the Legislation, working of the same and the statement of objects and reasons, the following things become clear:

(1) Even prior to the enactment of Transfer of Property Act, 1882 the courts had jurisdiction to refuse decree of eviction or to put it differently, to grant relief against forfeiture for non-payment of rent: (see Transfer of Property Act, by Mulla, VI Edition, p. 763).

(2) The aforesaid position was recognised in Section 114 of the Transfer of Property Act, 1882. As per the provisions of Section 114, where a lease of immoveable property has determined by forfeiture for non-payment of rent, and if the tenant paid or tendered the arrears together with interest and costs of the suit at the time of hearing of the suit, the court could grant relief against forfeiture of lease.

(3) Till the decision in Kalidas (supra) and till the decision in Pravinchandra's case (supra) was good law, there was discretion with the court and the court could refuse decree for eviction to the landlord even though the tenant might have failed to strictly comply with the conditions laid down in Section 12(3)(b).

(4) The Supreme Court interpreted the provisions of Section 12(3)(b) and said that there was no discretion with the court and if the conditions of Section 12(3)(b) were not strictly complied with, the tenant cannot claim protection of the Rent Act. The Supreme Court further observed, if there was hardship to the tenant, it was for the legislature to relieve him from the hardship.

(5) Thereafter the Legislature has stepped in and has amended the provisions of Section 12(3)(b), by Amending Act No. 7 of 1985.

15. Thus it should be clear that the intention of the Legislature was to see that the court is not deprived of its discretionary jurisdiction which it enjoyed even prior to the enactment of Transfer of Property Act, 1882 and before the period of Rent legislations. It may be noted that at no time even prior to the enactment, of the Bombay Rent Act the landlord had an unfettered right to get decree for eviction on the ground of arrears of rent. The Legislature had conferred jurisdiction on courts to grant relief against forfeiture for non-payment of rent (Section 114 of the Transfer of Property Act). One must not forget that the Rent Act is a beneficial legislation enacted with a view to protect the tenant and it is not enacted with a view to confer any further right upon the landlords. Thus, having regard to the history of the legislation and the statement of objects and reasons for amendment Act No. 7 of 1985 the intention of the Legislature becomes abundantly clear. The Legislature wanted to clarify and declare that courts had jurisdiction to relieve the tenant from hardships.

16. By this amendment the Legislature has also removed another ambiguity on account of different judicial pronouncements. By the decision reported in 75 GLR 238 it was held that the phrase 'as directed by the court' would be applicable to both the things,

(1) payment or tender in court of the rent and permitted increases till the suit is finally decided, and

(2) payment of cost.

A contrary view was expressed in the decision reported in 15 GLR 567, This conflict was again required to be resolved by the Full Bench of this High Court in 17 GLR 1. The amendment introduced by Amending Act No. 7 of 1985 puts this controversy beyond any pale of doubt. The Legislature has totally done away with the word 'regularly' and has divided the section into sub-clauses. The latter part of the section as amended reads as follows:

and thereafter--

(i) continues to pay or tender in Court such rent and permitted increases till the suit is finally decided; and

(ii) pays costs of the suit as directed by the Court.

This makes it abundantly clear that the discretion of the Court would cover both the things:

(1) payment or tender in Court such permitted increases till the suit is finally decided, and

(2) payment of costs.

Thus the Court has been conferred with the discretion both in respect of the subsequent payment of rent and permitted increases and the payment as and by way of cost. The amendment does nothing more than removal of doubts created on account of judicial decisions.

17. It is contended by the counsel for the petitioner that the statement of objects and reasons cannot be seen to understand the intention of the Legislature. According to him, the statement of objects and reasons may be seen only for the purpose of seeing the setting of the Act. Ultimately 'what is enacted' is the bill with or without amendment and that expresses the intention of the Legislature, while the statement of objects and reasons may be the expression of the desires and aspirations of the mover of the bill. Hence, according to him, the statement of objects and reasons cannot be looked at. However, the submission cannot be accepted. The Supreme Court in the case of B. Banerjee v. Anita Pan reported in : [1975]2SCR774 . has in terms held that 'the sound proof theory' of ignoring voices from parliamentary debates once sanctified by British tradition, has been replaced by the more legally realistic and socially responsible canon of listening to the legislative authors when their artifact is being interpreted. The Supreme Court agreed with the observations made by the High Court which were as follows:

Proceedings of legislature can be referred to for the limited purpose of ascertaining the conditions, prevailing at or about the time of the enactment in question, which actuated the sponsor of the bill to introduce the same and the extent and urgency of the evil, sought to be remedied.

Similarly, in the case of Workmen of Firestone Works v. Management reported in : (1973)ILLJ278SC , the Supreme Court has held that the statement of objects and reasons gives an indication as to what the legislature wanted to achieve. Therefore, it is permissible to the Court to look at the statement of objects and reasons with a view to find out as to what mischief the legislature desired to prevent.

18. It is contended that the amending provisions deal with the substantive right of the landlord and it does not deal with procedural part and hence cannot be made applicable to pending proceedings. It is further submitted that by amendment substantive rights of the landlord to get eviction is affected and it is not merely procedural aspect of the law that is being amended. The argument is not based on correct factual position. The Legislature never conferred any right upon the landlord by the provisions of Section 12(3)(b) of the Act. Section 12(3)(a) did cast an obligation upon the Court to pass a decree if the tenant failed to comply with the conditions laid down therein. In case the rent was payable by month and there was no dispute with regard to the standard rent and the tenant was in arrears of rent for a period of six months or more and the tenant neglected to make payment even after the service of notice as laid down in Sub-section (2) of Section 12, then in that case, the Court had no option but to pass a decree. Section 12(3)(b) of the Rent Act, on the other hand dealt with the situation which arose during the pendency of the proceedings.

Even after the amendment it deals with the situation which arise during the pendency of that proceeding. This provision can be styled as a check on the tendency of the tenant in protracting the litigation. Section 12(3)(b) cast an obligation upon the tenant to pay all the arrears of rent on the first date of hearing. The section further enables the Court to compel the tenant, who continued to remain in possession to perform his obligation to deposit the rent regularly. Even with regard to the payment which may be made by the tenant on the first date of hearing and thereafter the landlord was not, (and is not) as of right, entitled to receive the same. This payment also could be regulated by the Court. This is clear from ths provisions of Section 12(4) of the Rent Act which reads as under:

Pending the disposal of any such suit, the Court may out of any amount paid or tendered by the tenant pay to the landlord such amount towards payment of rent or permitted increases due to him as the court thinks fit.

As per the provisions of Section 12(3)(b), the Court may insist upon the tenant and direct that the rent and permitted increases be deposited in Court. But at the same time, as per the provisions of Section 12(4), the Court may even direct that the amount deposited in Court shall not be paid to the landlord.

19. Similarly in Section 12(3)(b), the words 'on or before such other date as the Court may fix' gave ample power to the Court to give direction that the amount due may be paid any time after the first date of hearing. The Court may even direct that the amount may be paid within 10 days from the date of arguments or even on the date of the judgment. Therefore, reading Section 12(3) and (4) together, it is abundantly clear that the provisions of Section 12(3)(b) dealt with (and even after amendment deals with) the procedural aspect only. It did not confer any right whatsoever on the landlord. It may be noted that under the provisions of the Rent Act, the landlord cannot claim eviction on the ground that the rent was being paid irregularly or at the interval of 3 to 4 or 5 months. Under the provisions of Section 12(3)(a) of the Rent Act a ground of eviction is mentioned; that is, if there is arrears of rent for a period of more than six months and the tenant fails to pay the same within one month after the service of the notice of demand and if there is no dispute with regard to the standard rent and if the rent is payable by month, then only the landlord can claim vacant possession on the ground of arrears of rent. Thus the landlord cannot get something which is not conferred as a right, only on account of the procedural provision made with a view to regulate the proceedings. Thus, there being no substantive right whatsoever conferred upon the landlord, the amendment cannot be looked at from the standpoint that it takes away the substantive right of the landlord. Hence this argument has got to be rejected.

20. The provision of Section 12(3)(b) may be examined from another angle also. The landlord had no vested right to insist upon regular payment to him. It was an obligation on the part of the tenant to regularly pay or tender in Court the rent and other permitted increases. This, the landlord could not have, as of right, received regularly. Assuming that the tenant complies with this condition of regular tender in Court, then the landlord is not entitled to receive the same automatically. In view of the provisions of Sub-section 4 of Section 12, he is again required to apply for making the payment of the same to him and the Court may refuse payment of the same. Thus, by Section 12(3)(b) no right to receive regular payment of rent and permitted increases was conferred upon the landlord. At the most a duty was cast upon the tenant to make payment regularly in court; that is all. There was no right conferred upon the landlord to receive the rent regularly. Disbursement of the rent deposited in Court was left at the discretion of the Court. Even today, after the Amendment of the Rent Act, the same position continues because Sub-section 4 of Section 12 has not been amended at all.

Thus it becomes clear that the entire provision of Section 12(3)(b) read with Sub-section (4) of Section 12 was made with a view to regulate the payment of rent during the pendency of the proceedings. This being the position, it cannot be termed as conferring any substantive right upon the landlord.

21. Whether there was any substantive right or not may be examined yet from another angle. At the time when the landlord filed the suit he would not and could not have come before the court saying that the tenant was in arrears of rent and that he is not going to comply with the conditions laid down in Section 12(3)(b) and therefore, grant him decree for eviction. His substantive right on the date of filing of the suit was only this, that the tenant who was in arrears of rent for a period of more than six months had failed to pay the rent as demanded and therefore, the tenant was not ready and willing to pay the rent and hence liable to be evicted. Whatever happens or that may have happened, subsequently after the filing of the suit, is and was in the realm of procedure. On account of the delay in making payment by the tenant or on account of failure to comply with the direction given by the court, the landlord does not get any vested right whatsoever. That which is a part of the procedure can be altered or modified by a subsequent legislation and such legislation would be applicable to pending proceedings. On the date when the suit was instituted, the landlord had no right whatsoever to say that he was entitled to eviction decree because the tenant was going to make irregular payments or that the tenant was not going to comply with order that may be passed by the court. In fact on the date of institution of suit, no such ground can be in existence at all.

22. Counsel for the petitioner relied upon a decision in the case of Kamruddin v. Husenshah reported in 13 GLR 599. In that case the court was concerned with the amended provision of Section 52 of the Bombay Public Trusts Act, 1950, which is added by Act No. 23 of 1955. In that decision this Court has held that the statutes are not to operate retrospectively so as to defeat a vested right, but such operation may be given by express enactment or by necessary implication from the language employed by the Legislature. In that case it was held that section was not to be given retrospective operation. There is no dispute with regard to the principle laid down in the aforesaid decision. But that is not the position in the instant case. As discussed hereinabove, the amendment introduced in the parent Act by Amendment Act No. 7 of 1985 is merely declaratory or clarificatory in nature. The amendment had become necessary on account of the uncertainty and ambiguity created on account of conflicting judicial decisions. Moreover, the amendment affected only the procedural part and does not affect any vested right of the landlord.

23. Counsel for the petitioner relied upon a decision of the Supreme Court in the case of Shri Vijayalakshmi Rice Mills v. State of A.P. reported in : [1976]3SCR775 . In that case Supreme Court held that Rice (Andhra Pradesh) Price Control (Third Amendment) Order (1964), Clause 2 was not retrospective in operation. The decision deals with the particular piece of legislation. No principle has been laid down therein. In fact this decision, as well as the earlier decision relied upon by the counsel for the petitioner, are not at all relevant for the purpose of deciding the question as to whether the provisions of Amended Act No. 7 of 1985 would apply to the pending proceedings or not.

24. Counsel for the petitioner has relied upon a decision of the Supreme Court in the case of K.C. Dora v. G. Annamanaidu reported in : [1974]2SCR655 . He has particularly relied upon the following passage:

It is well settled that ordinarily, when the substantive law is altered during the pendency of an action, rights of the parties are decided according to law, as it existed when the action was begun unless the new statute shows a clear intention to vary such rights.

In the instant case, substantive law is not altered during the pendency of action. Assuming that substantive law is altered, no right which existed when the action begun (that is to say when the suit was filed) has been affected. The law which existed then, did not confer any right upon the landlord to ask for decree of eviction on the ground that the tenant was going to make irregular payment in future that is during the pendency of the proceedings and therefore grant him decree for eviction. On that day, i.e. on the date of institution of the suit no such ground could ever be in existence and therefore there cannot be any such right. Therefore, on the authority relied upon by the counsel for the petitioner it can be said that there being no change in the right of the landlord which existed when the action begun, the contention that the Amending Act has got to be construed, as not being applicable to pending proceedings, has got to be rejected.

25. In view of the detailed history of the legislation which has been narrated hereinabove, the Amending Act, No. 7 of 1985 is merely clarificatory and/or declaratory in nature. The Amending Act No. 7 of 1985 clarified the position which was created on account of the decisions rendered by this High Court, Bombay High Court and the Supreme Court, In the case of Channan Singh v. Jai Kaur reported in : [1970]1SCR936 , the Supreme Court having regard to the history of Punjab Preemption Act and the Amendment made therein by Act No. 13 of 1964, held that it was well settled that if a statute is curative or merely declared, the previous law, retroactive operation would be more rightly ascribed to it than the legislation which may prejudicially affect past rights and transactions.

26. It may further be observed that the Rent Act has been passed to protect the public against the evil or abuse of harassment to relatively weaker sections by more powerful and affluent sections of the society. The Supreme Court in the case of S.B.K. Oil Mills v. Subhash Chandra reported in : [1962]2SCR159 , held that while it is the ordinary rule that substantive rights should not be held to be taken away except by express provision or clear implication, many Acts, though prospective in form, have been given retrospective operation, if the intention of the Legislature is apparent. This is more so, 'when Acts are passed to protect the public against some evil or abuse', (see: Craies on Statute Law, 5th Edn., p. 365). Similar view is expressed by the Supreme Court in the case of Sree Bank Ltd. v. S.D. Roy Co. and reported in : [1965]3SCR708 . Therein also the Supreme Court has said that retroactivity may be given to a statute if the protection is sought to be given to the people against some evil. In above view of the matter, having regard to the history of the legislation, its setting, the procedural nature of the law and the mischief sought to be prevented at and the object of the legislature, it is clear that the intention of the Legislature was to see that the amending provision be made applicable to the pending proceedings also.

27. In the instant case, there is no dispute with regard to the fact that the tenant has already deposited the entire arrears and has continued to deposit the same. Once it is held that the Amending Act, applies to pending proceedings also, the question, whether the tenants tendered the amount of rent and permitted increases in court 'regularly' or not does not arise at all. Therefore, the landlord is not entitled to claim the decree for eviction on the ground of arrears of rent.

28. It is contended by the counsel for the petitioner that the defendants-tenants have not complied with the conditions laid down in Section 12(3)(b) of the Rent Act. According to him, the defendants were required to deposit the entire amount 'then due' on the first date of hearing of the suit. In the instant case, the first date of hearing of the suit was June 22, 1970. On this date, even according to the calculations made by the defendants-tenants the total amount paid in court was Rs. 5,193/- while the defendants-tenants ought to have paid Rs. 5,280/-.

On the aforesaid basis it is submitted that the tenants have not complied with the conditions laid down in Section 12(3)(b) of the Rent Act and therefore, they are not entitled to the protection of the Rent Act. The contention cannot be accepted for the simple reason that in the instant case, the defendants-tenants applied for fixation of standard rent on December 26, 1968 by filing Civil Misc. Application No. 706 of 1968 and requested the trial court to fix standard rent of the suit premises. The trial court passed order as follows:

The applicant to deposit rent inclusive of taxes at the contractual rate of Rs. 110/- per month. Copy of the order to be sent to the other side Issue Notice.

On the same day, the defendants-tenants have deposited an amount of Rs. 3,763/- in the court. Thereafter, on January 3, 1969, the suit has been filed. Thus on the date of filing of the suit, there was no arrears of rent. Moreover, it may be noted that the trial court did not give any direction with regard to the regular payment or deposit of rent in court.

29. Once there is an application by the tenant and if he complies with the order passed below such application, then he is entitled to the protection under the Rent Act. Such an application can be made by the tenant, at any time, and the court also may pass order on the application at any time, on or before, or subsequent to, the first day of hearing of the suit. Such an order may be passed by the court on the application of the tenant, or on the application of the landlord or even suo motu (see: Division Bench judgment of this High Court in the case of Sureshchandra v. Maganlal reported in 8 GLR 1003, Coram: P.N. Bhagwati, J. (as he then was) and A.R. Bakshi, J.) The defendants-tenants having complied with the order of the court passed on December 26, 1968 in Misc. Civil Application No. 706 of 1968 and the Civil Misc. Application having been consolidated with the suit, it has got to be held that the defendants-tenants have complied with the first requirement of the payment of standard rent and permitted increases. In this view of the matter, the contention raised by the counsel for the petitioner that the tenants have not complied with the condition regarding the payment of standard rent and permitted increases then due on the first date of hearing cannot be accepted and hence the same is rejected.

In the result, the revision application is required to be rejected and the same is hereby rejected. Rule discharged with no order as to costs.


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