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1999 Supreme(Guj) 135
Gujarat High Court
Judgename :D.C.Srivastava
CHHOTUBHAI ZINABHAI - Appellant
Versus
ISHVERSINH MOHANSINH ATODARIA - Respondent
Civil Revision Application 1131 of 1980
Decided On : 03/23/1999
Headnote:Bombay Rent, Hotel & Lodging, House Rates Control Act, 1947 - Secs. 12(3)(b) (Before amendment of 1985) & 29(2) - Question of protection under Sec. 12(3)(b) - Entitlement - Tenant can save eviction provided he deposited on the first date of hearing the suit or on or before such other date as the Court may fix the standard rent & permitted increase & further continues to pay or tender in Court such rent & permitted increases regularly till the suit is finally decided & pays costs of the suit as directed by the Court - Having considered all the three stages Court found that in the instant case tenant respondent has not faulted at any of the stage - Insignificant deficiencies in the matter of deposits has to be ignored because of uncertainties some times - Considering facts lower appellate Court found & rightly so that respondent can not be said to have committed any default in regularly depositing the rent - Appeal thus has no force & dismissed.
The tenant can save eviction under Sec. 12(3)(b) provided he deposited on the first date of hearing the suit or on or before such other date as the Court may fix the standard rent and permitted increases and further continue to pay or tender in Court such rent and permitted increases regularly till the suit is finally decided and pays costs of the suits as directed by the Court. It is thus clear that only when these three conditions are satisfied by the tenant that he can save his eviction. The first condition is that he should have deposited the rent on the first date of hearing of the suit or on any subsequent date as directed by the Court. The second condition is that the tenant continues to deposit such rent or standard rent regularly in Court till the suit is finally decided. The word `suit is inclusive of the word `appealin as much as the appeal is continuation of the suit. Thus,the same procedure is to be followed by the tenant namely he has to deposit the rent regularly in appeal as well. The third condition is that the tenant shall pay the costs of the suit as directed by Court. If any of these three conditions are not fulfilled by the tenant, he will not be entitled to protection of Sec. 12(3)(b) of the Rent Act.
From the chart of calculation filed by the learned counsel for the respondent, it appears that the rent was deposited regularly in the appellate Court rather excess amount was being deposited in the appellate Court. Thus, from the comparative study of the two charts submitted by the learned counsel for the respective parties, it is clear that even during the pendency of appeal, the respondent tenant cannot be said to have committed default in depositing the rent regularly rather went on depositing the rent in the appellate Court in advance. Thus, even at the third stage, the respondent cannot be said to have committed any default in regularly depositing the rent. The lower appellate court, in these circumstances, was justified in giving benefit of Sec. 12(3)(b) of the Bombay Rent Act to the tenant.
[Para 6]
( 1 ) THIS is landlords revision under Sec. 29 (2) of the Rent Control Act, 1947.
( 2 ) BRIEF facts giving rise to the present revision are as follows :
( 3 ) THE disputed premises was let out by the plaintiff-landlord to the defendant on monthly rent of Rs. 14/- besides Rs. 3/- per month towards electricity charges. In this way, Rs. 17/- per month were treated as standard rent and permitted increases. The rent amounting to Rs. 272/- from 1-1-1974 to 30-4-1975 was due from the tenant. Notice of demand was sent through registered post on 2-5-1975 in which the tenancy was also terminated. Neither the rent was paid within a month of service of notice of demand nor the premises was vacated. Hence, the landlord filed suit for eviction etc. , against the tenant.
( 4 ) THE tenant contested the suit disputing the standard rent to be Rs. 17/- per month. According to him, similar portion was let out previously between rs. 6/- to Rs. 7/- per month and as such, the dispute of standard rent was raised by the tenant. He also alleged payment of rent upto March, 1975. It was alleged by him that the rent was remitted thereafter by money order which was refused by the landlord. Some payments were alleged by the tenant with the allegation that no receipt was issued by the landlord. He, therefore, alleged that he was not in arrears of rent exceeding six months on the date of service of notice of demand.
( 5 ) THE trial Court found that the case was not covered by Sec. 12 (3) (a) of the Rent Act. The trial Court further found from various deposits made by the tenant that the tenant was not entitled to protection of Sec. 12 (3) (b) of the Rent Act. According to the trial Court, deposit on the first date of hearing was short and subsequent deposits were not regularly made on account of which the tenant was not entitled to the benefit of Sec. 12 (3) (b) of the rent Act. Accordingly, decree for eviction was passed against the tenant.
( 6 ) AN appeal was preferred by the tenant against the judgment and decree of eviction before the lower appellate Court and the lower appellate Court allowed the appeal and set aside the judgment and decree for eviction. Hence this revision by the landlord.
( 7 ) THE short point for consideration in this revision is whether the tenant-respondent is entitled to the protection of Sec. 12 (3) (b) of the Rent Act. In order to decide this point, Sec. 12 (3) (b) of the Rent Act has to be kept in mind. It reads as under : " (b) In any other case, no decree for eviction shall be passed in any 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]
( 8 ) IT may also be mentioned at this stage that the word regularly previously occurring under Sec. 12 (3) (b) of the Rent Act was deleted by Sec. 2 of the gujarat Act 7 of 1985. This amendment came into operation in the year 1985. The suit of the landlord was filed in the year 1975 and was decided by the trial Court on 6-5-1978. The appeal was preferred on 23-6-1978 and was decided on 11-3-1980. Thus, when the suit and the appeal were decided, old Act was in operation, hence, the word regularly as previously occurring in Sec. 12 (3) (b) has also to be taken into consideration.
( 9 ) IT is, therefore, obvious from the provision of Sec. 12 (3) (b) of the Rent act as they stood prior to the Amendment of 1985, that if the case is not covered by Sec. 12 (3) (a) of the Rent Act, decree for eviction can be passed under Sec. 12 (3) (b) of the Act. However, the tenant can save eviction under sec. 12 (3) (b) provided he deposited on the first date of hearing of the suit or on or before such other date as the Court may fix the standard rent and permitted increases a
