1999 Supreme(Guj) 460

Gujarat High Court
Judgename :Y.B.BHATT
MAGANLAL CHIMNAJI - Appellant
Versus
PRAJAPATI SAMIJI HIMATJI - Respondent
Civil Revision 877 of 1980
Decided On : 09/09/1999

Headnote:(a) Bombay Rent Hotel and Lodging House Rates (Control) Act, 1947 (Bom. 57 of 1947) - Sec. 12(2) - Notice under - Validity challenged on grounds that it is vague, does not contain specific & quantified demand of rent - It is also alleged that the landlord himself has granted time to the tenant to pay the rent demanded by 31.8.1971 & that therefore tenancy would terminate on 31.8.1971 & consequently claim for possession on 31.8.1971 invalidates the notice - Facts not in dispute are that (i) Suit notice is issued on 15th July, 1971 (ii) Assertion in notice is that tenant has paid rent upto 31.1.1971 & is in arrears of rent from 1.2.1971 on wards; and (iii) That month of tenancy commenced on the Ist day of every English Calender month & ends on the last day of the month - From the averments made in the notice tenant is clearly made aware of his obligation to pay up the arrears of rent to be paid from 1.2.1971 & on wards - There is no vagueness in notice if tenant choose to comply with it - Tenant has himself put up his case consistantly that he had sent the money order for Rs. 131 being six months rent at the rate of Rs. 20 per month + Rs. 11 being Panchayat taxes - Thus in the notice & in the mind of tenant there was no vagueness or ambiguity for the period of rent due & quantum of amount to be paid - Merely because amount has not been quantified in notice it can not be accepted that notice suffers from defect of vagueness of which compliance was not possible - Contention that notice is outside the scope of Sec. 12(2) of the Act because it demands future rent in respect of month of August 1971 is also not sustainable because it is not based on reasonable interpretation of suit notice - Suit notice does not demand rent for any specific period but merely alleges due from 1.2.1971 - Further so far as the month of August 1971 is concerned the word `rent is only loosely attributable to this month in as much as same would in land amount to mesne profits for use & occupation of premises after termination of tenancy on 31.7.1971 - Besides merely because possession is demanded by said date of 31.8.1971 with arrears of rent, it is not correct to interpret that landlord has intended or means to terminate tenancy from 31.8.1971 - The result is that suit notice is with in parameters of law and suffer from no invalidity.

       The notice should not be so vague as to deprive the tenant of an opportunity to comply with the same should he chose to do so. On the facts of the case, there is a clear recital in the notice that the tenant has paid the rent upto 31st January, 1971, and that the rent is in arrears from 1st February, 1971. Thus, the tenant was made aware of his obligation to pay up the arrears of rent to be paid from 1st February, 1971 and onwards.

       [Para 12]

       The tenant has put up his case firstly in his reply to the suit notice, and subsequently in his written statement, in his own deposition and in the cross examination of the landlord. In each mode of presentation of his case, the tenant has consistently averred that he had sent the money order for Rs. 131/-, being 6 months rent at the rate of Rs. 20/- per month + Rs. 11/- being the Panchayat taxes. Thus, there cannot be any dispute, atleast as regards the case sought to be made out by the tenant, that he had sent or tried to send 6 months rent. It would therefore appear that atleast in the mind of the tenant, even prior to the suit, there was no confusion or ambiguity as to the rent due and payable. It is for this reason, that the tenant pleaded that the rent forwarded was for 6 months i.e. from 1st February, 1971 upto 31st July, 1971. Thus, there is no vagueness or ambiguity so far as the period of rent due and payable which was understood by the tenant from the notice of demand. The mere fact that the rent had not been quantified in terms of rupees nor was it specifically mentioned in the suit notice would not make it so vague so as to become incapable of compliance. As already demonstrated above, the conduct of the tenant, as it appears from the case sought to be made out by him, did not suffer from any such alleged vagueness.

       [Para 14]

       A further contention is to the effect that the notice is outside the scope of Sec. 12(2) of the Rent Act because it demands future rent in respect of the month of August, 1971 and/or July and August, 1971. This contention is also not sustainable and is not based on reasonable interpretation of the suit notice. First of all, the suit notice does not demand rent for any specific period with reference to the date, but merely alleges that the rent is due from 1st February, 1971. Thus, when the tenant decides to comply with the same or intends to comply with the same, it was open to him to comply with only a part of the demand which according to him was reasonable and justifiable and to ignore the rest. Since the landlord has not chosen to quantify the demand in terms of rupees, it is not possible to hold in favour of the tenant by interpreting this demand to mean that the demand includes the rent for the month of July, 1971. So far as the month of August, 1971 is concerned, the word rent is only loosely attributable to this month inasmuch as the same would in law amount to mesne profits for use and occupation of the premises after the tenancy had been terminated. It is pertinent to note that 31st August, 1971 is the only other date specified by the landlord in the suit notice and this too is for the limited purpose of demanding possession on the said day.

       [Para 15]

       It is not possible to construe the suit notice to mean that the tenancy is intended to be terminated on 31st August, 1971, merely because possession is demanded on the said day, and arrears of rent together with one months mesne profits are cumulatively demanded on the day and date on which the possession is sought. For the aforesaid reasons, I am of the opinion that the suit notice is within the parameters of law and meets the requirements of Sec. 12(2) of the Bombay Rent Act, and the suit of the landlord therefore cannot be dismissed on the ground of an invalid notice.

       [Para 16]

       (b) Bombay Rent Hotel and Lodging House Rates (Control) Act, 1947 (Bom. 57 of 1947) - Secs. 12(3)(b) & 29(2) - Civil Procedure Code, 1908 (Central Act 5 of 1908) - Order 41 Rule 27, Clause (b) - Eviction on ground that tenant was in arrears of rent for six months - Defence that demands of the suit notice was attempted to meet & by tendering the amount, then due payable by way of sending a money order - In order to substantiate his assertion of payment tenant has produced two postal receipt marked 14/3 & 14/4 but they are not proved as required under the law - In the appeal against decree of eviction tenant as appellant filed an application Exh. 35 for allowing tender additional evidence under Order 41 Rule 27 of CPC - Lower appellate Court however rejected the application without applying its mind to Order 41 Rule 27 without applying principles which govern such application & confirmed the decree passed by Trial Court holding that tenant had not proved his case - Court discussing the provisions under Order 41 Rule 27 observed that lower appellate Court has lost sight of two important aspects under Clause (b) that permission to lead additional evidence may be granted (i) to enable it to pronounce judgment & (ii) for any other substantial cause - The crux of the entire suit is whether the tenant had complied with the requirements of the statutory notice or not - In order to prove defence taken by tenant the document 14/3 & 14/4 not only address the genesis of the cause of action but also affect one way or the other the jurisdiction of the Rent Court - It is not a matter to fill up the lacuna in evidence - Court therefore, held that the lower appellate Court was in error in shutting out the formal proof of mark 14/3 & 14/4 as against the defendant - This has resulted in decision which has only abandoned judicial discretion - As a result judgment & decree of lower appellate Court quashed & set aside & marked remanded back to lower appellate Court to permit defendant to prove mark 14/3 & 14/4 by leading appropriate evidence & decide appeal afresh.

       There cannot be any controversy that both the parties were conscious of the cases put up by the other side, and particularly that the tenants substantial defence rested on his assertion that he had attempted to meet the demands of the suit notice by tendering the amount then due and payable by way of sending a money order.

       [Para 22]

       It is in this context that Court is required to deal with mark 14/3 and mark 14/4 as documents sought to be relied upon by the tenant to prove his case. As the documents stand i.e. being merely mark 14/3 and mark 14/4, they are merely documents produced by the tenant on the record of the case, but not proved according to the rules of evidence by oral or by any other appropriate evidence. It is for this reason that they remained mark 14/3 and mark 14/4 and were not given pakka exhibit numbers.

       [Para 23]

       It was under such circumstances that the tenant as appellant in appeal filed an application Exh. 35 for tendering additional evidence, under Order 41 Rule 27 CPC. The lower appellate Court for the reasons discussed mainly in para 8 of the judgment rejected the application. As a consequence of the rejection of this application, mark 14/3 and mark 14/4 could not be looked upon as evidence in the case, and the lower appellate Court confirmed the decree passed by the Trial Court, simply by holding that the tenant had not proved his case.

       [Para 24]

       The lower appellate Court ought to have appreciated that Order 41 Rule 27, Sub-rule (1) contemplates that the appellate Court may allow additional evidence to be produced, or witness to be examined, if the facts and circumstances contemplated by neither of the three clauses are met and/or satisfied. Obviously, looking to the facts of the case and the averments, Clauses (a) & (aa) have no application whatsoever. However, Clause (b) enables the production of documents or witnesses to be examined to enable the Court to pronounce judgment or for any other substantial cause (emphasis supplied). On the facts and circumstances of the case, I firstly find that the lower appellate Court has rejected the defendants application Exh. 35 (in appeal) on irrelevant grounds, and such rejection is obviously without reference to the provisions of Rule 27.

       [Para 28]

       There cannot be any dispute that the crux of the entire suit is whether the tenant had complied with the requirements of the statutory notice or not. If the tenant succeeds in proving the averments to the effect that he had sent a money order as per the demand made in the suit notice, it would obviously follow that there was no cause of action for the suit and that therefore, the suit must fail. What distinguishes this case from other cases is that the documents mark 14/3 and mark 14/4 go to the root of the matter, and go to the basic jurisdiction of the Rent Court to pass a decree of eviction in the face of Sec. 12, Sub-sec. (1) of the said Act.

       [Para 31]

       Taking into consideration the wider and broader aspects of the matter and the intention behind Clause (b), it would in my opinion require to be held that in a given set of circumstances, the appellate Court may require additional evidence by way of documentary evidence or oral evidence, not merely to decide the issues, not merely to pronounce judgment, not merely to dispose off the case, but to effectively deal with the controversy between the parties, and to deliver an effective judgment whereby the root of the controversy between the parties is addressed and dealt with on the basis of appropriate evidence on record. It is thus obvious that in a given set of circumstances, the appellate Court may not be able to pronounce an effective judgment which addresses itself to the root of the controversy between the parties in the absence of appropriate evidence on record. As already discussed hereinabove, the factual controversy on the facts of the case is as to whether mark 14/3 and mark 14/4 ought to be permitted to be proved or not. Having looked at the two documents, and reading them on prima facie basis and only as documents of what they purport to be (rather than evidence on record), it becomes obvious (and it was obvious to the lower appellate Court as well) that the documents addressed themselves to the readiness and willingness of the tenant to comply with the terms of the tenancy. As discussed hereinabove, inspite of various clauses of Sec. 13 of the Bombay Rent Act, permitting the Rent Court to pass a decree for eviction, Sec. 12 (1) has an overriding effect, and if the tenant is successful in establishing that the tenant was and is ready and willing to pay the amount of the standard rent and permitted increases and observes and performs the other conditions of tenancy, the landlord would not be entitled to a decree for possession. In other words therefore, the lower appellate Court was well aware that the controversy as to whether the tenant was ready and wiling to pay the rent was the root of the matter, was the centre of the controversy between the parties, and the documents at mark 14/3 and mark 14/4 directly addressed this controversy.

       If a Court does not consider it appropriate and addresses itself to this central question, how can it possibly be said that (while ignoring potential effect of such documents) the Court would be able to pronounce judgment which would be an effective one and would also encompass the core of the controversy between the parties? At least on the facts of the case, Court is of the opinion that the lower appellate Court ought to have found that the defendant is required to be given an opportunity of proving mark 14/3 and 14/4 (which were already produced on record) in order that the Court should be able to deliver an effective and complete judgment which would deal with the core of the controversy, rather than merely dispose off the suit.

       [Para 34]

       Court may however interject a note of caution as to what matters may pertain to adjudicating the real dispute between the parties as against matters which pertain to an action or an attempt to fill up the lacuna in evidence. By the very nature of things, this would require to be decided on the facts and circumstances of each case. I am of the opinion that there cannot be any universal rule or principle, or a rigid and binding guideline, which would enable the appellate Courts to merely look at such rules or guidelines and decide in a facile manner whether the evidence sought to be tendered in appeal is necessary for effective adjudication of the dispute on merits or whether it is merely an attempt to fill in the lacuna in the evidence. These are two opposing sides of the balance, and in which direction the balance would or should tilt, depends upon the facts of each case.

       [Para 42]

       Court is satisfied that the lower appellate Court was in error in shutting out the formal proof of mark 14/3 and mark 14/4 as against the defendant, and this has resulted in a decision which has only abandoned judicial discretion, by adopting the larger principle of rendering a decision on such evidence as is available. This has not resulted in a decision which addresses itself to the core of the controversy, which as discussed hereinabove, also affects the basic jurisdiction of the Rent Court.

       [Para 43]