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2005 Supreme(Guj) 192
Gujarat High Court
Judgename :K.M.MEHTA
BACHIBEN TULSIDAS - Appellant
Versus
JAYANTILAL CHUNILAL - Respondent
C.A. 219 of 1978
Decided On : 03/18/2005
Headnote:Point in Issue :
Eviction - Non-payment of rent - Scope of.
Head Note :
Bombay Rents, Hotel & Lodging House Rates Control Act, 1947 (Central Act 57 of 1947) - Sections 11, 11(1)(e), 11(2), 11(4), 12(1), 12(3)(a), 12(3)(b) & 29(2) - Gujarat Education Cess Act, 1962 - Sections 7, 19(1), 19(3) read with 21 - Eviction - Non-payment of rent - Scope of - Under the provisions of the Act when tenant receives a notice of eviction on account of non-payment of rent including education cess and does not raise the dispute about standard rent within month and also does not make application for that tenant is liable to be evicted if he does not regularly pay the rent agreed upon till the such is finally decided - In the case it is clearly made out as held by both Court below that the petitioner tenant has committed default in payment of rent - The appellate Court rightly held that tenant was irregular in payment of rent during pendency of suit - There is nothing to dispute that after framing of issues on 05.09.1977 there has been extreme irregularity in payment of rent - In such situation discretionary jurisdiction exercise by appellate Court cannot be set aside in revisional jurisdiction by Court.
Held :
It has been clearly held by both Courts below that the petitioner has committed default in payment of rent. The appellate Court held that the tenant was irregular in payment of rent during the pendency of the suit. Exhibit 24 is the purshis given before the first appellate Court. In the said purshis, the appellate Judge has found that after framing all the issues on 05.09.1977, there has been an extreme irregularity in payment of rent. The tenant has paid on 13.02.1978 i.e. 5 months after the issues and again on 06.10.1978 i.e. 8 months after the previous payment. Such irregularity deprives the tenant of the protection under Section 12(3)(b). Hence no interference is called for and in the interest of justice, the decree be confirmed. The appellate Court found that after framing all the issues on 05.09.1977 there has been an extreme irregularity in payment of rent. The tenant has paid rent on 13.02.1978 and, therefore, the petitioners were found to have committed default in payment of rent of September, October, November and December 1977 and January 1978. Thus the defendants have not paidup rent from March to September, 1978. In such a situation, the discretionary jurisdiction exercised by the District Judge and the finding of fact of irregularity in payment of rent is not liable to be disturbed or interfered with in exercise of revisional jurisdiction. [Para 5.3]
Unless the tenant pays rent regularly he is not entitled to protection under Section 12(3)(b) of the Act. As there is a concurrent finding of fact by the trial Court as well as the appellate Court that the tenant is not entitled to protection under Section 12(3)(a) and Section 12(3)(b) of the Rent Act, the petitioner has not been able to show that the said decision is contrary to law and facts whereas the Counsel for the respondents relying on several judgments has been able to show that the reasoning given by the appellate Judge is valid and correct both on facts as well as in law. The grounds given by the appellate Judge is cogent and convincing and, therefore, this Court is not prepared to interfere in the Revisional Jurisdiction conferred under Section 29 of the Rent Act. [Para 5.10]
The respondents have relied upon to sustain the judgment of lower appellate Court on the ground that the petitioners tenants have been guilty of substantial defaults in payment of rent and such irregular payment of rent found as a matter of fact by the lower Appellate Court is not liable to be interfered with in exercise of revisional jurisdiction. The view taken by the lower appellate Court is reasonable and possible view on the appreciation of evidences. It would not be appropriate to substitute the views of this Court in place of the view of the lower appellate Court because it tantamounts to re-appreciation of evidence which cannot be done in exercise of revisional jurisdiction. [Para 5.13]
Law Laid Down :
Unless the tenant pays rent regularly during pendency of suit he is not entitled to protection under Section 12(3)(b) of the Bombay Rent Act, 1947.
Cases Law Analysis :
Shah Dhansukhlal Chhaganlal vs. Dalichand Virchand Shroff, AIR 1968 SC 1109 [Para 3.9B];; Ganpat Ladha vs. Sashikant Vishnu, 19 GLR 502 [Para 4.9];; Mranalini B. Shah & Anr. vs. Bapalal Mohanlal Shah, AIR 1990 SC 954 [Para 4.10];; Joshi Bhuraram Dattaram vs. Mrs. Jivibai D. Mulchand, 1995 Supp. (3) SCC 416 [Para 4.11];; Joshi Ratanshi Gopalji vs. Narottam Naranji Mehta Ors., 1996 (1) GCD 61 [Para 4.12].-Relied on
Mohan Laxman Hede vs. Noormohamed Adam Shaikh, AIR 1988 SC 1111 [Para 3.9A];; Parsottamdas Khemchanddas Patel vs. Smt. Prabhuta Pancholi & Ors., 1983 GLH (UJ) 71 [Para 3.9D];; Pravinchandra Shamaldas Patel And Ors. vs. Saraswati Ranchhodbhai, 18 GLR 8 [Para 5.5].-Distinguished
Cases Referred :
Lallubhai Harichand vs. Heirs of Khodidas Haribhai, 16 GLT 31;; Dayalal Gangaram vs. Bhimani Bhupatrai Chunilal & Anr., 18 GLR 349;; Prakash Surya vs. Rasiklal Ishverlal Mehta, 18 GLR 1024;; Ganpatrao Jayavantrao Deshmukh vs. Sagnubai Ramchandra Yadav & Ors., 15 GLR 300;; Champaben vs. Gopinath, 21 GLR 709;; Chhotubhai Zinabhai vs. I.M. Atodaria, 1999 (3) GCD 2583;; I.A. Shaikh vs. K.S. Agarwal, 1994 35 (2) GLR 1591;; Bai Revaben Wd/o. Sitaram Gangaram vs. Sindhi Meghnath Enshiram, 21 GLR 560;; Harbanslal Jagmohandas & Anr. vs. Prabhudas Shivlal, 1976 (3) SCR 628;; Ratilal Balabhai Nazar vs. Ranchodbhai Shankerbhai Patel & Ors., AIR 1968 Guj 172 = IX GLR 48.
Decided in Favour of :
Non-petitioner
Petition Rejected
( 1 ) THE petitioners-original defendant Nos. 1 and 2 have filed this Revision Application under Section 29 (2) of the Bombay Rents, Hotel and Lodging House Rates control Act, 1947 (hereinafter referred to as "the Bombay rent Act") against the judgement and decree dated 12. 11. 1979 passed by the District Judge, Surat, in regular Civil Appeal No. 219 of 1978. The learned Judge by his impugned judgement was pleased to dismiss the appeal of the appellants-petitioners herein. The learned judge was pleased to confirm the judgement and decree dated 26. 10. 1978 passed by the learned Judge, Small causes Court at Surat in Rent Suit No. 1915 of 1975 (Old regular Civil Suit No. 824 of 1974 ). It may be noted that the learned Judge by his judgement and decree has held that the defendants i. e. petitioner Nos. 1 and 2 herein and respondent Nos. 2, 3,4 and 6 in the Revision application and original defendants shall hand-over vacant possession of the suit premises to the plaintiff within three months from the date of the judgement. The court also fixed standard rent of the suit premises at rs. 31. 50 ps. per month. The Court also directed the defendants to pay arrears of rent from 6. 11. 1972 to 5. 7. 1976 and also mesne profit to the plaintiff at Rs. 31. 50 ps. per month from the date of the suit till delivery of the possession.
( 2 ) THE facts emerging from the record of the case which are relevant herein, are set out as under:- 2. 1 there is a property situated at Navapura, Vachali seri, Surat, bearing Municipal Ward No. 3, Nondh No. 3542 (hereinafter referred to as "the suit premises" ). Jayantilal Chunilal, respondent No. 1 herein, original plaintiff, is the owner of the suit property. From the record it appears that the plaintiff had given the suit premises on lease at the rate of Rs. 31. 50 ps. per month. The defendants were liable to pay education cess over and above the rent of the suit premises. 2. 2 as the defendant failed and neglected to make payment of rent for 18 months at the rate of Rs. 31. 50 ps. per month i. e. Rs. 567/- i. e. November, 1972 to 23. 4. 1974 and from 23. 4. 1974 to 30. 4. 1974 Rs. 8/- in all a sum of Rs. 575/-, the plaintiff was constrained to address a notice dated 9. 5. 1974 to the tenant Tulsidas nathubhai through his advocate terminating the tenancy. He has stated that the defendant failed and neglected to pay the aforesaid amount of rent. The defendant also neglected to pay education cess. The defendant has also created nuisance. In view of the same, the said notice was addressed by the plaintiff to the defendant at Exh. 37 in the proceedings. 2. 3 the defendant has replied to the said notice of the plaintiff vide letter dated 15. 7. 1974. In the reply to the said notice, the defendant has raised a dispute regarding standard rent and stated that the original rent was only Rs. 27/- and rent at the rate of Rs. 31. 50 ps. was excessive. The defendant has also denied that he was in arrears of rent of Rs. 575/ -. He has stated that he has not created any nuisance. He has raised a dispute of standard rent and prepared to pay the said amount. The defendant decided to send Rs. 638/- regarding arrears of rent. It appears that when the aforesaid notice was addressed to the landlord he refused to accept the same. Therefore, the said notice was sent by registered post. However, the landlord returned the said amount of Rs. 638/- and the said reply is produced at Exh. 41. 2. 4 the plaintiff thereafter addressed a notice dated 21. 7. 1974 to the defendant tenant. The plaintiff again reiterated his contention of the earlier notice. He has stated that the standard rent was Rs. 31. 50 ps. and denied the rent of Rs. 27/- as stated by the tenant. The said notice is produced at Exh. 44. 2. 5 in view of the aforesaid premises, the original plaintiff Jayantilal Chunilal filed Regular Civil Suit no. 824 of 1974 against the defendant Tulsidas Nathubhai on the ground of arrears of rent i. e. rent due for 18 mont
