Gujarat High Court
Trikamlal Manilal Shah vs Musamiya Isam Haiderbux Razvi on 16 January, 1992
Equivalent citations: AIR1992GUJ155, (1992)2GLR1014
ORDER
1. This is the tenant's revision application under S. 29(2) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, hereinafter referred to as 'the Rent Act', directed against the judgment and order passed on 13th Sept. 1979 in Civil Appeal No. 357 of 1976 by the learned Judges of the Appellate Bench of Small Cause Court, Ahmedabad, reversing the trial Court's judgment and decree dismissing the respondent landlord's suit.
2 - 4. x x x x x x x x x x x x x x x
5. The learned counsel for the parties in this revision application have been heard at length. Two questions arise for determination in this revision application; one is with regard to the decree for possession passed by the Appellate Bench of the Ahmedabad Small Cause Court directing the petitioner-tenant to hand-over peaceful and vacant possession of the suit shop to the respondent-landlord on the ground of arrears of rent as was held to be available under Section 12(3)(b) of the Rent Act and the second is with regard to the order holding the petitioner-tenant liable for committing breach of injunction issued by the trial Court on Exh. 5 and passing an order for detaining petitioner-tenant in civil prison as stated above. Both these questions may now be considered in the context of the submissions made on behalf of the rival parties.
(1) Arrears of rent as contemplated by S. 12(3)(b) of the Rent Act:
6. In so far as this ground is concerned, it would be necessary to set-out a few facts:
The plaintiff-respondent filed the afore said H.R.P. Suit No. 392 of 1971 in the Ahmedabad Small Causes Court by pleading in the plaint that the suit shop was let out for the monthly rent of Rs. 19/- and it was due and payable from 1st February, 1968. The plaintiff-respondent further asserted in the plaint that the plaintiff was entitled to permitted increases at the rate of 7.5% i.e. Rs. 1-43 ps. with effect from 1951 and accordingly the plaintiff-respondent was entitled to Rs. 344-63 by way of permitted increases from the defendant-petitioner. The plaintiff-respondent also claimed permitted increase by virtue of increase in municipal taxes, claiming the amount of such increase in the total sum of Rs. 568-22 upto 1970-71. In para 5 of the plaint the plaintiff-respondent has come out with the demand of the rent and permitted increases as also education cess from the year 1962. According to the plaintiff the defendant-petitioner did not pay the same and, therefore, the plaintiff-respondent was entitled to possession from the petitionertenant. In the prayer clause regarding the money claim of arrears of rent permitted increases as also the education cess, the plaintiff-respondent has claimed education cess in the sum of Rs. 121-50. Thus according to the plaintiff-respondent the petitionertenant was liable to pay education cess which was payable annually. As against the aforesaid facts set out by the plaintiff-respondent it is an admitted position that the petitionertenant filed application for fixation of the standard rent for the suit shop quite within a period of one month from the receipt of the suit notice. It is also an admitted fact that the said standard rent application was withdrawn with the permission of the Court as per the order Exh. 84 and the question of standard rent was required to be decided in the aforesaid suit. It is finally not in dispute that the question of standard rent and permitted increase came to be decided by the trial Court along with the other questions on 5th July, 1976 as stated above. The trial Court fixed standard rent of the suit shop at Rs. 19/- per month plus Rs. 1/ - per month by way of permitted increase under S. 10C of the Rent Act. It is important to note that on the date of the trial Court's judgment and decree the petitioner-tenant had deposited an excess amount to the extent of Rs. 86/-. Issue No. 3 framed by the trial Court related to the plaintiff-respondent's claim of possession on the ground of arrears of rent. The trial Court held that the dispute of standard rent came to be raised within one month from the service of the demand notice. Besides, the plaintiff respondent also claimed permitted increases and the petitioner-tenant disputed such claim of permitted increase. In that view of the matter the trial court held that the provision contained in S. 12(3)(b) of the Rent Act was attracted and by virtue of the fact that the petitioner-tenant deposited the full amount of arrears, the petitioner-tenant could not be said not ready and willing to pay the rent. The trial court held that the petitioner-tenant was protected under S. 12(3)(b) of the Rent Act.
7. The respondent-plaintiff carried the matter in appeal again disputing the rate of permitted increases. In the grounds of appeal the respondent-landlord asserted that the trial Court ought to have awarded permitted in crease at the rate of 7.5%, and not at the rate of 5% and that the trial Court ought to have I awarded permitted increases on account of increase in municipal taxes. Such appeal came to be filed by the respondent-landlord on 26-11-1976 and it was admitted on 10-1-1977. Dealing with the question of arrears of rent, the Appellate Bench framed the following point for determination:
"Whether the learned trial Judge erred in holding that the defendant is ready and willing to pay the arrears of rent? Whether the .tenant is ready and willing to pay rent during appeal period?"
The Appellate Bench replied this point being point No. 3 as:
"The learned trial Judge ought to have given time to the defendant to deposit the arrears of rent then due on the date of the judgment. But tenant is not ready and willing to pay rent during the period of appeal."
Pursuant to this finding the Appellate Bench passed decree for eviction against the defendant-tenant (the petitioner in this revision application). In para 14 of the judgment of the Appellate Bench it is observed that if the tenant desires to protect his possession he was bound to deposit all the arrears of rent including the rent barred by law of limitation. With regard to the education cess amount of Rs. 121-50 claimed by the respondent plaintiff, it is observed by the Appellate Bench in para 18 that that amount was claimed by the respondent-plaintiff, but since no receipt was produced by the respondent-plaintiff to show that the respondent-plaintiff paid that amount of education cess, the money claimed on that count sould not be granted. The fact remains that even at the appellate stage tile respondent-plaintiff had pressed for the claim of education cess. Thus it is a fact that the respondent-plaintiff was consistent in asserting that the petitioner-tenant was liable to pay education cess. It is noteworthy that liability to pay education cess would not be a liability incurring from month to month but it would be a liability recurring every year upon the Ahmedabad Municipal Corporation issuing appropriate bill for that purpose. It cannot be disputed that the liability of education cess would be a part of liability to pay rent. That position of law has been settled legal position.
8. In para.19 of the judgment of the Appellate Bench, the Appellate Bench proceeded to consider the grounds of eviction based on arrears of rent accepting the facts as they appeared with regard to raising of dispute of standard rent. The Appellate Bench observed that the dispute was covered under S. 12(3)(b) of the Rent Act. The Appellate Bench, however, proceeded to consider the payments made by the tenant before the Court in the suit proceedings. Reference has been made to the facts with regard to filing of the standard rent application by the tenant. The Appellate Bench then proceeded to find that the trial court was bound to give time to the tenant to enable the tenant to deposit the amount of standard rent when the standard rent was fixed along with other questions. The Appellate Bench further proceeded to observe that if the tenant deposited the amount within the time prescribed by trial Court, then the tenant was protected as being ready and willing to pay arrears of rent.
9. In para. 21 of the judgment, Appellate Bench proceeded to calculate the arrears of rent. While entering into such an exercise the Appellate Bench appears to have apparently committed an error of making an addition of the permitted increase allowed by the Appellate Bench while accepting the respondent plainitff's case for further permitted increases. As a result of such an exercise undertaken by the Appellate Bench, the amount of arrears of rent and mesne profits on the date of the trial Court's judgment came to -be ascertained at Rs. 2554-46 ps. and then Appellate Bench proceeded to adjust Rs. 2106/- deposited as per pursis Exh. 94. It is in this fashion the Appellate Bench found deficit of Rs. 448-46 ps. on the date of the judgment of the trial Court. It is thus clear that while making such an exercise the Appellate Bench dealt with further permitted increase allowed by the Appellate Bench by relating back the same to the judgment and decree passed by the trial Court. As a matter of fact, the Appellate Court ought to have dealt with such question separately and following the legal position which was in the minds of the learned Judges of the Appellate Bench, the Appellate Bench ought to have granted time if it found any deficit on the date of judgment and decree passed by the Appellate Bench. If the tenant did not comply with such directions within the time that ought to have been granted, then only the Appellate Court could have passed the decree for possession and not otherwise. It is interesting to note that by making relation back of the findings given by the learned Judges of the Appellate Bench, following conclusion has been arrived at in para. 21 :
"Therefore, in our opinion, the learned trial Judge has erred in calculating the amount of arrears of rent and we are of the opinion that the learned trial Judge ought to have come to the conclusion that the total amount due to the plaintiff on the date of the judgment was Rs. 2554-46 ps. and ought to have given time to the defendant to deposit further amount of Rs. 448-46 ps."
10. If above was the conclusion of the Appellate Bench, the Appellate Bench ought to have in law granted time to the tenant for depositing the difference as was decided by the Appellate Bench ought to have in law granted time to the tenant for depositing the difference as was decided by the Appellate Bench or ought to have considered that aspect while deciding the question of readiness and willingness to pay arrears of rent and mesne profits.
11. However, the Appellate Bench proceeded to take in hand the question of deposit of arrears of rent during the pendency of the appeal quite separately and without bearing in mind what has been noted above, particularly without hearing in mind that there was consistently a demand for education cess which was not payable monthly. In para. 22 of the judgment of the Appellate Court, the Appellate Court has reverted to the date of service of notice of appeal to the petitionertenant. Accordingly the notice of the appeal was served upon the petitioner tenant on 12-2-1977 and it was returnable on 21-2-1977. The Appellate Court then applied Full Bench decision of this Court in Lalchand v. Nanalal, (1976) 17 GLR page 1 : (AIR 1976 Guj 122), for finding that the knowledge about the filing of the appeal on the part of the petitionertenant in this case, was as on 12th February, 1977. The Appellate Bench again went on to commit error on the face of the observations appearing in para. 22 in clubbing the permitted increases, which the Appellate Bench granted, with the arrears of standard rent and permitted increases which the trial Court granted. It is in this fashion the Appellate Court found out deficit of Rs. 310-90. This the Appellate Court has done without granting any time to the petitioner-tenant as required by law or without considering this aspect while passing the decree for possession. Pausing for a moment here, it is an admitted position that even on the date of the judgment of the Appellate Court all the arrears of rent and mesne profits, as even decided by the Appellate Bench, were deposited by the petitioner-tenant. It is interesting to note that in para. 23 the Appellate Bench has observed that as standard rent came to be increased the Appellate Court should give time to deposit the deficit. However, without adverting to this settled legal position, the Appellate Bench proceeded to consider the argument on behalf of the respondent-plaintiff by assuming for the time being that Rs. 20/- was the rate of standard rent fixed by the trial Court. Making such an assumption the Appellate Bench considered the deposits made by the petitioner-tenant in the appeal. It is here that the Appellate Bench found some lapse on the part of the petitioner-tenant which ultimately resulted in passing of the decree for eviction. The figures are thus worked out by the Appellate Court:
Rs.2020/- Amounts of arrears of rent and mesne profits as determined by the trial Court up to30-6-1976.
Rs. 2106/- The amount deposited by the defendant-tenant in the trial Court as per Exh. 94 Rs. 86/- Excess of amount deposited by defendant-tenant.
The Appellate Bench then proceeded to count the arrears of standard rent and mesne profits according to the decision of the trial Court from 1-7-1976 to 31-8-1979 for a period of 38 months. Accordingly it was worked out at Rs. 760/-. The Appellate Bench then proceeded to consider Pursis Exh. 9 setting out the particulars of deposits made during the pendency of the appeal. The particualrs may be reproduced here:
Date Receipt No. Amount of deposit Rs. Ps. 13/6/79 3120 600-00 21/6/78 4144 100-00 21/6/78 4287 40-00 6/7/79 5483 40-00 13/7/79 6090 40-00 2417/79 6895 40-00 26/7/79 7079 40-00 22/8/79 8828 50-00
The Appellate Bench then proceeded to consider the decision of the Supreme Court in the case of Mranalini B. v. Bapalal Mohanlal, (1978) 19 GLR 1090: (AIR 1980 SC 954). In the first instance the Appellate Court found that considering the excess payment, the petitioner-tenant was in arrears of Rs. 54/ - as on 21-2-1977. The Appellate Bench further found that thereafter from March 1977 the petitioner tenant ought to have deposited Rs. 20/- per month regularly. As against that, as per the Pursis Exh.9, the first deposit was made on 13-6-1978 and it was in the sum of Rs. 600/-. The Appellate Bench proceeded to accept submission regarding such a lapse on the part of the tenant during the pendency of the appeal and found that by virtue of the decision of the Supreme Court in the case of Mranalini v. Bapalal (supra) the petitioner-tenant lost protection under S. 12(3)(b) of the Rent Act.
12. It may be noted that even the defendant has asserted in para. 6 of the written statement Exh.30 that the tenant has never refused to pay the amount of education cess whatever that was payable, but the plaintiff has not shown the bills of education cess and receipts thereof for the verification by the defendant. Thus the liability to pay education cess is not in dispute.
13. It is in the aforesaid manner that the Appellate Bench proceeded to pass decree for possession against petitioner-tenant. It is submitted that the legal position with regard to giving of time when there was a continuous dispute of standard rent and permitted increases and when annual liability to pay education cess was admitted, was not taken into consideration at all and even the ratio in the decision of the Supreme Court in the case of Mranalini (supra) was not properly applied while passing the decree for eviction. It would, therefore, be necessary to deal with that part of the submissions made on behalf of the petitioner-tenant. Reference is firstly made to the decision of the Supreme Court in the case of Vora Abbasbhai v. Haji Gulamnabi Haji Safibhai reported in (1964) 5 GLR 55 : (AIR 1964 SC 1341). In that case the Supreme Court was concerned with almost similar facts - situation with regard to the arrears of rent being the ground of eviction and with regard to the facts that would fall within the ambit of S. 12(3)(b) of the Rent Act except that here the liability to pay education cess is of the petitioner-tenant. The plaintiff of that case to deliver the possession of the demised premises as the defendant failed to pay rent since October 1, 1955 at the rate of Rs. 70/- per month. The defendant by his letter dated 7-12-1956 (within one month from the receipt of the notice) contended inter alia that the stipulated rent was excessive. The tenant moved the Court for fixation of standard rent of the demised premies under S. 11 of the rent Act. During the pendency of that application on January 8, 1956 the defendant deposited in Court Rs. 500/-. On January 27, 1957 the plaintiff instituted the suit for eviction. On February 14, 1957 the defendant applied for fixation of interim rent so long as the standard rent of the suit property was not fixed, in order to enable him to deposit the amount in the Court without prejudice to his contentions. The Court passed order directing the defendant to deposit the arrears at the rate of Rs. 51/- p.m. within 15 days from that date. Pursuant to the order, the defendant deposited Rs. 200/- on March 2, 1956 and deposited diverse other sums from time to time which by February 11, 1958 aggregated to Rs. 1,479/- . No further steps were taken in the application for fixation of standard rent, but the proceeding of the standard rent was amalgamated with the suit as the inquiry about the appropriate standard rent had also to be made in the suit. On March 28, 1958, the trial Court dismissed the plaintiff's claim for a decree in ejectment and fixed the standard rent at the rate of Rs.50/- p.m. Taking into account the aggregate amount deposited, the Court held that the defendant was not liable to be evicted for non-payment of standard rent and that in any event it was established that the defendant was ready and willing to pay the amount of 'standard rent and permitted increases within the meaning of S. 12(l) of the Act. In appeal to the District Court, proper standard rent was held to be Rs. 70/and it was further held that the rent had not been paid by October 1, 1955 and that tenant was not entitled to get credit of Rs. 150/- spent by him for 'electric installation'. However, it was held that pursuant to the order of Court, at first instance, the interim rent was deposited by the defendanttenant and, therefore, he complied with the requirements of S. 12(3)(b) of the Rent Act and he had otherwise proved his readiness and willingness to pay the amount of interim rent and permitted increases. The District Court, therefore, confirmed the decree of the trial Court in so far as it related to the claim for possession. The matter was carried to the High Court of Gujarat and there the decree of the District Court was reversed directing the defendant-tenant to hand over vacant and peaceful possession of the premises within four months from the date of the order. In the view of the High Court the defendant was not ready and willing to pay the standard rent and permitted increases on the date of the suit and that he did not comply with the requirements of S. 12(3)(b) of the Act, because he had not deposited in Court the amount of standard rent at the rate determined by the order of the District Court and had not paid even the interim rent at the rate fixed by the Court at first instance. In the context of such facts, the Supreme Court proceeded to consider the provisions of S. 5 (clause 10A), S. 10, S. 12(l), S. 12(3)(b) of the Rent Act inter alia the other provisions thereof.
14. With regard to S. 12(l) the Supreme Court inter alia held that protection from eviction is claimable by the tenant so long as he pays or he is ready and willing to pay the amount of standard rent and permitted increases. With regard to S. 12(3)(b) it has it has been held that to bring his claim within that provision, the tenant must pay or tender the standard rent and permitted increases on or before the first day of hearing, or on or before such other date as court may fix and also pays cost of the suit as may be directed by the Court. Following observations in para 10 are required to be reproduced with emphasis to be supplied for the purpose of noticing certain classified situations :
"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 continuing to pay it till the suit 1 s 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 of 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, 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 if on or before that date the difference is paid the requirement of S. 12(3)(b) would be complied with,"
(Emphasis for classification of certain situations supplied).
The Supreme Court held that S. 12(3)(b) of the Act requires the tenant to pay the standard rent and not interim rent and the expression standard rent may not be equated with 'interim rent'. It is observed:
"The Legislature has prescribed condition 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 standard rent and complying therewith or by complying with the Explanation to S. 12 or otherwise,"
In that case the Supreme Court held that the claim made by the defendant fell within the terms of S. 12(3)(b) of the Rent Act and that the District Court was apparently in error in assuming that by tendering in Court rent at the rate specified in the order dated February 14, 1957, the requirement of S. 12(3)(b) of the payment of standard rent was satisfied. It was observed that the amount deposited pursuant to the order of the Court was not less than the amount fixed by the trial Court. However, the defendant did not continue to pay rent regularly till the suit was finally decided. But, it was held, the Court should have before disposing of the appeal fixed a date for payment of the difference between the standard rent due and the amount actually deposited in Court. This can be seen from what has been ruled in para. 14 of the citation.
15. It is thus clear that the decision of the Supreme Court in the case of Vora Abbasbhai v. Haji Gulamnabi (supra) is applicable on all fours to the facts of the present case. The Appellate Court ought to have considered the fact that the dispute with regard to permitted increases was subsisting even in the appeal. That fact could not have been set apart while considering the various deposits as per Pursis Exh.9 and then to apply the decision in the case of Mranalini v. Bapalal (supra). It is, no doubt, true that in the case of Mranalini v. Bapalal (supra) the Supreme Court held that the expression "suit" in clause (b) of S. 12(3) includes an "appeal". However the facts as appearing in the citation clearly indicate the material difference in so far as the facts of present case are concerned. In the case of Mranalini v. Bapalal a suit was filed for possession of the demise premises and for arrears of rent amounting to Rs. 526.33 ps., together with future mesne profits and costs. The suit was resisted on various grounds and it was dismissed by the trial Court fixing the standard rent at Rs. 65/- p.m. including municipal taxes and further directed to pay the arrears of rent amounting to Rs.498.33ps. The Appellate Bench, in the appeal, by judgment dated 7/l/1977 dismissed the appeal and maintained the decree of the trial Court, observing that the tenant had substantially complied with the provisions of S. 12(3)(b). Against the order of the Appellate Bench a writ petition was filed in the High Court of Gujarat and that was summarily dismissed by order dated July 21, 1977. It further appears from the citation that tenant made various deposits which, were consistently irregular ranging from 2 to 4 months on every occasion. Under such facts the Supreme Court held that the requirement of S. 12(3)(b) of the Rent Act were mandatory and not directory and that they were not complied with. Reliance was placed on the observations of the Supreme Court in the earlier judgment in the case of Ganpath Ladha v. Shashikant Vishnu Shinde, (1978) 19 GLR 502: (AIR 1978 SC 955). It was held that word "regularly" appearing in clause (b) of S. 12(3) enjoins a payment or tender characterised by reasonable punctuality, that is to say, one made at regular times or intervals. The regularity contemplated may not be a punctuality, of clock-like precision and exactitude, but it must reasonably conform with substantial proximity at which the rent falls due. Even in the case of Mranalini the Supreme Court has not spoken of regularity to mean as punctuality or as clock like precision and exactitude. So, far as the present case is concerned apart from the fact that there was a continuance dispute with regard to permitted increases in the appeal itself and that admittedly the defendant was liable to pay education cess, the defendant-tenant made only lapse of tendering or depositing the amount of rent for a period after filing of appearance in the appeal up to June 13, 1978. But then, barring that, it is admitted, the defend ant-tenant made deposits of arrears of standard rent and permitted increases well in advance, with the result that even before this Court the learned counsel for the plaintiff-respondent could not dispute such fact. It is in this respect that Mr. Shelat learned counsel for the petitioner-tenant relied upon a recent decision of the Supreme Court in the case of Mohan Laxman Hede v. Noormohamed Adam Shaikh, AIR 1988 SC 1111, where it has been that to take advantage of protection from eviction under S. 12(3)(b) of the Act it cannot be said that exact or mathematical punctuality was required in the deposit of rent by a tenant in Court. There were a few defaults committed by the tenant in the sense that in respect of the first month to which the deposit relates, there was some delay amounting to from two or three days upto a maximum of 23 days. But, on the other hand, the rent for most of the months had been deposited in advance. In these circumstances, the rent could be said to have been deposited by the tenant with reasonable punctuality. It was, therefore, held that the tenant could be said to have deposited the rent with reasonable punctuality and could be regarded as having deposited the rent "regularly" as contempated in clause (b) of sub-section (3) of S. 12 of the Act so as to claim protection from eviction. Even if the decision in the case of Mranalini (supra) is required to be applied to the facts in the present case, it stands answered by the decision in the case of Mohan Laxman Hede (supra), in as much as in the present case the defendant-tenant had mostly deposited arrears of rent in advance and the only lapse that defendant committed was, after filing appearance in the appeal till upto the first d ate of deposit in the appeal 13-6-1978. when Rs. 600/- were deposited. It can be seen that thereafter, the tenant has deposited rent and permitted increase well in advance. In the above view of the legal position, it is clear that the defendant-tenant in this case is entitled to the protection of S. 12(3)(b) of the Rent Act and as the defendant-tenant has deposited all the arrears of standard: rent and permitted increases even as they were fixed, by the Appellate Bench, no decree for possession could ever have been passed by the Appellate Bench by reversing the trial Court's judgment.
16. On the question of passing of decree on the ground of arrears of rent by virtue of provision contained in S. 12(3)(b) of the Rent Act, Mr. Shelat learned counsel for the petitioner-tenant relied upon changed position of law by virtue of the Gujarat Amendment being Act No. 7 of 1985. The said amendment came to be considered by this Court in the case of Malganbhai Rasulbhai V. Pushpavadan Manilal Desai reported, in (1986) 27(2) GLR p. 1024. The amendment in S. 12(3)(b) as per the Amendment Act No. 7 of 1985 has been reproduced at p. 1028. The same may be also set out here:
"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."
By virtue of the aforesaid amendment the controversy with regard to deposits or tender required to be made regularly now stands set at rest. After setting out the detailed history of the legislation this Court held :
"The Amending Act No. 7 of 1985 is merely clarificatory and/or declaratory in nature."
This Court further held that the Act was retrospective in operation. It is, therefore, submitted that by virtue of this decision, the defendant-tenant was entitled to the protection from eviction and as he having deposited all the arrears of rent and mesne profits both at the time of trial Court's judgment as well as at the time of the Appellate Court's judgment, no decree for eviction could ever have been passed. Mr. Patel, learned counsel for the respondent-landlord tried to canvass a pro Position that, S. 12(3)(b) of the Rent Act confers a right and, therefore, it is, not a procedural provision which could be held to be retrospective provision. According to his submission, the inclusion of the word 'regularly' in the earlier provision of S. 12(3)(b) of he Rent Act indicated that substantive right as conferred upon the landlord and since such right is taken away by the Amending Act, it could not be interpreted as retrospective in operation. Mr. Patel, therefore, proposed a different view about the operation of the Amending Act No. 7 of 1985. I have gone through the whole of the decision in the case of Malganbhai v. Pushpavadan (supra). In para 18 and onwards the scheme of the provision contained in S. 12(3)(b) has been set out. After setting out the scheme, it has been held that there was no right conferred upon the landlord to receive the rent regularly by virtue of the provision appearing in subsection (4) of S. 12. This Court held (Per Ravani, J.) : "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 subsection (4) of S. 12 has not been amended at all.
17. Thus it becomes clear that the entire provision of S. 12(3)(b) read with sub-s. (4) of S. 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."
Section 12(3)(b), read as a whole, clearly lays down a procedure for the purpose of regulating the deposits or tender of rent that would fall due during the pendency of-the suit. In my view, the submission that S. 12(3)(b) of the Rent Act confer a substantive right in the landlord for claiming possession of the rented premises, cannot be accepted and no different view of the provision from the view that has been expressed by Ravani, J. in the case of Malganbhai v. Pushpavadan (supra) is possible.
18. In the, above view of the matter the Appellate Court has clearly erred in law, in as sing decree for possession on the ground of arrears of rent and such part of the Appellate Court 's decree deserves to be quashed and set aside .
19. Before I take myself to the consideration of the question of breach of injunction, it Would be appropriate to state that even according to Mr. Patel; barring only one lapse which lasted from the appearance filed in the appeal till the first deposit on 13-6-1978, the tenant all throughout deposited the arrears of rent and mesne profits well in advance and, therefore, the plaintiff-respondent was not in a position to make any grievance about the other deposits. Even during the pendency of this revision defendant-tenant has deposited rent and mesne profits well in advance of the same falling due. Besides, it clearly appears that the claim of the plaintiff-landlord with regard to education cess made in the plaint has escaped the attention both of the trial court as well as of the Appellate Court. It is true that the plaintiff has not made good the money claim of education cess by producing the receipt, but the plaintiff has in terms come out with a case that the defendant-tenant was liable to pay education cess. In that view of the matter, it cannot be said that the rent was payable from month to month. The tenant has deposited all the arrears of rent and mesne profits at both stages, namely at the appropriate stage of trial Court as well as at the appropriate stage of trial Court as well as at the appropriate stage of Appellate Court. The tenant would be obviously entitled to protection of Section 12(3)(b) of the Rent Act even on this count in view of the settled legal position as noticed herein above.
(2) Breach of injunction :
20. The petitioner-tenant has then made grievgance against the following order passed by the Appellate Court :
The defendant-respondent is held liable for committing a breach of injunction issued by the Court on Exh. 5. and, therefore; the defendant-respondent is ordered to be detained in civil prison for a period of one month vide Order 39 Rule 2 of Civil Procedure Code. Necessary warrant for detaining the defendant-respondent in civil prison be issued. ''
21. The facts as are not in dispute may be stated in brief in this connection. During the pendency of the suit the plaintiff moved an application for obtaining, temporary injunction Exh. 5. In that application the plaintiff asserted that the plaintiff filed a suit for permanent injunction bearing Civil Suit No. 3479/1969 alleging therein that the building of the suit shop was in dilapidated condition and that the Ahmedabad Municipal Corporation had served the plaintiff with a notice of demolition of the said property. The plaintiff, therefore, filed the suit for obtaining relief of permanent injunction that the defendant should be restrained from making any construction of permanent nature in any portion of the premises in possession of the defendant. Interim injunction was granted in favour of the plaintiff against the defendant in that suit. Thereafter, the defendant appeared in that suit on 5th March, 1970 and filed a Pursis that the defendant did not want to make any permanent construction. The plaintiff, therefore, withdrew that suit. Thereafter, the plaintiff filed present suit after serving demand notice. In reply to the notice the defendant called upon the plaintiff to replace the old wall, failing which the defendant would replace the same and claim set off of such amount of repairs towards the rents. The plaintiff then asserted that under such circumstances defendant was making attempts to make construction of a wall. The plaintiff, therefore prayed for interim injunction during the pendency of the suit restraining the defendant from making construction of any nature in the premises in possession of the defendant. On 25-1-1971 when the injunction application was moved following order was passed by the trial Court:
"Ad interim injunction granted restraining the defendant from erecting permanent structure."
It appears from the judgment of the trial Court as well as the Appellate Court that the defendant tried to make construction of the wall where the old wall in dilapidated condition was in existence. This was the position with regard to another wall also. Now in this connection it further appears from the judgment of the trial Court as well as Appellate Court that the defendant constructed two new side walls at the place of dilapidated walls in the end of September 1975 persuant to one municipal certificate issued, by the Ahmedabad Municipal Corporation that the suit premises badly required such repairs. The Ahmedabad Municipal Corporation gave notice on 26-8-1975 to the plaintiff to carry out those repairs. The plaintiff did not carry out such repairs, so the defendant gave application to the Ahmedabad Municipal Corporation that he was ready and willing to carry out those repairs. The Corporation granted necessary certificate under S. 10D of the Rent Act to the defendant and permitted him to construct two side walls as shown in the certificate Exh. 86. The defendant thereafter constructed the said two side walls in pursuance of said certificate. As the plaintiff and police were interferring with the work of construction, the defendant moved an application Exh. 41 in the trial Court for necessary injunction and direction to the police. So the trial Court sent Yadi to the police and permitted the defendant to carry out the construction as per municipal certificate. The dilapidated walls had almost fallen down. The trial Court taking into consideration this aspect of the case as also the aspect that construction of this side walls in place of the old dilapidated walls could not be said amounting to 'erection of permanent structure-in the demised premises, held that the defendant-tenant did not commit the breach of Court's injunction and dismissed the plaintiff's various applications for taking steps against the defendant-tenant in that respect.
22. The Appellate Court, however, has taken a different view. This appears from para 37 of the judgment of the Appellate Bench. The Appellate Bench viewed the matter from different angle, namely, that the Court never ordered mandatory injunction in favour of the, defendant directing him to construct the walls. Therefore, the erection of the walls was voluntary in so far as the defendant was concerned. This was done by defendant in spite of the injunction, which he faced, as per the, order below application Exh. 5 as noticed above. It clearly appears that Appellate Court has not at all applied its mind to the certificate issued by the Ahmedabad Municipal Corporation and to the order passed by the trial Court permitting the defendant to carry out the repairs and restraining the plaintiff as also the police from obstructing the defendant from carrying out the repairs by making construction of two side walls. The nonapplication of the mind on the part of the Appellate Bench is apparent on the face of the record. On one hand no Court could have restrained a tenant from carrying out repairs in the demised premises and on the other hand order of the Court restraining the tenant from erecting permanent structure could not be interpreted as or could not be taken to have the effect of restraining the tenant from repairing the walls or placing the new walls where old walls in dilapidated conditions were in existence. Under such circumstances, it would be too much to find a tenant to have committed contempt of Court by violating the order of the trial Court which was specific and clear in nature. It may be seen that the trial Court did not grant injunction as prayed for by the plaintiff, but it passed a specific order. It has, therefore, to be seen whether the construction of the two walls in place of old walls amounted to erection of new structure in the demised premises. It is an admitted position the defendant did not make any new construction in the demised premises. What the defendant did was to carry out the construction of the walls which had fallen down, in order to see that the suit shop remained intact as it was originally. Construction of walls in place of old walls can never amount to erection of a permanent structure into a demised premises. It is, therefore, plain to find that there is non-application of mind on the part of the Appellate Bench both on the facts of the case as well as to the orders passed by the trial Court. In that view of the matter the impugned order of the Appellate Bench deserves to be quashed and set aside.
23. Petition allowed.