Gujarat High Court
Gopaldas Kakubhai Thakkar Decd Through ... vs Jamnabai Tekchand Mangalani Decd ... on 13 October, 2022
Author: A. S. Supehia
Bench: A.S. Supehia
C/CRA/425/2002 JUDGMENT DATED: 13/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 425 of 2002
FOR APPROVAL AND SIGNATURE: Sd/-
HONOURABLE MR. JUSTICE A.S. SUPEHIA
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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GOPALDAS KAKUBHAI THAKKAR DECD THROUGH HEIRS
Versus
JAMNABAI TEKCHAND MANGALANI DECD THROUGH HEIRS
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Appearance:
MR JENIL M SHAH, ADVOCATE for the Applicant(s) No.
1,1.1,1.2,1.3,1.4,1.5,1.6,1.7,1.8
MR ANAND B GOGIA(5849) for the Opponent(s) No. 1.1
MR PS GOGIA(2751) for the Opponent(s) No. 1
MS KAJAL L KALWANI(6623) for the Opponent(s) No. 1.1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 13/10/2022
ORAL JUDGMENT
1. The present matter was allowed by this Court on 10.10.2022.
2. After the dictation of the judgment in the open court and at the end of the second session and before signing of the judgment, learned advocate Mr.Gogia has pointed out the judgment of the Supreme Court in the case of Mranalini B. Shah vs. Bapalal Mohanlal Shah, 1980 4 SCC 251. Again a mention was Page 1 of 17 Downloaded on : Sun Dec 25 03:54:33 IST 2022 C/CRA/425/2002 JUDGMENT DATED: 13/10/2022 made by him on the next day for rehearing of the matter by pointing out other judgements. After perusing the said judgments, since it was felt by me that the law enunciated by the Apex Court has direct bearing on the issue raised in the present application, it was ordered to be listed today i.e. on 13.10.2022.
2.1. Today, learned advocate appearing for the respective parties are again heard by this Court.
3. Learned advocate Mr.Gogia has submitted that in fact, the issue is squarely covered in the aforesaid judgment and the judgment in the case Mohan Laxman Hede Vs. Noormohamed Adam Shaikh, 1988 (2) S.C.C. 481 as the tenant had not deposited the rent "regularly", as envisaged under Clause (b) of Section 23 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the "Rent Act") and hence, the Appellate Court was justified in setting aside the judgment and decree of the Trial Court.
4. Learned advocate Mr.Shah has submitted that in fact, the aforesaid judgment in the case of Mranalini B Shah, (Supra) will not apply in the present case, since the standard rent was for the first time determined by the Trial Court in the judgment dated 11.08.1983 and accordingly, the tenant had already cleared all the dues and in fact, paid more than what was due as on the date of judgment, hence, the suit was appropriately dismissed. He has pointed out that the issues framed below Exh.25 by the Trial Court, the same was not disputed by the owner, and has submitted that the very issue pertains to fixation of standard rent and after the remand of the matter by the High Court in Civil Revision Application No.843 of 1981 and before the judgment Page 2 of 17 Downloaded on : Sun Dec 25 03:54:33 IST 2022 C/CRA/425/2002 JUDGMENT DATED: 13/10/2022 was pronounced, the tenant has already deposited the entire rent. Thus, it is submitted that in view of the judgment of the Coordinate Bench of this Court in the case of Naranbhai Nathubhai Koli vs. Modhia Panalal Maganlal, 1982 GLH 723 and in the case of Rupaben wd/o Kaththu Dhanji and Anr. vs. Babubhai Deojibhai, 1983 G.L.H. 211 and in the case of Nanji Pancha Vs. Daulal Naraindas, (1970) 11 GLR 285, the suit is appropriately dismissed, since all the dues were cleared by the tenant, after he knew about the fixation of the standard rent.
5. Per contra, learned advocate Mr.Gogia has submitted that as per the aforesaid judgments, since a specific finding is recorded by the Appellate Court, to the effect that the tenant has not paid the rent regularly and the High Court for the very limited purpose has remanded the matter, the Appellate Court was justified in dismissing the suit of the plaintiff. It is submitted that there is a specific finding recorded by the Appellate Court and in fact, on an application filed by the tenant below Exh.10, the standard rent was fixed at Rs.50/- by the interim order of the Tiral Court, which was thereafter finally fixed by the judgment and order dated 04.10.1979 at Rs.110/- i.e. Rs.96/- per month + Rs.14/- for taxes per month. It is submitted that even after fixation of the standard rent on 04.10.1979, the applicant has not deposited the rent regularly.
6. In response to the aforesaid submissions, learned advocate Mr.Shah has submitted that it is true that initially the tenant has not deposited the rent regularly but after the matter was remanded by the Court vide judgment and order dated 30.09.1982 (Exh.46) passed in Civil Revision Application No.843 of 1981, the tenant has deposited the rent regularly and cleared Page 3 of 17 Downloaded on : Sun Dec 25 03:54:33 IST 2022 C/CRA/425/2002 JUDGMENT DATED: 13/10/2022 all the dues and hence, the order passed by the Appellate Court is required to be quashed and set aside.
7. The present revision application is being decided on the basis of the available record since part of the record has been destroyed, as observed by the Appellate Court in the impugned order.
8. The plaintiff is the original landlord and the defendant is the tenant before the Trial Court. The plaintiff had instituted a suit being Rent Suit No.74 of 1979 (Old Civil Suit No.121 of 1975) against the defendant for recovery of arrears of the rent and also for seeking his eviction from the suit property.
9. The plaintiff had instituted the suit alleging that the defendant failed to pay the rent from 01.04.1974 to 30.11.1974, and he was in arrears of rent more than eight months, when the suit was instituted. Accordingly, a notice for eviction of the suit premises was issued to the defendant and it was alleged by the plaintiff that an amount of Rs.1176.50 was found due, and hence, in order to recover the said amount and to recover the possession of the suit premises, the suit was instituted.
10. The suit was contested and the defendant had asserted that in fact, the rent of the suit premises was Rs.96/- per month, over and above that he was also paying the taxes and hence, he raised the dispute of standard rent in his written statement. He also denied that he was in arrears of rent from 01.04.1974 to 30.11.1974.
11. After the suit was instituted, the following orders are passed in the proceedings:
Page 4 of 17 Downloaded on : Sun Dec 25 03:54:33 IST 2022C/CRA/425/2002 JUDGMENT DATED: 13/10/2022 a) The trial court fixed the standard rent of Rs.110/- vide
judgment and order dated 04.10.1979. The suit was decreed in favour of the plaintiff (old Civil Suit No.125 of 1975) and an eviction decree was passed against the tenant under Section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, (for short, "the Rent Act").
b) Being aggrieved by the said judgment and decree, the tenant defendant filed an appeal before 2nd Joint District Judge, Rajkot being Civil Appeal No.99 of 1979, which was also dismissed by the District Judge on 16.03.1981.
c) The tenant thereafter filed a Civil Revision Application No.843 of 1981 before this Court and by the judgment dated 30.09.1982 (Exh.46), both the orders passed by the Trial Court as well as Appellate Court were set aside and the matter was remanded to the Trail Court to decide the suit afresh only on the issue "whether the tenant had deposited arrears of the rent regularly, having regard to Section 12(3)
(b) of the Rent Act.
d) After remand of the matter by this Court, the Trial Court vide judgment and order dated 11.08.1983 dismissed the suit of the plaintiff-land lord.
e) Being aggrieved, the land lord filed Regular Civil Appeal No.123 of 1983 before the Court of the learned 2 nd Joint District Judge, Rajkot under Section 96 of the Code of Civil Procedure, 1908. Vide judgment and order dated 19.06.1990, the Appellate Court dismissed the appeal on the Page 5 of 17 Downloaded on : Sun Dec 25 03:54:33 IST 2022 C/CRA/425/2002 JUDGMENT DATED: 13/10/2022 ground that it was not necessary to examine the issue with regard to the deposit of standard rent "regularly" as envisaged under section 12(3)(b) of the Rent Act, since the word "regularly" was deleted from said section and since the same is given a retrospective effect, it was not necessary to prove that the tenant has paid the rent "regularly".
(f) Being aggrieved by the aforesaid dismissal of the appeal, the land lord preferred Civil Revision application no.113 of 1991, before the High Court. By the judgement dated 16.02.2001, the Revision Application was allowed, and the order passed by the Appellate Court was set aside, and the matter was again remanded to the appellate Court for deciding the Regular Civil Appeal No.123 of 1983 afresh. While remanding the matter to the Appellate Court, this Court has specifically observed that the deletion of the word "regularly" from provision of section 12(3)(b) of the Act does not have retrospective effect. This Court has reiterated the directions issued in the judgment dated 30.09.1982 passed in earlier Civil Revision Application No.843 of 1981,and the appellate Court was directed to only examine the issue whether the tenant has deposited the rent regularly in compliance of section 12(3)(b) of the Rent Act.
(g) After the remand vide judgment and order dated 06.03.2001, the Appellate Court set aside the judgement and decree dated 11/08/1983 order passed by the Trial Court and directed the defendant- tenant to handover the vacant possession of the suit premises to the plaintiff on or before 01.05.2002 and also to pay mesne profit for the rate of Rs.110/- per month till the date of the delivery of possession Page 6 of 17 Downloaded on : Sun Dec 25 03:54:33 IST 2022 C/CRA/425/2002 JUDGMENT DATED: 13/10/2022 of the plaintiff.
e) The tenant being aggrieved by the order passed by the Appellate Court has filed the present revision application under the provisions of Section 29(2)(g) of the Rent Act.
12. The aforementioned proceedings suggest that in both the Revision Applications being Civil Revision Application Nos.843 of 1981 and 113 of 1991, this Court while remanding the matter to the respective Courts, i.e. to the trial Court (CRA No.843/1981) and the Appellate Courts (CRA No.113/1991), has directed the Trial Court and the Appellate Court to only examine the sole issue with regard to the regular payment of rent by the tenant under section 12(3)(b) of the Rent Act. The issue of standard rent, which was fixed at Rs.110/- by the initial judgement and decree dated 04.10.1979, was not disturbed in any of the proceedings.
13. After the order of remand by the High Court by first judgment dated 19.06.1990, the Trial Court has again framed the issue of standard rent, however the Trial Court has followed the same observations made in the earlier judgment dated 04.10.1979 and has fixed the standard rent of Rs.110/-. It is the case of the tenant, as contended by the learned advocate Mr.Shah, since the entire judgment and decree dated 04.10.1979 passed by the Trial Court was set aside by this Court, the Trial Court has precisely framed the issue and has fixed the standard rent at Rs.110/- and accordingly, since the tenant has cleared all the dues before the judgment and order was passed, he would be entitled to the protection under Section 12(3)(b) of the Rent Act. In my considered opinion, such submission does not merit Page 7 of 17 Downloaded on : Sun Dec 25 03:54:33 IST 2022 C/CRA/425/2002 JUDGMENT DATED: 13/10/2022 acceptance for the reason that the issue of standard rent was not required to be framed again since, initially, when the suit was allowed vide judgement and order dated 04.10.1979, the Trial Court had fixed the standard rent of Rs.110/- after examination of oral and documentary evidence, which was confirmed by the Appellate Court in appeal No.99 of 1979 vide judgment and order dated 16.03.1981. The same was subject matter of challenge before the High Court by the landlord in Civil Revision Application No.843 of 1981. By the judgment and order dated (below Exh.46) dated 30.09.1982, this Court set aside the judgement and decree of the trial Court and the matter was remanded by observing that:
"I direct the learned trial Judge to consider the question as to whether the tenant had deposited the arrears of the rent regularly having regard to section 12(3)(b) of the Rent Act. For this limited purpose both the sides should be given an opportunity to lead necessary evidence on this point, and thereafter, the learned trial judge is directed to dispose of the suit in accordance with law "
14. Thus, vide judgment dated 30.09.1982, this Court has remanded the matter for "limited purpose" on the issue of deposit of rent by the tenant regularly or not. Again, when the matter was re-examined by the High Court in CRA No.113/1991, the High Court has reiterated the aforementioned directions which was required to be examined by the Appellate Court. Thus, it was not open for the Trial Court to frame the issue of standard rent in view of the aforesaid directions. There were two appellate proceedings which culminated in two civil revision applications before this Court. Neither before the Appellate forum nor before the High Court, the landlord has sought any clarification with regard to the fixation of standard rent. Hence, the standard rent fixed by the Trial Court in the judgement and decree dated Page 8 of 17 Downloaded on : Sun Dec 25 03:54:33 IST 2022 C/CRA/425/2002 JUDGMENT DATED: 13/10/2022 04.10.1979 at Rs.110/- has remained unaltered throughout the subsequent proceedings.
15. Hence, the only issue, which remains to be examined in present application is that whether the tenant has paid the regular rent in compliance of section 12(3)(b) of the Rent Act. The provisions of Section 12(3)(b) of the Rent Act reads as under : -
"12. (1) A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so tar as they are consistent with the provisions of this Act.
(2) No suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the Transfer of Property Act, 1882.
[(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 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 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 .]"
16. The Appellate Court, after considering the dates, on which, the tenant has paid the standard rent, has concluded that as per the decisions of the Supreme Court, as referred in the said order, it is held that the rent was not being regularly paid by the tenant.
Page 9 of 17 Downloaded on : Sun Dec 25 03:54:33 IST 2022C/CRA/425/2002 JUDGMENT DATED: 13/10/2022 The Appellate Court, after considering the documentary evidence and catena of judgements has held that the expression "regularly" in Section 12(3)(b) of the Rent Act is mandatory and not directory and if the payment is to be made monthly, it must be done regularly and payment made in intervals of two, three or four months cannot be considered regular and no discretion can be exercised by the Court under the provisions of Section 12(3)
(b) of the Rent Act in favour of the tenant.
17. I have examined the documentary evidence. A perusal of the details of receipts of payment of the standard rent by the tenant i.e. below Exh.57 reflects the schedule of payment of rent by the tenant. Initially, the Trial Court had fixed an interim rent of Rs.50/-. The interim standard rent of Rs.50 per month, was fixed on an application made by the tenant on 09.07.1975, as mentioned in Civil Misc. Application No.94 of 1975 filed by the tenant on 09.07.1975 for fixation of the standard rent. Thus, the interim standard rent was fixed at Rs.50/- on 09.07.1975. As mentioned hereinabove, vide judgment and order dated 04.10.1979, the standard rent was fixed at Rs.96/- per month + Rs.14/- for taxes per month, in all Rs.110/- per month was fixed by the Trial Court, which was not disturbed.
18. If the payment schedule of the standard rent is examined, the tenant did not pay anything towards interim rent of Rs.50/- from 28.02.1975 till 04.10.1979. After October, 1979, when the standard rent was fixed at Rs.110/-, the evidence reveals that the tenant has not paid the standard rent regularly. The details as mentioned in the statement of rent account deposited by the tenant Exh.57 reveals as under:
Page 10 of 17 Downloaded on : Sun Dec 25 03:54:33 IST 2022C/CRA/425/2002 JUDGMENT DATED: 13/10/2022 From 31.10.1979 till 31.12.1979 - not paid.
29.01.80 paid Rs.5110, which was credited till 31.08.1980 From 30.09.1980 till 31.03.1981 not paid.
Paid on 27.04.1981 Rs.1100 and he got credit of Rs.383-83 till 30.06.1981. Thereafter, he has cleared all the dues towards rent when the trial Court pronounced the judgment on 11.08.1983.
19. The Appellate Court, considering the aforesaid deposit of the standard rent by the tenant and recording such observations, after framing the point in this regard at paragraph No.12(1) has observed thus :
"Looking to the judgment dated 11.08.1983 of the Trial Court, it appears that in para-10 of the said judgment Trial Court has discussed the events of deposit of rent by the defendant before the Court. The said facts have been declared by the plaintiff by filing statement. In para-12, the Trial Court, has observed that the said statement produced by the learned advocate for the plaintiff is not disputed by the learned advocate for the defendant. Considering the observations of the Trial Court, in para-10 of its judgment, it appears that defendant did not deposit any amount from 28th February, 1975 to 31 st January, 1979. Thereafter, Rs.500.00 was deposited on 01.02.79. Thereafter on 05.02.79 an amount of Rs.800.00 was deposited. Thereafter on 22.02.79 Rs.700.00 was deposited. Thereafter no payment was made for the period from 28.02.79 to 30.06.79 and thereafter on 02.07.79 Rs.600.00 was deposited. Subsequent, deposit of Rs.300.00 was made on 17.10.80 after three months. Thereafter on 29.01.80 an amount of Rs.5110.48 ps. was deposited. Thereafter, on 27.04.81 Rs.1100.00 was deposited. The same facts have been mentioned in the statement produced by the appellant along with list Exh.30. From the said statement, it appears that prior to 28.02.75 an amount of Rs.561.50 ps. was deposited by the defendant tenant on 16.02.75. thereafter, it appears that first amount deposited was Rs.561.50 ps. On 16.02.75 and thereafter the subsequent amount deposited was Rs.500.00 on 01.02.79. from this itself, it appears that the defendant had not deposited the rent regularly as prescribed in the statute. Even, the subsequent deposit also does not show that it was the regular payment or regular deposit of the rent."Page 11 of 17 Downloaded on : Sun Dec 25 03:54:33 IST 2022
C/CRA/425/2002 JUDGMENT DATED: 13/10/2022
20. At this stage, it would be apposite to refer to the observations made by the Supreme Court in case of Mranalini B. Shah (supra), the Supreme Court has observed thus :
"11. We have perused the recent Judgment of this Court in Ganpat Ladha v. Sashikant Vishnu Shinde. In our opinion, the point raised by the appellants. before us is fully covered by that Judgment. The following observation's of Beg, C.J., who spoke for the Court, are apposite:
"...We think that the problem of interpretation and application of Section 12(3)(b) need not trouble us after the decision of this Court in Shah Dhansukhlal Chagganlal's case followed by the more recent decision in Harbanslal Jagmohandas v. Prabhudas Shivlal, , which completely cover the case before us.
It is clear to us that the Act interferes with the landlord's right to property and freedom of contract only for the limited purpose of protecting tenants from misuse of the landlord's power to evict them, in these days of scarcity of accommodation, by asserting his superior rights in property or trying to exploit his position by extracting too high rents from helpless tenants. The object was not to deprive the landlord altogether of his rights in property which have also to be respected Another object was to make possible eviction of tenants who fail to carry out their obligation to pay rent to the landlord despite opportunities given by law in that behalf But where the conditions of Section 12(3)(a) are not satisfied, there is a further opportunity given to the tenant to protect himself against eviction. He can comply with the conditions set out in Section 12(3)(b) and defeat the landlord's claim for eviction. If, however, he does not fulfil those conditions, he cannot claim the protection of Section 12(3)(b) and in that event, there being no other protection available to him, a decree for eviction would have to go against him. It is difficult to see how by any Judicial valour discretion exercisable in favour of the tenant can be found in Section 12(3)(b), even where the conditions laid down by it are satisfied, to be strictly confined within the limits ., prescribed for their operation. We think that Chagla, C.J. was doing nothing less than legislating in Kalidas Bhavan's case 1958-60 Bom LR 1359, in converting the provisions of Section 12(3)(b) into a sort of discretionary jurisdiction of the Court to relieve tenants from hardship. The decisions of this Court referred to above, in any case, make the position quite clear that 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 Page 12 of 17 Downloaded on : Sun Dec 25 03:54:33 IST 2022 C/CRA/425/2002 JUDGMENT DATED: 13/10/2022 relieve the hardship of the tenant the remedy lies with the legislature. It is not in the hands of Courts.
12. The above enunciation, clarifies beyond doubt that the provisions of Clause (b) of Section 12(3) are mandatory, and must be strictly complied with by the tenant during the pendency of the suit or appeal if the landlord's claim for eviction on the ground of default in payment of rent is to be defeated. The word "regularly" in Clause (b) of Section 12(3) has a significance of its own. It 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 clocklike precision and exactitude, but it must reasonably conform with substantial proximity to the sequence of times or intervals at which the rent falls due. Thus, where the rent is payable by the month, the tenant must, if he wants to avail of the benefit of the latter part of Clause
(b), tender or pay it every month as it falls due, or at his discretion in advance. If he persistently default during the pendency of the suit or appeal in paying the rent, such as where he pays it at irregular intervals of 2 or 3 or 4 months as is the case before us the Court has no discretion to treat what were manifestly irregular payments, as substantial compliance with the mandate of this Clause irrespective of the fact that by the time the Judgment was pronounced all the arrears had been cleared by the tenant.
21. The Apex Court has held that the provision of clause (b) of section 12(3) of the Rent Act are mandatory and must be strictly complied with by the tenant during the pendency of the suit and appeal if the landlord's claim for eviction is to be defeated. It is also observed that if the tenant persistently defaults during the pendency of the suit or paying the rent and he pays it at regular intervals of two, three or four months, as the case may be, the Court has no discretion to treat manifesting irregular payments as substantial compliance with the mandate of the Clause of Section 12(3) of the Rent Act, irrespective of the fact that by the time the judgment was pronounced, all the arrears had been cleared by the tenant. In the present case, after the suit was decreed in favour of the landlord vide judgement dated 04.10.1979, and the tenant was ordered to hand over the vacant possession on or before 31.12.1979 and also to pay an amount of Page 13 of 17 Downloaded on : Sun Dec 25 03:54:33 IST 2022 C/CRA/425/2002 JUDGMENT DATED: 13/10/2022 Rs.1,176/-, for the first time, he has deposited an amount of Rs.5,110/- on 29.01.1980. Thereafter, he did not comply with the directions issued by the Trial Court and did not deposit the amount even during the pendency of the appeal. There was a deficit of Rs.56-17 on 30.09.1980 and he did not deposit the amount till 31.03.1981 for a period of almost six months. Hence, it cannot be said that the tenant has deposited the rent regularly.
22. The Appellate Court in the impugned judgment and order has placed reliance on the judgment of the Apex Court in the case of Sulochana Damodar Vs. (Smt.) Ratnaprabha V. Topic [1993 (2) SCC 256 ] . The Supreme Court, while examining the provisions of section 12(3)(b) of the Rent Act and after considering the judgment rendered in the case of Mranalini B Shah (supra) has held thus:
"11. In this case admittedly the tenant- appellant was in arrears of the permitted increases on the date of suit. After receiving the suit notice too, he made no effort to deposit the rent as required by Section 12 (3)(b). The landlady applied for expeditious hearing of the suit whereupon the court made an Order on April 4, 1975 directing the tenant to deposit the arrears of the amount representing permitted increases within six weeks of the said order. The order further directed the tenant to deposit the monthly amount regularly. The tenant failed to deposit the arrears as well as the amount due for the months following the order. More than an year later, he made an application, on June 4, 1976, for permission to deposit the amount in accordance with the Order dated April 4, 1975. On June 8, he was permitted to do so. He deposited the amount due till then on that day. A copy of the order dated June 4, 1976 has not been placed before us. We, therefore, cannot say that the court had condoned the delay in depositing the amount of arrears in accordance with the earlier order or that it has condoned the consecutive defaults committed every month since April 1975 in depositing the monthly amount. Merely because it is stated that the court had permitted the tenant to deposit the said amount, it cannot be construed that the court had condoned the delay in depositing the same. We are not holding that the court does possess such a power. On this question, we do not wish to express any opinion though it has been held in Mranalini B. Shah v. Bapalal Mohanlal Page 14 of 17 Downloaded on : Sun Dec 25 03:54:33 IST 2022 C/CRA/425/2002 JUDGMENT DATED: 13/10/2022 Shah (19) G. L. R. 1090) that the court has no such power. Assuming that the court has the power to condone the delay in depositing not only the arrears but also the consecutive defaults in depositing the monthly amount over a period of more than one year, the fact remains that no order condoning the delay is proved to have been made. Not only this - even for the period subsequent to June 1976, the tenant has been highly irregular in depositing the amount as would be evident from a reading of the order of the High Court. The learned Judge has pointed out that after June 1976 the tenant made the next deposit of Rs. 143. 70 p. on November 15,1976. The next deposit in a sum of Rs. 71.85 p. was made on January 7, 1977. Rs.23.94 p. was deposited on February 9,1977 and different amounts on June 1, 1977, August 1, 1977 and November 3,1977. Though it is stated that these deposits were also made with the permission of the court, it is not shown us that the court had condoned the delays in depositing these various amounts. In the absence of the orders of the court being placed before us, we cannot say that the court had condoned the same either expressly or by necessary implication again assuming (but without so holding) that the court does possess such a power ."
23. The aforementioned decisions of the Apex Court declares that merely because, the tenant is allowed to deposit the amount of rent, it cannot be construed that the court had condoned the delay in depositing the same. It is also held that assuming that the court has the power to condone the delay in depositing not only the arrears but also the consecutive defaults in depositing the monthly amount over a period of more than one year, the same could not have any bearing since it is deposited without there being any order condoning the delay. In the present case, the tenant was already in arrears of rent for the entire period in the earlier round of suit, and he did not deposit the interim rent of Rs.50/- which was fixed on the application being CMA No.194 filed by the tenant on 10.02.1975 below Exh.15. The tenant was in arrears since 28.02.1975 to 31.01.1979. Hence, the suit was decreed in favour of the landlord vide judgement dated 04.10.1979. The apex court in the case of Vora Abbasbhai Alimahomed vs. Haji Gulamnabi Haji Safibhai, AIR 1964 SC 1341 Page 15 of 17 Downloaded on : Sun Dec 25 03:54:33 IST 2022 C/CRA/425/2002 JUDGMENT DATED: 13/10/2022 that Section 12(3)(b) of the Rent Act requires the tenant to pay standard rent and not interim rent and for the purposes of that clause the expression 'standard rent' may not be equated with 'interim rent' specified under Section 11(3) of the Rent Act and non-payment of interim rent cannot snatch away the protection available to the tenant under section 12(3)(b) of the Rent Act. In the present case, the standard rent was fixed at the time of final judgement dated 04.10.1979, and the tenant was ordered to had over the vacant possession on or before 31.12.1979 and also to pay an amount of Rs.1176/-. As noted hereinabove, the payment details show that even after fixation of the standard rent and after the remand of the matter, the tenant has not deposited rent from 30.09.1980 to 31.03.1981. Neither from the record and proceedings nor from the aforesaid orders, it is reflected that the Trial Court had passed any order condoning the delay in depositing the rent. Thus, merely because the Trial Court has permitted the tenant to deposit the rent, it cannot be held that the tenant has deposited the rent "regularly", and hence, he is not entitled to protection under section 12(3)(b) of the Rent Act.
24. In view of the evidence, which has surfaced on record as examined by the Appellate Court, it is manifest that the tenant was not paying rent regularly and hence, the Appellate Court was justified in setting aside the judgment and decree passed by the Court below. The tenant is directed to hand over the peaceful and vacant possession of the suit property on or before 31.12.2022. The rest of the directions issued by the Appellate Court in the order dated 06.03.2011 remain unaltered.
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25. The Civil Revision Application fails. Rule is discharged. Record and proceedings shall be returned to the concerned Court forthwith. No order as to costs.
26. Since the stay has been continued against the decree of possession since so many years, the same is extended till 31.12.2022.
sd/-
(A. S. SUPEHIA, J) MB/pc/01 Page 17 of 17 Downloaded on : Sun Dec 25 03:54:33 IST 2022