Gujarat High Court
Fatmabai Ismail And Anr. vs Mayabai Hirji on 29 August, 1991
Equivalent citations: (1993)2GLR1192
JUDGMENT J.N. Bhatt, J.
1. The petitioners herein have assailed the judgment and decree passed by the learned District Judge, Jamnagar, on July 9, 1979, in Regular Civil Appeal No. 115 of 1976, by invoking the aids of provisions of Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ("the Rent Act" for short hereinafter).
2. A conspectus of the salient facts leading to the rise of the present revision may be narrated, at the outset.
3. The petitioners herein are the original defendants/tenants and the respondent herein is the original plaintiff/landlord. For the sake of convenience and brevity, they are hereinafter referred to as "landlord" and "tenant".
4. The landlord filed Regular Civil Suit No. 399 of 1972 in the Court of the Civil Judge (S D.), Jamnagar, for arrears of rent and for possession on the ground of non-payment of rent, which came to be decreed with costs. The respondent challenged the judgment and decree of the trial Court by filing Regular Civil Appeal No. 115 of 1976, in the District Court, but, unfortunately, also lost in the appeal. Hence, the unsuccessful, original defendants/tenants have preferred this revision under the Rent Act.
5. One Ismail Nathu, late husband of defendant No. 1 was the original tenant in respect of the suit premises, at a monthly rent of Rs. 15/-per month. The tenancy month was according to the Indian Calendar. The tenant failed to pay rent as per the allegation of the landlord. Tenant was served with a notice dated 20-12-1970, under Section 12(2) of the Rent Act and Section 106 of the Transfer of Property Act ("TP Act" for short hereinafter). The tenant was called upon to pay rent from Magsar Sud 1 of S.Y. 2024 to Kartak Vad Amas of S.Y. 2027 at the rate of Rs. 15/- per month. Thus, the landlord demanded an amount of Rs. 387.50 by serving the tenants with a notice, Ex. 19. The notice was replied by the tenants, which is dated 7-1-1971, Ex. 30. Thus, the reply to the notice was sent by the tenants within one month from the receipt thereof. The tenants have raised the dispute of standard rent in the reply. The defendants/tenants also preferred an application of standard rent under Section 11(3) of the Rent Act, on 22-1-1971. The interim rent was fixed at Rs. 7/-. The contention of the tenants in the standard rent application was that initially the rent of the demised property was Rs. 7/- and it was illegally enhanced to Rs. 15/-. A compromise was made between the parties in the standard rent application proceedings and standard rent was fixed, by consent, at Rs. 13/-. Thus the Misc. Civil Application No. 13 of 1971 under Section 11(3) of the Rent Act came to be disposed of and me standard rent came to be fixed, at Rs. 13/- on 17-1-1972. The defendants/ tenants had also raised a dispute of standard rent in the written statement. The written statement was filed, at Ex. 9, on 29-9-1972.
6. The defendants, inter alia, contended that the husband of defendant No. 1 was the tenant of the suit premises and thereafter the defendants are the tenants after the death of the original tenant - Ismail Nathu. It was denied that an amount of Rs. 387.50 was due from the defendants. The dispute of standard rent was also raised. The defendants contended that they had paid the rent and they were not in arrears of rent. Thus, the allegation of non-payment of rent for more than six months was, seriously, disputed. The defendants also contended that money orders for payment of rent were sent on different occasions. But some of them were refused by the landlord. Thus, according to the contention of the defendants, there was no default on their part.
7. In the facts and circumstances and in view of the pleadings of the parties, issues were raised at Ex. 10. On appreciation of evidence, the trial Court found that the tenants are in arrears of rent for more than six months and one month after the service of notice under Section 12(2) of the Rent Act they were not ready and willing to pay the arrears of rent. Therefore, the trial Court held that the tenants were liable for eviction on the ground of non-payment of rent under Section 12(3)(a) of the Rent Act. The standard rent was fixed at Rs. 13/- per month by the trial Court. The trial Court was pleased to pass a decree for arrears of rent for a period from 22-11-1968 to 4-7-1972 and directed the tenants to hand over the vacant possession of the suit premises to the landlord.
8. In the First Appeal before the learned District Judge, a contention was raised on behalf of the defendants that they are not liable for eviction either under Section 12(3)(a) or under Section 12(3)(b) of the Rent Act. The learned District Judge, on appreciation of the facts of the case, reached to the conclusion that the defendants/tenants were entitled to protection under the provisions of Section 12(3)(a) of the Rent Act as the standard rent application was filed within one month. However, the decree for eviction came to be passed against the tenants under Section 12(3)(b) of the Rent Act.
9. The Learned Counsel for the petitioners/original defendants-tenants has, seriously, criticised the impugned judgment and decree passed by the learned District Judge, at Jamnagar. It is, inter alia, contended that the observations of the learned District Judge in paras 13 and 14 of the judgment are illegal and perverse. It is also contended that the District Court has committed illegality in passing the decree for eviction under Section 12(3)(b) of the Rent Act. Nobody appeared for the respondents on this Revision Petition.
10. In order to appreciate this contention, it would be necessary to refer to the provisions of Section 12 of the Rent Act, which reads as under:
12. No ejectment ordinarily to be made if tenant pays or is ready and willing to pay standard rent and permitted increases:
(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 observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of the Act.
(2) No suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non-payment of this 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 (IV of 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-
(i) Continues to pay or tenders in Court such rent and permitted increases till the suit is finally decided, and
(ii) pays costs of the suit.
(4) Pending the disposal of any such suit, the Court may out of any amount paid or tendered by the tenant pay to the landlord such amount towords payment of rent or permitted increases due to him as the Court thinks fit.
It would be quite clear from the provisions of the aforesaid Section 12 of the Rent Act that certain requirements are to be fulfilled by the landlord before claiming possession on the ground of arrears of rent.
(1) No decree for possession could be passed if the tenant is ready and willing to pay standard rent and permitted increases.
(2) No suit could be instituted unless the landlord gives a notice demanding the standard rent or permitted increases.
(3) Section 12(3)(a) does not apply when the entire rent is not payable by the month.
(4) Section 12(3)(a) would apply if there is no dispute about the standard rent and the tenant is in arrears of rent for more than six months.
(5) The tenant must neglect to make payment within one month from the date of receipt of notice under Section 12(2) of the Rent Act.
11. The trial Court committed a serious, error in passing decree for ejectment under Section 12(3)(a) of the Rent Act. The First Appellate Court also committed a, serious, illegality in confirming the decree for eviction under Section 12(3)(b) of the Rent Act. The District Court held that the tenants had not deposited rent then due in the Court on the date of first hearing, i.e., on the date of settlement of issues, on 22-7-1976. It is also held by the District Court in para 14 of the judgment that on 29-9-1972, when the written statement, at Ex. 9, was filed by the tenants, they had deposited the full amount then due and the amount was in excess by Rs. 182/-.
12. The learned District Judge was pleased to pass the decree under Section 12(3)(b) of Hie Rent Act for non-payment of the rent against the tenants on two aspects:
(1) The defendants had not deposited the rent then due on the first date of hearing; and (2) That the defendants had not deposited or tendered the rent in the Court regularly till the final disposal of the suit.
In so far as the aforesaid first aspect is concerned, it may be mentioned that the first date of hearing of the suit mentioned in Section 12(3)(b) of the Rent Act, is not prescribed. However, it is a settled proposition of law that by liberal construction, the word "on the first day of hearing of the suit" appearing in Section 12(3)(b) of the Rent. Act do not mean the day fixed for return of summons or returnable day, but the day on which the Court applies its mind to the case, which ordinarily, would be, at the time when the issues are settled. The interpretation that the first date of hearing will be the date for settlement of issues and not the first date of return of summons, is with a view to see that the tenant who pays the arrears of rent then due on the date of settlement of issues and thereafter pays the amount in the Court, is protected from the rigorous of ejectment. But could it be said, even for a moment, that a person who has paid excess amount on the very first date for filing of written statement, has not complied the first condition of Section 12(3)(b) of the Rent Act, as held by the learned District Judge? The spontaneous answer would be in the negative. If the tenant pays the amount of arrears of rent then due on the date of settlement of issues that will satisfy the first part of the requirement of Section 12(3)(b) of the Rent Act. But the tenant who is tendering and depositing more amount than due on the first date, while filing written statement, would be on a better position and on a higher pedestal then the tenant who pays the amount on the date of settlement of issues. It is an admitted fact the defendants/tenants paid excess amount of Rs. 136/- on the date of filing of written statement, on 29-9-1972. The defendants deposited an amount of Rs. 578/- on that day which was in excess of the arrears of rent then found due on that date. The issues came to be settled later on, on 20-7-1976. In order to satisfy the first condition, option is given to the tenant to pay the full amount then due in a suit till the date of settlement of issues. So the date of settlement of issues is the latest and ultimate cut off date. That means, choice and option is with the tenant to pay the full amount then found due, either on the dare of return of summons or on the returnable date or up till the settlement of issues. It cannot be gainsaid that a tenant who pays full amount then due in an any anterior date, prior to the date of settlement of issues, is not fulfilling the first condition of Section 12(3)(b) of the Rent Act. The fact that the tenant deposited and tendered the full amount then due on the date of filing of the written statement is a pointer that the tenant was ready and willing to pay the standard rent and permitted increases. With due respect, the learned District Judge, Jamnagar, has committed a, serious, illegality in holding that the defendants/tenants had not deposited the rent then found due on the first data of hearing, i.e., on the date of settlement of issues.
13. Insofar as the second aspect is concerned, the learned District Judge has observed that the defendants/tenants had not deposited or tendered the rent regularly till the suit was finally decided. In this connection, it may be mentioned that amendment was made in Section 12(3)(b) of the Rent Act by Gujarat Act. No. 7 of 1985. By virtue of the said amendment, the tenant was not required to tender or deposit the rent during the pendency of the proceedings regularly. The word "regularly" is deleted by virtue of the above amendment. The impugned judgment and decree came to be passed by the learned District Judge, on 9-7-1979. The aforesaid amendment came to be made in 1985. Therefore, the learned District Judge his, observed that the rent was required to be tendered and deposited in the Court "regularly" till the suit is finally decided. Whether the rent was regularly paid or tendered or not, will not assume any material value in view of the amendment made in Section 12(3)(b), deleting the word "regularly". In view of the statement of rent submitted by the Learned Counsel for the petitioners/original defendants-tenants, which is taken on record as Annexure "A" to this Civil Revision Application, the tenant was not in default or arrears, either at the time of passing the decree by the trial Court or by the District Court, or till today. The statement submitted by the Learned Counsel for the petitioners is as under:
STATEMENT OF RENT Before suit Rs. 20/- M. 0. dated 30-12-1990 (accepted) Ex. 29.
Rs. 182/- Deposited in M. 0. A. No. 13 of 1971.
Rs. 100/- M.O. sent on 21-2-1972 (refused) Ex. 25 & 27.
Rs. 325/- M.O. sent on 21-6-1972 (refused) Ex. 26 & 28.
RENT DUE On the first day of hearing From 21-11-1968 as per the notice till 21-9-1972 (Date of filing W.S.) 46 months x Rs. 13 - Rs. 598.
DEPOSIT & PAYMENT Rs. 20/- M. 0.
Rs. 182/- deposit in account Rs. 780/- Deposit
Rs. 578/- alongwith the W.S. Less Rs. 598/- Rent due
--------- ----------
Rs. 780/- Rs. 182/- in excess
DATE OF DECREE (TRIAL COURT) 30 9-1976
Deposit Rent due
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Rs. 20/- M. 0. 21-11-1968 (Date of Notice)
Rs. 182/- Ami. 30-9-1976 Date of decree
Rs. 578/- W.S. Total months 93.
Rs. 598/- Receipt No. 385 dated 27-7-1976 93 x 13 = Rs. 1209/-
Rs. 39/- Receipt No. 573 dated 14-9-1976. Deposit Rs. 1417/-
--------- Rent due Rs. 1209/-
Rs. 1417/- ----------
Rs. 208/- inexcess
DATE OF DECREE (APPELLATE COURT) 9 7-1979
21-9-1976 to 20-6-1929 = 33 months
33 months
x Rs. 13
---------
Rs. 429/- Rent Due
Rs. 598/- deposit.
Less Rs. 429/- Rent due
----------
Rs. 169/- excess
DEPOSIT
Rs. 208.00 Process
Rs. 78.00 During Appeal Receipt No. 130
Rs. 78.00 During Appeal Receipt No. 829
Rs. 78.00 -do- No. 257
Rs. 78.00 -do- No. 1027
Rs. 78.00 -do- No. 286
----------
Rs. 598.00
----------
Rs. 139.76 P. cost of trial Court deposit vide Receipt No. 144.
14. It could be seen very well from the aforesaid statement of rent that the tenants have paid excess amount than what was then found due at die time of passing of die decree by the trial Court as well as at the time of passing the decree by the District Court. Even, as on today, the tenants have deposited more amount than what was found due. It cannot be contended even for a moment that the tenants were in default in payment of rent. The amendment in Section 12(3)(b) of the Rent Act is retrospective and if the amount of due is paid any time before passing the decree, protection would be available to the defendants/tenants in view of the decision of This Court, rendered in the case of Malganbhai Rasulbhai v. Puspavadan M. Desai reported in 1986 GLH 739 : 1986 (2) GLR 1024.
15. In view of the facts and circumstances of the present case and the decision of This Court in Malganbhai's case (supra), the defendants/tenants are entitled to the protection of Section 12(3)(b) of the Rent Act. The trial Court passed the decree for ejection on the ground of non-payment of rent under Section 12(3)(a) of the Rent Act and the District Court confirmed it under Section 12(3)(b) of the Rent Act. The views taken by both the Courts below are perverse and illegal. Therefore the impugned judgment and decree relating to the recovery of possession of the demised premises are required to be set aside as there is no any case for passing ejectment decree on the ground of non-payment of rent. Since the first contention goes to the root of the matter and ejectment decree is required to be reversed, other contentions are not required to be investigated into.
16. In the result, this revision application is, partly, allowed and the impugned judgment and decree for ejectment of the demised premises are set aside. The suit for recovery of possession of the demised premises is, hereby, dismissed and the judgment and decree passed by the trial Court, below is modified accordingly. Rule is made absolute accordingly. There shall be no order as to costs in the peculiar circumstances of the case.