Bombay High Court
Yashodabai Ganpat Wani Since Decd. By ... vs Ramnarayan Govindram Sarswat, Since ... on 26 July, 1996
Equivalent citations: 1997(3)BOMCR23
Author: R.G. Deshpande
Bench: R.G. Deshpande
JUDGMENT R.G. Deshpande, J.
1. The only question that needs consideration in the present petition is as to whether the respondent-tenant could be said to be ready and willing to pay the standard rent and further as to whether could he be branded as a defaulter liable to be evicted from the premises in question and whether the learned District Judge, Jalgaon committed an error in reaching to the conclusion that the respondent-tenant had substantially complied with the provisions of section 12(3)(b) of the Bombay Rent Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the Bombay Rent Act" for the purposes of brevity).
2. The facts of the case in nutshell are, one Ramnarayan Govindram Sarswat happened to be the tenant of the petitioner-landlord Yeshodabai and Prabhawati. Since Yashodabai died during the pendency of the petition, her legal representatives namely, Chandrakant and others, are brought on record. The original tenant Ramnarayan Govindram Sarswat, also has expired and the present respondents are the legal representatives of the said original tenant. For the purpose of convenience in the judgment, the reference is made to them as "petitioners" and "respondents" only. As pointed out earlier, the present respondent happened to be the tenant on a monthly rent of Rs. 120/- of Municipal House No. 2112/38-A-1 situated at Navi Peth, Jalgaon.
3. An important aspect of the matter which needs mention at this stage only is that the respondent-tenant had initiated an application before the Appropriate Authority for fixation of standard rent which was registered as Misc. Application No. 35/1975 on the file of the learned Civil Judge, Junior Division, Jalgaon. This application was dated 21st December 1975. This date also assumes some importance while deciding the present petition. This Misc. Application No. 35/1975 was rejected by the trial Court on 30th September 1977 and Rs. 120/- was fixed to be the standard rent. Revision against that vide Misc. Revision Application No. 1/1978 was filed by the tenant before the Appellate Authority. However, no interim orders whatsoever were passed thereon and ultimately the Revision came to be dismissed on 19th April, 1979, thereby the standard rent of the premises remained to be at Rs. 120/- as fixed by the trial Court.
4. During the pendency of the above-said proceeding as regards fixation of standard rent, the petitioners-landlord having realised that the tenant was in arrears of rent for more than six months, a notice dated 9-12-1977 (Exh. 37 on the record of the trial Court) was issued calling upon the tenant to make the payment of arrears for the period from 3-6-1977 to 2-12-1977 and further permitting (sic) the tenancy and seeking possession of the premises in question. This notice was received by the respondent-tenant on 16-12-1977 and was duly replied on 2-1-1978 (Exh. 39 on the record). Since the respondent-tenant failed to comply with the notice, the petitioner-landlord filed Regular Civil Suit No. 42/1978 in the Court of the learned Civil Judge, Junior Division and Judicial Magistrate, First Class at Jalgaon. The learned Judge of the trial Court after framing of the issues and recording of the evidence, reached to the conclusion that the respondent-tenant having defaulted in payment of arrears of rent, the petitioner-landlord was entitled to recover the possession of the suit premises with other consequential directions. Thus, the suit was decreed with costs. No doubt, an inquiry under Order 20, Rule 12 (C) was also ordered to be made for mesne profits.
5. The above-said judgment and order of the trial Court dated 5-2-1981 was challenged by the respondent-tenant before the learned District Judge, Jalgaon, vide Civil Appeal No. 124/81. The learned District Judge who dealt with the matter, reached to the conclusion that the learned Judge of the trial Court was not justified in holding that the present respondent-tenant was not ready and willing to pay the standard rent. The learned District Judge after due appreciation of the arguments before him, specifically observed that the respondent-tenant did substantially complied with the provisions of section 12(3)(b) of the Bombay Rent Act and he, therefore, found it not proper to pass any decree of ejectment against the respondent-tenant. Accordingly, the appellate Court did allow the appeal vide its judgment and order dated 16th February, 1985. It is this judgment, which is under challenge before this Court by way of present petition.
6. Shri R.G. Karmarkar, the learned counsel appearing on behalf of the petitioner-landlord, tried to assail the order of the learned District Judge on one important aspect of the matter that it was not open for the learned District Judge to reach to the conclusion that the payments which are made in the present matter by the respondent-tenant could be said to be regular within the permissible proximity, particularly when it was held by the learned Judge of the trial Court that the tenant was not punctual and regular in making the payments. No doubt, the learned Advocate Shri Karmarkar has also assailed the order of the learned District Judge on various other grounds, but to those grounds he just made a passing reference which could be termed as just an feeble attempt to convince the Court. To understand Shri Karmarkar's argument, a few dates would be necessary to be mentioned, which are as under :-
The arrears claimed by the landlord were for the period from 3-6-1977 to 2-12-1977. Notice (Exh. 37) was given on 9-12-1977 which was received by the tenant on 16-12-1977 and was replied by his reply dated 2-1-1978. Regular Civil Suit No. 42/1978 was filed on 17-1-1978. The respondent-tenant did deposit the arrears of Rs. 2,160/- i.e. for the period from 3-6-1977 to 2-12-1978 in the Court on 8-2-1979 vide receipt Exh. 33 and he did, again, deposit Rs. 480/- on 5th May 1979 in the trial Court. Shri Karmarkar contended that the payments as shown above made by the respondent-tenant could not be said to be in due compliance with the provisions of section 12(3)(b) of the Act. On the other hand, according to Shri Karmarkar, the respondent-tenant should have deposited the amount immediately within one month's time on receiving the notice by him i.e. on 16-12-1977. According to Shri Karmarkar, this conduct of the respondent-tenant of its own indicated that he was not ready and willing to make the payment of arrears of rent.
7. I have already made a reference in the previous paragraphs of this judgment to the litigation vide Misc. Application No. 35/75 which was initiated by the respondent-tenant himself under section 11 of the Bombay Rent Act for fixation of rent. It is important to note that the above-said proceedings were initiated by the respondent-tenant much prior to the filing of the present suit by the petitioner-landlord and even prior to the issuance of notice (Exh. 33) dated 9-12-1977. Since a dispute as regards standard rent was already raised by the respondent-tenant, the respondent-tenant did not comply with the notice within the stipulated time of one month which was given in the notice or which is otherwise prescribed as per the provisions of law. It is pertinent to note that this Misc. Application No. 35/75 was dismissed on 30th September 1977 and the rent of Rs. 120/- per month which was the agreed rent was held to be the standard rent for the premises in question. It is also pertinent to note that after the dismissal of the above-said application on 30th September, 1977, the respondent-tenant proceeded with the matter by filing a revision vide M.C.A. No. 1/1978 which was filed on 14th December 1977. In this proceeding, however, the respondent failed to obtain any interim orders and also failed to obtain the order getting fixed the standard rent as an interim standard rent. It is also important to note that this Revision Application of the respondent-tenant referred to above, was dismissed on 19th April, 1979 by the Revisional Court. Since the above-mentioned Revision Application came to be dismissed naturally the standard rent remained as Rs. 120/- as was fixed by the trial Court.
8. Shri A.H. Kasliwal, the learned Counsel for the respondent-tenant urged that his client was ready and willing to pay the interim rent since the trial Court till then had passed an order in the proceedings instituted by him. On 15th December 1978, he applied for depositing in the Court the arrears of rent which was allowed on 6.2.1979, of course subject to prejudice to the rights of the parties. Shri Kasliwal pointed out that in pursuance of this order, an amount of Rs. 2,160/- as arrears of rent for the period from 3.6.1977 to 2.12.1978 vide receipt Exh. 33 dated 8.7.1979 was deposited. The subsequent payments, according to Shri Kasliwal were also deposited as are shown in the receipts filed in the case before the trial Court.
9. Shri R.G. Karmarkar, the learned Counsel for the petitioner-landlord pointed out that the payments as are shown to have been made by the respondent-tenant do indicate that the respondent-tenant was not particular in making the payments. On the other hand, according to Shri Karmarkar, it is clear-cut example of irregular payment on the part of the tenant and, according to Shri Karmarkar, the learned Judge of the trial Court had really taken a correct view as regards the matter when the trial Court held that the respondent-tenant was not ready and willing to pay the rent regularly. In short, Shri Karmarkar tried to base his argument on the judgment of the trial Court.
10. In the present case, it therefore has become necessary, now, to see as to what exactly the provisions of section 12(3)(b) of the Bombay Rent Act are :-
"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 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".
From the above-said provision of law, the first date to which a reference is made in the definition that is the first date of hearing is held to be the date on which the issues are framed and there is no dispute as regards the same. Then the question arises as regards finding out as to whether the payments which are made by the tenant to which already a reference is made above, could be said to be in pursuance of the provisions of section 12(3)(b). From the record, it is clear that the learned Judge of the trial Court did frame the issues on 2.4.1979, whereas the first payment of Rs. 2,160/- was made by the tenant vide Exh. 33 on 8th February 1979 itself. Shri Karmarkar, at this time, pointed out that even though the tenant did pay the rent of Rs. 2,160 and though it is prior to the date of framing of issues, according to Shri Karmarkar, the said amount was short by the rent of two months and it could not be said to be complete payment in pursuance of section 12(3)(b). According to Shri Karmarkar on 2nd April 1979, the tenant was even then in arrears of rent of two months. It is pertinent to note that in the instant matter, the trial Court did not fix any date for payment of arrears of rent. However, the next payment was made by the tenant on 5th May 1979 i.e. Rs. 480/- which was paid in the trial Court itself. Needless to mention that this payment was at the rate of Rs. 120/- per month which could be said to be the standard rent which was fixed in the earlier proceedings. Shri Karmarkar pointed out that these payments could not be said to be the payments as made regularly or the tenant could not be said to be particular in payment. Apparently, there is some irregularity in making the payments. However, whether the irregularity could be condoned or not and as to whether the learned District Judge was justified in condoning the same is to be seen. Shri Karmarkar, to show that the tenant was most irregular in making the payment of rent and further to show that there was no other alternative than to pass a decree for eviction, relied on the decision in the matter of Mrunalini v. B.M. Shah. The very same judgment was also relied on by the learned District Judge while giving his judgment in the matter. After going through the said judgment, it is clear that the regularity in making the payment means a payment or tender characterised by reasonable punctuality, that is to say, one made at regular times or intervals. It is observed further in the same judgment that the regularity contemplated may not be a punctuality, of clock like precision and exactitude, but it must reasonably conform with substantial proximity to the sequence of times or intervals at which the rent falls due. Shri Karmarkar, taking advantage of these observations tried to argue that the payments in the instant case could not be said even with substantial proximity, as was expected by Their Lordships. Shri Karmarkar , therefore, expressed that it is a fit case wherein only a decree for eviction could be passed branding the tenant as absolutely irregular in making the payment thereby indicating that he was not ready and willing to make the payment. This argument of Shri Karmarkar though, prima facie, appears to be impressive, according to me, still there is a scope for the Court to search as to whether really does the facts of the case do really indicate either of tendency of the tenant of not making the payments or that whether the tenant was not at all willing and ready to make the payment. From the facts narrated above. I find that the tenant could be said to be justified to some extent in not making the payment immediately within one month as his proceedings, though at the revisional stage as regards fair rent were already pending and even though the tenant failed to obtain any interim orders, that would not in any manner entitle, him to be branded as a person not willing to make the payment. On the other hand, initiation of proceedings by the tenant himself much prior to the filing of the suit itself was a sufficient indication of the tenant's intention only to pay the standard rent as soon as it would have been fixed. Shri Kasliwal, the learned Counsel for the respondents, rightly pointed out that though apparently there appear to be some irregularity in making the payment on the part of his client of the arrears of rent, that does not in any manner and much the less outright, would entitle him to be thrown out of the premises in question. The question as is rightly pointed out by Shri Kasliwal is that the payments of rent were duly accepted by the Court and the payments were made by due permission of the Court. According to Shri Kasliwal, therefore, the Court could be said to be well-justified in condoning the delay in making the payment, much less in the manner he has paid. I do not find any difficulty in accepting the argument of Shri Kasliwal and simultaneously there is no difficulty in upholding the view taken by the learned District Judge in the matter. Shri Kasliwal relied on the Judgement reported in 1980 Bom.L.R. 378 in the matter of Mohanlal v. Kemraj, to show that the Court was not completely helpless if after it fixed the schedule of payments or makes an order of payment, the tenant is for unforeseen and accidental reason unable to obey and that the Court could not be said to have been rendered helpless in such a case. According to Shri Kasliwal, it is laid down in the above-said ruling that the Court is not tied down if it makes an initial order for payment of rent and then to condone the same irregularity in the payment so fixed. The learned Judge of the lower Appellate Court has reproduced the relevant paragraph in his judgment and the view being the same, I do not find that the learned Judge of the lower Appellate Court did commit mistake in condoning the said irregularity, particularly when it could be exercise of the jurisdiction vested in him judiciously. I feel it necessary to point out at this stage that unless it is abundantly proved on the record that inspite of the orders of the Court, the tenant was most irregular and totally unpunctual in making the payment, he cannot be deprived of the protection of the umbrella of provisions of section 12(3)(b).
11. From the record, it is also clear that even subsequently the tenant has been paying the rent regularly and the same is absolutely clear from the document dated 15..2.1985 which was filed by way of Purshish before the lower Appellate Court indicating the particulars as regards the payment. From the said particular, it is clear that the tenant appeared to be absolutely regular in making the payment and Shri Karmarkar, the learned Counsel for the petitioner-landlord fairly conceded to the same. Shri Karmarkar, however, tried to distinguish the judgment which was cited by Shri Kasliwal, the learned Counsel for the respondent i.e. the judgment in the matter of M.L. Hede v. Noormohamed Adam Shaikh. Shri Kasliwal relying on this judgment tried to show that even in the case before. Their Lordships of the Supreme Court, there were certain irregularities in making the payment and Their Lordships did condone the irregularities committed by the tenant therein. Shri. R.G. Karmarkar tried to show that but for a very few occasions in the above-said matter, most of the times, the tenant was found either regular in payment or he had made the payment in advance. However, in the present case, the petition is otherwise. However, as is shown above, even subsequently the tenant was found to be regular in making payment as is clear from the document filed before the lower Appellate Court. I have no hesitation in reaching to the conclusion that the respondent-tenant did deposit the amount with reasonable punctuality and hence the respondent tenant cannot be regarded as having deposited the rent irregularly, as in contemplated under the provision of section 12(3)(b) of the Bombay Rent Act.
12. Shri Kasliwal, the learned Counsel for the respondent, also relied on the decision reported in 1997(3) Bom.C.R. 1(S.C.) : 1996(1) Mh.L.J. 507 in the matter of Laxmikant Revchand Bhojwani v. Pratapsingh Mohansingh Pardeshi. Shri Kasliwal, on the basis of the judgment, argued that since in the instant case it is a challenge to the decision of the first Appellate Court and since there is no second appeal or revision provided to the High Court from the decision of the Appellate Court the High Court under Article 227 of the Constitution of India, cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. According to Shri Kasliwal, the High Court must restrict to the cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice where grave injustice would be done unless the High Court interferes. According to Shri Kasliwal since the judgment of the lower Appellate Court does not suffer from either grave dereliction of duty and flagrant use of the fundamental principles of law and since in the present case, according to Shri Kasliwal, no grave injustice is likely to be caused to the petitioner landlord, this Court should not exercise the powers under Article 227 to upset the finding of the lower Appellate Court. I have given due consideration to the argument of Shri Kasliwal and after having found that no grave injustice is likely to be caused to the petitioner-landlord, I do not find it necessary to upset the finding of the learned District Judge, much the less when the view taken by learned District Judge is also possible and justifiable.
13. In the circumstances, I do not find any substance in the present petition. The petition is dismissed. The judgment and order passed by the learned Judge of the lower Appellate Court is, thus, confirmed. Rule is discharged.. However, in the circumstances of the case, no order as to costs.