BAI DAHIBA v. JITENDRA KANAIYALAL PARIKH — 1970 DIGILAW 164 (GUJ)

J. M. SHETH, J. ( 1 ) :- * * * * ( 2 ) COMING next to submission No. 3 Which is the most important submission made by Mr. Patel is that there was an obligation on the appellate Court to fix other date to enable the tenant to deposit the arrears of rent found due before it passed a decree for eviction on the ground of non-payment of rent. It is true that the trial Court had found that the rent was due from 1-11-1963. It was the appellate Court which reversed that finding and recorded a finding that the rent was due from 1 The question that arises for consideration is whether there is any such obligation imposed upon the Court. It appears that this argument is based on analogy that the Court has to fix other date when there is dispute regarding the standard rent and the standard rent is fixed by the Court to enable the tenant to pay the rent due on the basis of the standard rent fixed. If the appellate Court enhances the standard rent it has also to fix such other date to enable the tenant to pay or tender the different in the standard rent fixed by the trial Court and that fixed by the appellate Court. In support of that argument Mr. Patel relied upon several decisions. ( 3 ) IN Vora Abbasbhai Alimahomed v. Haji Gulamnabi Haji Safibhai A. I. R. 1964 Supreme Court 1341 it is observed:-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 a date fixed. If the tenant pays the standard rent 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 the tenant pays the standard rent 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 sec. 12 (3) (b) would be complied with. In the instant case standard rent was fixed at an earlier stage. Issue No. 5 regarding the standard rent was tried as a preliminary issue and the standard rent was fixed by the trial Court as stated in the earlier part of the judgment by an order dated 3rd January 1966 below Ex. 19. It is significant to note that two other issues viz. issues Nos. 7 and 10 were also ordered to be heard as preliminary issues. Those two issues were:- (7) Does the defendant No. 2 prove that she has paid all the rent due upto 31-101963 ? (10) What is found due to the plaintiff ?these two issues were ordered to be heard along-with issue No. 5 regarding the standard rent. The trial Court ultimately decided that these two issues viz. Nos. 7 and 10 cannot be heard at that stage. The pertinent observations made by the learned Civil Judge who passed that order dated 3-1-1966 are in para 9. They are:-AS to issues Nos. 7 and 10 these issues should not be decided as preliminary issues. The reason is that the issue of standard rent and permitted increases is decided first only to enable the defendant to pay the rent due to avail themselves of the protection given to a tenant under sec. 12 (3) (b) of the Bombay Rent Control Act. For this purpose the period for which the rent is in arrears would not be decided in the first instance. A tenant would always know what rent has remained unpaid and he has to pay the rent in Court according to his knowledge. The Court ought not to intrude on this point at this stage. Decision on this point at this stage may even work to the detriment of the tenant. A tenant would always know what rent has remained unpaid and he has to pay the rent in Court according to his knowledge. The Court ought not to intrude on this point at this stage. Decision on this point at this stage may even work to the detriment of the tenant. If the tenant pays rent as per the Courts finding regarding the period for which it has remained unpaid he may lose the protection under sec. 12 (3) (b) of the Act ill case the decision as to this period of the lower Court is not upheld by the appellate Court and the rent is found unpaid for a longer period. The appellate Court would only give time to a tenant to pay up the difference in rent if the decision as to the standard rent and permitted increases is altered but not that the decision as to the period for which it has remained uncharged (unpaid?) is set aside. So the decision of the issues is not given at this stage. In my opinion these issues be decided with the other issues at the time of the final judgment. It is for the defendants to pay in Court the rent at the rate of standard rent and permitted increases as is due according to them. Their knowledge as to since when the rent remained unpaid should not be influenced by giving a decision by the Court at this stage. Therefore issues Nos. 7 and 10 are kept open. It appears to me that this is the correct view taken by the learned Judge who was called upon to answer those issues. The fact as to the period for which rent is due is within the knowledge of the defendant. If the defendant takes up a wrong contention in this regard and even if he has succeeded in the trial Court as regard that contention of his and if he fails in the appellate Court if he has not deposited the rent which is ultimately found to be due though the standard rent was fixed at the earlier stage to enable him to pay the rent due on that basis he has to thank himself. The appellate Court has taken the correct view in this behalf. The appellate Court has taken the correct view in this behalf. It is not a case where the finding regarding the standard rent was varied by the appellate Court and enhanced the amount of standard rent. If that was the case the appellate (Court had to fix another date to enable the tenant to pay the difference. That is the ratio of the decision of the Supreme Court. Decisions of a Division Bench of this Court in Sureshchandra Bhulabhai Jariwala v. Maganlal Lallubhai VIII Gujarat Law Reporter 1003 Ratilal Balabhai Nazar v. Ranchhodbhai Shankerbhai Patel IX Gujarat Law Reporter 48 and Nanji Pancha v. Daulal Naraindas XI Gujarat Law Reporter 285 lay down also the same ratio. In none of these decisions the question that is posed before me had arisen for consideration. It has also not been decided. Mr. Patel has not been able to point out any decision which supports the argument advanced by him before me. ( 4 ) IT is significant to note that by the aforesaid order dated 3rd January 1966 the trial Court had put those defendants on their guard. The standard rent was fixed. They had therefore an opportunity to deposit the amount of rent that be due from 1st July 1959 to enable themselves to claim protection under sec. 12 (3) (b) of the Act. If they chose not to deposit the amount accordingly and continued their contention regarding the period from which the rent was due and ultimately that contention is not accepted and the rent deposited does not cover up the rent that had become due as per the finding of the appellate Court the tenant cannot claim protection under sec. 12 (3) (b) of the Act. The appellate Courts view in this behalf is in my opinion correct. The opponent was therefore entitled to claim possession on the ground of non-payment of rent. ( 5 ) AT the fag end of his arguments Mr. Patel raised one another important argument which was not raised on behalf of the defendants in the two Courts below. That argument was that the present suit was filed by the successor-in-title of the original land-lord of the tenant on the basis of transferring the title in the suit property alongwith a right to recover the arrears of rent that had become due from 1-7-1959 to the plaintiff. It would therefore mean Mr. That argument was that the present suit was filed by the successor-in-title of the original land-lord of the tenant on the basis of transferring the title in the suit property alongwith a right to recover the arrears of rent that had become due from 1-7-1959 to the plaintiff. It would therefore mean Mr. Patel submitted that the arrears of rent ceases to be the arrears of rent. It became a debt. It was an assignment of a debt. The assignee could therefore recover that debt if the debt had not become time-barred. But the tenant was not under the obligation to deposit that amount of debt to claim protection under sec. 12 (3) (b) of the Act. In support of this argument he relied upon the decision of a Division Bench of the Calcutta High Court in Dahya Debi v. Chapala Debi A. I. R. 1960 Calcutta 378. Prima facie this decision supports the contention of Mr. Patel. At page 880 the learned Judges have referred to the relevant provisions of sec. 17 (1) of the West Bengal Premises Tenancy Act 1956 The relevant observations are:-MR. Lala then contends that what the tenant has to deposit under sec. 17 (1) of the West Bengal Premises Tenancy Act is rent nor (neither?) arrears of rent but an amount calculated at the rate of rent at which it was last paid for the period for which the tenant may have been in default. It is true that the word rent has not been uses by the Legislature in sec. 17 (1) of the West Bengal Premises Tenancy Act but under that sub-section the tenant is required to deposit in Court or pay to the landlord. The deposit in Court is an alternative to payment to the landlord and this requirement clarifies the nature of amount calculated at the rate of rent. If the landlord to whom the arrears of rent fell due institutes a suit for ejectment under the terms of sec. 17 (1) the tenant must deposit all the arrears within 30 days of the service of the writ of summons but where. as in the case before us. If the landlord to whom the arrears of rent fell due institutes a suit for ejectment under the terms of sec. 17 (1) the tenant must deposit all the arrears within 30 days of the service of the writ of summons but where. as in the case before us. the suit for ejectment is instituted not by the landlord to whom the arrears of rent became due but by his assignee there is no obligation in our opinion on the part of the tenant to deposit arrears of rent which became due to the ex-landlord. In para 8 it is observed:-THE second point of view from which the question can be looked at is that the assignment of arrears of rent may be in favour of a person who has no interest in the premises from which ejectment is asked for. Sec. 17 requires that the arrears should be either deposited in Court-or paid to the landlord If the arrears have been assigned to a stranger who has no interest in the premises obviously sec. 17 (1) can have no possible application. In the present case it is merely an accidental circumstance that the arrears of rent have been assigned to the same person. who has acquired title to the house itself. The character of the tenants duty or the character of the tenants obligation under sub-sec. (1) of sec. 17 has to be determined by a consideration of all possible cases and if the tenant is not under an obligation to make the deposit in case of an assignment of arrears of rent to a stranger he cannot also be said to be under any obligation to make the deposit when the arrears are assigned to a person who has acquired title to the property. For this reason also I hold that in the present case the petitioner was not required to make the deposit of the arrears of rent which were assigned to the plaintiff under the deed of assignment dated 27-9-1957. The relevant facts are at page 379 some of which in my opinion are material. They are as under:-PREMISES No. 101 Durga Charan Mitra Street belonged to a lady named Harimati and under her the petitioner was a tenant at a monthly rent of Rs. 70/and the tenancy was held by the petitioner according to the Bengali calendar month. The relevant facts are at page 379 some of which in my opinion are material. They are as under:-PREMISES No. 101 Durga Charan Mitra Street belonged to a lady named Harimati and under her the petitioner was a tenant at a monthly rent of Rs. 70/and the tenancy was held by the petitioner according to the Bengali calendar month. On 13-4-1949 Harimati executed a deed of settlement by which she appointed one Dulal Chandra Dutta and Purna Chandra Agarwala sold the premises to the opposite party Smt. Chapala Devi by a document Ex. 1. By another document Ex. 3 the two trustee sold the arrears of rent from the month of July upto date i. e. upto 27-9-1957 to Chapala Devi. Shortly thereafter the assignors of the arrears of rent gave notice of the assignment to the tenant by Ex. 3. The 27th of September 1957 corresponds to the 10th of Ashwin 1364 B. S. It is admitted that the petitioner as soon as the came to know of the assignment sent the rent due for the 20 days of Ashwin 1364 B. S. by money order to Chapala Devi but Chapala Devi refused the money order and the petitioner has been depositing the rent from month to month with the rent controller ever since that date. On 23-2-1958 Chapala Devi instituted a suit for ejectment and arrears of rent. It is significant to note that in the West Bengal Premises Tenancy Act 1956 (West Bengal Act XII of 1956) which the Division Bench of Calcutta High Court had to consider the definition of the word landlord was not the same as it is in the Act which I have to consider. The definition of the word landlord is given in sec. 2 (d) of the West Bengal Premises Tenancy Act as under:-LANDLORD includes any person who for the time being is entitled to receive or but for a special contract would be entitled to receive the rent of any premises whether or not on his own account. In our Act the word landlord has been defined in sec. 5 (3) as under:- landlord means any person who is for the time being. In our Act the word landlord has been defined in sec. 5 (3) as under:- landlord means any person who is for the time being. receiving or entitled to receive rent in respect of any premises whether on his own account or on account or on behalf or for the benefit of any other person or as a trustee guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant; and includes any person not being a tenant who from time to time derives title under a landlord; and farther includes irrespective of his sub-tenant a tenant who has sub-let any premises the words underlined by me clearly indicate that under the provisions of our Act in the absence of anything repugnant to the subject or context the word landlord would include any person not being a tenant who from time to time derives title under a landlord. Admittedly the plaintiff is not a tenant. He is the person who has derived title from Surendra the landlord of the defendants. It is therefore evident that the plaintiff would be included within the definition of the word landlord given in sec. 5 (3) of the Act. ( 6 ) CHAPTER III of the West Bengal Premises Tenancy Act 1956 deals with Suits and Proceedings for eviction. Sec. 13 (1) (i) of that Act which is material for our purposes reads:- (I) where the tenant has made a default in the payment of rent for two months within a period of twelve months or for two successive periods ill cases where rent is not payable monthly. This is one of the grounds mentioned in sec. 13 of that Act when a landlord can file a suit for recovery of possession of the leased premises. ( 7 ) SEC. 17 of the West Bengal Premises Tenancy Act 1956 which is material for our purposes reads:- (1) On a suit or proceeding being instituted by the landlord on any of the grounds referred to in sec. 13 of that Act when a landlord can file a suit for recovery of possession of the leased premises. ( 7 ) SEC. 17 of the West Bengal Premises Tenancy Act 1956 which is material for our purposes reads:- (1) On a suit or proceeding being instituted by the landlord on any of the grounds referred to in sec. 13 the tenant shall within one month of the service of the writ of summons on him deposit in Court or pay to the landlord any amount calculated at the rate of rent at which-it was last paid for the period for which the tenant may have made default including the period subsequent thereto upto the end of the month previous to that in which the deposit or payment is made together with interest on such amount calculated at the rate of eight and one-third per cent. per annum from the date when any such amount was payable upto the date of deposit and shall thereafter continue to deposit or pay month by month by the 15tb of each succeeding month a sum equivalent to the rent at that rate. (2) If in any suit or proceeding referred to in sub-sec. (1) there is any dispute as to the amount of rent payable by the tenant the Court shall determine having regard to the provisions of this Act the amount to be deposited or paid to the landlord by the tenant in accordance with the provisions of sub-sec. (1 ). (3) If a tenant fails to deposit or pay any amount referred to in sub-sec. (1) or sub-sec. (2) the Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit. (4) If a tenant makes deposit or payment as required by sub-sec. (1) or subsec. (2) no decree or order for delivery of possession of the premises to the landlord on the ground of default in payment of rent by the tenant shall be made by the Court but the Court may allow such costs as it may deem fit to the landlord:- provided that a tenant shall not be entitled to any relief under this sub-section if he has made default in payment of rent for four months within a period of twelve months. It is thus evident that the definition of the word landlord given in the West Bengal Premises Tenancy Act 1956 is quite different from the definition of the word landlord given in our Act. Furthermore the deposit is to be made under the provisions of sec. 17 of that Act in a suit instituted by a landlord on the basis of the provisions referred to in sec. 17 (1) of that Act ( 8 ) IN view of the definition of the word landlord the successor in-title would not be a landlord within the meaning of the word landlord referred to therein. Furthermore the amount to be deposited would not be the amount contemplated under the provisions of sec. 17 (1) of that Act in a case like the present case. On the basis of that wording this decision of a Division Bench of the Calcutta High Court may be justified. We have to consider the provisions of our Act. As said earlier the plaintiff would be included within the definition of the word landlord given in sec. 5 of the Act this definition will hold good unless there is anything repugnant to the subject or context in this Act. Sec. 12 of the Act which is material for our purposes reads:- (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 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 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 sec. 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-sec. (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. (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 towards payment of rent or permitted increases due to him as the Court thinks fit. There is nothing repugnant to the subject or context in sec. 12 of the Act to indicate that the word landlord referred to therein should be given a meaning other than the meaning given in the definition clause (3) of sec. 5 of the Act. ( 9 ) IF we now refer to sec. 13 of the Act there is an indication that wherever the Legislature intended to give a different meaning to the word landlord it has expressly done so. In sec. 13 (1) of the Act the word landlord has been used Sec. 13 of the Act enumerates several grounds on the basis of which the landlord is entitled to recover possession of the leased premises one of them is sec. 13 (1) (g ). Explanation given to sec. 13 (1) (g) is material for our purposes. It reads:-FOR the purposes of clause (g) of sub-sec. 13 (1) (g ). Explanation given to sec. 13 (1) (g) is material for our purposes. It reads:-FOR the purposes of clause (g) of sub-sec. (1) (a) a person shall not be deemed to be a landlord unless he has acquired his interest in the premises at a date prior to the beginning tenancy or the first day of January 1964 whichever is later or if the interest has devolved on him by inheritance or succession his predecessor-in-title had acquired the interest at a date prior to the beginning of the tenancy or the first day of January 1964 whichever is later; (b) the expression landlord shall not include a rent-farmer or rent-collector. It is significant to note that if this explanation had not found place in this section a person who has acquired interest even after the first day of January 1964 would be a landlord within the meaning of sec. 5 (3) of the Act. Similarly a rent-farmer or rent-collector would also be a landlord within the meaning of the word landlord defined in that clause. For the purposes of sec. 13 (1) (g) the legislature intended to exclude such persons and that is why a specific provision is made therein. The legislative intent is thus indicated by giving this explanation. That also fortifies my conclusion that the word landlord referred to in sec. 12 of the Act would have the same meaning as that find place in sec. 5 (3) of the Act. It is therefore evident that the plaintiff who has acquired interest in this property by a sale deed Ex. 91 and has acquired a right to recover the arrears of rent due from 1-7-1959 would be included within the meaning of the word landlord given in sec. 5 (3) of the Act and consequently and in view of the provisions of sec. 12 of the Act he would be entitled to get possession on this ground. He had after acquisition of his rights given a notice as contemplated by sec. 12 (2) of the Act. I am of the opinion that a distinction can be made between a person who is only an assignee of the arrears of rent and a person whom the right to recover arrears of rent as wall as the property itself have been transferred. 12 (2) of the Act. I am of the opinion that a distinction can be made between a person who is only an assignee of the arrears of rent and a person whom the right to recover arrears of rent as wall as the property itself have been transferred. The obvious reason is that in the latter case it is not only the right to recover rent that is transferred but on account of selling of the property the right to get possession is also transferred. The person to whom these rights have been transferred would be a landlord within the meaning of the word landlord given in sec. 5 (3) of the Act. Such a landlord has been given a right to recover possession on the ground of non-payment of rent. The tenant is bound to pay such rent to such a landlord when demanded within one month after the receipt of the notice as contemplated by sec. 12 (2) of the Act and if he does not comply with such notice in my opinion he is not entitled to claim protection under the Act. In view of the provisions of our Act therefore this decision given by the Calcutta High Court in my opinion cannot be pressed into service for the benefit of the petitioners. I therefore reject this argument advanced by Mr. Patel at the fag end of his arguments. Application dismissed .