VAJUBHAI VASHRAM v. PARIKH MOHANLAL RANCHHODDAS — 1978 DIGILAW 115 (GUJ)

A. M. AHMADI, J. ( 1 ) IN this revision application by the tenant under sub-sec. (2) of sec. 29 of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (hereinafter called the Act) in the main two questions arise for my decision namely (i) whether the decision of the Division Bench of this court in Pravinchandra Shamaldas Patel and Ors. v. Saraswatiben Ranchhodbhai 18 G. L. R. 8 holding that the term regularly appearing in sec. 12 (3) (b) of the Act is merely directory and not mandatory and strict compliance with its provisions need not be insisted upon is impliedly over-ruled by the judgment of the Supreme Court in Ganpat Ladha v. Sashikant Vishnu Shinde. 19 G. L. R. 502; and (ii) if yes whether in the facts and circumstances of this case the tenant can be said to have failed to comply with the requirements of sec. 12 (3) (b) inasmuch as he failed to pay or tender the standard rent regularly in the appellate court so as to forfeit the protection accorded by that sub-section. As a limb of the same submission Mr. Desai the learned advocate for the tenant contended that a suit would not include an appeal and hence the obligation to pay or tender regularly the standard rent cannot be extended to an appeal also. In order to appreciate these submissions made by Mr. Desai for the petitioner-tenant it is necessary to bear in mind a few facts. ( 2 ) THE opponent is the owner of a property which came to be constructed for the first time after 1948. The first floor of the property was initially occupied by one Onali Lalbhai Ismailji on a monthly rent of Rs. 35. 00 from 1-11-1952. After the said occupant vacated the premises the petitioner occupied the suit premises as a monthly tenant on the contractual rent of Rs. 32. 00 per month inclusive of Rs. 2. 00 per month payable towards education case. The tenancy was according to British Calendar commencing from the first day of the month and ending with the last day thereof. The petitioner fell in arrears of rent from 1st Octo- ber 1971 and he was served with a notice under sec. 12 (2) of the Action 15 July 1972 whereunder rent aggregating Rs. The tenancy was according to British Calendar commencing from the first day of the month and ending with the last day thereof. The petitioner fell in arrears of rent from 1st Octo- ber 1971 and he was served with a notice under sec. 12 (2) of the Action 15 July 1972 whereunder rent aggregating Rs. 2881 from 1st October 1971 to 30th June 1972 was claimed and the tenant was called upon to vacate and deliver possession of the demised premises on 30th August 1972 A corrigendum was despatched within two days i. e. on 17th July 1972 clarifying that the date of termination of tenancy mentioned in the earlier notice should be read as 31st August 1972 The tenant gave reply to the said notice on 16th August 1972 raising a dispute as regards the standard rent of the demised premises. Before the expiry of one month from the date of receipt of the notice to quit he filed an application for- fixation of standard rent being Application No. 28/72 on 16th August 1972 and during the pendency of the said application he moved the court for fixation of interim rent which was fixed at Rs. 25. 00 per month. On the other hand the landlord filed a suit No. 254/72 seeking ejectment on the ground that the tenant was in arrears of rent from 1st October 1971 to 31st August 1972 as also on the ground that the premises were required for personal occupation. Both the suit and the standard rent application were heard together by consent of parties and the learned trial Judge fixed the standard rent at Rs. 32. 00 per month inclusive of Rs. 2. 00 per month towards education case and held that the landlord was entitled to the standard rent at the said rate from 1st October 1971 He however took the view that the tenant was entitled to the protection of sec. 12 (3) (b) of the Act and since the landlord had failed to prove that the premises were reasonably and bona fide required by him for personal use and occupation he dismissed the suit directing the parties to bear their own costs The landlord being aggrieved by the judgment and decree passed by the learned trial Judge in his suit prefer. red an Appeal in the court of the learned District Judge Panchmahals at Godhra being Regular Civil Appeal No. 7/76. The said appeal was transferred for disposal to the learned Assistant Judge Panchmahals at Godhra who by his judgment and decree dated 31st August 1976 allowed the appeal holding that the tenant had not complied with the requirements of sec. 12 (3) (b) of the Act and gave a decree of eviction granting six months time to the tenant to vacate and deliver possession of the demised premises to the landlord. The order passed by the learned trial Judge as regards the fixation of standard rent was confirmed by the learned Judge in appeal. The parties were directed to bear their own costs in the; appeal also. ( 3 ) IT is against the decree of eviction granted by the learned Assistant Judge Panchmahals Godhra in the aforesaid appeal that the tenant has preferred this Revision Application under sub-sec. (2) of sec. 29 of the Act. At the hearing of this revision application Mr. V. J. Desai the learned advocate for the tenant raised the aforesaid contentions before me. I shall now proceed to deal with the contentions in the order in which I have set them out in the earlier part of this judgment. ( 4 ) SEC. 12 (3) (b) of the Act with which we are presently concerned reads as under: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 before I proceed to deal with the submissions made on behalf of the tenant it is necessary to look at the provisions of sec. 12 of the Act in their entirety. Sec. 12 (1) lays down that if at the date of the institutional of the suit the tenant pays or is ready and willing to pay the standard rent and permitted increases if any he shall be protected from eviction subject of course to the provisions of sec. 12 (3) (a) of the Act. Sec. 12 (1) lays down that if at the date of the institutional of the suit the tenant pays or is ready and willing to pay the standard rent and permitted increases if any he shall be protected from eviction subject of course to the provisions of sec. 12 (3) (a) of the Act. Sec. 12 (2) affords an opportunity to the tenant to pay up the arrears and protect himself from ejectment. If the tenant Pays up the arrears within the period of one month from the date of receipt of the notice terminating tenancy under sec. 12 (2) of the Act he is entitled to claim the protection of sec. 12 (1) of the Act. If on the other hand the tenant disputes the amount of standard rent and permitted increases he can take resort to the explanation and exhibit his readiness and willingness to pay the standard rent and permitted increases by complying with the requirements of the said explanation. Sec. 12 (3) (a) indicates the circumstances in which the tenant loses the protection of the Act. If the rent is payable by the month and there is no dispute regarding the standard rent and or permitted increases raised till the expiry of the period of one month from the date of service of the notice under sec. 12 (2) of the Act and the rent is in arrears for a period of six months or more at the date of service of such notice it is enjoined upon the court to pass a decree in ejectment if the tenant omits to make payment of the arrears of rent within one month after the date of receipt of the notice. Then comes sec. 12 (3) (b) which I have reproduced above which is a residuary provision as is clear from the opening words 4sin any other case and applies to all cases of a tenant being in arrears of rent which do not fall within the purview of sec. 12 (3) (a) of the Act. Therefore if a case does not fall within sec. 12 (3) (a) of the Act. it would be governed by the residuary provision contained in sec. 12 (3) (b) of the Act quoted above. This is in brief the scheme of sec. 12 of the Act. 12 (3) (a) of the Act. Therefore if a case does not fall within sec. 12 (3) (a) of the Act. it would be governed by the residuary provision contained in sec. 12 (3) (b) of the Act quoted above. This is in brief the scheme of sec. 12 of the Act. ( 5 ) A Division Bench of this court consisting of J. B. Mehta and D. P. Desai JJ. in Pravinchandras case (supra) was required to consider whether the term regularly used in sec. 12 (3) (b) of the Act is imperative or merely directory. While dealing with the question J. B. Mehta J. who spoke for the Division Bench observed that the term regularly is capable of a variety of shades of meanings and when the legislative silence is eloquent not to show any particular periodicity or interval the legislature must be presumed to have advisedly made such broad provision so that the tenant could substantially observe it and earn his protection by liberal interpretation of this obligation cast on him by the statute. It was said that it would not be open to the court to rewrite the statutory language or to add words like as and when due month to month punctually or on a particular date in the next succeeding month etc. While conceding that the word regularly was not a surplusage it was observed that the phrase continues regularly to pay standard rent and permitted increases had to be used so that the tenant could ordinarily claim the protection of the statute by payment of the arrears of rent unless his conduct disentitles him to claim such protection where he fails to comply with the statutory obligation even substantially. The court held that the term regularly used in the later part of sec. 12 (3) (b) of the Act must therefore be interpreted to be directory and not mandatory and the court would have to inquire into all the relevant facts and circumstances in each case to determine whether the requirement of the said sub-section has been substantially complied with by the tenant so as to be entitled to the protection of the statute. ( 6 ) IT was submitted by Mr. ( 6 ) IT was submitted by Mr. Majmudar the learned advocate for the landlord that this view of the Division Bench of this High Court is no longer good law in view of the decision of the Supreme Court in Ganpat Ladha v. Sashikant Vishnu Shinde (supra ). In support of his contention Mr. Majmudar invited my attention to the following observations made by the learned Chief Justice who spoke for the court;it is clear to us that the Act interferes with the landlords right to property and freedom of contract only for the limited purpose of protecting tenants from misuse of the landlords power to evict them in these days of scarcely of accommodation by asserting his superior rights an property or trying to exploit his position by extracting too high rents from helpless tenants. she object was not to deprive the landlord altogether of his rights in properly which have also to be respected Another object was to make possible eviction of tenants who fail to tarry out their obligation to pay rent to the landlord despite opportunities even by saw in that behalf set where the conditions of sec. 12 (3) (a) are not satisfied their is a further opportunity given to the tenant to protect himself against eviction. He can comply with the conditions set out in sec. 12 (3) (b) and defeat the landlords claim for eviction. If however he does not fulfil those conditions he cannot claim the protection of sec. 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 sec. 12 (3) (b) even where the conditions laid down by it are satisfied to be strictly confined within the limits prescribed for their operations the above observations make it clear that once it is found that the tenant has failed to comply with the requirements of sec. 12 (3) (b) of the Act the court has no discretion but to pass a decree in ejectment against the tenant. ( 7 ) MR. 12 (3) (b) of the Act the court has no discretion but to pass a decree in ejectment against the tenant. ( 7 ) MR. Desai the learned advocate for the tenant was at pains to point out that the above observations of the Supreme Court do not give any indication as to whether the term regularly appearing in sec. 12 of the Act is mandatory and not directory in content. In my opinion this submission of Mr. Desai is without merit having regard to the recent decision of the Supreme Court in Civil Appeal No. 1032 of 1978 (Mranalini B. Shah and Anr. v. Bapalal Mohanlal Shah unreported) decided on May in 1978 by a Division Bench consisting of Their Lordships Sarkaria and Kailasam JJ. the submission in precisely the same terms was canvassed before the Supreme Court in the aforesaid case and it was argued that the decision of the Supreme Court in Ganpat Ladha (supra) did not conclude the point that the term regularly under sec. 12 (3) (b) was mandatory and not directory in nature. Dealing with this submission Sarkaria J. speaking for the court quoted with approval the observations of the learned Chief Justice in Ganpat Ladhas case and proceeded to observe as under:the above enunciation clarifies beyond doubt that the provisions of cl. (b) of sec. 12 (3) are mandatory and must be strictly complied with by the tenant during the pendency of the suit or appeal if the landlords claim for eviction on the ground of default in payment of rent is to be defeated. The word regularly in clause (b) of sec. 12 (3) has a significant 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 clockwise 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. 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 defaults 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 mon the 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. (emphasis supplied.) the Supreme Court in the aforesaid case in terms held that the view taken by the Gujarat High Court that the term regularly was directory and not mandatory was not correct. In view of the aforesaid two decisions of the Supreme Court there is no room for doubt that if the tenant wants to avail of the protection accorded by clause (b) of sec. 12 of the Act he must strictly comply with the requirements of that clause failing which the court as found to pass a decree in ejectment against the tenant. The first submission of Mr. Desai based on the decision of the Division Bench of this court must therefore fail. ( 8 ) BEFORE I proceed to consider the question whether in the facts and circumstances of this case it can be said that the tenant has complied with the requirements of sec. 12 (3) (b) of the Act it is necessary to answer the second limb of Mr. Desais contention that the term suit in the said sub-clause does not include an appeal and hence the obligation to pay the rent regularly cast by the said clause (b) of sec. 12 (3) of the Act cannot be extended to an appeal if the landlord having failed in the trial court to secure ejectment on the ground of arrears of rent carries the matter in appeal to the higher forum. I think it is too late in the day now to contend that the requirement of the aforesaid provision cannot be extended to an appeal. I think it is too late in the day now to contend that the requirement of the aforesaid provision cannot be extended to an appeal. This question has been clearly concluded by a Division Bench of this court in Ratilal Balubhai Nazar v. Ranchhodbhai Shankarbhai Patel and Others 9 G. L. R. 48. In that case it was observed in para 4 of the judgment that the expression till the suit is finally decided suggests that what was in the contemplation of the legislature was not merely the decision of the suit by the trial court but its ultimate decision by the appellate court. It was observed;it is trite knowledge that an appeal is a continuation of a suit and when the appeal is decided the suit is finally disposed of by the appellate court. The expression till the suit is finally decided therefore in our view refers to the decision of the suit in appeal by the appellate court. Otherwise the word finally would be meaningless. When therefore an appeal is preferred by the landlord against a decree passed by the trial court dismissing his suit and the question arises before the appellate court whether the tenant is entitled to the protection of sec. 12 (3j (b) the appellate court would have to consider whether the tenant has after paying or tendering in court the arrears of standard rent and permitted increases on the first day of hearing of the suit or on or before such other date as might have been fixed by the court continued to pay or tender in court regularly the standard rent and permitted increases till the decision of the appeal. This view of the Division Bench was affirmed by a Full Bench of this court in Lalchand Jematmal v. Nanabhai Ranchhoddas and Others. 17 G. L. R. 1. After the review of the case law on the subject the Full Bench recorded its conclusion in the following words in para 16 on page 14:in the light of the above discussion we hold that sec. 12 (3) (b) of the Rent Act applies even at the appellate stage and the words till the suit is finally decided occurring in sec. 12 (3) (b) of the Rent Act applies even at the appellate stage and the words till the suit is finally decided occurring in sec. 12 (3) (b) refer also to the decision of the suit in appeal by the appellate court when an appeal is preferred by the landlord against a decree passed by the trial court distancing his suit and when the question arises before the appellate court whether the tenant is entitled to the protection of sec. 12 (3) (b) the appellate court would have to consider whether the tenant has after paying or tendering in court the arrears of standard rent and permitted increases on the first day of hearing of the appeal or on or before such other date as might have been filed by the court continued to pay or tender in court regularly the standard rent and permitted increases till the decision of the appeal. Even before the Supreme Court in the case of Mranalini B. Shah (supra) it was not disputed that the expression suit includes an appeal. The above observations made by the Full Bench clearly negative the point raised by Mr. Desai before me. . . . . . . . . . . . . . . . . . . . . . . . . . . [ The rest of the judgment is not material for the reports. ] .