RAMANLAL MANILAL SHAH v. GOVINDLAL PURSHOTTAMLAL — 1995 DIGILAW 139 (GUJ)

M. S. PARIKH, J. ( 1 ) THIS Revision is filed by the landlords-plaintiffs by virtue of Sec. 29 (2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, hereinafter referred to as "the Rent Act", bringing under challenge the dismissal of the Suit bearing H. R. P. Suit No. 2858 of 1975 as per the judgment and order passed by the learned Judge, Small Causes Court, Ahmedabad, on 30th june 1977 and dismissal of their Civil Appeal No. 322 of 1977 filed against the said judgment of the trial Court. The Appellate Bench of the Small Causes Court, ahmedabad, being the appellate Court, dismissed the said Civil Appeal No. 322 of 1977 on 4th March 1980. That is how the plaintiffs are before this Court. ( 2 ) THE facts in brief as alleged by the plaintiffs indicate that the plaintiffs had an occasion to file the aforesaid suit against the defendant on the ground that the defendant was a tenant in arrears of rent; that he was guilty of conduct amounting to nuisance and annoyance; that he has acquired suitable residence in Plot No. 80 of Nirmal Society, Ahmedabad; that the plaintiffs require the suit premises reasonably and bona fide for their personal use and occupation and that the defendant was liable to pay arrears of rent, mesne profits and municipal tax amounting to Rs. 1,739. 00. The defendant resisted the suit as per Written Statement Ex. 13, inter alia alleging that the suit was barred by principle of res judicata and estoppel, that he was not a tenant in arrears of rent; that he did not acquire any suitable residence and that the case of the plaintiffs regarding nuisance and annoyance as well as personal requirement was not proved. ( 3 ) THE trial Court framed issues arising from the aforesaid pleadings and held that the plaintiffs were not entitled to decree for eviction under Sec. 12 of the Rent act; that ground of nuisance and annoyance was not pressed as per Ex. ( 3 ) THE trial Court framed issues arising from the aforesaid pleadings and held that the plaintiffs were not entitled to decree for eviction under Sec. 12 of the Rent act; that ground of nuisance and annoyance was not pressed as per Ex. 33; that the ground of acquisition of suitable acquisition was not proved; that the plaintiffs did not require the suit premises reasonably and bona fide and that hardship of the defendant would be greater if the decree for eviction was passed; that the suit was not barred by principle of res judicata and that the plaintiffs were entitled to the claim of Rs. 1,739. 00. ( 4 ) A very interesting feature in this matter is that during the pendency of the suit the plaintiffs preferred Application Ex. 14 by virtue of Sec. 11 (4) of the Rent act. The trial Court passed an order directing the defendant to deposit rs. 1,025/- on or before 15-4-1977 and directed the defendant to go on depositing rs. 44/- per month on 10th of every month. The defendant did not comply with the said order and, therefore, the plaintiffs passed purshis Ex. 27 making a statement of fact that the defendant did not comply with the said order. The trial Court thereupon struck off the defence of the defendant on 5-5-1977. It is thereafter that the matter proceeded with the trial in the absence of defendant by virtue of the defendants defence having been struck off by the trial Court. ( 5 ) IT then appeared in the evidence of the plaintiff-Ramanbhai that the rent of the suit premises is Rs. 44. 00 p. m. ; that the plaintiffs had previously filed suit and at that time rent fell due from 1-7-1966. Thereafter according to the plaintiff he had paid taxes for a period of two years during the pendency of that suit; that suit was dismissed. The plaintiff gave credit of the amount deposited in the Court in that suit. One important feature which does not shape in the trial Courts judgment is that after the previous suit was dismissed there was an appeal proceeding. This fact assumes importance from the point of view of finding out what is the amount that fell due at various stages in the present proceeding. The plaintiffs evidence further reveals that the suit notice Ex. 34 was served on 1-3-1974. This fact assumes importance from the point of view of finding out what is the amount that fell due at various stages in the present proceeding. The plaintiffs evidence further reveals that the suit notice Ex. 34 was served on 1-3-1974. In that notice the rent was demanded from 1-7-1966 to 28-2-1974 and also municipal taxes of rs. 284/-, while giving credit for Rs. 3,234. 00 in the Court by the defendant, leaving balance of Rs. 1,098. 00. Further fact which has not been noticed by the trial court but has been noticed by the Appellate Court is that the defendant had given reply to the suit notice Ex. 34, inter alia alleging that the account of deposit set out by the plaintiffs in the Suit notice was not correct. That is how the plaintiffs had an occasion to give another notice by way of reminder (rejoinder) on 11-7- 1974 as per Ex. 36. In the background of such facts the trial Court had an occasion to deal with the account of outstanding rent. The plaintiffs filed purshis at Ex. 37 setting out the particulars of rent due at Rs. 44. 00 p. m. and finding out a figure of rs. 5,808/ -. The plaintiffs added Rs. 284. 00 by way of taxes giving a total amount of Rs. 6,092. 00. The plaintiffs have deducted a sum of Rs. 4,686. 00 being the amount deposited by the defendant in the Court. Thus, according to the purshis Ex. 37 the balance amount of Rs. 1,406. 00 was then due. It is in this manner that the defendant was found to be in arrears of rent and mesne profits and the trial Court found it just and proper by virtue of Sec. 12 (3) (b) of the Rent Act to grant time to the defendant to deposit the arrears upto 29-6-1977. It is an admitted fact that the defendant has deposited all the arrears of rent and mesne profits before the time so fixed by the trial Court. This is what transpired with regard to the claim of possession by the plaintiffs on the ground of arrears of rent and mesne profits, the trial Court finding that the defendant having deposited arrears of rent and mesne profits as per the order dated 14-6-1977 vide purshis Ex. 38 the decree for possession could not be passed. This is what transpired with regard to the claim of possession by the plaintiffs on the ground of arrears of rent and mesne profits, the trial Court finding that the defendant having deposited arrears of rent and mesne profits as per the order dated 14-6-1977 vide purshis Ex. 38 the decree for possession could not be passed. ( 6 ) IT is then submitted on behalf of the petitioners that the trial Court erred in law in granting time to the defendant to deposit the balance amount of arrears of rent and mesne profits as per order dated 14-6-1977. There was no such jurisdiction or discretion vested in the trial Court. In support of this submission reliance has been placed on the decision of the Honourable Supreme Court in the case of Chase Bright Steel Limited v. Shantaram Shankar Sawant and Anr. , reported in AIR 1994 SC 2114 . In that case the suit for recovery of possession was filed on the ground of arrears of rent and permitted increases. The arrears of permitted increases were claimed at the rate of Rs. 56. 50 per month since October 1976 on the basis of calculation at 7% as education cess on the rent of Rs. 358. 29 ps. , Rs. 30/- water charges, 1/4% as unemployment charges and 1/4% as tree cess. This was over and above the arrears of rent and mesne profits at the rate of Rs. 358. 29 ps. per month. The tenant had filed an application for fixation of standard rent which was dismissed in September 1981 during the pendency of the suit. The trial Court decreed the suit for eviction on account of arrears of rent but not permitted increases. Aggrieved by the said order the appellant filed regular appeal before the District judge and that appeal was dismissed. Thereafter, the appellant preferred writ petition before the High Court and that was also dismissed. Thus, the appellant before the supreme Court faced the decree for eviction rendered by the trial Court on the ground of arrears of rent and mesne profits. It was the case where there was no dispute by the tenant about the payment of municipal taxes by the landlord. On 14-9-1983 the standard rent was fixed at Rs. 358. 00 per month and the permitted increases were fixed at Rs. 56. 00 by month. The appellant continued to pay rs. It was the case where there was no dispute by the tenant about the payment of municipal taxes by the landlord. On 14-9-1983 the standard rent was fixed at Rs. 358. 00 per month and the permitted increases were fixed at Rs. 56. 00 by month. The appellant continued to pay rs. 358/- per month being the standard rent and did not pay the permitted increases and under such circumstances admittedly there was a default on the part of the tenant in not depositing the permitted increases. Under such circumstances, the supreme Court was required to consider the submissions of the learned Counsel appearing on behalf of the appellant. The Supreme Court ultimately found that under Sec. 12 (3) (b) of the Rent Act, there is an obligation to deposit the permitted increases not only during the pendency of the standard rent application but even during the pendency of suit for eviction as also appeal and if there was a default the tenant could not claim protection. ( 7 ) IN my opinion the facts of the case before the Supreme Court are quite different from the facts of the present proceeding. In this case the trial Court itself had granted opportunity to the defendant to deposit the balance amount and it could not be said in law that the trial Court lacked jurisdiction to do so. On a plain reading of Sec. 12 (3) (b) of the Rent Act the landlord has to show not only the amount of standard rent but the amount that is on correct working due and payable. It is in respect of both these aspects of the provision that the trial Court would have jurisdiction. It is clear that the trial Court was suspicious about whether the rent and mesne profits, as set out by the plaintiff, in fact were due or not. The proceedings of the suit before the trial Court had a checkered history. There were previous proceedings of a suit and appeal and what the plaintiff claimed in the suit notice was the arrears of rent worked out from the date from which the amount of rent fell due as in the previous suit. That cause of action obviously would be exhausted upon the dismissal of the earlier suit and appeal before the present suit came to be filed. That cause of action obviously would be exhausted upon the dismissal of the earlier suit and appeal before the present suit came to be filed. Therefore, on their own the plaintiff had to set out the accounts of rent due and the amount deposited by the defendant in the earlier proceeding. Even there the tenant had pointed out the error which the plaintiff had to correct. On going through the appellate Courts judgment it can be seen that even the plaintiff had faultered in calculating the amount due. This means that the amount due was required to be worked out and it was not an ascertained sum. That is how it was quite open for the trial Court to exercise its discretion and in my opinion the order rendered by the trial Court giving time to the defendant to deposit the balance amount before passing the final order was quite just and proper and could not be said to be without jurisdiction. That is how the trial Court rightly refused to pass decree for eviction upon the compliance of that order by the defendant. ( 8 ) THE appellate Court has considered this problem in its true perspective. It has observed as under :"the amount of short deposit of Rs. 1,406. 00 appears to have been located by the learned trial Judge on the purshis Exh. 37 given by the learned Advocate for the plaintiff to that effect. After the said order of the Court we find that on 29-6-1977 the defendant had deposited in this suit Rs. 1,425. 00 and thus he had complied with the directions of the Court in the judgment. "the Appellate Court has also noted the submissions of the tenants learned Advocate to the effect that there was a genuine dispute in the suit about the amount of rental dues or use and occupation charges deposited by the tenant in the previous suit and, therefore, the learned trial Judge was pleased to grant time on 14-6-1977 to make up the deficit of Rs. 1,406. 00 by 29th June 1977 and there was no wilful default on the part of the defendant in not depositing the full rental dues and the short deposit if any was due to non-settlement of accounts between the parties. 1,406. 00 by 29th June 1977 and there was no wilful default on the part of the defendant in not depositing the full rental dues and the short deposit if any was due to non-settlement of accounts between the parties. The appellate Court accepted this submission of the learned Advocate appearing for the tenant by visualising the factual data available from the plaint as well as two notices given by the plaintiffs. The appellate Court has further noticed that the defendant had given reply to the plaintiffs notice. Besides, Application Ex. 17 dated 7-2-1980 was also given by the defendant in the appeal proceeding. Along with this application 16 money Order coupons had been produced by the defendant along with list Ex. 18 in the appeal. The Money Order coupons displayed that the defendant had tendered rent to the plaintiff by Money Order during the period from 15-3-1974 to 14-8- 1975 and the said Money Orders were refused by the plaintiff. Thus, the mounting of arrears as per the say of plaintiffs from time to time in the suit proceeding was on account of default on the part of the plaintiff in not accepting the Money Orders. It is under such circumstances that the suit in question saw the light of the day and then all the proceedings under Sec. 11 (4) of the Rent Act followed. One of the orders is the final order giving time to the defendant to deposit balance amount of rent and mesne profits due and the same is now sought to be challenged as without jurisdiction. In my opinion, in the facts of the case the order dated 14-6-1977 passed by the trial Court granting time to deposit the balance amount could hardly be said to be without jurisdiction. The decision in the case of Ganpat Ladha v. Sashikant vishnu Shinde, reported in (1978) XIX GLR 502 can hardly have any application to the facts of the present case as noted above. It is no doubt true that if the case falls under Sec. 12 (3) (a) or Sec. 12 (3) (b) of the Rent Act, the discretion is then not left with the trial Court. It is no doubt true that if the case falls under Sec. 12 (3) (a) or Sec. 12 (3) (b) of the Rent Act, the discretion is then not left with the trial Court. In the present case, the plaintiffs themselves have made the question of what was the amount due debatable till the last so as to make protection under Sec. 12 (3) (b) of the Rent Act available to the defendant. This is over and above the fact that the case could hardly have been covered under Sec. 12 of the Rent Act itself inasmuch as there was tender of rent and refusal thereof within one month from the date of first notice. ( 9 ) ON behalf of the defendant reference has been made to a decision rendered by the Division bench of this Court in the case of Harkishandas Chunilal Chokshi v. Prabhavatiben Wd/o. Shah Ambalal Laxmichand, reported in (1973) XIV GLR 438 for an analytical view of the provision contained in Sec. 11 (4) of the Rent act and in reply a reference has been made to a decision of the Honourable Supreme court in the case of M/s. Paradise Industrial Corporation v. Kiln Plastics Products, reported in AIR 1976 SC 309 , according to which an order under Sec. 11 (4) of the Rent Act directing defence of the defendant to be struck off in case the defendant defaulted in depositing the amount directed to be deposited would squarely fall within the provisions of Sec. 11 (4) of the Rent Act and such an order could not be said to be without jurisdiction and failure to deposit the amount in the trial Court and before the appellate proceedings were taken could not save the tenant. In the case of Paradise Industrial Corporation (supra) the Supreme Court has observed as under :"we are unable to understand how the learned Judge found it possible to bring the case within the provisions of Sec. 12 (3) (b) of the Act. The tenants did not pay either on the 1st day of the hearing of the suit or on or before the date the Court fixed. Indeed on proper construction of law it is Sec. 11 (4) that will apply. Sec. 12 (3) (b) does not deal with a case like the present. The tenants did not pay either on the 1st day of the hearing of the suit or on or before the date the Court fixed. Indeed on proper construction of law it is Sec. 11 (4) that will apply. Sec. 12 (3) (b) does not deal with a case like the present. "in the present case the defendant has deposited all the arrears of rent and mesne profits before the date finally fixed by the trial Court as stated above. Thus, he would also stand protected by virtue of the decision of the Apex Court in the case of Paradise Industrial Corporation (supra ). ( 10 ) IN my opinion the defendant in this matter clearly stood entitled to the protection of Sec. 12 of the Rent Act in any view of the matter. There is no error of law committed by the Courts below in dismissing the suit for possession on the ground of arrears of rent. ( 11 ) THE result is that this Civil Revision Application shall have to be dismissed. Rule is, therefore, discharged with no order as to costs. .