Joshi Ratanshi Gopalji v. Narottam Naranji Mehta — 1995 DIGILAW 324 (GUJ)

JUDGMENT : J.N. Bhatt, J. 1. In this revision at the instance of the unsuccessful petitioner-original defendant-tenant under Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ('the Rent Act') the sole and short question that falls for judicial analysis and scrutiny is as to whether the tenant is entitled to claim protection of statutory umbrella from ejectment decree on the ground of Section 12(3)(b) of the Rent Act. 2. Respondent Nos. 1 to 7 are the original plaintiffs-trustees of a registered trust named Jain Swetambar Murti Pujak Sangh, Bhuj. The petitioner is the original defendant-tenant in respect of the demised shop bearing municipal census No. 5/314 at the monthly rent of Rs. 50/-. The registered trust is hereinafter referred to as the landlord and the petitioner is hereinafter referred to as the tenant for the sake of convenience. 3. Rent note in respect of the demised shop was executed on 31.3.1950 which is produced at Ex. 49. Initially the rent was Rs. 50/- which came to be raised to Rs. 60/- per month later on. The tenant was in arrears of rent. Therefore, the landlord served the tenant with a notice under Section 12(2) for non-payment of rent for more than six months. Regular civil suit No. 295 of 1976 came to be filed in the court of the learned Civil Judge (J.D.) at Bhuj on the following two grounds :- (i) Non-payment of rent under Section 12(3)(a); and (ii) Non-user under Section 13(1)(k). The trial court passed an ejectment decree against the tenant on the ground of non-payment of arrears of rent under Section 12(2)(a). However, the trial court found that the landlord is not entitled to eviction decree on the ground of non-user of the demised shop. The tenant carried the matter before the District Court in appeal by filing Appeal No. 57 of 1979. The appellate court found that the ejection decree should have been passed under Section 12(3)(b) and accordingly passed a decree and fixed the standard rent of Rs. 50/- instead of Rs. 60/- fixed by the trial court. Hence, this revision under Section 29(2). 4. It has been contended that the ejectment decree on the ground of Section 12(3) (b) is not legal and valid. The landlord demanded arrears of rent alongwith arrears of education case. 50/- instead of Rs. 60/- fixed by the trial court. Hence, this revision under Section 29(2). 4. It has been contended that the ejectment decree on the ground of Section 12(3) (b) is not legal and valid. The landlord demanded arrears of rent alongwith arrears of education case. A contention is raised that there is no evidence to show that education cess was paid by landlord and it can be claimed by the landlord only if it is paid and since there is no evidence to show that he had as such paid and therefore, the notice is not legal and valid. In support of this contention, reliance is placed on a decision of this court in Ganpatrao Deshmukh v. Sagnubai, 1964 XV GLR 300. 5. The contention raised on behalf of the tenant in that there is no evidence to show that education cess was paid by the landlord. The trial court fixed the standard rent at Rs. 60/- per month exclusive of education cess whereas, the appellate court reduced the amount of standard rent and fixed it at Rs. 50/- exclusive of education cess. The courts below have found on facts that the landlord is entitled to education cess over and above the standard rent. The amount of education cess demanded by the landlord in the notice and the suit is granted by the courts below. This is a finding of fact. Therefore, this finding of fact cannot be re-agitated or re-examined in a limited jurisdiction under Section 29(2) of the Rent Act. Apart from that, there is evidence to show that the claim of education cess made by the landlord in the notice and their suit is supportable and it is legal. The contention that the amount of education cess claimed was not paid is also raised in this revision for the first time. Such a contention also cannot be allowed to be raised in a revision. It cannot be said to be a question of law. Reliance on the decision in Ganpatrao's case (supra) is also not helpful to the tenant. In the said case, it was held by this court that primary liability to pay education cess is on the landlord. He can claim or demand recovery only after he has paid the same. It cannot be said to be a question of law. Reliance on the decision in Ganpatrao's case (supra) is also not helpful to the tenant. In the said case, it was held by this court that primary liability to pay education cess is on the landlord. He can claim or demand recovery only after he has paid the same. If education cess had not fallen due on the date of the notice and therefore not paid by the landlord to the local authority, the demand of that amount on the date of notice was not justified. If the same is not justified, the tenant is not obliged to make payment. That is not the factual scenario here. Therefore, the said decision is of no avail to the tenant. 6. The trial Court recorded the decree on the ground of non-payment of rent under Section 12(3)(a). The finding of the trial court and passing of the decree under Section 12(3)(a) is not improper but it is illegal. The material conditions attracting rigours of Section 12(3)(a) can be highlighted as follows. In a suit for eviction in which the following conditions are satisfied, eviction decree shall be passed under Section 12(3)(a) when: (a) Rent is payable monthly; (b) There is no dispute regarding amount of standard rent and permitted increases; (c) There is arrears of rent or permitted increases for a period of six months or more; (d) Notice demanding such arrears is served upon the tenant under Section 12(2); (e) The tenant neglects to pay such arrears before the expiry of one month next after receipt of the notice under Section 12(2); The aforesaid conditions must simultaneously exist. Thus, when all the aforesaid conditions are satisfied, decree for eviction must follow. 7. The landlord demanded the arrears of rent alongwith education cess in the notice under Section 12(2). The education cess is not payable by month. Therefore, one of the aforesaid conditions is not established, with the result, the case is not governed by the provisions of Section 12(3)(a) but under Section 12(3)(b). Therefore, the decree for eviction recorded by the trial court on the ground of non-payment of rent under Section 12(3)(a) is illegal and unsustainable. The appellate court has rightly reversed the decree of the trial court and instead has passed the decree for eviction under Section 12(3)(b) of the Rent Act. 8. Therefore, the decree for eviction recorded by the trial court on the ground of non-payment of rent under Section 12(3)(a) is illegal and unsustainable. The appellate court has rightly reversed the decree of the trial court and instead has passed the decree for eviction under Section 12(3)(b) of the Rent Act. 8. Now, a contention is raised that the tenant is entitled to protection of Section 12(3)(b). In order to qualify oneself for protection of Section 12(3)(b), the tenant is obliged to pay the amount of standard rent and permitted increases then due on the first date of hearing of the suit or before such other date as the court may fix. The tenant has also to continue to pay or tender in court such rent and permitted increases till the suit is finally decided. He has also to pay cost of the suit if directed by the court. Now the question would arise in the light of the facts and circumstances of the present case as to whether the tenant is entitled to protection under 12(3)(b) or not. The notice under Section 12(2) is dated 9.9.1976. It is at Ex. 45. Demand of rent made in the notice was from 1.6.1975 to 31.8.1976. The agreed rent was Rs. 60/- at the relevant time in respect of the demised shop. The landlord had claimed the amount of Rs. 900/- towards arrears of rent and Rs. 338.65 towards education cess. The total amount claimed in the notice came to Rs. 1358.55. 9. There is no dispute about the fact that notice was not replied. Notice was sent but it was refused by the tenant. Both the courts have concurrently recorded a finding that the notice came to be refused. The tenant did not raise dispute of standard rent within one month. No reply to the notice was sent. No application for fixation of standard rent was made. The dispute of standard rent came to be raised for the first time in the written statement at ex. 29 filed on 15.3.1978. The suit came to be filed on 22.12.1976. The trial Court framed issues at ex. 32 on 5. 8.1978. It is an admitted position that arrears of rent due on the first date of hearing of the suit, like that, on the date of framing of issues, had not been paid or tendered by the tenant. 29 filed on 15.3.1978. The suit came to be filed on 22.12.1976. The trial Court framed issues at ex. 32 on 5. 8.1978. It is an admitted position that arrears of rent due on the first date of hearing of the suit, like that, on the date of framing of issues, had not been paid or tendered by the tenant. It is also an admitted fact that amount of rent was paid during the pendency of the suit. The trial court passed the decree on 26.2.1979 fixing standard rent at Rs. 60/-. The tenant made some deposits only during the pendency of the appeal. In para 10 of the judgment of the appellate court, deposits made on certain dates are highlighted and enumerated as follows: Date of Payment Amount Paid 18.4.79 1510.63 21.5.79 500.00 20.2.80 800.00 14.3.80 500.00 3.5.80 300.00 14.7.80 200.00 2.8.80 250.00 6.8.80 100.00 10. It could very well be seen from the aforesaid deposits that the tenant remained negligent in depositing the rent regularly. He remained persistent and consistent defaulter during the pendency of the Suit. Even during the pendency of the appeal, he has not paid rent regularly as required by law. Therefore, even after fixation of standard rent by the trial Court, the tenant failed to pay or tender the amount of rent then due in the appeal and thereafter to pay rent regularly during the pendency of the appeal. The tenant had admittedly not replied to the notice for payment of rent. No dispute of standard rent was raised within one month from the receipt of notice. There was no payment of rent in arrears then but on the first date of hearing. Payment of rent during the pendency of the appeal also was not regular. The tenant remained defaulter and irregular in making payment of rent during the pendency the appeal. In the circumstances, the tenant would not be entitled to protection of provision of Section 12(3)(b). The contention that the tenant is entitled to protection of the said provisions is not acceptable and sustainable. 11. In order to claim protection the tenant is bound to comply with the material conditions under section 12((3)(b) as aforesaid which are not complied with. The tenant has neglected to pay rent at all stages. He has been regular in making defaults instead of being regular in making payment of rent. 11. In order to claim protection the tenant is bound to comply with the material conditions under section 12((3)(b) as aforesaid which are not complied with. The tenant has neglected to pay rent at all stages. He has been regular in making defaults instead of being regular in making payment of rent. The provisions of Section 12(3)(b) are mandatory and are required to be strictly complied with by the tenant during the pendency of the suit and appeal. The word 'regularly' in clause (b) of Section 12(3) has consequence of its own. It enjoins payment or tender by reasonable punctuality that is made at regular interval if not like clockwise precision. It must reasonably conform with the substantial proximity to the sequence of time or interval at which the rent falls due. If the facts of the present case are examined in light of the settled proposition of law, it can safely be concluded that the tenant is not entitled to protection of Section 12(3)(b) as he has remained negligent and defaulter in payment of rent. Therefore, the decree of eviction on the ground of non-payment of rent must follow against the tenant under Section 12(3)(b). With the result, the impugned judgment and decree recorded by the appellate court against the tenant under Section 12(3)(d) is required to be confirmed. 12. In view of the facts and circumstances narrated hereinbefore, this court has no hesitation in finding that the present revision under Section 29(2) is totally meritless and is require to be dismissed. Accordingly, it is dismissed. At this stage, it has been submitted on behalf of the petitioner that eviction decree may be stayed for reasonable period so that the tenant may find out alternative accommodation. Having regard to the facts and circumstances and the fact that the decree is passed on the ground of non-payment of rent in the case of non-residential premises, time of six months Ex. DW. Having regard to the facts and circumstances and the fact that the decree is passed on the ground of non-payment of rent in the case of non-residential premises, time of six months Ex. DW. would be reasonable and, therefore, the landlord trust shall not execute the decree for possession passed in respect of the demised shop till 11th February, 1996 provided the tenant files an undertaking on usual terms and conditions within a period of four weeks from today which shall also include that he shall not transfer, alienate or assign in any manner his interest in the demised shop and that he shall hand over vacant and peaceful possession of the suit shop to the landlord on or before 18th February 1996. It shall also include that the tenant shall pay all arrears of rent and costs and he shall regularly pay or deposit in court the amount of rent due regularly till that date. 13. Rule is discharged with no order as to costs.