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2008 DIGILAW 302 (GUJ)

Sambhavnath Jain Derasar v. Babuji Hiraji Thakor

2008-07-17

K.S.JHAVERI

body2008
JUDGMENT : K.S. Jhaveri, J. By way of this revision application, the original landlord has challenged judgment and decree of the appellate Court dated 15-9-1992 in Civil Appeal No. 181 of 1991, whereby the decree passed by the trial Court in Civil Suit No. 171 of 1986 vide judgment and decree dated 30-11-1991 was reversed. 2. The facts in brief, as emerging from record, are as under: 3. It is the case of the plaintiff in the suit that immovable property situated in Salvivada at Patan is owned by it and out of said property, one room bearing municipal census no. 4/11/3 was let out to opponent on monthly rent of Rs. 13/- and taxes are to be paid by the opponent. Since the opponent was in arrears of rent, after terminating his tenancy by a notice dated 24-4-1985, applicant herein filed Civil Suit No. 171 of 1986 against the opponent in the Court of Civil Judge (J.D.) at Patan for recovering possession of the suit premises. It is also the case of the plaintiff that during the pendency of the suit, since the opponent herein made permanent construction in suit property, plaintiff made an application for amendment of the plaint, which was granted. 4. Said suit was resisted by the opponent by filing written statement. It is submitted by the opponent that rent of the premises is Rs. 10/- and taxes are to be paid by the plaintiff. Opponent also raised a dispute about standard of rent. It was also averred in reply that the opponent made construction of latrine after seeking permission from municipality and he denied that bathroom was constructed by him. Opponent contended that construction made by him is not of permanent nature. On these ground, the opponent prayed for dismissal of the suit. 5. After considering the evidence on record, trial Court partly allowed the suit of the plaintiff vide judgment and decree dated 30.11.1991. Trial Court passed decree for possession on the ground that the opponent has made permanent construction within the meaning of Section 13 (1) (b) of the Act, while issue regarding arrears of rent was not believed by the trial Court. Against the said judgment, opponent has preferred Regular Civil Appeal No. 181 of 1991 before learned District Judge, Mehsana. While the applicant herein also filed cross-objections against the finding about arrears of rent. Against the said judgment, opponent has preferred Regular Civil Appeal No. 181 of 1991 before learned District Judge, Mehsana. While the applicant herein also filed cross-objections against the finding about arrears of rent. After considering the evidence on record, the appellate Court vide his judgment dated 15-9-1992 held that the construction made by the opponent cannot be held to be construction of permanent nature and, therefore, cross objections filed by the applicants are dismissed, while judgment of the trial Court is confirmed so far as finding regarding arrears of rent is concerned. Accordingly, the appellate Court allowed the appeal filed by the opponent. Being aggrieved by it, present applicant has preferred this revision application. 6. Heard Mr. V.C. Desai, learned advocate appearing for the applicant and Mr.Bharat Jani, learned advocate for the opponent. Counsel for the applicant submitted that the Courts below have erred in deciding the issue regarding arrears of rent against present applicant. He also submitted that the Courts below have committed an error by holding that the opponent is ready and willing to pay the rent. He also stated that the opponent is in arrears of rent since last more than 13 years. Counsel for the applicant has also submitted that the appellate Court has committed an error by not believing the case of the applicant regarding arrears of rent under Section 12 (3) (b) of the Act, for which reliance was placed on the judgment of this Court in the case of Somabhai Kalidas Patel v. Babubhai Sankalchand Modi, reported in 1986 GLH (UJ) 22. He submitted that said decision was considered by this Court in the case of Pinjara Habib Mohmed v. Pathan Nishar Ahmedkhan reported in 1999 (1) GLH 799 and held as under in paragraph 14 of said judgment. "14. The requirement of Section 12(3)(b) are mandatory and not directory. Strict compliance has to be made of the provisions to this Subsection if the tenant wants to avail of its benefit. If on the other hand he fails to comply with the legislative mandate of depositing the rent including arrears of rent on the first date of hearing of the Suit he can not claim protection of this section simply by saying that the entire amount was deposited in the Appellate Court. If on the other hand he fails to comply with the legislative mandate of depositing the rent including arrears of rent on the first date of hearing of the Suit he can not claim protection of this section simply by saying that the entire amount was deposited in the Appellate Court. The appeal is no doubt continuation of suit, but by no stretch of imagination it can be said that the first date of hearing of Appeal will be the date of first hearing of the Suit. In the case of Somabhai (supra) it was not considered whether the tenant has to deposit on the first date of hearing of the Suit the entire rent due on that date or not. The facts of the said case are also not discussed in the unreported judgment. The case seems to be distinguishable on facts. In this case the observation of the Court was that because the tenant had paid all the arrears of rent before the Judgment in Appeal it should be held that he was not in arrears of rent and as such the decree for eviction could not be passed. Since in this case it was not considered whether the tenant has to deposit the rent and arrears of rent due upto the first date of hearing, on the first date of hearing itself this unreported judgment can not render any assistance to the learned Counsel for the revisionist. Belated deposit of rent or excess rent in the Appellate Court under these circumstances cannot be said to be strict and substantial compliance of Section 12(3)(b) of the Rent Act. The Lower Appellate Court therefore committed no error in holding that the revisionist is not entitled to the protection of Section 12(3)(b) of the Rent Act. The Decree for eviction was therefore rightly passed by the lower Appellate Court." 6.1 He stated that though this Court has given direction to pay arrears of rent vide order dated 26-10-2005 passed in Civil Application No. 5896 of 2002, rent is not paid by the present opponent till date. He, therefore, submitted that in view of above judgment and nonpayment of rent by the opponent, this revision application is required to be allowed. 7. On the other hand, counsel for the respondent tried to support the judgment of the appellate Court. He, therefore, submitted that in view of above judgment and nonpayment of rent by the opponent, this revision application is required to be allowed. 7. On the other hand, counsel for the respondent tried to support the judgment of the appellate Court. However, he could not make any statement regarding payment of rent and stated that in spite of two Registered Post A.D. letters sent by him, which are received by his client, his client has not given any reply. Therefore, he is not in a position to make any statement regarding payment of rent. In view of this, statement made by the counsel for the applicants regarding nonpayment of rent has remained un-controverted. 8. I have considered the submissions made on behalf of the parties and also gone through the judgment of the trial Court and appellate Court and other relevant documents. In my view, on the date of filing of the suit or framing of issues, rent was not paid by the opponent and thereby mandatory requirement of Section 12 (3) (b) of the Act was not complied. Therefore, the contention raised by the applicant that on the ground of arrears of rent suit may be decreed is required to be accepted. Not only that, this Court has passed following order on 17th April, 2008: "On 22nd November 2006 this court has passed the following order: 1. Heard Mr. V.C. Desai, learned advocate for the petitioner. 2. Mr. Desai has pointed out that in the main matter, Civil Application No. 5896 of 2002 was filed before this Court with a prayer that this Court may direct the respondent to deposit in the trial court forthwith an amount of Rs. 1,222/- being amount fell due upto 5.10.1999 towards rent and also future amount of rent regularly every month as may fell due from time to time. 3. The main matter was admitted on 21.2.1994. In the main matter this civil application is filed and my Brother Justice K.S. Jhaveri on 26.10.2005 has passed the following order: "Though Rule was issued on 28.9.2005, Mr. Jani has sought time and no reply has been filed. The application is allowed in terms of para 3(A) and the application stands disposed of. Rule is made absolute. No costs." 4. Mr. Jani has sought time and no reply has been filed. The application is allowed in terms of para 3(A) and the application stands disposed of. Rule is made absolute. No costs." 4. Mr. Desai states that the aforesaid matter was filed on 5.7.2000 and the order was passed on 26.10.2005 and thereafter till October 31, 2006 the respondent tenant has still not paid the amount of Rs. 13/- p. m. to the plaintiff who is happened to be a trust. 5. In view of the aforesaid order in civil application and in view of this fact that even the respondent has not complied with the earlier order of this Court dated 26th October, 2005, and till today he has not paid the amount. 6. In view of the same, the respondent is directed to pay all the arrears of rent amount i.e. till 31st October, 2006, which is due and payable by the respondent to the petitioner. A copy of the said order be handed to Mr. B.G. Jani in this behalf. 7. The hearing of this Civil Revision Application is fixed in the week commencing of 4th December, 2006. No material is placed on record to show that the order of this Court is complied with. Mr. Bharat Jani has filed sick note. Hence the matter is adjourned to 8th May 2008." 9. Thereafter, on 9th July, 2008, this Court had passed following order: "Learned Advocate for the petitioner states that the order of this Court has not been complied. Learned Advocate for the respondent is not present. Hence, as a last chance the matter is adjourned to 17th July 2008. It is made clear that if Mr. Jani will not be able to attend the matter on the next date, he will make alternative arrangement, failing which the matter will be heard ex parte." 10. In view of above orders and the statement made by learned counsel for the opponent, it is quite clear that the opponent is in arrears of rent. It can be said that since on the date of filing of suit and even on the date of framing of issues, the opponent has not paid rent, he has breached mandatory provisions of Section 12 (3) (b) of the Act, therefore, this revision application is required to be allowed. Accordingly, this Revision Application is allowed. It can be said that since on the date of filing of suit and even on the date of framing of issues, the opponent has not paid rent, he has breached mandatory provisions of Section 12 (3) (b) of the Act, therefore, this revision application is required to be allowed. Accordingly, this Revision Application is allowed. The order of the appellate Court is reversed and eviction decree is passed against the present opponent in view of noncompliance of provisions of Section 12 (3) (b) of the Act. The opponent tenant is directed to hand over vacant and peaceful possession of the rented premises within one month as directed by the trial Court. The applicant is also entitled to recover the rent which is not paid by the present opponent tenant. Rule is made absolute with no order as to costs. Rule made absolute.