Pioneer Paper Box Factory Vs. Smt.
Thakurdevi Shriniwas [1970] INSC 139 (26 May 1970)
26/05/1970 RAY, A.N.
RAY, A.N.
DUA, I.D.
CITATION: 1971 AIR 1781 1971 SCR (1) 626
ACT:
Bombay Rent Act (57 of 1947), s. 12(3)
(b)--Scope of.
Practice--Revision and review dismissed by
High Court--Allegation of fact not brought to the notice of the High
Court--Whether can be permitted to be raised in this Court.
HEADNOTE:
In a suit for eviction on the ground of
non-payment of rent a decree was passed directing the tenant to pay the
landlady's costs, as, by that time, the tenant had paid all the arrears of rent
as fixed; but the tenant did not pay or tender the costs. Therefore, the court
passed an order of eviction. His appeal, -a revision to the High Court, and a
review petition to the High Court were all dismissed.
In appeal to this Court,
HELD : (1) The tenant would be entitled to
the protection under s. 12(3) (b) of the, Bombay Rent Act, only if he complied
with its provisions by paying or tendering not only the arrears of rent but
also the costs of the suit. Since the appellant admitted his inability to,
comply with the provision, he could not claim protection against eviction.
[627 D, G] (2) Assuming that the costs were
paid at a later date as alleged by the appellant, that fact was not brought to
the notice of the High Court, and therefore this Court will not interfere with
the exercise of discretion by the High Court in the set of facts and
circumstances presented to the High Court.. [628 F-G]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 36 of 1968.
Appeal by special leave from the judgment and
order dated November 19, 1963 of the Bombay High Court in Civil Revision
Application No. 167 of 1959.
V. M. Tarkunde, P. C. Bhartari, O. C. Mathur
and Ravinder Narain, for the appellant.
A. K. Sen, M. S. Gupta and S. L. Jain, for
the respondent.
The Judgment of the Court was delivered by
Ray, J. This appeal is by special leave from the judgment dated 19 November,
1963 of the High Court of Bombay dismissing the appellant defendant tenant's
application for revision in a decree for eviction of the defendant.
The appellant was tenant of the respondent.
On 28 April, 1954 the appellant filed an application under section II of the
Bombay Rent Act for fixation of standard rent. During the 627 pendency of the
application the respondent landlady served a notice on the appellant in the
month of March, 1955 terminating the tenancy on the ground that the appellant
had failed to pay rent from I March, 1954. On 25 April, 1955 a suit was filed
for eviction of the appellant.
During the pendency of the suit on 29 June,
1956, the standard rent was fixed at Rs.55/7/p.m. The contractual rent was Rs.
85/p.m.
When the suit came up for hearing on 5
October, 1956, it appeared that the appellant paid all the arrears of rent in
accordance with the standard rent but did not pay the Costs of the suit. The
trial court passed an ejectment decree against the appellant.
The appellant preferred an appeal. The
appellate court took the view that the order of the trial court was justified
under section 12(3)(b) of the Bombay Rent Act. Section 12(3)(b) of the Bombay
Rent Act provides that no decree in eviction shall be passed, if on the first
day of the hearing of the suit or on or before such other date as the court may
fix, the tenant pays or tenders. in the court the standard rent and permitted
increase in rent due, and thereafter continues to pay or tender in court
regularly the said rent and permitted increase till the suit is finally decided
and also pays costs of the suit as directed by the Court.
The appellant then filed an application for
revision in the High Court. The contention which was advanced in the High Court
and repeated here was that the courts were in error in decreeing the suit for
non-payment of costs because the trial court had not passed any order fixing
the amount of costs. It was said that only when an order determining the amount
of costs had been made by the court that the tenant could be said to be within
the mischief of the provisions of the statute for non-payment of costs so
determined by the courts.
The High Court rightly rejected the
contention for two reasons. First, though a formal order as to costs was not
made, yet the trial court had made an order directing the appellant to pay the
amount of costs and the appellant did not pay the costs. Secondly, the
appellant stated before the trial court that the appellant was not in a
position to tender what is described as "professional costs" and
court costs of the suit.
It is indisputable that in the trial court
the appellant not only admitted failure to pay costs but also inability to
tender the costs. -The appellant could be entitled to protection against
eviction only if the appellant complied with the provisions of the statute. The
appellant was required to tender not only the arrears of rent but .also the,
costs of the suit. In the trial court the appellant admitted non-compliance
with the provisions of the statute.
Therefore, the 628 trial court rightly held
that the appellant was not entitled to any benefit or protection against
eviction.
The appellate court held that because the
appellant filed an application for fixation of standard rent and therefore
there being a dispute between the parties regarding the standard rent no order
in eviction could be passed under section 12(3) (a) of the Bombay Rent Act. The
appellate court, however, held that the case fell within the provisions of
section 12(3) (b) of the Bombay Rent Act by reason of the failure of the
appellant to pay costs of the suit.
Counsel for the appellant contended that the
costs were deposited on 22 November, 1956 and therefore the High Court should
have exercised discretion in favour of the appellant.
The High Court stated that the decree was
passed on 5 October, 1956 and the appeal was filed on 18 October, 1956 and the amount of costs was not deposited with the filing of the memorandum of
appeal. The High Court concluded by stating that "the decree of the trial
court was made on 5 October, 1956. We are in the year 1963. The attitude
adopted by the petitioner is not such in which a discretion can be exercised in
favour of the petitioner". The High Court heard the application on 19 November, 1963. Counsel for the appellant invited our attention to paragraph 13 of the
application for review made in the High Court where the appellant alleged that
on 7 December, 1956 the costs were paid. No portion of the judgment of the High
Court is open to any criticism for the obvious reason that when the memorandum
of appeal was filed in the High Court on 18 October, 1956 the costs were not paid. The application for review also indicates that when the matter was
heard before the High Court it was not brought to the notice of the High Court
that the costs were paid on 7 December, 1956 as alleged.
The appeal is from the judgment of the High
Court. It would be improper to interfere with exercise of discretion passed by
the High Court when the matter was not brought to the notice of the High Court.
Discretion is exercised by the court in the facts and circumstances of the
case. Any interference with the exercise of discretion in the present case
would be substituting the discretion 'of this Court on a set of facts which
were never presented to the High Court.
The appellant was not entitled to any relief
under the provisions of the Bombay Rent Act. The High Court rightly rejected
the application for revision. The appeal fails and is dismissed with costs.
V.P.S. Appeal dismissed.
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