Mistry Premjibhai Vithaldas Vs.
Ganeshbhai Keshavji [1977] INSC 119 (14 April 1977)
BEG, M. HAMEEDULLAH (CJ) BEG, M. HAMEEDULLAH
(CJ) GUPTA, A.C.
KAILASAM, P.S.
CITATION: 1977 AIR 1707 1977 SCR (3) 569 1977
SCC (3) 11
ACT:
Bombay Rents, Hotel and Lodging House Rates
Control Act, 1947---Protection against eviction--Protection under sec.
12(3)(b), when available-Statutory powers of
the Court under s. 12 of the Act.
HEADNOTE:
Under s. 12(1 ) of the Bombay Rents. Hotel
and lodging House Rates Control Act, 1947, a tenant is entitled to claim
protection from eviction so long as he is willing and ready to pay the standard
rent as defined in s. 5(10) and permitted increases and observes other
conditions of the Act. The protection is subject to the limitations contained
in s.
12(2) and 12(3). Under s. 12(3)(a) where the
rent is payable by the month and there is no dispute regarding the amount of
standard rent or permitted increases, if such rent or increases arc in arrears
for a period of 6 months or more and the tenant neglects to make payment
thereof until the expiration of the period of one mouth after notice referred
to in sub-section (2), the court may pass a decree for eviction in any such
suit for recovery of possession.
Under a 12(3)(b) no decree for eviction shall
be passed in any 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.
The respondent-tenant was in arrears of rent
amounting to Rs. 990/for the period from 6th March 1967 to 5th December 1969,
house tax amounting to Rs. 27.49 and electricity charges amounting to Rs.
210.18. The appellant landlord served a notice upon him under s. 106 of the
Transfer of Property Act terminating the tenancy and filed a suit for eviction.
The respondent filed an application for fixation of the standard rent within a
month trader s. 11(2) of the Act. He also filed an application for fixation of
interim rent on the ground that he being a poor man was unable to pay rent and
the total amount due at once. On these applications, the interim rent was fixed
at Rs. 25/by an order dated 3-2-1970 and he was directed to deposit arrears of
rent and future rent at this rate on or before 1oth of the next month. These
applications were dismissed for non-prosecution later on. The trial court held
that as the respondent-tenant was "ready and willing" to pay the rent
to the appellant-landlord, the suit for ejectment could not be decreed in spite
of the fact it found that the notice was validly issued and the arrears were
true and correct.
The appellate court held that the
unwillingness of the respondent to pay the rent which was apparent from the
patent facts and admissions and conduct disentitled him from the protection
under s. 12 and decreed the suit for ejectment. The High Court. however,
relying on an affidavit dated 18-9-75 filed by the respondent allowed the
revision application made by him under s. 29(2) of the Act.
Allowing the apppeal by special leave, the
Court.
HELD: (1) The statutory protection can only
be given in accordance with the terms on which it is permissible. The Bombay
Rents. Hotel and Lodging House Rates Control Act, 1947 does not confer a power
upon the court to excuse a violation of the provisions of the Act by making
wrong assumptions or on compassionate grounds. The Court. could not, therefore,
exercise what would be in effect a power to condone infringement of the Act.
[575F, 576B] (2) In cases where there is no dispute regarding the amount of
standard rent if the provisions of s. 12(3)(a) are nor shown to be complied
with.
570 the Court is bound to pass a decree for
eviction. Where a tenant does not prosecute an application for fixation of
standard rent and deliberately permits to be dismissed for non-prosecution, it
could be reasonably inferred that it was not a bona fide application at all.
[575 G-H, 576 A] (3) A fixation of standard rent can only take place by means
of the specified procedure provided for it. There is nothing in the instant
case which could be "deemed" a fixation under the Act. It being
admitted that the agreed rent was Rs. 30/per mensem that would be the standard
rent as defined by s. 5(10) of the Act. That was the rate on which the rent was
payable. Non-prosecution of the application for standard rent indicate that
there was no real dispute regarding standard rent or permitted increases. [571A
573G, 575FG] (4) Section 12(3)(b) applies only to cases where either on the
first hearing of the suit or on such other dates as the court may fix for the
purpose, the tenant pays or tenders in court the standard rent with permitted
increases pays or In the instant case the respondent did not comply with the
orders dated 3-2-1970 fixing the interim rent. Under the order dated 3-2-1970,
the tenant had to deposit arrears of rent and in addition he had to deposit
future rent at the rate fixed for the interim rent. The part of the order for
future rent could not refer to arrears of rent. If the tenant was not quite
clear about the meaning of the order, he could have applied to the court to
clarify the orders and could have gone on depositing rent at Rs. 25/per month
after depositing arrears of rent so clarified. [575 FG, 574 B-C] Vora Abbashai
Alimahorned v. Haji Gulamnabi Haji Safibhai [1964] 5 S.C.R. 157. referred to.
(5) The readiness and willingness of the
tenant to pay could be found only if he had complied with the provisions of the
Act. The Act does not cover the case of a person who is unable to pay owing to
want of means but is otherwise "ready and willing". The Act,
unfortunately, does not enable courts to make special law for such hard cases
which fall outside the statutory protection. The instant case is clearly
outside the protection conferred upon tenants under s. 12 of the Act. The
tenant could not be said to be "ready and willing" to pay the rent so
as to avoid passing of a decree for eviction against him, in the face of
detailed findings given by the appellate court. After assuming quite
erroneously that the standard rent was fixed for the first time in the
appellate court and by accepting the version of the tenant-respondent that his
default was due to his difficulty in finding money to pay the rent, the High
Court had erroneously condoned all defaults in payment of rent right upto the
time of the making of the application before it on 18-9-1975. [576 B-G] Shah
Dhansukhlal Chaganlal v. Dalichand Virchand Shroff & Ors. [1968] 3 S.C.R.
346 applied.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 217 of 1976.
Appeal by Special Leave from the Judgment'
and Order of the Gujarat High Court dt. 18th/l9th September, 1975 in Civil
Revision Appln. No. 67 of 1973.
P.H. Parekh, Ajit R. Oza, Kailash Vasdev and
(Miss) Manju JarIey for the Appellant.
M.V. Goswami for the Respondent.
The Judgment of the Court was. delivered by
BEG C.J. This is a landlord's appeal by special leave against the judgment and
order of the High Court of, Gujarat allowing a revision application of the
tenant under section 29(2) of the Bombay Rents, 571 Hotel and Lodging House
Rates Control Act, 1947 (thereinafter referred to as 'the Act') It appears from
the statement of facts in the judgment of the High Court that there was no
dispute that the monthly rent of the premises was Rs. 30/-and that the tenant
had also to pay the charges for electricity consumed by him. It was, however,
at first disputed whether the tenant had to pay house tax and the education
cess also. The landlord had brought a suit for arrears of rent amounting to Rs.
990/from 6-3-67 to 5-12-69 and also to recover a sum of Rs.
27.49 paid as house tax and another sum of
Rs. 210.18 paid by the landlord for the electricity consumed by the tenant.
On 5-1-1970, the landlord had served a notice
upon the tenant terminating the tenancy on the ground that dues amounting to
Rs. 1227.67 had not been paid. The tenant filed an application for fixation
of-the standard rent within a month of. the service of the above-mentioned notice.
He also filed an application for fixation of interim rent on the ground that
he, being a poor man, was unable to pay rent and the total amount due at once.
On these applications, the interim rent was fixed at Rs. 25/and the applicant
was directed "to deposit arrears of rent and future rent at this rate on
or before 10th of the next month".
Although, the trial Court held the notice
terminating the tenancy to be legally valid and the agreed rate of rent to be
Rs. 30/p.m., so that the plaintiff was entitled to the decree for arrears of
rent from 6-3-67 to 5-12-1969 and also the amount of Rs. 27.49 as house tax and
Rs. 210.18 towards electricity charges, making up the total of Rs.
1227.67, yet, it held that as the
defendant-tenant was "ready and willing" to pay the rent to the
plaintiff.
Hence, the suit for ejectment could not be
decreed. The appellate Court, on the other hand, held that the unwillingness of
the defendant-respondent to pay the rent, which was apparent from the patent
facts and admissions and conduct of the defendant-respondent, disentitled him
for protection sought. It, therefore, decreed the suit for ejectment.
Learned counsel for the appellant has
contended that the High Court had proceeded upon the wrong assumption that the
standard rent was fixed in the lower appellate Court for the first time when
the appeal was decided. It is very difficult to find the basis for this opinion
of the High Court.
The application for fixing the standard rent,
initiating a separate proceeding, was dismissed, as is admitted on behalf of
the tenant respondent, for non-prosecution. Hence, no standard rent could be
fixed u/s. 11. Section 5, sub-s. (10) defines standard rent as follows :-
5. Definitions.---In this Act unless there is
anything repugnant to the subject or context-(10) "Standard rent" in
relation to any premises means-(a) "Where the standard rent is fixed by
the Court and the Controller respectively under the Bombay Rent Restriction
Act, 1939 (Bom. XVI of 1939), or the 572 Bombay Rents, Hotel and Lodging House
Rates (Control) Act, 1944 (Bombay VII of 1944), such standard rent; or (b) where
the standard rent is not so fixed subject to the provisions of section 11, (i)
the rent at which the premises were let on the first day of September 1940, or
(ii) where they were not let on the first day of September 1940, the rent at
which they were first let before that day, or (iii) where they were first let
after the first day of September 1940, the rent at which they were first let,
or (iv) in any of the cases specified in section 11, the rent fixed by the
Court".
Both the sides before us are agreed that no
question of a standard rent actually and finally fixed u/s. 11 of the Act arose
in the circumstances of this case. Section 11 of the Act reads as follows :-"11.
Court may fix standard rent and permit increases in certain cases.
(1) In any of the following cases the Court
may, upon an application made to it for that purpose, or in any suit or
proceeding, fix the standard rent at such amount as, having regard to the
provisions of this Act and the circumstances of the case, the Court deems just-(a)
where any premises are first let after the specified date and the rent at which
they are so let is in the opinion of the Court excessive; or (b) where the
Court is satisfied that there is no sufficient evidence to ascertain the rent
at which the premises were let in any one of the cases mentioned in sub-clauses
(i) to (iii) of clause (b) of sub-section (10) of section 5; or (c) where by
reason of the premises having been let at one time as a whole or in parts and
at another time in parts or as a whole, or for any other reasons, any
difficulty arises in giving effect to this Part; or (d) where any premises have
been or are let rent free or at a nominal rent or for some consideration in
addition to rent; or (e) where there is any dispute between the landlord and
the tenant regarding the amount of standard rent.
573 (2 ) If there is any dispute between the
landlord and the tenant regarding the amount of permitted increases the court
may determine such amount.
(3) If an application for fixing the standard
rent or for determining the permitted increases is made by a tenant who has
received a notice from his landlord under subsection (2) of section 12, the
Court shall make an order directing the tenant to deposit in Court forthwith
and thereafter monthly or periodically, such amount of rent or permitted increases
as the Court considers to be reasonably due to the landlord pending the final
decision of the application, and a copy of such order shall be served upon the
landlord.
Out of the amount so deposited, the Court may
make order for the payment of such reasonable sum to the landlord towards
payment of rent or increases due to. him, as it thinks fit. If the tenant fails
to deposit such amount, his application shall be dismissed.
(4) Where at any stage of a suit for recovery
of rent whether with or without a claim for possession of the premises, the
Court is satisfied that the tenant is withholding the rent on the ground that
the rent is excessive and standard rent should be fixed the Court shall, and in
any other case if it appears to the Court that it is just and proper to make
such an order the Court may, make an order directing the tenant to deposit in
Court forthwith such amount of rent as the Court considers to be reasonably due
to the landlord. The Court may further make an order directing the tenant to
deposit in Court, monthly or periodically, such amount as it considers proper
as interim standard rent during the pendency of the suit. The Court may also
direct that if the tenant fails to comply with any such order within such time
as may be allowed by it he shall not be entitled to appear in or defend the
suit except with leave of the Court which leave may be granted subject to such
terms and conditions as the.
court may specify.
(5) No appeal shall lie from any order of the
Court made under sub-section (3) or (4).
(6) An application under this section may be
made jointly by all or any of the tenants interested in respect of the premises
situated in the same building".
A "fixation" of standard rent can
only take place by means of the specified procedure provided for it. There is
nothing in the case before us which could be "deemed" a fixation
under the Act. Apparently, the High Court thought that the dismissal of an
application for fixation of rent meant an automatic "fixation" of it
at Rs. 30/p.m.
In the face of detailed findings 'given by
the Appellate Court, which the High Court could not upset without a good enough
legal ground for 10--502 SCI/77 574 doing so and did not actually set aside, it
is difficult to see how the tenant could be said to be "ready and
willing" to pay the rent so as to avoid passing of a decree for eviction
against him. On behalf of the landlord appellant, it is submitted that, in an
affidavit dated 18-9-75, which the respondent himself filed in the High Court,
it is admitted that the tenant had not been paying the rent regularly as
contemplated by 'the order of 3-2-70. Under that order, the tenant had to
deposit arrears of rent. In addition, he had to deposit future rent at the rate
fixed for the "interim rent". The part of the order for future rent
could not refer to arrears of rent. However, if the tenant was not quite clear
about the meaning of the order, he could have applied to the Court to clarify
the order and could have gone on depositing rent at Rs. 25/p.m. after
depositing "arrears of rent" so clarified. Learned counsel for the
respondent could only contend that the deposit of future rent on or before the
10th of the next month indicated that the deposit could be made at any time
before the rent was due and could cover subsequent accruals of rent so that it
could cover several months if amount deposited was enough for that.
Learned counsel for the appellant points out
that the interpretation put forward on behalf of the respondent tenant is not
only an unreason? able one but would not, even if accepted, justify defaults
admitted by the respondent tenant even if an advance deposit could wipe off the
effects of some defaults. The High Court had itself not only not set aside the
finding relating to the defaults found by the appellate court but, after
assuming, quite erroneously. that the standard rent was fixed for the first
time in the Appellate Court, it had condoned all defaults in payment of rent
right up to the time of the making of the application before the High Court on
18-9-75 and the acceptance of a fresh deposit in the High Court itself to cover
the arrears. The question is whether the statutory powers of the Court laid
down in s. 12 of the Act could be used in this manner.
Section 12 of the Act reads as follows :-"12.
No ejectment ordinarily to he made if tenant pays or is ready and willing to
pay standard rent and permitted increases---( 1 ) A landlord shall not be
entitled to the recovery of possession of any premises so long as the tenant
pays, or is ready and willing to pay, the amount of the standard rent and
permitted increases, if any, and observes and performs the other conditions of
the tenancy, in so far as they are consistent with the provisions of this Act.
(2) No suit for recovery of possession shall
he instituted by a landlord against a tenant on the ground of non-payment of
the standard rent or permitted increases due, until the expiration of one month
next after notice in writing of the demand of the standard rent or permitted
increases has been served upon the tenant in the manner provided in section 106
of the Transfer of property Act, 1882.
575 (3) (a). Where the rent is payable by the
month and there is no dispute regarding the amount of standard rent or
permitted increases, if such rent or increases are in arrears for a period of
six months or more and the tenant neglects to make payment thereof until the
expiration of the period of one month after notice referred to in sub-section
(2), the Court may pass a decree for eviction in any such suit for recovery of
possession.
(b) In any other case, no decree for eviction
shall be passed in any such suit if, on the first day of heating 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.
(4) Pending the disposal of any such suit,
the Court may out of any amount paid or tendered by the tenant pay to the
landlord such amount towards payment of rent or permitted increases due to him as
the Court thinks fit.
Explanation--In any case where there is a
dispute as to the amount of standard rent or permitted increases recoverable
under this Act the tenant shall be deemed to be ready and willing to pay such
amount, if, before the expiry of the period of one month after notice referred
to in sub-section (2),, he makes an application to the Court under sub-section
(3) of section 11 and thereafter pays or tenders the amount of rent or
permitted increases specified in the order made by the court In Vora Abbasbhai
Alimahomed v. Haji Gulamnabi Haji Safibhai,(1) it was held that, according to
s. 12(3) (a) of the Act, the Court was bound to pass the decree for eviction if
statutory terms are not complied with. The answer given on behalf of the respondent
tenant was that the case before us is governed by the provisions of s.
12(3)(b) of the Act. But, this section
applies only to cases where either on the date of first heating of the suit or
on such other dates as the Court may fix for the purpose, the tenant pays or
tenders in Court the standard rent with permitted increases. It was laid down
in Abbasbhai's case (supra) that the' explanation to s. 12 introduces only a
rule of evidence.
It appears to us that where a tenant does not
prosecute an application for fixation of standard rent and deliberately permits
it to be dismissed for non-prosecution it could be reasonably inferred that it
was not a bona fide application at all. In the case before us, it being admitted
that the agreed rent was Rs. 30/p.m. that should be the "standard
rent" as defined by s. 5(10) of the Act. That was the rate at which rent
was payable. Non-prosecution of the application for (1) [1964] 5 S.C.R. 157.
576 standard rent indicated that there was no
real dispute regarding the standard rent or permitted increases. In such cases,
if the provisions of s. 12(3)(a) are not shown to be complied with, the Court
is bound to pass a decree for eviction.
The statutory protection can only be given in
accordance with the terms on which it is permissible. The Act certainly does
not confer a power upon the Court to excuse a violation of the provisions of
the Act by making wrong assumptions or on compassionate grounds. The Court
could not, therefore, exercise what would be, in effect, a power to condone
infringement of the provisions of the Act.
In Shah Dhansukhlal Chhaganlal v. Dalichand
Virchand Shroff & Ors.,(1) this Court explained the provisions of s.
12 of the Act and laid down that a failure to
deposit the rent regularly as required by the Act will take the case out of the
provisions of s.12(3)(,b). On facts found, there was such a failure to deposit
in the case before us. The High Court appears to have condoned the defaults by
accepting the version of the defendant-respondent that the default was due to
his difficulty in finding money to pay up the rent. Hence, on the admission of
the defendant-respondent also, it seems a clear case of defaults which deprive
the defendant-respondent of the protection of s. 12 of the Act.
Learned counsel for the plaintiff-appellant
has, very rightly, pointed out that the High Court had not set aside the
findings of the fact arrived at by the appellate Court which took the case of
the defendant-respondent clearly outside the protection conferred by the Act..
The High Court seems to have accepted the erroneous. view that standard rent
was actually fixed by the appellate Court for the first time whereas what had
happened was that the application for fixation of standard rent had been
dismissed for non-prosecution. This was not "fixation" of standard
rent, as already pointed out. Hence, no question of giving time to pay up
arrears after a "fixation" of standard rent arose here. We think that
the case is clearly outside the protection conferred upon tenants under the
Act.
The readiness and the willingness of the
tenant to pay could be found: only if he had complied with the provisions of
the Act. The Act does not cover the case of a person who is unable to pay owing
to want of means but is otherwise "ready and willing". Such a case is
no doubt a hard one, but, unfortunately, it does not enable Courts to make a
special law for such hard cases which fall outside the statutory protection.
We understand that the defendant-respondent
is a Carpenter. If he is unable to find means to pay rent we cannot dismiss the
suit for his eviction on the ground of non-payment of rent. In view of his
disability, on account of alleged illness, we propose to modify the decree of
the appellate Court to the extent that he will have four months' time from 5th
April 1977 before the eviction order can be executed against him provided he
deposits within a month from today all the arrears due (i) [1968] 3 S.C.R. 346.
577 and goes on depositing Rs. 30/p.m.
regularly, in advance, before the 5th of each month on which his tenancy
begins.
He must,, however, vacate the premises before
5th August, 1977, and may leave it earlier if he is unable to pay the required
rent regularly in advance. The decree for eviction will become executable on
breach of the conditions laid down, or, after 5th August, 1977.
The result is that we set aside the judgment
and order of the High Court and restore the decree of the appellate Court
subject to the modification indicated above. The parties will bear their own
costs.
S.R. Appeal allowed.
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