Ganesh Damle Vs. Shrikant Trimbak Datar & Anr  Insc 110 (5 March 2002)
Sethi & Kk.G. Balakrishnan Sethi,J.
appellant-tenant was sought to be evicted from the leased premises on the
ground of defaults in making the payment of the rent.
suit filed by the respondents-plaintiffs was dismissed by the trial court on
the ground that the respondents-plaintiffs had failed to establish that they
were the landlords of the appellant. The respondents-landlords preferred an
appeal against the judgment and decree of the trial court which was allowed by
reversing the findings of the trial court in so far as the relationship of
landlord and tenant was concerned. The appellant was held to be the tenant of
appellate court further found that as the appellant-tenant had defaulted in
payment of rent, he was liable to be evicted from the leased premises.
Aggrieved by the judgment of the appellate court, the appellant approached the
High Court by way of a writ petition which was dismissed vide the order
impugned in this appeal.
learned Advocate appearing for the appellant fairly conceded before us that in
view of the fact that the appellant himself prayed for deposit of rent to avail
the benefit of Section 12(3) of the Act, the appellate court rightly held that
he was the tenant of the landlords.
learned counsel for the appellant, however, submitted that his client is not
liable to be evicted as he has deposited the arrears of rent in the court in
terms of the provisions of the Bombay Rents, Hotel and Lodging House Rates
Control Act, 1947 (hereinafter referred to as "the Act"). He has
specifically referred to the provisions of Section 12(3) of the Act which was
substituted in the main statute vide Maharashtra Act No.XVIII of 1987. It is
contended that when respondents-plaintiffs filed an application (Annexure P-7)
claiming an amount of Rs.3571.69 as arrears of rent, the trial court allowed
the said application and directed the appellant herein to deposit the arrears
of rent mentioned in the application within one month from the date of that
order and further deposit the monthly rent of Rs.92/- regularly on or before
10th of next month in the court. According to the learned counsel, as the
aforesaid order passed in terms of Section 12(3) of the Act was complied with
by the appellant, the trial court was, therefore, not justified in passing the
decree of eviction against the tenant. It is contended in alternative that even
if the order of the trial court dated 3.9.1994 is assumed to be not an order in
terms of Section 12(3) of the Act, the appellant specifically filed an
application under Section 12(3) of the Act in the appellate court which was
allowed permitting him to deposit the arrears of rent and permitted increases
amounting to Rs.20,304/- in the court. The aforesaid directions were complied
with by the appellant. It is contended that as the appeal is the continuation
of a suit, the appellate court had the jurisdiction to pass the order dated
18.1.2001 in terms of Section 12(3) of the Act directing the tenant to deposit
the arrears of rent and because the directions were complied with no decree of
eviction could be passed against him.
contra Shri Gopal Balwant Sathe, learned Advocate appearing for the respondents
submitted that the order of the trial court dated 3.9.1994 cannot be termed to
be an order within the meaning of Section 12(3) of the Act and the order of the
appellate court dated 18.1.2001 was passed without prejudice to the rights of
the parties. According to him though the appeal is the continuation of the
suit, the provisions of Section 12(3) being a concession conferred upon the
tenant had to be availed of on the first day of hearing of the suit or on or
before the such other date as the court may fix which could not be stretched to
authorise the tenant to avail the beneficial provision at any time according to
his convenience and even at the appellate stage.
12(3) of the Act provides:
12(3) No decree for eviction shall be passed by the Court in any suit for
recovery of possession on the ground of arrears of standard rent and permitted
increases 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 together with simple
interest on the amount of arrears of such standard rent and permitted increases
at the rate of nine percent, per annum; and thereafter continues to pay or
tenders in court regularly such standard rent and permitted increases till the
suit is finally decided and also pays cost of the suit as directed by the
that, the relief provided under this sub-section shall not be available to a
tenant to whom relief against forfeiture was given in any two suits previously
instituted by the landlord against such tenant." It may be kept in mind
that but for the provisions of the Act, the appellant-tenant had no right to
resist the claim of the landlords for his eviction after termination of the
tenancy. The Rent Control Act is a social welfare legislation meant to protect
and safeguard the interests of the tenant which does not confer unfettered
powers on the tenant to remain in the possession of the leased premises
notwithstanding the compliance of directions of the court or the provisions of
the statute. The Act is intended to protect the bonafide tenants in possession.
It has put restrictions on the right of the landlord to seek eviction of the
tenant only on the grounds specified under the relevant statute. There is no
dispute that under the Act the landlord is entitled to seek eviction of the
tenant on the ground of defaults in the payment of rent. The statute further
provides that despite default, a tenant can approach the court in any suit for
possession on the ground of arrears of rent and submit on the first day of
hearing of the suit or on or before such other date as the court may fix to
tender the standard rent and permitted increases together with interest and
costs. If such a prayer is made, the court, dealing with the suit has been
conferred the powers to pass appropriate orders in terms of Section 12(3) and
in that event the suit of eviction against the tenant on the ground of default
in payment of rent shall be dismissed. Non payment of rent, as per contract and
statutory provisions, entitles the landlord to seek possession. The right
conferred upon a bonafide tenant can be availed of only twice and not
perusal of the trial order dated 3.9.1994 clearly and unambiguously shows that
the said order had not been passed in terms of Sub-Section (3) of Section 12 of
the Act. The aforesaid order was not passed at the request of the tenant but
passed on the application of the respondents-plaintiffs who had prayed for the
payment of the suit amount rent. The said order was passed not on the first day
of hearing or on or before any other date as fixed by the court. The amount
mentioned in the order was the suit amount which did not include permitted
increases or interest and costs as contemplated by the aforesaid provision. It
has been pointed out that despite the aforesaid order the appellant did not
make the payment within time specified and defaulted the payment of future rent
in terms thereof. The suit of the plaintiff could not, therefore, be dismissed
on the basis of the trial court's order dated 3.9.1994.
order of the appellate court dated 18.1.2001 was passed in Civil Appeal
No.87/97 and the amount determined therein deposited in the court after 22nd February, 2001.
appeal is considered to be an extension of the suit because under Section 107
of the Code of Civil Procedure, the appellate court has the same powers as are
conferred by the Code on courts of original jurisdiction in respect of suits
instituted therein. Such a power can be exercised by the appellate court
"as nearly as may be" exercised by the trial court under the Code. If
the powers conferred upon the trial court are under a specified statute and not
under the Code, it has to be ascertained as to whether such a power was
intended to be exercised by the appellate court as well. Such a position can be
ascertained by having a reference to the specified law by keeping in mind the
legislative intention of conferment of power on the appellate court either
expressly or by necessary implication.
instant case the appellant, by filing the application under Section 12(3) of
the Act, had not made a prayer to the appellate court for passing any order
which the trial court was intended to pass under the Code of Civil Procedure.
His prayer was to invoke the benefit conferred upon a tenant under the Act. The
beneficial provision under the Act unequivocally provides that it can be
availed of in the suit and that too on the first day of hearing of the suit or on
or before such other date as the court may fix. The first date of hearing
cannot be stretched to be any date beyond the date before the issues are framed
in the suit. The object is to protect the bonafide tenants from being evicted
on the grounds of default by affording them further opportunity to make the
payment of the arrears of rent atleast at two times during the subsistence of
tenancy. The provision is not intended to confer a right without circumspection
to be availed of by the tenant at any time according to his convenience.
contended that the words "such other date as the court may fix" would
also include the date fixed by the appellate court in terms of Section 107 of
the Code of Civil Procedure. We do not agree with such a submission. However,
in the instant case vide its order dated 18.1.2001 the appellate court had not
extended the time and expressly permitted the appellant to deposit the arrears
of rent allegedly payable by him without prejudice to the rights of the other
party, i.e., the landlords. The High Court was, therefore, justified in holding
that the appellant cannot take advantage of Section 12(3) of the Act at the
appellate stage which he had failed to avail of before the trial court.
appellant was rightly held to be in arrears of rent for more than 6 months from
the date of filing of the suit and had failed to apply before the trial court
on the first day of suit for depositing the arrears of rent.
is no merit in this appeal which is accordingly dismissed.
will be no order as to costs.