Ghadiali Hirji Ramji vs Vora Akbaralli Abdullali

Baxi, J.—The Appellant was a monthly tenant of the Respondent''s house under a rent note dated 18-10-45 by which he had agreed to pay Rs. 47-4-0 per month as rent. He did not pay rent for 16 months and therefore the Respondent served a notice on him asking him to pay arrears of rent and to deliver vacant possession of the house. As the Appellant did not comply with the notice the Respondent filed the present suit for eviction and for arrears of rent against the Appellant in the Court of the Civil Judge, Senior Division, Rajkot. The learned Joint Civil Judge who decided the case fixed the standard rent at Rs. 38-3-0 per month and according to this computation the arrears of rent due from the Appellant at the date of the suit came to Rs. 628-14-0. After the institution of the suit, the Court directed the Appellant to deposit Rs. 560/- in Court which he did on 10-3-51. This order appears to have been made u/s 12(4), Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 as applied to Saurashtra. The learned Civil Judge dismissed the Respondent''s suit for eviction but passed a decree for Rs. 688-12-0 with proportionate costs of the suit. The Respondent appealed to the learned District Judge who reversed the learned trial Judge''s decree dismissing the Plaintiff''s suit for eviction and ordered the Appellant to deliver possession of the house to the Respondent The Appellant has preferred this appeal against the learned District Judge''s decree.

It is undisputed that the arrears of rent on the date of the suit was Rs. 628-14-0 and the Respondent is entitled to a decree for eviction unless the Appellant paid in Court the standard rent due and the costs of the suit u/s 12(3) of the Act mentioned above. He paid into Court Rs. 560/ - but this amount fell short of the standard rent due at the date of the suit and the costs of the suit. The payment was, therefore, not in accordance with Section 12(3) and the learned District Judge rightly held that the Appellant was liable to be evicted from the premises on the ground of non-payment of rent.

It was urged on behalf of the Appellant that ho had paid Rs. 560/ - in obedience to the Court''s order and therefore this payment should be regarded is payment u/s 12(3). We cannot accept this contention. The order of the Court asking him to make the payment was u/s 12(4) of the Act and way only tentative in character. The Explanation to Section 12 states that when there is a dispute as to the amount of standard rent the tenant shall be deemed to be ready and willing to pay such amount if before the expiry of the period of notice u/s 12(2) by the landlord demanding payment of rent, the tenant makes an application to Court u/s 11(3) for fixation of standard rent and thereafter pays or tenders the amount specified in the order of the Court. Payment made under an order of the Court in these proceedings has thus the effect of payment or tender of standard rent u/s 12(3) and if the tenant pays the amount so specified in the suit and the costs of the suit, no decree for eviction can be passed even though the standard rent may be ultimately fixed at a higher figure. But the order should have been made in proceedings commenced by the tenant u/s 11(3) before the expiration of one month of the notice of payment by the landlord and if the tenant does not make an application for fixation of rent u/s 11(3) and the landlord files a suit for eviction on the ground of non-payment of rent after the expiry of the notice of payment, a payment made u/s 12(4) of the Act under orders of the Court cannot be the same as a payment under an order in the proceedings u/s 11(3) and the tenant must take the risk of a decree for eviction if the amount which he has been ordered to deposit in Court falls short of the standard rent. In such a case he cannot be regarded as having complied with the provisions of Section 12(3).

The appeal, therefore, fails and is ordered to be dismissed with costs.