Ismailji Hakimji and Another vs Chatrabhuj Lekhraj

Jhala, J.—This is a revision application against the order of the District Judge, Central Saurashtra Division Rjkot, reversing the decision of the Civil Judge, Junior Division, Rajkot.

Shri U.S. Shah appears for the applicants, while Shci P.G. Oza opposes him.

Shri Shah raised two main contentions, viz., (1) that u/s 12(3), Bombay Rent Control Act as applied to Saurashtra, the defendant was bound to produce at the hearing the arrears of the amount due to the plaintiffs by way of rent; and that deposit made at the appellate stage does not fulfill the purpose of Section 12(3), Bombay Rent Control Act and (2) that the plaintiffs were driven to the appeal because the opponent filed a wrong appeal; in other words his contention was that if the opponent had deposited according to law the amount of rent due from him, there would have been no necessity of appeal and, therefore, the lower appellate Court erred in saddling the applicants with coats of the appeal.

Shri Oza, in reply, contended (1) that this was not a case for this Court to interfere in revision as it could not be said that the lower appellate Court acted without jurisdiction; (2) that as there is no contrary definition, appeal must be taken to be a continuation of the suit proceedings; and (3) that the costs were rightly thrown on the applicants by the lower appellate Court.

Shri Shah''s first contention receives support of the wording of Section 12(3), Bombay Kent Control Act as applied to Saurashtra. The wording of the section is very clear and enjoins unamphatically (sis) rather on the opponent the duty of depositing the arrears at the time of the hearing. If the opponent omits to do so, and if there are no other contentions in the case, the decree of eviction has to be passed. So, the Court below has acted with material irregularity and in a way even with illegality in allowing the appeal. Of course, the wording of Section 115, Civil P.C. has to he rigidly adhered to, yet in places where the High Court has to deal with subordinate Courts which are not very efficient, fit should exercise its revisional jurisdiction rather liberally than within four corners of the said section. In the present case, the ordinary principles that the appeal is a continuation of the suit proceedings cannot apply, because it is a specific act enjoined by a special enactment, and therefore, the wording has to be construed very rigidly and jealously. In fact, it is a concession given to the tenant (opponent) to pay the amount at the time of hearing of the suit even after the suit was over. That indulgence cannot be extended to payment made at the appellate stage. Therefore, this is a case where no payment has been made at the hearing of the suit and, therefore, the decree for eviction should have been passed. The lower appellate Court has, in this case acted with material irregularity and as such its order has to be reversed.

The revision application is allowed. Order of the lower appellate Court is reversed and that of the trial Court substituted. The opponent should bear the costs throughout.