Kusumba Jatubha vs Nirmalaben Narshibhai Vaya

A.J. Desai, J.—By way of the present Revision Application under Sec. 29(2) of the Bombay Rents, Hotel & Lodging House Rates Control

Act, 1947 (""the Rent Act"" for short) original defendants/respondents in appeal, have challenged the judgment and order dated 25-1-2002, passed

by the Second Extra Assistant Judge, Veraval, in Regular Civil Appeal No. 77 of 1999. (Old No. 101 of 1992), by which the appeal filed by the

present respondent-original plaintiff came to be allowed and the present petitioners-tenants are directed to hand over vacant and peaceful

possession of the suit premises to the respondent-landlord. Brief facts arising from the case are as under:

1.1. That the present respondent-Nirmalaben Narshibhai Vaya, landlady of the suit premises, rented the same to one Jatubhai Kalyansinh Parmar,

the predecessor of the present petitioners-tenants. The suit came to be filed in the Court of learned Civil Judge (J.D.), Veraval, being Regular Civil

Suit No. 79 of 1980 and prayed to pass a decree for possession of the suit premises against the defendants, who are tenants of the suit premises,

on several grounds. The possession of the suit premises was demanded on several grounds and the same was opposed by the defendants-tenants

by filing written statement. During the pendency of the suit, the original tenant Jatubhai Kalyansinh Parmar died, and therefore, the present

petitioners were brought on record as the legal heirs of said Jatubhai Kalyansinh Parmar.

1.2. That the learned trial Court framed issues at Exh. 41 and after considering the documentary evidence and depositions of parties, came to the

conclusion, that the original plaintiff-landlady was not entitled for recovery of possession of the suit premises on any of the grounds which were

advanced by the original-plaintiff and dismissed the suit on 13-11-1992.

1.3. That the said judgment and decree came to be challenged by the original-plaintiff i.e. landlady by way of filing an appeal, which was originally

registered as Regular Civil Appeal No. 101 of 1992, and subsequently, it was renumbered as Regular Civil Appeal No. 77 of 1999.

1.4. The appellate Court, while deciding the appeal, considered several questions of law relying upon the facts involved in the case. The appellate

Court considered about eight points for its determination. Except ''Point No. 5'' the appellate Court held in favour of the present petitioners-tenants

whereas Point No. 5 was decided against the present petitioners. The Point No. 5 is with regard to ""whether the case falls under Sec. 12(3)(b) of

the Rent Act or not"". The learned appellate Court decided the said Point No. 5 at the time of finally deciding the appeal and came to the

conclusion that the petitioners-tenants have committed breach of Sec. 12(3)(b) of the Rent Act, and therefore, the appellant-original plaintiff-

landlady was entitled for possession of the suit premises. Hence, this Revision Application by the defendants/respondents-tenants.

Mr. Narendra Gaekwad, learned Advocate, appearing with Mr. B.P. Munshi for the petitioners-tenants has assailed the judgment and order of

the appellate Court on the ground that the learned appellate Court has erred in framing Point No. 5 in absence of any pleadings in the memo of

appeal. He submitted that it was not the case of the respondent-landlady that the tenants had committed breach of Sec. 12(3)(b) of the Rent Act,

and therefore, there was no occasion for the learned appellate Court to hold against the tenants. He has further submitted that the learned appellate

Court has erred in calling information suo motu from the department whether the rent was paid or not by the petitioners-tenants during the

pendency of the appeal. He has submitted that there is no direction issued by the learned appellate Court as provided under Sec. 12(3)(b) of the

Rent Act directing the petitioners-tenants to deposit the rent amount before the appellate Court during the pendency of the appeal. Mr. Gaekwad

further submitted that when the suit was filed in the year 1980, the unamended provision of Sec. 12(3)(b) of the Rent Act was applicable,

however, when the appeal was heard and finally decided, Sec. 12(3)(b) of the Rent Act was amended by deleting word ""regularly"", and therefore,

when the landlady filed the appeal, she should have prayed to the appellate Court to direct the tenants to pay the rent during the pendency of

appeal. In absence of such direction, the appellate Court has erred in passing the decree of possession by arriving at the conclusion that the tenants

have committed breach of the provision of Sec, 12(3)(b) of the Rent Act. In support of his submission, Mr. Gaekwad relied upon a decision of this

Court in the case of Murlis Chandrakant Choksi Vs. Maganbhai Hansjibhai Patel, and submitted that while dealing with the case under Sec. 12(3)

(b) of the Rent Act, this Court has held that amendment in Sec. 12(3)(b) of the Act is made to remove the hardships caused to the tenant with

regard to depositing the rent. Relying upon Paragraphs 7 and 9 of the said judgment, he has submitted that, in absence of any direction by the

Court, the tenants were not bound to deposit the amount.

On the other hand, learned Advocate Mr. Mehul S. Shah, appearing for the opponent has supported the judgment delivered by the appellate

Court and submitted that the appeal arising from the proceedings under the Bombay Rent Act is a continuous proceeding, and therefore, no

specific direction is necessary by the appellate Court for depositing the amount of rent during the pendency of the appeal. He has submitted in the

present case, an objection was raised by the tenants before the trial Court about the standard rent of the suit premises. When the landlady

submitted an application at Exh. 71, requesting the trial Court to direct the tenants to pay arrears of rent to the tune of Rs. 70/- per month, the

Court after considering the objections with regard to the standard rent, passed an order on 10-8-1989 and fixed the standard rent at the tune of

Rs. 60/- per month and directed the tenants to deposit the arrears within two months from the date of the order. The tenants deposited the entire

amount and continued to pay the rent at the tune of Rs. 60/- per month during the pendency of the suit, and therefore, when the suit was finally

decided on 23-11-1992, the tenants had not committed any breach of Sec. 12(3)(b) of the Rent Act. He submitted that while deciding the suit, the

trial Court did fix the standard rent @ Rs. 50/- per month which was tentatively fixed at Rs. 60/- per month when the application -Exh. 71 was

decided. Since, the rent @ Rs. 50/- per month was finally decided, the tenants were bound to pay the monthly rent @ Rs. 50/- to the landlady

during the pendency of appeal and till the appeal is decided. He has submitted that no specific direction was necessary by the appellate Court in

absence of any challenge to the rent fixed by the trial Court @ Rs. 50/- per month. He would submit that examining the question of breach of Sec.

12(3)(b) of the Rent Act would come into picture only at the time of hearing the appeal, and therefore, the arguments were advanced by the

landlady about the breach the provisions of Sec. 12(3)(b) of the Act committed by the tenants. The Court found that the tenants had not paid any

amount towards rent during the pendency of appeal, and therefore, the decree is rightly passed by the trial Court having found that the tenants have

not paid any rent during the pendency of appeal and committed breach of Sec. 12(3)(b) of the Act. He would submit that Advocate appearing

before the appellate Court for the tenants, did argue the appeal on this question by relying upon several reported decisions, and therefor, they were

aware about the question of law with regard to provisions of Sec. 12(3)(b) of the Act.

3.1. In support of his submission, he has relied upon a judgment of this Court in the case of Bai Sakarbai Devraj v. Ibrahim Abdul Ganibhai

Pankhida, as reported at 1994 (2) GLR 1091 and submitted that the deletion/omission of expression ""regularly"" in Sec. 12(3)(b) of the Act is not

retrospective in nature but merely was prospective in nature. He has submitted that when the suit was decided in 1992, the provisions were already

amended in the year 1985. In the present case, it is not the case of tenants that they were irregular in payment of rent and had paid the amount of

rent during the pendency of the appeal. He has also relied upon a decision of this Court in the case of Ravjibhai Gigabhai Vs. Virjibhai Ravjibhai

and Others, and submitted that even the dispute of standard rent is pending before the appellate Court, the tenant was bound to pay the standard

rent as determined by the trial Court. Relying upon this judgment, Mr. Shah would further submit that the Court is bound to consider the question

whether the case would fall under Sec. 12(3)(b) of the Rent Act or not if the Court finds that the case did not fall under Sec. 12(3)(a) of the Act.

Though, the trial Court and appellate Court held that the plaintiff failed in establishing her case under Sec. 12(3)(a) of the Act, the appellate Court

has rightly considered the question under Sec. 12(3)(b) of the Act.

3.2. Mr. Shah, learned Advocate, appearing for the opponent, has also relied upon a decision of this Court in the case of Urvashiben Kanubhai

Joshi Vs. Bakshisinh Ishwarsinh, and submitted that this Court has held that the expression used in Sec. 12(3)(b) of the Act ""till the suit is finally

decided"", this expression covers pendency in the trial Court as well as appellate Court, but would not extend the pendency of the revisional Court.

Relying upon the said judgment, he has reiterated that since the appeal was pending, it is as good as awaiting final decision about the dispute

between the landlady and the tenants, and therefore, the tenants were bound to pay the rent fixed by the trial Court, when the judgment was

delivered fixing the rent.

Heard learned Advocates appearing for the respective parties and have perused the judgments of the trial Court as well as the appellate Court

as well as record and proceedings of the trial Court and appellate Court.

In my opinion, the moot question in this proceedings is to decide whether any specific direction is necessary by the appellate Court with regard

to pay or tender the rent and/or permitted increases till the appeal is finally decided or not.

When the landlady filed suit for recovery of possession under various provisions of the Bombay Rent Act including the ground with regard to

breach of Sec. 12(3)(a) of the Act, the same was defended by the tenants by filing written statement at Exh. 40 and raised a contention with regard

to the standard rent. When the plaintiff-landlady submitted application Exh. 71 and demanded an amount of Rs. 10,010/- for 143 months @ Rs.

70/- per month as arrears, the same was opposed by the tenants by raising dispute with regard to standard rent. The learned trial Judge after

hearing the parties, prima facie, came to the conclusion and tentatively decided Rs. 60/- as the rent for the suit premises and directed the tenants to

deposit the arrears within two months from the date of order. The trial Court, after recording the depositions of the parties and after perusing the

documentary evidence led and proved by the parties, ultimately, found that, the tenants had not committed breach of Sec. 12(3)(a) of the Act and

all the issues were decided in favour of the tenants. However, the contention raised by the tenants about the standard rent was considered and the

standard rent was fixed at the tune of Rs. 50/- per month, and accordingly, decree was drawn by the trial Court. Issue No. 9 was with regard to

the standard rent of the suit premises.

Landlady challenged the judgment and order dated 23-11-1992 by way of filing Regular Civil Appeal No. 101 of 1992 (New R.C. No. 77 of

1999). The learned appellate Court after considering the case of the appellant-original plaintiff, carved out several points for its determination.

Point No. 5 came to be discussed as ""whether the case falls under Sec. 12(3)(b) of the Rent Act or not?"" The said point is exhaustively dealt with

by the appellate Court in Paragraphs 29 to 36 of the judgment. The learned Advocates appearing for both the parties have argued their case on

this point at length. Learned Advocate appearing for the tenants, relying on several judgments, argued that, it was not the case of the original

plaintiff that the tenants had committed breach of Sec. 12(3)(b) of the Rent Act either in the plaint or in the Memo of Appeal.

7.1. It is an admitted position that the appellate Court did call for information from the Nazir of both the Courts about the amount of rent which is

paid by the tenants during the pendency of the suit as well as during the pendency of the appeal. It was found that an amount of Rs. 2,400/-

remained unpaid by the tenants at the time of disposal of appeal. That means, for a period of four years, the standard rent @ Rs. 50/- per month,

which was decided by the trial Court, had not been paid by the tenants during the pendency of the appeal and till the disposal of the appeal.

As held in the case of Urvashiben Kanubhai Joshi Vs. Bakshisinh Ishwarsinh, , it has been categorically held by this Court, relying upon a

decision of the Division Bench of this Court, in Paragraphs 16 and 17 that the Court is bound to consider the case under Sec. 12(3)(b) of the Act,

even the decree was prayed under Sec. 12(3)(a) of the Act. Paras 16 and 17 are reproduced hereinbelow:

What is the consequence of the finding that the case did not fall under Sec. 12(3)(a) of the Act? Mr. Sheth for the respondent-tenant would

contend that once the landlord had prayed for eviction under Sec. 12(3)(a) of the Act, and the Court finds that the case did not fall under Sec.

12(3)(a), the suit must be dismissed without making any further inquiry. However, it is not possible to accept this contention because a Division

Bench of this Court (to which 1 was a party), has held in Monghiba Lakhaji Vs. Hira Kunvar Mulji , that even where the landlord has prayed for

decree of eviction under Sec. 12(3)(a), and the Court holds that the case is not covered by the provisions of Sec. 12(3)(a), the Court is bound to

consider the next question whether the case would fall under Sec. 12(3)(b) of the Act.

In view of the aforesaid decision of the Division Bench, it will be necessary to consider whether the respondent-tenant had complied with the

provisions of Sec. 12(3)(b) of the Act. Both the learned Counsel, however, state that the Courts below have not given any finding on this aspect.

Mr. Sheth has submitted that the Courts below were justified in not giving any such finding because such a contention about the applicability of

Sec. 12(3)(b) was not raised at all. However, Ms. Brahmbhatt for the petitioner-landlord is justified in submitting that in view of the aforesaid

decision of the Division Bench rendered during pendency of this Revision Application, the question does remain whether the tenant had complied

with the provisions of Sec. 12(3)(b) of the Act.

8.1. In view of the above observations, in my opinion, the question of deciding the breach of Sec. 12(3)(b) of the Act would come at the time of

deciding the appeal or suit as the case may be. The Court is bound to decide whether the provisions of Sec. 12(3)(b) of the Act is complied with

by the tenants or not. As per the judgment of Urvashiben Kanubhai Joshi Vs. Bakshisinh Ishwarsinh, itself, this Court has held that, the expression

till the suit is finally decided"" covers the period during which the appeal was pending, as the appeal is continuation of the suit. Therefore, the

appellate Court is bound to consider this question at the time of deciding the appeal.

8.2. As stated hereinabove, when the trial Court had fixed the standard rent of the suit premises, the tenants are bound to pay the rent to the

landlord/landlady, if, the proceedings are carried on by way of filing appeal, by either party.

8.3. Now considering the judgment in the case of Murlis Chandrakant Choksi Vs. Maganbhai Hansjibhai Patel, it appears that, the question dealt

with by this Court in the said case is with regard to the word ""regularly"". Since, the same is deleted in the amended provision. Considering the

intention of the Legislature to remove the word ""regularly"" the tenants are permitted to deposit the rent during the pendency of appeal, however,

the total amount of rent must be paid by the tenant till the final decision of the appeal. In the case of Murlis Chandrakant Choksi Vs. Maganbhai

Hansjibhai Patel, , the tenant had paid the entire rent before the appeal was decided and there was no arrears and Paragraph 10 of the said

judgment specifically deals with the said aspect. The same is reproduced as under:

The Legislature has introduced the amendment in Sec, 12(3)(b) of the Rent Act only with a view to remove the hardships of the tenant.

Therefore, no other view is possible than the view taken by this Court that during the pendency of the appeal, if the tenant pays the entire arrears

before the appeal is finally decided, then, no decree of eviction can be passed against the tenant under Sec. 12(3)(b) of the Rent Act.

8.4. As stated hereinabove, it is an admitted position that the petitioners-tenants have not paid the entire amount of rent which comes to about

arrears of four years of rent. When the tenants had not stopped by paying only arrears of 143 months as per the order passed below application at

Exh. 71 and continued to pay an amount of Rs. 60/- per month till the suit came to be disposed of. This conduct shows that the tenants were

aware that they were bound to pay the rent during the pendency of the suit. Therefore, arguments advanced by the learned Advocate for the

tenants that in absence of specific direction, decree under Sec. 12(3)(b) of the Act cannot be passed, is not acceptable and when the appeal is

treated as continuous proceeding of suit, it is not mandatory for the appellate Court to issue direction under Sec. 12(3)(b) of the Act.

8.5. In the case of Ravjibhai Gigabhai Vs. Virjibhai Ravjibhai and Others, , this Court has gone further that even if the dispute has been raised by

the tenant about standard rent in the appeal, the tenant is bound to pay the standard rent and/or permitted increases as determined by the trial

Court till the final conclusion of the appeal. Though, the said case was under the unamended provision, merely omitting the word ""regularly"" the

duty of the tenant to pay rent, would not come to an end if the suit filed by the landlady is dismissed and there is no specific direction by the

appellate Court when the said decision is under challenge by way of appeal.

Therefore, I am of the opinion that when the appeal is continuation of proceedings of the suit, tenants were bound to pay the rent even in

absence of direction by the appellate Court. The tenants cannot be permitted to enjoy the suit premises without paying any rent to the landlady

when the proceedings before the appellate Court are going on. In view of the above discussion, I hereby hold that it is not mandatory for the

appellate Court to issue specific direction to the tenant to pay or tender the rent and permitted increases during the pendency of appeal. Therefore,

the appellate Court did not commit any mistake in considering the question of breach of Sec. 12(3)(b) of the Rent Act.

In view of above reasons, the Revision Application fails and is dismissed accordingly. Rule is discharged. Ad-interim relief granted earlier shall

stand vacated. Record and proceedings be sent to the trial Court forthwith.