Hasmukhrai Govindji vs Patel Mavji Jeram

Chhatpar, J.—This appeal arises out of a suit filed by the Respondent for ejectment and for arrears of rent against the present Appellant. The Appellant is a tenant of a premises in a building of the Respondent situated in Rajkot Para of Rajkot. The suit was filed on 4-12-50, but on 26-9-50 the Appellant tenant had already filed an application for fixation of standard rent under the Rent Act. Both the suit and the application were consolidated. The Plaintiff sought eviction on three grounds: (1) u/s 13(1)(c), (ii) u/s 13(1)(g) and (iii) on the ground of non-payment of rent u/s 12 of the Rent Act. On 10-7-51 the Saurashtra Rent Act 1951 came into force repealing the prior Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, as adapted and applied to the State of Saurashtra. As the Defendant was a minor, the case was protected on account of the appointment of a proper guardian-ad-litem and it appears ultimately on 12-7-51 the written statement was filed, and the case was adjourned to 17-7-51 for framing of issues on which date the issues were actually framed. The proceedings thereafter make mention of dates being fixed for fixation of standard rent and also about the determination of the question of ordering deposit u/s 12(4) of the Rent Act, which reads as under.

In any suit for the recovery of rent with or without a claim for possession, the Court shall at first hearing of the suit, direct the tenant to forthwith deposit in the Court such amount of rent as the Court reasonably believes to be due to the landlord and if he fails to deposit such amount, his defence shall be liable to be struck off.

On 6-8-51, the trial Court ordered that all the arrears of rent up to data should be deposited in Court at the rate of Rs. 75/- per month and further ordered that future rents to accrue should also be deposited at that rate till the disposal of the suit. This was an order which purported to be under Clause (4) of Section 12 reproduced above. After taking some time, the tenant failed to make the deposit and ultimately on 8-11-51 the Court ordered the Defendant''s defence to be struck off. On the same date the Defendant deposited Rs. 500/- in Court. He had deposited Rs. 300/- on 3-9-51. Thereafter the Court proceeded ex parte, decreed the suit of the Plaintiff for eviction on the ground of non-payment of rent holding at the same time that the Plaintiff had failed to make out his case u/s 13(1)(c) and Section 13(1)(g). The Court also fixed the standard rent at the same figure as the contractual rent of Rs. 165/- and granted the decree for arrears of rent on that basis. From this decree the Defendant preferred an appeal to the District Court which maintained the decree of the lower Court except that the standard rent was reduced from Rs. 165/- to Rs. 100/- and the arrears accordingly. The Defendant has now come in second appeal before me.

The first question to be considered relates to the validity of the order of the Court dated 6-8-51 ordering the Defendant to deposit the arrears of rent up to date at the rate of Rs. 75/- per month and also future rents to accrue at the same rate purported to have been passed u/s 12(4) and the consequent order of striking off the defence. Now this peculiar provision of law contained in Clause (4) of Section 13 does not appear in the Bombay Rent Act from which the Saurashtra Act has been largely copied and it is surprising to me that in an enactment intended to protect tenants from the harassment and cupidity of landlords a drastic provision of this nature should have been introduced by the Legislature making it obligatory on the Court to order at the very first hearing that the Defendant should deposit such amount of rent as the Court reasonably believes to be due to the landlord and on failure to incur a very serious liability to have his defence struck off. Such a provision nowhere appears in the CPC that the Court should give a tentative decision about the claim in suit and require the Defendant to deposit in Court followed by a regular decision which would be the ultimate decree in the case. The intention of the Legislature is said to be to prevent tenants from taking undue advantage by protracting proceedings by a landlord for recovery of rent or eviction. But such an argument would apply equally to suits other than, for recovery of rent or eviction. No such procedure was provided before the Rent Act was enacted in respect of this class of litigation. And there is much practical difficulty in carrying out the purpose of the sub-section. The Court is required at the very first hearing to direct the tenant to forthwith deposit in the Court such amount of rent as the Court reasonably believes to be due to the landlord. It means that the Court should come to a judicial decision as to reasonable rent as due to the landlord and for coming to this decision the Court should record evidence of the parties. So that in a suit for arrears of rent where the Defendant also claims the fixation of the standard rent the Court has before it the contractual rent and then the Court must come to the conclusion at the very first hearing as to what should be reasonable rent due to the landlord and order the Defendant to deposit the amount of rent forthwith into the Court and thereafter to proceed at some further hearing with the fixation of the standard rent on the basis provided in the Act and then give a decree to the Plaintiff accordingly. As every order of the trial Court is subject to appeal and second appeal, it means that there may be an appeal from the tentative order for fixing the reasonable rent followed by Anr. appeal from the ultimate decree passed in the case after the fixation of the standard rent. This peculiar procedure is nowhere provided so far as I know. The Court cannot question the wisdom of the legislature and has to construe the Act as it is, but knowing the general purpose of the Act, I am inclined to construe this peculiar clause in Section 12 strictly in favour of the tenant in view of the fact that the failure in compliance with the order of deposit entails his defence to be struck off. In my judgment in the case of -- Mansukhlal Chatrabhuj v. Prabudas Ramjibhai AIR 1953 Sau 68 (A), I had occasion to construe this very same clause and my decision in that case was that the Court can make an order directing the tenant to deposit only such amount of the rent upto the date of the suit as was the subject matter of the suit, as the Court reasonably believed to be due to the landlord and that the Court had no power to order deposit of any rent accrued due after the filing of the suit.

Now let me consider the validity of the order dated 6-8-51 for deposit made by the trial Court. In the first place it is not made at the first hearing of the suit as required by Section 12(4). There was some discussion as to what is the first hearing of the suit. These words have been used in various places in the CPC e.g. in Order 8, Rule 1, Order 13, Rule 1, Order 10, Rules 1 and 2 and Order 35, Rule 4. There are decisions of some High Courts on the point to the effect that the first hearing means the day on which the Court goes into the pleadings in order to understand the contentions of the parties and in suits in which issues have to be framed, the first hearing would be the day on which such issues are framed in as much as on that date the Court goes into the pleadings with a view to understand the contentions of the parties, and where summonses are issued for final disposal of the case the first day of appearance would be the first hearing. Mr. Joshi the learned Advocate for the Respondent has been obliged to admit that so far as the present case is concerned, the first hearing would be 17-7-51 when issues were framed. The order of deposit u/s 12(4) was not made on this date but on 6-8-51 and during the intervening period there have been several dates on which proceedings have been recorded. So that clearly in my opinion the order of deposit was not made on the first hearing and not having been done so the Court was ''functus officio'' to make the order of deposit on any subsequent date. The section does not provide that the deposit should be ordered on the first or any subsequent or adjourned hearing. The order suffers from other defects as well. The order has been made not on evidence but on mere inspection by the learned Judge of the premises in the suit. This Court has more than once held that inspection cannot take the place of evidence. If a judicial order in contemplated to be passed, it must be on evidence. In the present case, it is admitted that no evidence was recorded by the learned Judge nor even affidavits obtained as to what would be the reasonable rent. In the absence of these the order cannot have the sanctity of a judicial order.

There is yet Anr. objection as to the order itself. It purports to order the Defendant to deposit not only the rent upto the date of the suit but future rent as well and according to my decision above referred to such an order would be invalid. Lastly this order is made against the Defendant, who is a minor. If the guardian-ad-litem has no funds in her hands or for other reasons she is unable to make the deposit, the minor''s case will have to go by default.

Taking all the above objections into consideration, I have no hesitation in holding that the order of deposit dated 6-8-51 is null and void. Consequently, the order of striking off the defence suffers from the same defects. The Court should not in the circumstances of the present case have exercised the discretion of striking off the defence as the Defendant was a minor. The ex parte decree passed by the learned trial Court Judge which has been up held on appeal with certain modifications by the District Judge will consequently have to be set aside.

The result is that this appeal is allowed and the decrees of the lower Courts are set aside. The case is remanded to the trial Court with directions that the Defendant should be permitted to lead his defence and the case disposed of in accordance with law. In view of the peculiar nature of the case, I make no order as to costs.