Jaswantrai Malukchand vs Anandilal Babalal

M. Hidayattullah, J.—Jashwantrai Malukchand who appeals by special leave against the judgment of the High Court of Gujarat dated

October 24 1961 was a tenant of a shop belonging to Anandilal Bapalal respondent By the judgment now under appeal the High Court reversed

the concurrent decision of the two courts below and ordered eviction of the appellant from the shop on the ground that he was in arrears for a

period of six months in the payment of the rent. By a supplementary order dated January 16 1962 mesne profits were also granted to the landlord

till delivery of possession of the shop. The High Court has differed from the two courts below in the application of the third sub-section of Section

12 of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 by which sub-section the present proceedings were governed. The

High Court held that Clause (a) of the sub-section applied while the courts below applied Clause (b). Before we read the section the facts

necessary to understand this deference in the two points of view may be stated.

The tenant rented the shops from April 1 1954 and executed a rent note for Rs. 155 p.m. From February 1 1955 he did not pay the rent and

when the landlord demanded it the tenant filed a suit for fixation of standard rent. During the pendency of those proceedings the Court of Small

Causes Ahmedabad acting under Sectionll(3) of the Act (to which reference is necessary) fixed Rs. 80 p.m. as provisional standard rent and the

tenant paid Rs. 1600 by instalments for the period for which he was then in arrears. On November 9 1956 the court passed a final order fixing Rs.

125 p.m. as the standard rent. Both sides filed revisions against that order in the District Court and they were dismissed after contest on March 25

1958 It appears that the landlord filed a further revision in the High Court but it is not known from the record when and how it was dismissed.

After the order was passed on November 9 1956 the landlord demanded Rs. 1385 as the balance of the rent due to him at the new rate till the

end of January 1957 and sent a registered notice but the tenant did not pay. On March 4 1957 the landlord filed the suit from which this appeal

arises conteding that the tenant was in arrears for six months and had not paid the arrears within one month of the notice. This suit terminated in

favour of the tenant on April 28 1958 because by then the back rent calculated at Rs. 125 p.m. and the costs of the suit were fully paid by the

tenant. The landlord appealed to the Assistant Judge Ahmedabad claiming that after the standard rent was fixed finally on November 9 1956 the

case fell to be governed by Clause (a) of Section 12(3) of the Act and as the tenant was in arrears for a period of six months he ought to have

been evicted. The appeal was not accepted. The Assistant Judge held that the tenant was protected by Clause (b) of Section 12 of the Act. On

revision before the High Court u/s 115 of the CPC the decision was reversed as in the opinion of the High Court Clause (a) of the third sub-

section applied to the facts of the case.

Section 12 of the Act in so far as it is material may now be read:

(1) A landlord shall not be entitled to the recovery of possession of anypremises so long as the tenant pays or is ready and willing to pay the

amount of the standard rent and permitted increases if any and observes and performs the other conditions of the tenancy in so far as they are

consistent with the provisions of this Act.

(2)...

(3)(a) Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases if such rent or

increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one

month after notice referred to in Sub-section (2) the Court shall pass a decree for eviction in any Such suit for recovery of possession...

(b) In any other case no decree for eviction shall be passed in any such suit 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 thereafter continues to pay or

tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court.

(4) ...

Explanation 1. In any case where there is a dispute as to the amount of standard rent or permitted increases recoverable under this Act the tenant

shall be deemed to be ready and willing to pay such amount if. before the expiry of the period of one month after notice referred to is Sub-section

(2) he makes an application to the Court under Sub-section (3) of Section 11 and thereafter pays or tenders the amount of rent or permitted

increases specified in the order made by the Court.

Explanation 2.

Mr. S.T. Desai submits on behalf of the appellant that the High Court could not act u/s 115 of the CPC when no question of jurisdiction was

involved and he refers to Vora Abbasbsai Alimahomed v. Haji Gulamnabi Haji Safibhai (1964)5 G.L.R. 55 : AIR 1864 S.C. 1349. He argues in

the alternative that as the tenant paid the provisional standard rent and discharged all arrears of standard rent and costs before the suit was decided

he could not be evicted under Clause (a) of the third sub-section and he relies on the same ruling. Mr. Ganpatrai on the side of the landlord submits

that after the decision of the court fixing Rs. 125 p.m. as standard rent no dispute regarding the amount of standard rent remained and as rent was

payable by the month and the tenant was in arrears for six months and did not pay the arrears of standard rent so fixed within one month of the

notice to him the Court was bound to pass a decree of eviction under Clause (a). This is how the High Court also viewed the matter. He relies

upon Vasumatiben Gaurishankar Bhatt v. Naviram Manchharam Vora and Ors. (Civil Appeal No. 293 of 1963 decided by this Court on August

14 1963 (1963) 4 G.I.R. 969.

The decision referred to by Mr. Ganapatrai has no application here. In our opinion it is unnecessary to decide the first of Mr. Desais contentions

because this appeal can be disposed of on a consideration of the rival contentions on the second point. We are concerned with the two Clauses (a)

and (b) of Section 12(3). Eviction under Clause (a) is made to depend upon several conditions which must coexist and which find adequate

enumeration in our summary of Mr. Ganpatrais argument. One such condition is that there should be no dispute regarding the amount of standard

rent. Clause (b) comprehends all cases other than those falling within Clause (a) and a case in which there is a dispute about the standard rent must

obviously fall not in Clause (a) but in Clause (b). There was here a dispute about standard rent. The tenant had already made an application for

fixation of standard rent paid the arrears of provisional standard rent and complied with the requirements of Clause (b). He was therefore

protected.

The contention of Mr. Ganpatrai that the dispute regarding the standard rent came to an end on November 9 1956 when the court fixed Rs. 125

p.m. as the standard rent would be correct if the parties accepted the determination. But neither side did. Each side questioned the amount by filing

a revision in the District Court.

Since the dispute continued the case was not governed by Clause (a) but by Clause (b) and the High Court was in error in applying the former

clause and reversing the decisions based on the latter.

The appeal will be allowed and the judgment of the High Court will be set aside and that of the Assistant Judge Ahmedabad will be restored. The

respondent will bear the costs throughtout.