NSM AHMED JAMALIA BEVI Vs. DN SHAH

JUDGEMENT

(1.) Respondent was a tenant under the appellant in respect of a premises containing 4 shops. He had sub-let portions and was realising sufficinent rent. He had not paid the landlady rent for more than a year who gave him a notice of demand. He ignored the notice and she was compelled to sue him for eviction. The tenant did not deposit the rent as required under S. II of the Act to seek leave to defend. Ex parte eviction decree was passed. He applied for setting aside of the same which was done. Even after this he did not deposit the rent. After adverse order he filed an appeal which was dismissed. He moved High Court. High Court allowed him to deposit the arrears. He again failed and landlady applied to the Controller for eviction which was allowed. Tenant filed appeal which was dismissed. He again came to High Court who allowed him further time. Landlady challenged this in the Supreme Court. After detailing above the judgement is: 615

(2.) All these years the respondent did not pay any rent to the appellant and committed persistent default. The High Court by the impugned order granted further time to the respondent and now gave him liberty to pay a sum of Rs. 1,10,100. 00 towards arrears of rent within two weeks from the date of the order which is July 9,1996. In the impugned order the High Court noticed that "the counsel for the tenant represented that due to unavoidable circumstances, the tenant could not comply with the conditional order passed by this court and if time is granted, be would pay the amount, since be is always ready and willing to comply with the order" On considering this representation the High Court granted time to the respondent. The operative part of the order is as under:

(3.) No argument would appear to be needed to show that the High Court misdirected itself and in not exercising a discretion properly. In spite of the fact that the High Court found that there was no merit in the civil revision petition filed by the tenant yet it gave further time to the tenant to deposit the rent even modifying its earlier order dated 27.9.1995 requiring the tenant to pay Rs. 1,03,500. 00 and now requiring him to pay Rs. 1,10,100. 00 when between these two dates ten months had passed. We are unable to comprehend as to what were the relevant considerations which led the High Court to grant further time to the tenant. The tenant had taken two pleas: (1) that on account of the marriage of bis daughter he could not make arrangement to pay the rent; and (2) that after July 1992 the subtenant had directly paid rent to the appellant. Both these pleas are of no effect. That the tenant could not arrange finances on account of bis daughter's marriage cannot be a ground to deny the landlord her due rent when the tenant himself had been collecting rent from roe sub tenants and in the case of the sub tenant had themselves defaulted in payment of rent to the respondent be could well have proceeded against them under the Act. Equitable considerations have on place in a case like the present one and that too in face of the express provision of law. While the Act protects the tenant against the eviction and is a departure from the Transfer of Property Act, it is the bounden duty of the tenant to pay rent to the landlord regularly and not to commit default. No sufficiant cause was shown by the respondent as to why he failed to pay or to deposit the rent as ordered. Even rent prior to July 1992 was not paid. The High Court was certainly in error in granting time to the tenant to deposit the rent. It did not exercise its jurisdiction properly as envisaged u/s 25 of the Act.