JENABAI MOHMED Vs. GULAMABBAS ISMAILJI

JUDGEMENT

(1.) This is a revision petition filed by the petitioner (defendant-tenant) against the judgment and decree passed by the learned District Judge Rajkot in Civil Appeal No 49 of 1966 which confirmed the judgment and decree passed in Civil Suit No. 488 of 1964 of the Court of the Joint Civil Judge Junior Division Rajkot.

(2.) Mr. Suresh M. Shah appearing for the petitioner urged that the Courts below had committed an error of law in passing the decree for eviction. It is urged by him that the consequence of non-compliance with the order passed in the Miscellaneous application at the most would entail the dismissal of that application for fixing the standard rent. Submission is that in the consequence referred to in sub-sec. (3) of sec. 11 of the Act a tenant who has been given notice in regard to arrears of rent for a period over six months as contemplated by sec. 12(2) of the Act is entitled to protection even though he has committed such a default if he satisfies the conditions of sec. 12(3)(b) of the Act if the case does not fall under sec. 12(3)(a) of the Act. Admittedly in the instant case there was a dispute between the parties regarding the standard rent and the tenant had filed an application for fixation of the standard rent under sec. 11 of the Act prior to the expiry of the period of one month after the receipt of the notice. It is therefore an admitted position that the present case does not fall within sec. 12(3)(a) of the Act. Sec. 12(3)(b) of the Act material for our purposes reads:-

(3.) In reply to these arguments Mr. Chhaya appearing for Mr. Nanavati for the opponent urged that there was no such absolute rule imposing an obligation upon the Court to fix such date regardless of the facts and circumstances of the case. In the instant case the tenant had an opportunity to pay the arrears as directed by the Court in the miscellaneous proceeding and to deposit the interim rent fixed at Rs. 5/per month on or before the 5th of every month as directed by the Court. She has not complied with that order. It is indicative of the position that this tenant was not ready and willing to pay the amount of standard rent due. It is not only that she did not comply with this order in that proceeding but she did not deposit the arrears of rent on the basis of Rs. 5/due even at the time of the first hearing of the suit. Even upto the disposal of the suit she did not deposit sufficient amount to cover up the rent due even on the basis of the interim rent fixed apart from the rent claimed or the rent due on the basis of Rs. 8/per month the standard rent fixed. On the facts and circumstances of the case the Courts below were fully justified in coming to the conclusion that this tenant was not entitled to protection under sec. 12(3)(b) of the Act.