KUSUMBA JATUBHA Vs. NIRMALABEN NARSHIBHAI VAYA

JUDGEMENT

(1.) By way of the present Revision Application under Section 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.

(2.) Brief facts arising from the case are as under:

(3.) 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 Section 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 Section 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 Section 12(3)(b) of the Rent Act was applicable, however, when the appeal was heard and finally decided, Section 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 Section 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 Chokshi vs. Maganbhai Hansjibhai Patel, 2002 3 GLH 411and submitted that while dealing with the case under Section 12(3)(b) of the Rent Act, this Court has held that amendment in Section 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.