AKBARALI HUSSAINBHAI Vs. ABDULGAFIR MAHMODKHAN MULTANI

JUDGEMENT

(1.) This Revision Application arises out of the eviction suit filed by the applicant-landlord against the opponent-tenant in the court of Small Causes at Ahmedabad where it was registered as Suit No. 220 The eviction was claimed before the trial court on there grounds namely (1) non-payment of arrears of rent for more than six months (2) acquisition of other suitable premises by the opponent-tenant and (3) bona fide personal requirement of the landlord. The trial court held that the grounds as regards the acquisition of suitable premises by the tenant and personal requirement of the landlord were not proved. However it came to the conclusion that the petitioner-landlord was able to prove that the opponent-tenant was in arrears of rent for more than 6 months. The trial court therefore passed a decree for eviction. Against this the opponent-tenant preferred Appeal No. 361/65 before the Appellate Bench of the same court. The Appellate court held that the case fell within the provisions of sec. 12 (3)(b) of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (hereinafter referred to as the Rent Act) and since the appellate court further found that the opponent-tenant had deposited arrears of rent before the first date of hearing and even subsequent thereto the tenant is protected by the provisions of clause (b) of sec. 12 (3) of the-Rent Act. Being aggrived by this decision the landlord has preferred this revision application.

(2.) This revision application is filed on 11th November 1968 The opponent-tenant is served with the notice of this revision application but he has not preferred to appear before the court. It is an undisputable position that pending this revision application the opponent-tenant has not made any deposit of the standard rent including the permitted increases.

(3.) Shri V. B. Shah who appeared on behalf of the petitioner-landlord contended that the facts of the case show that during the course of the pendency of the proceedings before the Appellate Court the tenant has committed many defaults in regular payment of rent and permitted increases as awarded by the trial court and that the appellate court has not taken this aspect of the matter into consideration at the time of holding that the opponent-tenant is entitled to the protection contemplated clause (b) of sec. 12 (3) of the Rent Act. Shri Shah also drew my attention to the decision given by the Supreme Court in Shah Dhansukhlal Chhaganlal v. Dalichand Virchand Shroff IX G. L. R. 759 and this court in Ratilal Balabhai Nazar v. Ranchhodbhai Shankerbhai Patel and others (1968) IX G.L.R. 48 had pointed out that a tenant can get protection of clause (1) of sec. 12(3) of the Rent Act only if he is found to have paid or tendered rent in court regularly till the suit is finally decided. He contended that the suit can be said to have been finally decided only on disposal of this revision application and since the opponent-tenant has not paid or tendered any rent during the pendency of this revision application this court should now pass a decree for eviction on the ground that the opponent-tenant is not entitled to the protection contemplated by clause (b) of sec. 12(3) of the Rent Act. [ His Lordship after narrating the facts of the case and about various payments made by the tenant further observed: ]