LALCHAND JEMATMAL Vs. NANABHAI RANCHHODAS

JUDGEMENT

(1.) This Civil Revision Application has been referred to us by the Division Bench consisting of M. U. Shah and B. K. Mehta JJ. The matter came up before that Division Bench though ordinarily a Civil Revision Application is disposed of by a Single Judge because A. A. Dave J. by his order dated April 27 1973 referred the Civil Revision Application to a larger Bench because he felt that he was unable to agree with the reasoning of T. U. Mehta J. in Civil Revision Application No. 121S of 1968 decided on February 2 1973 The question before us is relating to the interpretation of sec. 12(3)(b) of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (Bombay Act No. LVII of 1947 (hereinafter referred to as the Rent Act) in so far as sec. 12(3)(b) applies to an appeal filed by the landlord after dismissal of the landlords suit for recovery of possession on the ground of nonpayment of rent. M. U. Shah and B. K. Mehta JJ. felt that apart from the disagreement between A. A. Dave J. and T. U. Mehta J. there was also apparent conflict between the views expressed by two Division benches of this Court in RATILAL V. RANCHHODBHAI (1968) 9 G. L. R. 48 and NANJI PANCHA V. DAULAL NARSINDAS (1970) 11 G. L. R. 285. We will examine the provisions of law and the different decisions cited before us in order to ascertain what the correct interpretation of sec. 12(3)(b) is.

(2.) Sec. 12 provides by sub-sec. (1) that a landlord shall not be entitled to the recovery of possession of any premises 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 the Rent Act. Under sub-sec (2) of sec. 12 no suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non-payment of the standard rent or permitted increases due unless one month after a notice mentioned in sub-sec. (2) has expired and the notice must contain in writing demand for the standard rent or permitted increases. Period of one month has to be calculated from the time the notice has been served upon the tenant in the manner provided in sec. 106 of the Transfer of Property Act 1882 Clause (a) of sec. 12(3) deals with a situation where the rent is payable be 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 referred to in sub-sec. (2); under these circumstances the Court must pass a decree for eviction in any suit for recovery of possession. By now as a result of several decisions on the point including decisions of the Supreme Court it is well-settled law that if the different factors mentioned in sec. 12(3)(a) are cumulatively present the Court must pass a decree for evictions. Sec. 12(3)(b) deals with a situation which is not covered by sec. 12(3)(a) and is in these terms: (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 there after 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. The question before us as we have stated earlier turns on the interpretation of sec. 12(3)(b) and the question that we have to decide in the present case is whether in view of the language of sec. 12(3)(b) in order to earn the protection of that clause the tenant whose case falls under that clause must pay the standard rent and permitted increases and continue to pay or tender in Court regularly such rent and permitted increases during the pendency of the appeal filed by the landlord after dismissal of the landlords suit for recovery of possession on the ground of non-payment of rent.

(3.) In order to appreciate the scope of sec. 12(3)(b) it would be better to look into the historical background of the provisions of sec. 12(3) (a) and sec. 12(3)(b). Sec. 12(3) in the form as it stands to-day was substituted for the original sub-sec (3) by Bombay Act 61 of 1953. As pointed out by a Division Bench of the Bombay High Court consisting of Gajendragadkar and Chainani JJ as they then were in KURBAN HUSSEN V. RATIKANT (1956) 59 BOM.L.R. 158 AS 162: As it originally stood sub-sec. (3) of sec. 12 had provided that no decree for eviction shall be passed in any such suit if at the hearing of such suit the tenant pays or tenders the Court the standard rent or permitted increases then due together with costs of the suit. This sub section provided one more safeguard in the interests of the tenant. If the tenant paid or tendered in Court the rent due at the hearing of the suit a decree for his eviction would not be passed. It is a matter of history that this sub-section was construed by this Court as giving an opportunity to the tenant to pay or tender rent even at the appellate stage.