PATEL CHANDUBHAI BHAILALBHAI Vs. KHENGARBHAI JERAMJI PUROHIT

JUDGEMENT

(1.) The petitioner was the defendant (tenant) and the opponent was the plaintiff (landlord) in a suit for recovery of possession of the suit premises and arrears of rent. The suit in so far as it related to the relief of recovery of possession was founded on only one ground namely that the petitioner was a tenant in arrears of rent who had forfeited the protection of the Rent Act The Trial Court found that the case was covered by sec. 12(3)(a) and that the opponent was entitled to a decree of eviction. Alternatively it found that the petitioner was not entitled to be protected even under sec. 12(3)(b) in as much as within one month of the service of the notice under sec. 12(2) he failed to make an application under sec. 11(3) for fixation of standard rent. In view of the findings aforesaid the Trial Court passed a decree of eviction. In appeal the Appellate Court confirmed the material findings of the Trial Court and consequently affirmed the decree of eviction. Hence the present Revision Application.

(2.) .The question whether the petitioner is entitled to the protection of sec. 12(3)(b) will therefore require fresh consideration at this stage. In order to claim the protection of the said sub-section three conditions require to be satisfied; (1) on the first day of hearing of the suit or on or before such other date as the Court may fix the tenant must pay or tender in Court the standard rent and permitted increases then due; (2) the tenant must thereafter continue to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided; and (3) the tenant must also pay costs of the suit as directed by the Court. It is well-settled that in order to earn the protection of the said sub-section the tenant must comply with all the conditions laid down therein and that if he fails to do so the Court has no discretion to deny a decree to the landlord for possession (See AMBALAL V. BABALDAS 3 G.L.R. 625 AT PAGE 647). The approach adopted by the Supreme Court in declining to grant the protection of the said sub-section to the concerned tenants in VORA ABBASBHAI V. HAJI GULAMNABI 5 G. L. R. 55 AT PAGES 61 & 62 DHANSUKHLAL V. DALICHAND 9 G.L.R. 759 AT PAGE 765 AND M/S. PIONEER PAPER BOX FACTORY V. SMT. THAKURDEVI A.I.R. 1971 SUPREME COURT 1781 AT PAGE 1782 also points in the same direction. It would thus appear that in order to claim the pro- tection of sec. 12(3)(b) the petitioner will have to show that he has complied with all the aforesaid conditions laid down in the said sub-sec. 12(3)(b).

(3.) That takes me to the consideration of the main question in dis- pute between the parties and that relates to the satisfaction of the third condition namely the payment of costs of the suit. It is not in dispute that in this case the Trial Court had not issued a direction before the decision of the suit with regard to the payment of costs. The costs were awarded only by the decree of the Trial Court and they amounted to Rs. 122.89 p. The deposits made by the petitioner during the pendency of the appeal left a little- balance after accounting for the rent due upto the date of the decision of the appeal. However the said balance was not sufficient to cover the entire decretal costs and there was a short-fall of Rs. 89.50 after adjusting the said balance towards the decretal costs. This led to the argument advanced on behalf of the opponent to the effect that since the petitioner had not fully paid the costs of the suit as directed by the Court the third condition of sec. 12(3)(b) must be held not to have been satisfied and the petitioner must be denied the protection of the said sub-sec. The question is whether this submission is well-founded.