NANIBEN Vs. VIDHYABEN AMBALAL MISTRY

JUDGEMENT

(1.) This Revision Application by the original-plaintiff landlady is directed against the decree refuSing possession on the ground of arrears of rent passed by the lower appellate Court. The following dates are relevant :

(2.) The rent note Ex. 23 dt. 1/05/1972 contains a term that the tenant has to pay the education cess which is payable by year and not by month and therefore sec 12(3)(a) of the Rent Act does not apply. As regards sec. 12(3)(b) when the issues were raised on 1/12/1977 there was no full deposit of the arrears of rent then due. The monthly rent is Rs. 145.00 plus the education cess. As against the sum of Rs. 2830.00due on the date of the issues the defendant had deposited Ells. 1 0 and odd. It appears that the defendant was absent herself and her advocate had passed a purshis of no instructions at ex. 26 and therefore the trial court felt that there was no point in fixing any other date to enable the defendant to deposit the arrears of rent and therefore after raising the issues on 2/12/1977 within two weeks the decree for possession was passed on 14/12/1977. While passing the judgment and decree the issue regarding standard rent which was already raised was decided holding that the standard rent was Rs. 145.00 only on the basis of the evidence of the plaintiff as the defendant was absent.

(3.) It appears that the defendant was absent and was not aware about the decree and the Appeal which was filed on 15-2-1978 was time barred. Application for condonation of delay was moved by her along with Appeal and stay of execution of the decree was granted. Ultimately the lower appellate Court allowed the appeal and set aside the decree for possession passed by the trial Court on the ground of arrears of rent. It is this decree which is challenged by the landlady in this Revision Application and it is submitted that the learned Appellate Judge has committed an error of law in not confirming the decree for possession on the ground of arrears of rent. It is submitted that the tenant not having deposited the arrears of standard rent on the first date of hearing was in default and liable to be evicted under sec. 12(3) (b) of the Rent Act. The tenant had failed to deposit the arrears not only on the first date of hearing but also on the date of the judgment of the trial Court and also during the course of hearing of the appeal. It is submitted on behalf of the landlady that the date when the appeal was preferred and argued also can be taken to be first date of hearing and on that day also the tenant was in arrears and had not paid full arrears and therefore the tenant is liable to be evicted It is also submitted that the trial Court had decreed the suit with costs and the tenant had not deposited this amount of costs and therefore also the tenant was liable to be evicted It was also submitted that during the pendency of the Revision Application in the High Court the tenant had not deposited the arrears of rent and therefore also the tenant was liable to be evicted. During the pendency of the Revision Application filed in 1978 the first deposit of Rs. 4 0 was made on 2/02/1983 Even thereafter the tenant was in arrears. In December 1975 the tenant deposited further sum of Rs. 9 0 (Rs. 2 500 on 6th December and Rs. 6 500 on 9/12/1985). Thus during the pendency of the Revision Application in all a sum of Rs. 13 0 was deposited. This amount is sufficient to wipe off the arrears. In fact there is no obligation on the tenant to deposit the arrears of rent during the pendency of the Revision Application or to deposit the same regularly.