MANILAL AMRITLAL THAKKAR Vs. GOVINDLAL CHHAGANLAL SHAH

JUDGEMENT

(1.) This is a tenants revision application against a decree of eviction passed by the learned Assistant Judge Nadiad in Civil Appeal No. 71 of 1964. The learned Assistant Judge has set aside the conditional part of the decree of eviction that was passed by the learned Civil Judge (Junior Division) Kaira in Regular Civil Suit No. 10 of 1963 and has made it absolute. The conditional decree passed by the learned trial Judge was that the defendant was to deposit in the Court the amount of standard rent and permitted increases with costs on the appointed day failing which the plaintiff would be entitled to recover possession of the suit premises from the defendant on another appointed day. The facts are not in dispute. The present applicant was a tenant of the present opponent in the suit premises consisting of the first floor and the second floor of a residential house situated in the town of Mehmadabad. The contractual rent of the suit premises was Rs. 15/payable by the month. The tenant was admittedly in arrears for a period exceeding six months both at the date of notice and at the date of institution of the suit which latter date was February 6 1963 the notice having been served earlier on December 8 1962 In reply to the suit notice the tenant had raised a dispute as regards the standard rent. He had also raised the same dispute in his written statement. The learned trial Judge had accordingly raised the necessary issue for determination of the standard rent of the suit premises. At a date prior to the settlement of the issues the defendant-tenant deposited in Court the arrears of rent then due together with the costs of the suit although there was no such direction in the matter. Even crediting the amount of costs so deposited towards the arrears of standard rent due at the date of the first hearing the total amount deposited in the Court as at the first day of hearing admittedly fell short although by a small amount of Rs. 2.50 P. Thereafter also although the defendant deposited various amounts from time to time the deposit so made did not cover the entire arrears of rent then due. At the date of the decree also the defendant was in arrears of rent. Although the dispute as to the amount of standard rent was raised in his written statement the tenant did not make say application to the Court to take up the dispute as to standard rent in the first instance nor did he at any time during the pendency of the suit make any application to the Court to fix a date for payment of the amount of standard rent and permitted increases under 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 Act. The landlord also did not move in the matter either. The Court also did not take up the dispute (issue) as a preliminary one nor did it suo motu pass an order fixing a date other than the first day of hearing of the suit for payment or tender of the standard rent and permitted increases. All the issues raised in the suit including the issue as regards the amount of the standard rent were decided at a time in the judgment dated January 31 1964 delivered by the Court. The learned trial judge held that the standard rent of the suit premises was Rs. 15/per month and further that the defendant-tenant was liable to pay a sum of Rs. 1-15-0 payable by the month as permitted increases. However in the course of the judgment the learned trial Judge considered that it was necessary for him to fix the standard rent first and fix a date of payment or tender of such standard rent. Accordingly the learned Judge fixed a date for such deposit in his final order in his judgment and passed a conditional decree of eviction. The operative portion of the judgment referred to as final order reads as under:-

(2.) However the plaintiff carried the matter to the Court of the District Judge of Kaira by way of Civil Appeal No. 71 of 1964 and it came to be decided by the learned Assistant Judge who appears to have taken the view that the condition provided for in the judgment and decree of the trial Court purporting to extend the period during which the defendant was called upon to tender in Court the standard rent and permitted increases due upto the appointed day (falling on a day subsequent to the date of the decree) together with the costs of the suit upto another appointed day also falling beyond the date of the decree and thus making the decree of eviction a conditional one was not contemplated by the provisions of clause (b) of sub-sec. (3) of sec. 12 of the Act and as such the part of the decree incorporating such condition was illegal and liable to be set aside. In this view of the matter the learned Assistant Judge has found that the tenant did not fulfill the conditions of clause (b) of sub-sec. (3) of sec. 12 of the Act and was liable to be evicted. Accordingly the learned Judge has set aside the conditional part of the decree of eviction passed by the learned trial Judge passed an absolute decree of eviction against the defendant-tenant and decreed that the defendant do hand over possession of the suit premises to the plaintiff-landlord on or before October 30 1965 The learned Judge has while maintaining the amount of standard rent at Rs. 15.00per month as fixed by the trial Court however accepted the cross-objections of the tenant and found that the landlord was not entitled to any amount as permitted increases. But that is not material here as even the amount of standard rent then due was admittedly not deposited in full in the Court so as to cover the full amount of standard rent then due. It is against the absolute decree of eviction thus passed in the appeal by the learned Assistant Judge that this revision application is directed and it has now reached hearing before me.

(3.) The only questions that fall for my consideration in this revision application are:- whether an order directing the defendant-tenant to pay or tender the arrears of standard rent then due can be made by the Court of the first instance in its judgment finally deciding the suit and whether compliance by the defendant-tenant with the terms of such an order can afford him protection of clause (b) of sub-sec. (3) of sec. 12 of the Act. In other words whether a conditional decree of eviction can be passed by the Court in finally deciding the suit. My answer to the question raised is clearly in the negative as is revealed from the examination of the scheme of sec. 12 of the Act and having regard to the language used in clause (b) of sub-sec. (3) of sec. 12 of the Act.