DATTATRAYA VISHNU BHIDE Vs. PADMAKAR MAHADEV GOVITRIKAR

JUDGEMENT

(1.) THIS is a second appeal which arises in execution proceedings. The respondent is the landlord of certain premises in Poona, while the appellant was his tenant. The landlord filed Civil Suit No. 3927 of 1954 in the Court of Small Causes at Poona against the appellant seeking to recover possession of, the suit premises on the ground that the tenant was in arrears of rent due from him. The suit was decided on April 4, 1955, and the trial Court passed a decree directing the defendant to pay the plaintiff a sum of Rs. 266 -12 -0 together with costs on or before May 31, 1955. In case the defendant failed to do so the plaintiff was to recover possession of the premises from the defendant and also to recover an amount of Rs. 186 -12 -0 in respect of rent and damages, the costs of the suit, and mesne profits at the rate of rupees 154 -0 per month from the date of institution of the suit until the expiry of the period specified in Order XX, Rule 12(e), of the Civil Procedure Code with the proper Court -fee stamp. It appears that though the defendant was given time to pay till May 31, 1955, he made no payment and that is why on August 20, 1955, the decree -holder filed original Darkhast No. 1851 of 1955 for possession of the suit premises. The tenant applied for relief against forfeiture. The trial Court came to the conclusion that the clause that was sought to be enforced by the decree -holder was of a penal nature but that the judgment -debtor could not be relieved from its enforcement because the principle of equitable relief did not apply to decrees passed in invitum. Against this decision the judgment -debtor filed an appeal to the District Court, Poona. It was argued before the learned District Judge that the judgment -debtor under the decree had become a statutory tenant till May 31, 1955, and that the Court could relieve him against forfeiture because the clause in the decree extinguishing his statutory tenancy was by way of a penalty. The learned Appellate Judge differed from the view taken by the trial Court that in case of decrees passed in invitum though they were of a penal nature no relief could be granted. But he rejected the contention of the appellant that he was a statutory tenant and that the clause directing that the decree -holder should recover possession on his failure to pay the decretal amount was of a penal nature. The Court appears to have been of the view that the decree granted a concession to the defendant and as the decree fell within the class contemplated in the Full Bench decision of Wanton Vishwanath v. Teshwant Tukaram (1947) 50 Bom. L.R. 688, there was no question of granting any relief against forfeiture to the judgment -debtor. In this view of the matter the lower appellate Court dismissed the appeal of the judgment -debtor. It is against this decision that the present second appeal has been filed.

(2.) NOW Mr. R. B. Kotwal, learned advocate appearing on behalf of the judgment -debtor, contends that the contractual tenancy was put an end to by the landlords as his client was in arrears but the decree of the trial Court which was a decree in invitum allowed him to remain in possession of the premises till May 31, 1955. On his paying the amount of Rs. 266 -12 -0 with costs on or before the due date, the claim for possession of the landlord was to be disallowed. In case he failed to do so then the landlord was entitled to recover possession of the premises, but till May 31, 1955, his possession was that of a statutory tenant by reason of the provisions of Section 5(11) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, to be hereafter referred to as the Bombay Rent Act. Under Clause (b) of Sub -section (11) of Section 5 of the Bombay Rent Act, any person remaining, after the determination of the lease, in possession, with or without the assent of the landlord, would be a tenant, and the contention is that the statutory tenancy of the judgment -debtor would be destroyed in case the tenant failed to pay the stipulated amount on or before Kay 31, 1955. Mr. Kotwal, therefore, contends that the lower Court's view that what was granted to the judgment -debtor was merely a concession was wrong. The clause in the decree directing that the plaintiff should recover possession of the premises on defendant's failure to pay a certain amount was, according to Mr. Kotwal, of a penal nature and, therefore, the Court had jurisdiction to grant equitable relief that was sought by the tenant. This is in short the submission of Mr. Kotwal in this appeal.

(3.) AS I have already stated it is the contention of Mr. Kotwal that the present case would fall within the principle of the decision in Krishna Bai v. Hari, The present decree is a decree in invitum and if it is read as a whole, it does not contemplate the continuance of the relationship of landlord and tenant but appears to be a conditional decree in the sense that the plaintiff was directed to recover possession of the premises in suit from the defendant in case the defendant failed to pay to the plaintiff a sum of Rs. 266 -12 -0 together with, costs of the suit on or before May 31, 1955. But in case the defendant paid the amount as stipulated, the plaintiff was to withdraw the amount from the Court after paying the Court -fee stamp on Rs. 80 and though the decree itself does not state so, apparently his prayer for possession was to be disallowed. If the decree under execution is a conditional decree of the type I have described, there is no question of the tenant becoming a statutory tenant under the provisions of Clause (b) of Sub -section (11) of Section 5 of the Bombay Rent Act. The decree, it appears to me, gave the plaintiff the right to evict the defendant on or after May 31, 1955, in ease the defendant failed to pay the stipulated amount so that the possession of the defendant till May 31, 1955, cannot be regarded as that of a statutory tenant but it is the possession of a person, who is under the shadow of a conditional decree for eviction. In my view that would be a proper construction to be placed on the present decree. In several cases which have arisen under the Bombay Kent Act before this Court, such conditional orders whether by consent or in invitum have been passed, the tenant being directed to pay the amount of arrears on or before a certain date and in case of his failure to do so, it is directed that the revision application pending here would be dismissed. In such cases, in my view, it can hardly be contended that the time which is granted to the tenant to pay up the arrears would enable him to become a statutory tenant during that period. Where a conditional decree for eviction either by consent or in invitum is passed by the Court, the landlord's right to eviction becoming effective on the failure of the tenant to pay the amount of rent mentioned in the decree within a stipulated time, the tenant cannot become a statutory tenant under Section 5(11)(b) of the Bombay Rent Act during the time granted to him to make the payment. He is, therefore, liable to be evicted on his failure to comply with the terms of the decree.