LAXMINARAYAN NANDKISHORE SHRAVAGI Vs. KESHARDEV BAIJNATH NARSARIA

JUDGEMENT

(1.) THE respondent is the owner of a building known as 'Keshar Bag', Quarry Road, Malad, District Thana. The petitioner is a tenant of room No. 3 in that building. The contractual rent of the premises occupied by the petitioner was Rs. 30 per month. It was agreed between the petitioner and the respondent that the petitioner was to pay Rs. 2 per month in addition to rent as electricity charges. In May 1951 the respondent filed a suit for recovery of rent due by the petitioner. The petitioner then applied for fixation pf standard rent and ultimately the standard rent was fixed By the Court at Rs. 18 per month. The suit for arrears of rent was, compromised on July 21, 1951, and the petitioner agreed to take a separate sub -meter for the electrical energy supplied to the premises in his occupation. It was provided in the compromise decree that the petitioner was to pay Rs. 10 per month as electricity charges till a sub -meter was taken by him. The petitioner was in default of payment of rent from February 1954 fand on July 2, 1954, after serving the requisite notice the respondent field Suit No. 529 of 1954 in the Court of the Civil Judge, Junior Division, Borivli, against the petitioner for a decree for Rs. 144 -9 -0 being the amount of arrears of rent and electricity charges and damages for wrongful conversion of electricity and notice charges, and also for a decree in ejectment. The suit was resisted by the petitioner. He contended that the standard rent was Rs. 18 per month and that he was willing to pay rent at the rate of Rs. 18 per month and he was also willing to pay Rs. 2 per month as electricity charges, but as the respondent refused to accept the same the respondent had no cause of action. The learned trial Judge held that the standard rent of the premises was Rs. 181 per month and the petitioner was liable to pay Rs. 2 per month as electricity f A charges and on that footing before the date of the suit the petitioner was liable to pay Rs. 90 as rent and electricity charges. The learned trial Judge negatived the contention raised by the respondent that the petitioner's presence constituted a nuisance to his neighbours. As the petitioner had not deposited the amount in Court under Section 12(3)(6) of the Bombay Rents, Hotel and Lodging House Rates Control Act, the learned Judge granted to the petitioner two months to vacate the premises in his occupation and passed a conditional decree for possession which was not to be executed if the arrears of rent and costs off the suit were deposited in Court before the expiry of two months.

(2.) AGAINST the decree passed by the trial Judge an appeal was preferred by the respondent to the District Court at Thana. In appeal the learned Assistant Judge held that the trial Court was in error in passing a conditional decree for, possession in favour of the respondent. He held that the petitioner Saving failed to pay the standard rent due and the permitted increases at the hearing of the suit, the petitioner was not entitled to claim relief against an order in ejectment. The learned appellate Judge on that view reversed the decree of the trial Court and passed a decree for possession in favour of the respondent. Against that decree this revision application has been filed.

(3.) IN this case, the rent due was not paid on the first day of hearing of the suit by the tenant. The tenant, did, not make an application to the Court to fix time for payment of the standard rent and the permitted increases and he went to trial without making any payment and the learned trial Judge declared that the petitioner was liable to pay Rs. 89 -8 -0 and passed a conditional decree directing him to pay the amount within two months and in default of payment of that amount the decree in ejectment was made executable. Mr. Rao, who appears on behalf of the petitioner, contends that this was a proper decree and that in any event the learned trial Judge was entitled to fix the date for payment of the standard rent and the permitted increases, and he having fixed the date for payment at the time when he passed the decree and the payment having been made in accordance therewith, it must be held that the petitioner was ready and willing to pay the standard rent and the permitted increases, and under Section 12(1) the Court was not competent to pass a decree in ejectment. In my view, the contention raised by Mr. Rao cannot be sustained. What Clause (b) of Sub -section (3) of Section 12 contemplates isthe payment on the first day oil the hearing of the suit of the standard rent and permitted increases, or, if the Court so orders, on such future date as may be fixed by the Court. If on the date fixed for the first hearing the tenant does not pay the standard rent and the permitted increases, he must apply to the Court to fix a date for making the payment. If he makes payment of the amount as ordered by the Courts together with the costs of the suit and continues to pay or tender in Court regularly the standard rent and the permitted increases, a presumption will arise that he is ready and willing to pay the standard rent and the permitted increases. If, however, the tenat does not pay the standard rent and the permitted increases on the date of the first hearing of the suit, and goes to trial without making an application asking the Court to fix a date for payment of the standard rent and the permitted increases and does not continue to pay during the pendency of the suit the standard rent, he cannot claim the benefit of Sub -section (3)(b) of Section 12. In my view, the learned appellate Judge was right in holding that Section 12(3)(h) does not contemplate the passing of a conditional decree.