(1.) THE petitioners by way of this writ petition under Article 227 of the Constitution of India challenge the legality and validity of the judgement and order dated 13th July, 1983 passed by the III Extra Asstt. Judge, Solapur in Revision Application No. 27 of 1981 confirming the judgement and order dated 30th April, 1981 passed by the II Joint Civil Judge, Junior Division, Solapur in Misc. Application No. 150 of 1996. The other Writ Petition No. 4550 of 1983 challenges the same order as the Civil Appeal No. 612 of 1981 and the Revision Application No. 27 of 1981 arising out of the judgement and decree passed in Regular Civil Suit No. 1400 of 1976 have been decided by a common judgement. Both the writ petitions are heard together and are being disposed of by this common judgement.
(2.) THE petitioners are the original applicants/ tenants and the respondents are the original opponents/landlords of the suit premises. The petitioners filed Misc. Civil Application No. 150 of 1976 on 7th June, 1976 in the Court of the Joint Civil Judge, J. D. , Solapur for fixation of standard rent of the suit premises under section 11 of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, hereinafter referred to as "the Act". The petitioners have been residing in the suit premises for a very long time. According to the petitioners, at the beginning the rent of the suit premises were Rs. 3/- per month which was increased to Rs. 5/- per month and thereafter to Rs. 12/- per month. The landlord issued a quit notice to the tenants on 24th April, 1976 terminating the petitioners tenancy and asking the petitioners to vacate the suit premises. This was received by the petitioners on 30th April, 1976. The petitioners, however, denied that they were in arrears of rent from Sept. 1975. It was also stated that they have paid the rent upto March, 1976. According to the petitioners, in the month of September, 1940 the rent of the premises was Rs. 3/- per month only. Thus the standard rent ought to have been fixed at Rs. 3/- only. It was further stated that the respondents never gave the receipt for the rent paid to them. Thus a prayer was made in the application for fixing of standard rent at Rs. 3/- per month. The claim of the petitioners were resisted by the landlords. They contended that the standard rent ought to have been fixed at Rs. 12/- per month. The respondents -landlords filed a Regular Civil Suit No. 1400 of 1976 in the court of the Civil Judge, Junior Division , Solapur for decree of possession of the suit premises on the ground of arrears of rent. The suit had been filed after the filing of the application by the petitioners for the fixation of standard rent. It was pleaded that the premises were required for a bona fide personal interest. It was also pleaded that the conduct of the petitioners amounted to nuisance. The allegations made by the respondent- landlords were denied by the petitioners in the written statement filed. It was contended by the petitioners that they were in possession of the premises since last about 40 years. Thus it was stated that they suffered greater hardship if the decree of possession came to be passed. During the pendency of the Misc. Civil Application No. 150 of 76 the petitioners filed an application for fixation of interim rent on 30th August, 1976. On this application an order came to be passed on 14th March, 1978 directing the petitioners to deposit as interim rent Rs. 7/- per month. This was to be paid on 15th July, 1978 and thereafter it was to be paid on or before 10th day of every month. Being aggrieved against the said order, the petitioners filed Revision Application No. 5 of 1978 before the District Court, Solapur. The District Judge was pleased to fix the interim rent in the revision application at the rate of Rs. 5/- per month. The Revision Application itself came to be dismissed on 30th July, 1979. Since both the matters i. e. Misc. Application No. 150 of 1976 and the Regular Civil Suit No. 1400 of 1976 were between the same parties and the same cause of action, evidence in both the proceeding were recorded together. The trial Court framed 9 issues which are as follows. .
(3.) IT has been submitted by the Counsel for the petitioners that the revision application has been dismissed erroneously. The standard rent ought to have been fixed at Rs. 3/- per month. No reasons whatsoever have been given for fixing the rent at Rs. 12/- per month. Admittedly the premises was in occupation of the petitioners before September, 1940. Thus the agreed rent of Rs. 3/- ought to have been fixed as standard rent. Mr. page has taken this Court through the judgement of the trial Court as also of the District Court. It has been submitted that so far as the civil suit is concerned, the trial Court has rightly come to the conclusion that there is no default but the appellate Court has wrongly held that the petitioner has committed defaults and, therefore, the eviction has been ordered. Judgement of the trial Court shows that the petitioner has been held to have deposited the rent even in advance. It is held that the entire amount of rent as ordered by the Court has been deposited. Thus it has been held that the petitioners were regularly depositing the rent in Court and they cannot be considered as defaulters. This finding, however, has been upset by the District Court in the appeal filed by the respondents. The Appellate Court has relied upon a judgement of this Court in the case of (Anant v. Damodar) 1980 M. L. J. 737. In this case it is held that in order for a tenant to take advantage of section 12 (3) (b) of the Act, two conditions have to be satisfied. Firstly he has to make an application to the Court under section 11 (3) of the Act within one month after the receipt of the notice. Secondly he has to pay or tender the amount of rent or permitted increases specified in the order made by the Court. Analysing the case of the petitioner in view of the above it has been held that the application has been made within time. Therefore, it has been held that the first condition is satisfied. On the second point it has been held that since the rent has not been regularly paid by the 10th of every month, thus the petitioner is liable to eviction. Counsel for the petitioner has submitted that it has been held by both the courts concurrently that the petitioner is not actually in default. Thus it would be very harsh and unjust to order eviction of the petitioner on the technicality that the rent was not regularly paid on 10th of each month. For this proposition Counsel has relied upon a judgement of the Supreme Court in the case on (Mohan Laxman Hede v. Noormohamed Adam Shaikh) A. I. R. 1988 S. C. 1111. In that case the Supreme Court considered the factual situation and observed that both the sides accepted the position that the appellant had deposited in Court the entire arrears of rent on the basis of interim rent fixed well within time as directed by the Court. It was also common ground that until the application of standard rent made by the tenant is finally decided, the interim rent fixed by the Court must be regarded as the standard rent. The question which was posed by the Court in that case was (i) whether it can be said that the appellant, after the first deposit, of the arrears of rent, continued to deposit in Court the rent and the permitted increases "regularly" till the suit was finally decided as contemplated under section 12 (3) (b) of the Act. The Supreme Court relies on certain observations of an earlier judgement of the Supreme Court in the case of (Mranalini B. Shah v. Bapalal Mohanlal Shah) 1980 (4) S. C. C. 251 : A. I. R. 1980 S. C. 954. Thereafter the observations made by the Supreme Court in the earlier case have been extracted which are as follows:--The above enunciation, clarifies beyond doubt that the provisions of Clause (b) of section 12 (3) are mandatory, and must be strictly complied with by the tenant during the pendency of the suit or appeal if the landlords claim for eviction on the ground of default in payment of rent is to be defeated. The word regularly in Clause (b) of section 12 (3) has a significance of its own. It enjoins a payment or tender characterised by reasonable punctuality, that is to say, one made at regular times or intervals. The regularity contemplated may not be a punctuality, of clock-like precision and exactitude, but it must reasonably conform with substantial proximity to the sequence of times or intervals at which the rent falls due. Thus where the rent is payable by the month, the tenant must, if he wants to avail of the benefit of the latter part of Clause (b) tender or pay every month as it falls due or at his discretion in advance. If he persistently defaults during the pendency of the suit or appeal in paying the rent, such as where he pays it at irregular intervals of 2 or 3 or 4 months- as is the case before us - the Court has no discretion to treat what were manifestly irregular payments, as substantial compliance with the mandate of this clause, irrespective of the fact that by the time the judgement was pronounced all the arrears had been cleared by the tenant. " keeping the aforesaid observations in view the facts of that case were examined. It was found that during the period 29-1-1981 to 17-12-1985 the appellant has been depositing the rents in Court for two or three months at a time. In respect of some months, there are undoubtedly a few defaults in the sense that the deposits have been made a few days later than directed. Therein the Court had directed to deposit the rent on the 5th day of each month. Thereafter it was observed that there are undoubtedly a few defaults committed by the appellant in the sense that in respect of the first month to which the deposit relates there is some delay amounting to from two or three days upto a maximum of 23 days. But on the other hand, the rent for most of the months has been deposited in advance. Thus it was held that the rent has been deposited by the appellant with reasonable punctuality and hence the appellant/tenant can be regarded as having deposited the rent regularly. It was held that the courts below were in error in taking a view that exact or mathematical punctuality was required in the deposit of rent by a tenant to take advantage of the provisions of section 12 (3) (b) of the Rent Act. In view of the above, Mr. Page submits that there is actually no default and there has been substantial compliance with the orders of the Court to deposit the rent by 10th of each month. Consequently it is submitted that both the judgements deserve to be set aside and quashed.