IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 326 of 2002 For Approval and Signature:
HONOURABLE MR.JUSTICE A.J. DESAI =========================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO
2 To be referred to the Reporter or not? YES
3 Whether their Lordships wish to see the fair copy of the judgment?NO Whether this case involves a substantial
4 question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder? NO
5 Whether it is to be circulated to the civil judge?
NO ========================================= KUSUMBA JATUBHA Versus NIRMALABEN NARSHIBHAI VAYA ========================================= Appearance :
MR NARENDRA GAEKWAD with MR BP MUNSHI with MR.SHIVROOP GAEKWAD for Applicants MR MEHUL S SHAH for Opponent MR SURESH M SHAH for Opponent ========================================= CORAM : HONOURABLE MR.JUSTICE A.J. DESAI Date : 18/10/2012 CAV JUDGMENT
1 By way of the present Revision Application under Section 29(2) of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947 (“the Rent Act” for short) original defendants/ respondents in Appeal, have challenged the judgment and order dated 25.1.2002, passed by the Second Extra Assistant Judge, Veraval, in Regular Civil Appeal No. 77 of 1999, (Old No. 101 of 1992), by which the appeal filed by the present respondent – original plaintiff came to be allowed and the present petitioners – tenants are directed to hand over vacant and peaceful possession of the suit premises to the respondent – landlord.
2 Brief facts arising from the case are as under:
2.1 That the present respondent–Nirmalaben Narshibhai Vaya, landlady of the suit premises, rented the same to one Jatubhai Kalyansinh Parmar, the predecessor of the present petitioners–tenants. The suit came to be filed in the court of learned Civil Judge (JD), Veraval, being Regular Civil Suit No.79 of 1980 and prayed to pass a decree for possession of the suit premises against the defendants, who are tenants of the suit premises, on several grounds. The possession of the suit premises was demanded on several grounds and the same was opposed by the defendants–tenants by filing written statement. During the pendency of the suit, the original tenant Jatubhai Kalyansinh Parmar died and, therefore, the present petitioners were brought on record as the legal heirs of said Jatubhai Kalyansinh Parmar.
2.2 That the learned Trial Court framed issues at Exhibit-41 and after considering the documentary evidence and depositions of parties, came to the conclusion that, the original plaintiff – landlady was not entitled for recovery of possession of the suit premises on any of the grounds which were advanced by the original plaintiff and dismissed the Suit on 13.11.1992.
2.3 That the said judgment and decree came to be challenged by the original plaintiff i.e. landlady by way of filing an appeal, which was originally registered as Regular Civil Appeal No. 101 of 1992 and subsequently it was renumbered as Regular Civil Appeal No. 77 of 1999.
2.4 The Appellate Court, while deciding the appeal, considered several questions of law relying upon the facts involved in the case. The Appellate Court considered about eight points for its determination. Except `Point No.5' the Appellate Court held in favour of the present petitioners - tenants whereas Point No.5 was decided against the present petitioners. The point No. 5 is with regard to “whether the case falls under Section 12(3)(b) of the Rent Act or not”. The learned Appellate Court decided the said Point No.5 at the time of finally deciding the Appeal and came to the conclusion that the petitioners – tenants have committed breach of Section 12(3)(b) of the Rent Act and, therefore, the appellant – original plaintiff – landlady was entitled for possession of the suit premises. Hence, this Revision Application by the defendants/respondents - tenants.
3 Mr. Narendra Gaekwad, learned Advocate, appearing with Mr. B.P. Munshi for the petitioners – tenants has assailed the judgment and order of the appellate court on the ground that the learned Appellate Court has erred in framing point No.5 in absence of any pleadings in the memo of Appeal. He submitted that it was not the case of the respondent–landlady that the tenants had committed breach of Section 12(3)(b) of the Rent Act and, therefore, there was no occasion for the learned Appellate Court to hold against the tenants. He has further submitted that the learned Appellate Court has erred in calling information suo motu from the Department whether the rent was paid or not by the petitioners – tenants during the pendency of the Appeal. He has submitted that there is no direction issued by the learned Appellate Court as provided under Section 12(3)(b) of the Rent Act directing the petitioners - tenants to deposit the rent amount before the Appellate Court during the pendency of the Appeal. Mr. Gaekwad further submitted that when the suit was filed in the year 1980, the unamended provision of Section 12(3)(b) of the Rent Act was applicable, however, when the appeal was heard and finally decided, Section 12(3)(b) of the Rent Act was amended by deleting word “regularly” and, therefore, when the landlady filed the appeal, she should have prayed to the Appellate Court to direct the tenants to pay the rent during the pendency of appeal. In absence of such direction, the Appellate Court has erred in passing the decree of possession by arriving at the conclusion that the tenants have committed breach of the provision of Section 12(3)(b) of the Rent Act. In support of his submission, Mr. Gaekwad relied upon a decision of this Court in the case of Murlis Chandrakant Chokshi vs. Maganbhai Hansjibhai Patel, as reported at 2002 (3) GLH 411 and submitted that while dealing with the case under Section 12(3)(b) of the Rent Act, this Court has held that amendment in Section 12(3)(b) of the Act is made to remove the hardships caused to the tenant with regard to depositing the rent. Relying upon paragraphs 7 and 9 of the said judgment, he has submitted that, in absence of any direction by the court, the tenants were not bound to deposit the amount.
4 On the other hand, learned Advocate Mr. Mehul S. Shah, appearing for the opponent has supported the judgment delivered by the Appellate Court and submitted that the appeal arising from the proceedings under the Bombay Rent Act is a continuous proceeding and, therefore, no specific direction is necessary by the Appellate Court for depositing the amount of rent during the pendency of the appeal. He has submitted in the present case, an objection was raised by the tenants before the Trial Court about the standard rent of the suit premises. When the landlady submitted an application at Exhibit-71, requesting the Trial Court to direct the tenants to pay arrears of rent to the tune of Rs. 70/- per month, the court after considering the objections with regard to the standard rent, passed an order on 10.8.1989 and fixed the standard rent at the tune of Rs.60/- per month and directed the tenants to deposit the arrears within two months from the date of the order. The Tenants deposited the entire amount and continued to pay the rent at the tune of Rs.60/- per month during the pendency of the suit and, therefore, when the suit was finally decided on 23.11.1992, the tenants had not committed any breach of Section 12(3)(b) of the Rent Act. He submitted that while deciding the suit, the Trial Court did fix the standard rent @ Rs. 50/- per month which was tentatively fixed at Rs. 60/- per month when the application - Exhibit-71 was decided. Since the rent @ Rs. 50/- per month was finally decided, the tenants were bound to pay the monthly rent @ Rs.50/- to the landlady during the pendency of appeal and till the appeal is decided. He has submitted that no specific direction was necessary by the Appellate Court in absence of any challenge to the rent fixed by the Trial Court @ Rs. 50/- per month. He would submit that examining the question of breach of Section 12(3)(b) of the Rent Act would come into picture only at the time of hearing the appeal and, therefore, the arguments were advanced by the landlady about the breach the provisions of Section 12(3)(b) of the Act committed by the tenants. The court found that the tenants had not paid any amount towards rent during the pendency of appeal and, therefore, the decree is rightly passed by the Trial Court having found that the tenants have not paid any rent during the pendency of appeal and committed breach of Section 12(3)(b) of the Act. He would submit that Advocate appearing before the Appellate Court for the tenants, did argue the appeal on this question by relying upon several reported decisions and therefor they were aware about the question of law with regard to provisions of Section 12(3)(b) of the Act.
4.1 In support of his submission, he has relied upon a judgment of this Court in the case of Bai Sakarbai Devraj v. Ibrahim Abdul Ganibhai Pankhida, as reported at 1994 (2) GLR 1091 and submitted that the deletion/omission of expression “regularly” in Section 12(3)(b) of the Act is not retrospective in nature but merely was prospective in nature. He has submitted that when the suit was decided in 1992, the provisions was already amended in the year 1985. In the present case, it is not the case of tenants that they were irregular in payment of rent and had paid the amount of rent during the pendency of the appeal. He has also relied upon a decision of this Court in the case of Ravjibhai Gigabhai v. Virjibhai Ravjibhai & Ors., as reported at 2009 (1) GLR 407 and submitted that even the dispute of standard rent is pending before the appellate court, the tenant was bound to pay the standard rent as determined by the Trial Court. Relying upon this judgment, Mr. Shah would further submit that the court is bound to consider the question whether the case would fall under Section 12(3)(b) of the Rent Act or not if the court finds that the case did not fall under Section 12(3)(a) of the Act. Though, the Trial Court and Appellate Court held that the plaintiff failed in establishing her case under Section 12(3)(a) of the Act, the Appellate Court has rightly considered the question under Section 12(3)(b) of the Act.
4.2 Mr. Shah, learned Advocate, appearing for the opponent, has also relied upon a decision of this Court in the case of Urvashiben K. Joshi Wd/o Kanubhai K.Joshi vs. Bakshisinh Ishwarsinh, as reported at 2009 (2) GLR 1078 and submitted that this Court has held that the expression used in Section 12(3) (b) of the Act “till the suit is finally decided”, this expression covers pendency in the Trial Court as well as Appellate Court, but would not extent the pendency of the revisional court. Relying upon the said judgment, he has reiterated that since the appeal was pending, it is as good as awaiting final decision about the dispute between the landlady and the tenants and, therefore, the tenants were bound to pay the rent fixed by the Trial Court when the judgment was delivered fixing the rent.
5 Heard learned Advocates appearing for the respective parties and have perused the judgments of the Trial Court as well as the Appellate Court as well as record and proceedings of the Trial Court and Appellate Court.
6 In my opinion, the moot question in this proceedings is to decide whether any specific direction is necessary by the Appellate Court with regard to pay or tender the rent and/or permitted increases till the appeal is finally decided or not.
7 When the landlady filed Suit for recovery of possession under various provisions of the Bombay Rent Act including the ground with regard to breach of Section 12(3)(a) of the Act. The same was defended by the tenants by filing written statement at Exhibit-40 and raised a contention with regard to the standard rent. When the plaintiff– landlady submitted application Exhibit-71 and demanded an amount of Rs.10,010/- for 143 months @ Rs. 70/- per month as arrears, the same was opposed by the tenants by raising dispute with regard to standard rent. The learned Trial Judge after hearing the parties, prima facie, came to the conclusion and tentatively decided Rs. 60/- as the rent for the suit premises and directed the tenants to deposit the arrears within two months from the date of order. The Trial Court, after recording the depositions of the parties and after perusing the documentary evidence led and proved by the parties, ultimately, found that, the tenants had not committed breach of Section 12(3)(a) of the Act and all the issues were decided in favour of the tenants. However, the contention raised by the tenants about the standard rent was considered and the standard rent was fixed at the tune of Rs. 50/- per month and accordingly decree was drawn by the Trial Court. Issue No.9 was with regard to the standard rent of the suit premises.
8 Landlady challenged the judgment and order dated 23.11.1992 by way of filing Regular Civil Appeal No. 101 of 1992 (New R.C. No. 77 of 1999). The learned Appellate Court after considering the case of the appellant–original plaintiff, carved out several points for its determination. Point No.5 came to be discussed as “whether the case falls under Section 12(3)(b) of the Rent Act or not?” The said point is exhaustively dealt with by the Appellate Court in paragraphs 29 to 36 of the judgment. The learned Advocates appearing for both the parties have argued their case on this point at length. Learned Advocate appearing for the tenants, relying on several judgments, argued that, it was not the case of the original plaintiff that the tenants had committed breach of Section 12(3)(b) of the Rent Act either in the plaint or in the memo of Appeal.
8.1 It is an admitted position that the Appellate Court did call for information from the Nazir of both the courts about the amount of rent which is paid by the tenants during the pendency of the suit as well as during the pendency of the Appeal. It was found that an amount of Rs. 2,400/- remained unpaid by the tenants at the time of disposal of appeal. That means, for a period of four years, the standard rent @ Rs. 50/- per month, which was decided by the Trial Court, had not been paid by the tenants during the pendency of the Appeal and till the disposal of the Appeal.
9 As held in the case of Urvashiben K. Joshi (supra), it has been categorically held by this Court, relying upon a decision of the Division Bench of this Court, in paragraphs 16 and 17 that the Court is bound to consider the case under Section 12(3)(b) of the Act, even the decree was prayed under Section 12(3)(a) of the Act. Paras 16 and 17 are reproduced here-in-below:
“ 16. What is the consequence of the finding that the case did not fall under Section 12(3)(a) of the Act ? Mr Sheth for the respondent–tenant would contend that once the landlord had prayed for eviction under Section 12(3)(a) of the Act, and the Court finds that the case did not fall under Section 12(3)(a), the suit must be dismissed without making any further inquiry. However, it is not possible to accept this contention because a Division Bench of this Court (to which I was a party), has held in Monghiba Lakhaji Vs. Hira Kunvar Mulji, 2005(3) GCD 2034, that even where the landlord has prayed for decree of eviction under Section 12(3)(a) and the Court holds that the case is not covered by the provisions of Section 12(3)(a), the Court is bound to consider the next question whether the case would fall under Section 12(3)(b) of the Act.
17. In view of the aforesaid decision of the Division Bench, it will be necessary to consider whether the respondent – tenant had complied with the provisions of Section 12(3)(b) of the Act. Both the learned counsel, however, state that the Courts below have not given any finding on this aspect. Mr Sheth has submitted that the Courts below were justified in not giving any such finding because such a contention about the applicability of Section 12(3)(b) was not raised at all. However, Ms Brahmbhatt for the petitioner – landlord is justified in submitting that in view of the aforesaid decision of the Division Bench rendered during pendency of this Revision Application, the question does remain whether the tenant had complied with the provisions of Section 12(3)(b) of the Act. “
9.1 In view of the above observations, in my opinion, the question of deciding the breach of Section 12(3)(b) of the Act would come at the time of deciding the appeal or suit as the case may be.. The court is bound to decide whether the provisions of Section 12(3)(b) of the Act is complied with by the tenants or not. As per the judgment of Urvashiben K. Joshi (supra) itself, this Court has held that, the expression “till the suit is finally decided” covers the period during which the appeal was pending, as the appeal is continuation of the suit. Therefore, the Appellate Court is bound to consider this question at the time of deciding the appeal.
9.2 As stated here-in-above, when the Trial Court had fixed the standard rent of the suit premises, the tenants are bound to pay the rent to the landlord/landlady, if, the proceedings are carried out by way of filing appeal, by either party.
9.3 Now considering the judgment in the case of Murlis Chandrakant Chokshi (supra), it appears that, the question dealt with by this Court in the said case is with regard to the word “regularly”. Since the same is deleted in the amended provision. Considering the intention of the Legislature to remove the word “regularly” the tenants are permitted to deposit the rent during the pendency of appeal, however, the total amount of rent must be paid by the tenant till the final decision of the appeal. In the case of Murlis Chandrakant Chokshi (supra), the tenant had paid the entire rent before the appeal was decided and there was no arrears and paragraph-10 of the said judgment specifically deals with the said aspect. The same is reproduced as under:
“10. The Legislature has introduced the amendment in Section 12(3)(b) of the Rent Act only with a view to remove the hardships of the tenant. Therefore, no other view is possible than the view taken by this Court that during the pendency of the appeal, if the tenant pays the entire arrears before the appeal is finally decided, then, no decree of eviction can be passed against the tenant under Section 12(3)(b) of the Rent Act.”
9.4 As stated here-in-above, it is an admitted position that the petitioners – tenants have not paid the entire amount of rent which comes to about arrears of four years of rent. When the tenants had not stopped by paying only arrears of 143 months as per the order passed below application at Exhibit-71 and continued to pay an amount of Rs. 60/- per month till the suit came to be disposed of. This conduct shows that the tenants were aware that they were bound to pay the rent during the pendency of the suit. Therefore, arguments advanced by the learned Advocate for the tenants that in absence of specific direction, decree under Section 12(3)(b) of the Act cannot be passed, is not acceptable and when the appeal is treated as continuous proceeding of suit, it is not mandatory for the Appellate Court to issue direction under Section 12(3)(b) of the Act.
9.5 In the case of Ravjibhai Gigabhai (supra), this Court has gone further that even if the dispute has been raised by the tenant about standard rent in the appeal, the tenant is bound to pay the standard rent and/or permitted increases as determined by the Trial Court till the final conclusion of the Appeal. Though, the said case was under the unamended provision, merely omitting the word “regularly” the duty of the tenant to pay rent, would not come to an end if the suit filed by the landlady is dismissed and there is no specific direction by the Appellate Court when the said decision is under challenge by way of appeal.
10 Therefore, I am of the opinion that when the appeal is continuation of proceedings of the suit, tenants were bound to pay the rent even in absence of direction by the Appellate Court. The tenants cannot be permitted to enjoy the suit premises without paying any rent to the landlady when the proceedings before the Appellate Court are going on. In view of the above discussion, I hereby hold that it is not mandatory for the Appellate Court to issue specific direction to the tenant to pay or tender the rent and permitted increases during the pendency of appeal. Therefore, the Appellate Court did not commit any mistake in considering the question of breach of Section 12(3)(b) of the Rent Act.
11 In view of above reasons, the Revision Application fails and is dismissed accordingly. Rule is discharged. Ad interim relief granted earlier shall stand vacated.
12 Record & Proceedings be sent to the Trial Court forthwith.
(A.J. DESAI, J.) pnnair