1.00. RULE. Mr.Parth Tolia, learned advocate waives the service of notice of rule on behalf of the respondents. 2.00. In the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of the respective parties, present Civil Revision Application is taken up for final hearing today.
3.00. Present Civil Revision Application under section 29(2) of the Bombay Rent Act has been preferred by the petitioner - original appellant to quash and set aside the Judgement and Order passed by the learned appellate court - learned 5th Additional District Judge, Bhavnagar in Regular Civil Appeal No.44 of 2007 dtd.30.3/2012, by which the learned appellate court has dismissed the said appeal preferred by the petitioner - original appellant / defendant confirming the judgement and decree passed by the learned trial court - learned 6th Additional Senior Civil Judge, Bhavnagar in Regular Civil Suit No.379 of 2002 dtd.30/11/2006 by which the learned trial court passed eviction decree in favour of the respondents – original plaintiffs.
4.00. That the respondent herein instituted Regular Civil Suit No.379 of 2002 against the petitioner - tenant for eviction decree on the ground of arrears of rent etc. That by judgement and decree dtd.30/11/2006, the learned trial court decreed the suit and passed eviction decree on the ground of arrears of rent. It appears that Being aggrieved by and dissatisfied with the judgement and decree passed by the learned trial court in passing the eviction decree on the ground of arrears of rent, petitioner herein – original defendant – tenant filed Regular Civil Appeal No. 44 of 2007. That there was delay of 54 days in preferring the appeal and therefore, the petitioner submitted Civil Misc.Application No.97 of 2007 to condone the delay. That by order dtd.5/4/2007 the learned appellate court allowed the said application and condoned the delay on condition that the tenant shall pay entire amount of rent and produce the proof thereof. It appears that the respondent landlord submitted application Ex.14 on 15/11/2007 to dismiss the appeal on the ground that the tenant has not deposited the entire amount of rent and therefore, the condition imposed while granting the application for condonation of delay has not been complied with. It appears that the petitioner tenant filed purshis at Ex.16 along with details of the deposit of the rent, however, according to the respondent landlord still Rs.76,800/- is outstanding. That the petitioner tenant filed an application Ex.17 on 1/7/2008 submitting that as he is suffering from Cancer, he is not in a position to deposit the entire amount of Rs.80,000/- and therefore, it was requested to grant some time to deposit the arrears of rent. The aforesaid application Ex.17 was objected by the respondents herein. That the learned appellate court allowed the said application Ex.17 permitting the petitioner to pay Rs.80,000/- in four equal installments each of Rs.20,000/- commencing from 15/7/2008 on condition that in case of default in making payment of any installment, the appeal shall stand dismissed.
That the petitioner submitted application Ex.18 for extension of time on reconsideration on 19/7/2008 and the said application Ex.18 came to be dismissed by order dtd.19/7/2008.
That the respondent – landlord filed an application Ex.19 for dismissal of the appeal on the ground that the petitioner tenant has failed to pay installments.
That the applicant – tenant also filed application Ex.20 to suspend the order passed by the Court on 1/7/2008 below Ex.17 as he wanted to approach the higher forum. That the learned appellate court passed order dtd.19/7/2008 to suspend the order passed below Ex.18 on condition that the petitioner tenant shall deposit an amount of Rs.15,000/- which the petitioner tenant deposited within the stipulated time. It appears that thereafter nothing further was done and even appeal was numbered and it came up for final hearing in the year 2012 and by the impugned Judgement and Order the learned appellate court has dismissed the said appeal on the ground that the petitioner tenant has not complied with the earlier order passed by the Court while condoning the delay and has not deposited the entire arrears of rent as per the order passed below Ex.17 and solely on the ground and without further entering into the merits of the case, the learned appellate court has dismissed the said appeal confirming the judgement and decree passed by the learned trial court.
Being aggrieved by and dissatisfied with the Judgement and Order passed by the learned appellate court in dismissing the appeal solely on the ground that earlier the petitioner had not deposited arrears of rent as per the condition imposed while condoning the delay in preferring the appeal, petitioner has preferred present Civil Revision Application No. under section 29 of the Bombay Rent Act.
Mr.S.M. Shah, learned advocate appearing on behalf of the petitioner has vehemently submitted that as such the learned appellate court has materially erred in dismissing the appeal without further entering into the merits of the case and solely on the ground that earlier there was default by the petitioner in not depositing the arrears of rent as per the condition imposed by the learned appellate court while condoning the delay. It is submitted by Mr.S.M. Shah, learned advocate appearing on behalf of the petitioner that as such the learned appellate court has become too technical. It is submitted that the appeal has been dismissed by the learned appellate court on the ground that earlier order passed by the learned appellate court while condoning the delay has not been complied with, after a period of four years of admitting the appeal, which cannot be sustained. It is submitted that at the relevant time, the petitioner was suffering from Cancer and therefore, he could not clear the entire amount of arrears of rent which was substantial amount however, the same has been deposited subsequently and therefore, it is requested to allow the present Civil Revision Application and direct the learned appellate court to decide and dispose of the appeal in accordance with law and on merits.
Mr.Parth Tolia, learned advocate appearing on behalf of the respondent – original plaintiff has tried to oppose the present Civil Revision Application by submitting that as though indulgence was shown by the learned appellate court and even installments were also granted, there was a default by the petitioner even in depositing the first installment itself and therefore, when the learned appellate court earlier passed an order that in default of making payment of rent by installments the appeal will be dismissed and when there was default found and consequently when the learned appellate court has dismissed the appeal, it cannot be said that the learned appellate court has committed any error and/or illegality in dismissing the appeal. However, he is not in a position to dispute that ultimately when the appeal was taken up for final hearing by the appellate court, the petitioner had deposited the entire arrears of rent.
Heard the learned advocates appearing on behalf of the respective parties at length and considered the impugned order passed by the learned appellate court.
It is true that the learned appellate court while condoning the delay of 54 days caused in preferring the appeal imposed condition that the petitioner has to deposit the entire arrears of rent which the petitioner could not comply with as he was suffering from Cancer and thereafter the petitioner requested for sometime and the learned appellate court granted time to the petitioner to deposit the arrears of rent in four equal installments, however, there was some default in making first installment of arrears of rent but the fact remains that thereafter and even at the time when the appeal was taken up for final hearing, entire arrears of rent was deposited, it appears that the appeal came up for final hearing after a period of four years and the learned appellate court has dismissed the said appeal without entering into the merits of the case solely on the ground that earlier there was default by the petitioner in clearing the arrears of rent though directed by the Court while condoning the delay. It appears that when in the meantime, the entire arrears of rent was deposited and cleared by the petitioner which he could not clear earlier as he was suffering from Cancer and even at the time of hearing of the appeal entire arrears was deposited, the learned appellate court ought to have decided the appeal on merits rather than dismissing the same on the aforesaid technical ground.
The learned appellate court ought to have appreciated that Court is required to do substantial justice and all endeavour should be made by the Court to dispose of the matter on merits rather than dismissing on technical ground. In the facts and circumstances of the case when the entire arrears of rent was deposited by the petitioner, the learned appellate court ought to have considered the appeal on merits. Under the circumstances, the impugned Judgement and Order / decree passed by the learned appellate court in dismissing the appeal on the aforesaid ground deserve to be set aside and the matter is to be remanded to the learned appellate court to decide and dispose of the same in accordance with law and on merits.
In view of the above and for the reasons stated above, present Civil Revision Application is allowed. The impugned Judgement and Order / decree passed by the learned 5th Additional District Judge, Bhavnagar in Regular Civil Appeal No.44 of 2007 dtd.30/3/2012 is hereby quashed and set aside and the matter is remanded to the learned appellate court for deciding the said appeal afresh in accordance with law and on merits. Arrears of rent, if any, shall be cleared by the petitioner within a period of three months . The learned appellate court to decide and dispose of the appeal at the earliest preferably on or before 30/6/2013. All concerned are directed to cooperate the learned appellate court in early disposal of the appeal and within stipulated time as stated hereinabove. Rule is made absolute accordingly to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs.
rafik [M.R. SHAH, J.]