1. The present Civil Revision Application under Section 29(2) of the Bombay Rent Act has been preferred by the applicant- original defendant (now through the heirs and legal representative of original defendant) to quash and set aside the impugned judgment and order passed by the learned appellate Bench of the Small Cause Court at Ahmedabad dated 29/10/2004 in Civil Appeal No. 120/1997 by which the learned appellate Bench has dismissed the said appeal preferred by the applicant-original defendant confirming the judgment and decree passed by the learned Small Cause Court at Ahmedabad dated 21/07/1997 in H.R.P. Suit No. 4077/1986 by which the learned trial Court has decreed the suit in favour of the landlord on the ground of arrears of rent under Section 12(3)(b) of the Bombay Rent Act.
2. The facts leading to the present Civil Revision Application in a nutshell are as under;
2.1. The respondents-original plaintiffs instituted HRP Suit No. 4077/1986 against the applicant-original defendant-tenant in the Court of learned Small Cause Court at Ahmedabad for decree of possession on the ground of bonafide requirement of the landlord as well as on the ground of arrears of rent under Section 12(3)(b) of the Bombay Rent Act. The learned trial Court partly decreed the suit for possession on the ground that the tenant was in arrears of rent for more than six months i.e under Section 12(3)(b) of the Bombay Rent Act. The learned trial Court did not accept the case on behalf of the landlord with respect to their bonafide requirement. Consequently, the learned trial Court directed the tenant to handover peaceful and vacant possession of the suit premises. Being aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court, the applicant-original defendant-tenant preferred Appeal before the learned appellate Bench being Civil Appeal No. 120/1997. It was sought to be contended on behalf of the applicant-original defendant that as the tenant has already deposited the entire rent/arrears of rent during the appeal no decree for possession under Section 12(3)(b) can be passed. The learned appellate Court did not accept the same by observing that clear case of arrears of rent under Section 12(3)(b) of the Bombay Rent Act has been made out and also on the ground that the dispute with respect to standard rent was not raised within a period of one month from the date of receipt of the statutory notice and even the tenant failed to pay the arrears despite the interim order with respect to interim rent was passed by the learned trial Court. Consequently, the learned appellate Court dismissed the said Appeal. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned appellate Bench of the learned Small Cause Court in dismissing the appeal confirming the judgment and decree passed by the learned trial Court in decreeing the suit under Section 12 (3)(b) of the Bombay Rent Act the applicant-original defendant has preferred the present Civil Revision Application under Section 29(2) of the Bombay Rent Act. It appears that during pendency of the Civil Revision Application, applicant-original tenant has expired and, therefore, his heirs are brought on record.
3. Shri M.D. Rana, learned advocate appearing on behalf of the applicants-heirs and legal representative of the original applicant-tenant has made only one submission that the learned appellate Court has materially erred in not considering the fact that the tenant has cleared the entire arrears during pendency of the Appeal and, therefore, decree for possession under Section 12(3)(b) of the Bombay Rent Act could not have been passed. He has relied upon the decision of the learned Single Judge of this Court in the case of Ambeshwar Paper Mills Ltd. Vs. Gujarat Electricity Board reported in 2002 (3) GLH 411 in support of his above submission. It is submitted that in view of the amendment in the Bombay Rent Act by which the word 'regularly' is deleted and it is observed that once it is found that the applicant has deposited the entire arrears of rent during pendency of the Appeal no decree for possession under Section 12(3)(b) of the Bombay Rent Act can be passed and, therefore, it is requested to allow the present Civil Revision Application.
4. The present Civil Revision Application is opposed by Shri Jinesh Kapadia, learned advocate appearing on behalf of the original landlord. It is submitted that the learned appellate Court has rightly dismissed the appeal and has not accepted the case on behalf of the tenant that as the entire arrears is deposited during the pendency of the appeal no decree can be passed under Section 12(3)(b) of the Act. It is submitted that as such a clear case has been made out for decree under Section 12(3)(b) of the Bombay Rent Act as tenant failed to pay the arrears on the first date of hearing and even as per the interim direction issued by the learned trial Court. It is submitted that as the dispute with respect to standard rent was not raised within the period of one month from the date of receipt of statutory notice as such any subsequent dispute with respect to standard rent was not required to be decided at all and as such the tenant was required to deposit the entire arrears on first date of hearing which the tenant has failed to make and, therefore, both the Courts below have rightly passed the decree on the ground of arrears of rent under Section 12(3)(b) of the Bombay Rent Act. So far as the reliance placed upon the decision in the case of Ambeshwar Paper Mills Ltd. (Supra) is concerned, learned advocate for the respondents-landlord has submitted that the said decision would not be applicable in the facts of the present case. It is submitted that in the case before the learned Single Judge the question was with respect to second part of Section 12(3)(b) of the Bombay Rent Act when the tenant gets protection under Section 12(3)(b) of the Bombay Rent Act whether thereafter the tenant has continued to pay the rent regularly or not, but that is not the case here and, therefore, it is submitted that the aforesaid decision would not be applicable to the facts of the present case. Under the circumstances, it is requested to dismiss the present Civil Revision Application.
5. Heard the learned advocates appearing on behalf of the respective parties at length and considered the impugned judgment and orders passed by Courts below. At the outset, it is required to be noted that as such there are concurrent findings of fact given by both the Courts below holding that the tenant was in arrears of rent for more than six months and the case falls under Section 12(3)(b) of the Bombay Rent Act and as there was no dispute raised with respect to standard rent the learned trial Court has passed the eviction decree, which is confirmed by the learned appellate Court. It is required to be noted and it is also an admitted position that admittedly the tenant has neglected to pay the arrears of rent on the first date of hearing of the suit. It is also required to be noted that as such the tenant has failed to pay the arrears of rent as directed by the learned trial Court. Considering the aforesaid facts and circumstances, the learned trial Court has rightly passed the eviction decree on the ground of arrears of rent and the same is rightly confirmed by the learned appellate Court.
5.1. Now so far as the decision of the learned Single Judge of this Court in the case of Ambeshwar Paper Mills Ltd. (Supra) is concerned, on facts, the said decision would not be of any assistance to the applicants-original defendant-tenant. In the case before the learned Single Judge it was contended that the dispute was whether in a case where the case falls under Section 12(3)(b) of the Act and still the tenant does not pay the rent regularly till the suit is finally decided whether the tenant would be entitled to get the benefit of amendment under the Bombay Rent Act or not as there there was amendment in the Bombay Rent Act by which Section 12(b)(1) has been amended and the word “regularly” came to be deleted. In the case on hand the tenant has failed to comply with the first part of Section 12(3)(b) of the Act. The question, with respect to regular deposit of the rent would come subsequently after the tenant satisfies that first part of Section 12(3)(b) of the Act is complied with. Under the circumstances, the decision of the learned Single Judge in the case of Ambeshwar Paper Mills Ltd. (Supra) would not be of any assistance to the applicants-tenant.
6. As stated hereinabove, there are concurrent findings of fact given by both the Courts below that the tenant was in arrears of rent for more than six months and, therefore, the learned trial Court has rightly passed the eviction decree, which is rightly confirmed by the learned appellate Court, which is not required to be interfered with by this Court in exercise of revisional jurisdiction.
7. In view of the above and for the reasons stated hereinabove, the present Civil Revision application fails and the same deserves to be dismissed and is accordingly dismissed. Rule is discharged. Ad-interim relief granted earlier, if any, stands vacated forthwith.
(M.R. SHAH, J.) siji