PETITIONER:
MISTRY PREMJIBHAI VITHALDAS
Vs.
RESPONDENT:
GANESHBHAI KESHAVJI
DATE OF JUDGMENT14/04/1977
BENCH:
BEG, M. HAMEEDULLAH (CJ)
GUPTA, A.C.
KAILASAM, P.S.
CITATION:
1977 AIR 1707 1977 SCR (3) 569
1977 SCC (3) 11
ACT
Bombay Rents, Hotel and Lodging House Rates Control Act,
1947---Protection against eviction--Protection under sec.
12(3)(b), when available-Statutory powers of the Court
under s. 12 of the Act.
HEADNOTE
Under s. 12(1 ) of the Bombay Rents. Hotel and lodging
House Rates Control Act, 1947, a tenant is entitled to claim
protection from eviction so long as he is willing and ready
to pay the standard rent as defined in s. 5(10) and permit-
ted increases and observes other conditions of the Act. The
protection is subject to the limitations contained in s.
12(2) and 12(3). Under s. 12(3)(a) where the rent is pay-
able by the month and there is no dispute regarding the
amount of standard rent or permitted increases, if such
rent or increases arc in arrears for a period of 6 months or
more and the tenant neglects to make payment thereof until
the expiration of the period of one mouth after notice
referred to in sub-section (2), the court may pass a decree
for eviction in any such suit for recovery of possession.
Under a 12(3)(b) no decree for eviction shall be passed in
any suit if on the first day of hearing of the suit or on or
before such other date as the court may fix the tenant pays
or tenders in court the standard rent and permitted in-
creases then due and thereafter continues to pay or tender
in court regularly such rent and permitted increases till
the suit is finally decided and also pays costs of the suit
as directed by the court.
The respondent-tenant was in arrears of rent amounting
to Rs. 990/- for the period from 6th March 1967 to 5th
December 1969, house tax amounting to Rs. 27.49 and elec-
tricity charges amounting to Rs. 210.18. The appellant
landlord served a notice upon him under s. 106 of the Trans-
fer of Property Act terminating the tenancy and filed a suit
for eviction. The respondent filed an application for
fixation Of the standard rent within a month trader s. 11(2)
of the Act. He also filed an application for fixation of
interim rent on the ground that he being a poor man was
unable to pay rent and the total amount due at once. On
these applications, the interim rent was fixed at Rs. 25/-
by an order dated 3-2-1970 and he was directed to deposit
arrears of rent and future rent at this rate on or before
1oth of the next month. These applications were dismissed
for non-prosecution later on. The trial court held that as
the respondent-tenant was "ready and willing" to pay the
rent to the appellant-landlord, the suit for ejectment could
not be decreed in spite of the fact it found that the notice
was validly issued and the arrears were true and correct.
The appellate court held that the unwillingness of the
respondent to pay the rent which was apparent from the
patent facts and admissions and conduct disentitled him from
the protection under s. 12 and decreed the suit for eject-
ment. The High Court. however, relying on an affidavit
dated 18-9-75 filed by the respondent allowed the revision
application made by him under s. 29(2) of the Act.
Allowing the apppeal by special leave, the Court.
HELD: (1) The statutory protection can only be given in
accordance with the terms on which it is permissible. The
Bombay Rents. Hotel and Lodging House Rates Control Act,
1947 does not confer a power upon the court to excuse a
violation of the provisions of the Act by making wrong
assumptions or on compassionate grounds. The Court. could
not, therefore, exercise what would be in effect a power to
condone infringement of the Act. [575F, 576B]
(2) In cases where there is no dispute regarding the
amount of standard rent if the provisions of s. 12(3)(a)
are nor shown to be complied with.
570
the Court is bound to pass a decree for eviction. Where a
tenant does not prosecute an application for fixation of
standard rent and deliberately permits to be dismissed for
non-prosecution, it could be reasonably inferred that it was
not a bona fide application at all. [575 G-H, 576 A]
(3) A fixation of standard rent can only take place by
means of the specified procedure provided for it. There is
nothing in the instant case which could be "deemed" a fixa-
tion under the Act. It being admitted that the agreed rent
was Rs. 30/- per mensem that would be the standard rent as
defined by s. 5(10) of the Act. That was the rate on which
the rent was payable. Non-prosecution of the application
for standard rent indicate that there was no real dispute
regarding standard rent or permitted increases. [571A
573G, 575FG]
(4) Section 12(3)(b) applies only to cases where either on
the first hearing of the suit or on such other dates as the
court may fix for the purpose, the tenant pays or tenders
in court the standard rent with permitted increases pays or
In the instant case the respondent did not comply with the
orders dated 3-2-1970 fixing the interim rent. Under the
order dated 3-2-1970, the tenant had to deposit arrears of
rent and in addition he had to deposit future rent at the
rate fixed for the interim rent. The part of the order for
future rent could not refer to arrears of rent. If the
tenant was not quite clear about the meaning of the order,
he could have applied to the court to clarify the orders and
could have gone on depositing rent at Rs. 25/- per month
after depositing arrears of rent so clarified. [575 FG, 574
B-C]
Vora Abbashai Alimahorned v. Haji Gulamnabi Haji
Safibhai [1964] 5 S.C.R. 157. referred to.
(5) The readiness and willingness of the tenant to pay
could be found only if he had complied with the provisions
of the Act. The Act does not cover the case of a person who
is unable to pay owing to want of means but is otherwise
"ready and willing". The Act, unfortunately, does not
enable courts to make special law for such hard cases which
fall outside the statutory protection. The instant case is
clearly outside the protection conferred upon tenants under
s. 12 of the Act. The tenant could not be said to be "ready
and willing" to pay the rent so as to avoid passing of a
decree for eviction against him, in the face of detailed
findings given by the appellate court. After assuming quite
erroneously that the standard rent was fixed for the first
time in the appellate court and by accepting the version of
the tenant-respondent that his default was due to his diffi-
culty in finding money to pay the rent, the High Court had
erroneously condoned all defaults in payment of rent right
upto the time of the making of the application before it on
18-9-1975. [576 B-G]
Shah Dhansukhlal Chaganlal v. Dalichand Virchand Shroff
& Ors. [1968] 3 S.C.R. 346 applied.
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 217 of
1976.
Appeal by Special Leave from the Judgment’ and Order
of the Gujarat High Court dt. 18th/l9th September, 1975 in
Civil Revision Appln. No. 67 of 1973.
P.H. Parekh, Ajit R. Oza, Kailash Vasdev and (Miss)
Manju JarIey for the Appellant.
M.V. Goswami for the Respondent.
The Judgment of the Court was. delivered by
BEG C.J. This is a landlord’s appeal by special
leave against the judgment and order of the High Court of,
Gujarat allowing a revision application of the tenant under
section 29(2) of the Bombay Rents,
571
Hotel and Lodging House Rates Control Act, 1947 (thereinaf-
ter referred to as ’the Act’)
It appears from the statement of facts in the judgment
of the High Court that there was no dispute that the monthly
rent of the premises was Rs. 30/-and that the tenant had
also to pay the charges for electricity consumed by him. It
was, however, at first disputed whether the tenant had to
pay house tax and the education cess also. The landlord had
brought a suit for arrears of rent amounting to Rs. 990/-
from 6-3-67 to 5-12-69 and also to recover a sum of Rs.
27.49 paid as house tax and another sum of Rs. 210.18 paid
by the landlord for the electricity consumed by the tenant.
On 5-1-1970, the landlord had served a notice upon the
tenant terminating the tenancy on the ground that dues
amounting to Rs. 1227.67 had not been paid. The tenant
filed an application for fixation of-the standard rent
within a month of. the service of the above-mentioned no-
tice. He also filed an application for fixation of interim
rent on the ground that he, being a poor man, was unable to
pay rent and the total amount due at once. On these appli-
cations, the interim rent was fixed at Rs. 25/- and the
applicant was directed "to deposit arrears of rent and
future rent at this rate on or before 10th of the next
month".
Although, the trial Court held the notice terminating
the tenancy to be legally valid and the agreed rate of rent
to be Rs. 30/- p.m., so that the plaintiff was entitled to
the decree for arrears of rent from 6-3-67 to 5-12-1969 and
also the amount of Rs. 27.49 as house tax and Rs. 210.18
towards electricity charges, making up the total of Rs.
1227.67, yet, it held that as the defendant-tenant was
"ready and willing" to pay the rent to the plaintiff.
Hence, the suit for ejectment could not be decreed. The
appellate Court, on the other hand, held that the unwilling-
ness of the defendant-respondent to pay the rent, which was
apparent from the patent facts and admissions and conduct of
the defendant-respondent, disentitled him for protection
sought. It, therefore, decreed the suit for ejectment.
Learned counsel for the appellant has contended that the
High Court had proceeded upon the wrong assumption that the
standard rent was fixed in the lower appellate Court for the
first time when the appeal was decided. It is very diffi-
cult to find the basis for this opinion of the High Court.
The application for fixing the standard rent, initiating a
separate proceeding, was dismissed, as is admitted on behalf
of the tenant respondent, for non-prosecution. Hence, no
standard rent could be fixed u/s. 11. Section 5, sub-s.
(10) defines standard rent as follows :--
5. Definitions.---In this Act unless
there is anything repugnant to the subject or
context--
(10) "Standard rent" in relation to any prem-
ises means--
(a) "Where the standard rent is fixed by
the Court and
the Controller respectively under the
Bombay Rent
Restriction Act, 1939 (Bom. XVI of
1939), or the
572
Bombay Rents, Hotel and Lodging House Rates
(Control) Act, 1944 (Bombay VII of 1944), such
standard rent; or
(b) where the standard rent is not so
fixed subject to the provisions of section 11,
(i) the rent at which the premises were let on
the first day of September 1940, or
(ii) where they were not let on the first day
of September 1940, the rent at which they
were first let before that day, or
(iii) where they were first let after the
first day of September 1940, the rent at which
they were first let, or
(iv) in any of the cases specified in section
11, the rent fixed by the Court".
Both the sides before us are agreed that no question of
a standard rent actually and finally fixed u/s. 11 of the
Act arose in the circumstances of this case. Section 11 of
the Act reads as follows :--
"11. Court may fix standard rent and
permit increases in certain cases.
(1) In any of the following cases the
Court may, upon an application made to it for
that purpose, or in any suit or proceeding,
fix the standard rent at such amount as,
having regard to the provisions of this Act
and the circumstances of the case, the Court
deems just--
(a) where any premises are first let after the
specified date and the rent at which they are
so let is in the opinion of the Court exces-
sive; or
(b) where the Court is satisfied that there is
no sufficient evidence to ascertain the rent
at which the premises were let in any one of
the cases mentioned in sub-clauses (i) to
(iii) of clause (b) of sub-section (10) of
section 5; or
(c) where by reason of the premises having
been let at one time as a whole or in parts
and at another time in parts or as a whole, or
for any other reasons, any difficulty arises
in giving effect to this Part; or
(d) where any premises have been or are let
rentfree or at a nominal rent or for some
consideration in addition to rent; or
(e) where there is any dispute be-
tween the landlord and the tenant regarding
the amount of standard rent.
573
(2 ) If there is any dispute between the
landlord and the tenant regarding the amount
of permitted increases the court may determine
such amount.
(3) If an application for fixing the
standard rent or for determining the permitted
increases is made by a tenant who has received
a notice from his landlord under subsection
(2) of section 12, the Court shall make an
order directing the tenant to deposit in Court
forthwith and thereafter monthly or periodi-
cally, such amount of rent or permitted in-
creases as the Court considers to be reasona-
bly due to the landlord pending the final
decision of the application, and a copy of
such order shall be served upon the landlord.
Out of the amount so deposited, the Court may
make order for the payment of such reasonable
sum to the landlord towards payment of rent or
increases due to. him, as it thinks fit. If
the tenant fails to deposit such amount, his
application shall be. dismissed.
(4) Where at any stage of a suit for recovery
of rent whether with or without a claim for
possession of the premises, the Court is
satisfied that the tenant is withholding the
rent on the ground that the rent is excessive
and standard rent should be fixed the Court
shall, and in any other case if it appears to
the Court that it is just and proper to make
such an order the Court may, make an order
directing the tenant to deposit in Court
forthwith such amount of rent as the Court
considers to be reasonably due to the land-
lord. The Court may further make an order
directing the tenant to deposit in Court,
monthly or periodically, such amount as it
considers proper as interim standard rent
during the pendency of the suit. The Court
may also direct that if the tenant fails to
comply with any such order within such time as
may be allowed by it he shall not be entitled
to appear in or defend the suit except with
leave of the Court which leave may be granted
subject to such terms and conditions as the.
court may specify.
(5) No appeal shall lie from any order of the
Court made under sub-section (3) or (4).
(6) An application under this section may be
made jointly by all or any of the tenants
interested in respect of the premises situated
in the same building".
A "fixation" of standard rent can only take place by means
of the specified procedure provided for it. There is
nothing in the case before us which could be "deemed" a
fixation under the Act. Apparently, the High Court thought
that the dismissal of an application for fixation of rent
meant an automatic "fixation" of it at Rs. 30/- p.m.
In the face of detailed findings ’given by the Appellate
Court, which the High Court could not upset without a good
enough legal ground for
10--502 SCI/77
574
doing so and did not actually set aside, it is difficult to
see how the tenant could be said to be "ready and willing"
to pay the rent so as to avoid passing of a decree for
eviction against him. On behalf of the landlord appellant,
it is submitted that, in an affidavit dated 18-9-75, which
the respondent himself filed in the High Court, it is admit-
ted that the tenant had not been paying the rent regularly
as contemplated by ’the order of 3-2-70. Under that order,
the tenant had to deposit arrears of rent. In addition,
he had to deposit future rent at the rate fixed for the
"interim rent". The part of the order for future rent
could not refer to arrears of rent. However, if the tenant
was not quite clear about the meaning of the order, he
could have applied to the Court to clarify the order and
could have gone on depositing rent at Rs. 25/- p.m. after
depositing "arrears of rent" so clarified. Learned counsel
for the respondent could only contend that the deposit of
future rent on or before the 10th of the next month indicat-
ed that the deposit could be made at any time before the
rent was due and could cover subsequent accruals of rent
so that it could cover several months if amount deposited
was enough for that.
Learned counsel for the appellant points out that the
interpretation put forward on behalf of the respondent
tenant is not only an unreason? able one but would not, even
if accepted, justify defaults admitted by the respondent
tenant even if an advance deposit could wipe off the
effects of some defaults. The High Court had itself not
only not set aside the finding relating to the defaults
found by the appellate court. but, after assuming, quite
erroneously. that the standard rent was fixed for the first
time in the Appellate Court, it had condoned all defaults in
payment of rent right up to the time of the making of the
application before the High Court on 18-9-75 and the accept-
ance of a fresh deposit in the High Court itself to cover
the arrears. The question is whether the statutory powers
of the Court laid down in s. 12 of the Act could be used in
this manner.
Section 12 of the Act reads as follows :--
"12. No ejectment ordinarily to he made
if tenant pays or is ready and willing to pay
standard rent and permitted increases---( 1 )
A landlord shall not be entitled to the recov-
ery of possession of any premises so long as
the tenant pays, or is ready and willing to
pay, the amount of the standard rent and
permitted increases, if any, and observes and
performs the other conditions of the tenancy,
in so far as they are consistent with the
provisions of this Act.
(2) No suit for recovery of possession
shall he instituted by a landlord against a
tenant on the ground of non-payment of the
standard rent or permitted increases due,
until the expiration of one month next after
notice in writing of the demand of the
standard rent or permitted increases has been
served upon the tenant in the manner provided
in section 106 of the Transfer of property
Act, 1882.
575
(3) (a). Where the rent is payable by the
month and there is no dispute regarding the
amount of standard rent or permitted in-
creases, if such rent or increases are in
arrears for a period of six months or more and
the tenant neglects to make payment thereof
until the expiration of the period of one
month after notice referred to in sub-section
(2), the Court may pass a decree for evic-
tion in any such suit for recovery of posses-
sion.
(b) In any other case, no decree for
eviction shall be passed in any such suit
if, on the first day of heating of the suit or
on or before such other date as the court may
fix, the tenant pays or tenders in Court the
standard rent and permitted increases then due
and thereafter continues to pay or tender in
Court regularly such rent and permitted in-
creases till the suit is finally decided and
also pays costs of the suit as directed by the
Court.
(4) Pending the disposal of any such
suit, the Court may out of any amount paid or
tendered by the tenant pay to the landlord
such amount towards payment of rent or permit-
ted increases due to him as the Court thinks
fit.
Explanation--In any case where there is
a dispute as to the amount of standard rent or
permitted increases recoverable under this Act
the tenant shall be deemed to be ready and
willing to pay such amount, if, before the
expiry of the period of one month after notice
referred to in sub-section (2),, he makes an
application to the Court under sub-section (3)
of section 11 and thereafter pays or tenders
the amount of rent or permitted increases
specified in the order made by the court
In Vora Abbasbhai Alimahomed v. Haji Gulamnabi
Haji Safibhai,(1) it was held that, according to s. 12(3)
(a) of the Act, the Court was bound to pass the decree for
eviction if statutory terms are not complied with. The
answer given on behalf of the respondenttenant was that the
case before us is governed by the provisions of s.
12(3)(b) of the Act. But, this section applies only to
cases where either on the date of first heating of the suit
or on such other dates as the Court may fix for the purpose,
the tenant pays or tenders in Court the standard rent with
permitted increases. It was laid down in Abbasbhai’s case
(supra) that the’ explanation to s. 12 introduces only a
rule of evidence.
It appears to us that where a tenant does not prosecute
an application for fixation of standard rent and deliber-
ately permits it to be dismissed for non-prosecution it
could be reasonably inferred that it was not a bona fide
application at all. In the case before us, it being admit-
ted that the agreed rent was Rs. 30/- p.m. that should be
the "standard rent" as defined by s. 5(10) of the Act. That
was the rate at which rent was payable. Non-prosecution of
the application for
(1) [1964] 5 S.C.R. 157.
576
standard rent indicated that there was no real dispute
regarding the standard rent or permitted increases. In such
cases, if the provisions of s. 12(3)(a) are not shown to be
complied with, the Court is bound to pass a decree for
eviction.
The statutory protection can only be given in accordance
with the terms on which it is permissible. The Act certain-
ly does not confer a power upon the Court to excuse a viola-
tion of the provisions of the Act by making wrong assump-
tions or on compassionate grounds. The Court could not,
therefore, exercise what would be, in effect, a power to
condone infringement of the provisions of the Act.
In Shah Dhansukhlal Chhaganlal v. Dalichand Virchand
Shroff & Ors.,(1) this Court explained the provisions of s.
12 of the Act and laid down that a failure to deposit the
rent regularly as required by the Act will take the case out
of the provisions of s.12(3)(,b). On facts found, there
was such a failure to deposit in the case before us. The
High Court appears to have condoned the defaults by accept-
ing the version of the defendant-respondent that the default
was due to his difficulty in finding money to pay up the
rent. Hence, on the admission of the defendant-respondent
also, it seems a clear case of defaults which deprive the
defendant-respondent of the protection of s. 12 of the Act.
Learned counsel for the plaintiff-appellant has, very
rightly, pointed out that the High Court had not set aside
the findings of the fact arrived at by the appellate Court
which took the case of the defendant-respondent clearly
outside the protection conferred by the Act.. The High
Court seems to have accepted the erroneous. view that stand-
ard rent was actually fixed by the appellate Court for the
first time whereas what had happened was that the applica-
tion for fixation of standard rent had been dismissed for
non-prosecution. This was not "fixation" of standard rent,
as already pointed out. Hence, no question of giving time
to pay up arrears after a "fixation" of standard rent arose
here. We think that the case is clearly outside the protec-
tion conferred upon tenants under the Act.
The readiness and the willingness of the tenant to pay
could be ,found: only if he had complied with the provi-
sions of the Act. The Act does not cover the case of a
person who is unable to pay owing to want of means but is
otherwise "ready and willing". Such a case is no doubt a
hard one, but, unfortunately, it does not enable Courts to
make a special law for such hard cases which fall outside
the statutory protection.
We understand that the defendant-respondent is a
Carp.enter. If he is unable to find means to pay rent we
cannot dismiss the suit for his eviction on the ground of
non-payment of rent. In view of his disability, on account
of alleged illness, we propose to modify the decree of the
appellate Court to the extent that he will have four months’
time from 5th April 1977 before the eviction order can be
executed against him provided he deposits within a month
from today all the arrears due
(i) [1968] 3 S.C.R. 346.
577
and goes on depositing Rs. 30/- p.m. regularly, in advance,
before the 5th of each month on which his tenancy begins.
He must,, however, vacate the premises before 5th August,
1977, and may leave it earlier if he is unable to pay the
required rent regularly in advance. The decree for eviction
will become executable on breach of the conditions laid
down, or, after 5th August, 1977.
The result is that we set aside the judgment and order
of the High Court and restore the decree of the appellate
Court subject to the modification indicated above. The
parties will bear their own costs.
S.R. Appeal allowed.
578