Civil Appeal No 217 of 1976
Appeal by Special Leave from the Judgment  and Order of the Gujarat High Court dt
18thl9th September 1975 in Civil Revision Appln
No 67 of 1973
PH Parekh Ajit R Oza Kailash Vasdev and Miss Manju JarIey for the Appellant
MV Goswami for the Respondent
delivered by BEG CJ 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 292 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 2749 paid as house tax and another sum of Rs 21018 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 122767 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 pm 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 2749 as house tax and Rs 21018 towards electricity charges making up the total of Rs 122767 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 section 11
Section 5 sub section
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 section 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 pm
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 SCI77 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 pm 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 section 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 vs Haji Gulamnabi Haji Safibhai1 it was held that according to section 123 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 section 123b 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 section 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 pm that should be the standard rent as defined by section 510 of the Act
That was the rate at which rent was payable
Non prosecution of the application for 1  576 standard rent indicated that there was no real dispute regarding the standard rent or permitted increases
In such cases if the provisions of section 123a 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 vs Dalichand Virchand Shroff  Ors1 this Court explained the provisions of section 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 s123b
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 section 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 Carpenter
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  577 and goes on depositing Rs 30 pm 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
SR Appeal allowed


Summary:
Under section 121  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 section 510 and permit ted increases and observes other conditions of the Act
The protection is subject to the limitations contained in section 122 and 123
Under section 123a 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 123b 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 2749 and elec tricity charges amounting to Rs 21018
The appellant landlord served a notice upon him under section 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 section 112 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 section 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 section 292 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 section 123a 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 section 510 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 123b 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 vs Haji Gulamnabi Haji Safibhai  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 section 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 vs Dalichand Virchand Shroff  Ors  applied