Appeal No 36 of 1968
Appeal by special leave from the judgment and order dated November 19 1963 of the Bombay High Court in Civil Revision Application No 167 of 1959
V M Tarkunde P C Bhartari O C Mathur and Ravinder Narain for the appellant
A K Sen M section Gupta and section L Jain for the respondent
The Judgment of the Court was delivered by Ray J
This appeal is by special leave from the judgment dated 19 November 1963 of the High Court of Bombay dismis sing the appellant defendant tenant s application for revision in a decree for eviction of the defendant
The appellant was tenant of the respondent
On 28 April 1954 the appellant filed an application under section II of the Bombay Rent Act for fixation of standard rent
During the 627 pendency of the application the respondent landlady served a notice on the appellant in the month of March 1955 terminating the tenancy on the ground that the appellant had failed to pay rent from I March 1954
On 25 April 1955 a suit was filed for eviction of the appellant
During the pendency of the suit on 29 June 1956 the standard rent was fixed at Rs557 pm
The contractual rent was Rs 85 pm
When the suit came up for hearing on 5 October 1956 it appeared that the appellant paid all the arrears of rent in accordance with the standard rent but did not pay the Costs of the suit
The trial court passed an ejectment decree against the appellant
The appellant preferred an appeal
The appellate court took the view that the order of the trial court was justified under section 123b of the Bombay Rent Act
Section 123b of the Bombay Rent Act provides that no decree in eviction shall be passed if on the first day of the hearing of the suit or on or before such other date as the court may fix the tenant pays or tenders
in the court the standard rent and permitted increase in rent due and thereafter continues to pay or tender in court regularly the said rent and permitted increase till the suit is finally decided and also pays costs of the suit as directed by the Court
The appellant then filed an application for revision in the High Court
The contention which was advanced in the High Court and repeated here was that the courts were in error in decreeing the suit for non payment of costs because the trial court had not passed any order fixing the amount of costs
It was said that only when an order determining the amount of costs had been made by the court that the tenant could be said to be within the mischief of the provisions of the statute for non payment of costs so determined by the courts
The High Court rightly rejected the contention for two reasons
First though a formal order as to costs was not made yet the trial court had made an order directing the appellant to pay the amount of costs and the appellant did not pay the costs
Secondly the appellant stated before the trial court that the appellant was not in a position to tender what is described as professional costs and court costs of the suit
It is indisputable that in the trial court the appellant not only admitted failure to pay costs but also inability to tender the costs
The appellant could be entitled to protection against eviction only if the appellant complied with the provisions of the statute
The appellant was required to tender not only the arrears of rent but also the costs of the suit
In the trial court the appellant admitted non compliance with the provisions of the statute
Therefore the 628 trial court rightly held that the appellant was not entitled to any benefit or protection against eviction
The appellate court held that because the appellant filed an application for fixation of standard rent and therefore there being a dispute between the parties regarding the standard rent no order in eviction could be passed under section 123 a of the Bombay Rent Act
The appellate court however held that the case fell within the provisions of section 123 b of the Bombay Rent Act by reason of the failure of the appellant to pay costs of the suit
Counsel for the appellant contended that the costs were deposited on 22 November 1956 and therefore the High Court should have exercised discretion in favour of the appellant
The High Court stated that the decree was passed on 5 October 1956 and the appeal was filed on 18 October 1956 and the amount of costs was not deposited with the filing of the memorandum of appeal
The High Court concluded by stating that the decree of the trial court was made on 5 October 1956
We are in the year 1963
The attitude adopted by the petitioner is not such in which a discretion can be exercised in favour of the petitioner
The High Court heard the application on 19 November 1963
Counsel for the appellant invited our attention to paragraph 13 of the application for review made in the High Court where the appellant alleged that on 7 December 1956 the costs were paid
No portion of the judgment of the High Court is open to any criticism for the obvious reason that when the memorandum of appeal was filed in the High Court on 18 October 1956 the costs were not paid
The application for review also indicates that when the matter was heard before the High Court it was not brought to the notice of the High Court that the costs were paid on 7 December 1956 as alleged
The appeal is from the judgment of the High Court
It would be improper to interfere with exercise of discretion passed by the High Court when the matter was not brought to the notice of the High Court
Discretion is exercised by the court in the facts and circumstances of the case
Any interference with the exercise of discretion in the present case would be substituting the discretion of this Court on a set of facts which were never presented to the High Court
The appellant was not entitled to any relief under the provisions of the Bombay Rent Act
The High Court rightly rejected the application for revision
The appeal fails and is dismissed with costs
VPS Appeal dismissed


Summary:
In a suit for evicition on the ground of non payment of rent a decree was passed directing the tenant to pay the landlady s costs as by that time the tenant had paid all the arrears of rent as fixed but the tenant did not pay or tender the costs
Therefore the court passed an order of eviction
His appeal a revision to the High Court and a review petition to the High Court were all dismissed
In appeal to this Court HELD  1 The tenant would be entitled to the protection under section 123 b of the Bombay Rent Act only if he complied with its provisions by paying or tendering not only the arrears of rent but also the costs of the suit
Since the appellant admitted his inability to comply with the provision he could not claim protection against eviction
627 D G 2 Assuming that the costs were paid at a later date as alleged by the appellant that fact was not brought to the notice of the High Court and therefore this Court will not interfere with the exercise of discretion by the High Court in the set of facts and circumstances presented to the High Court 628 F G