Case: Mistry Premjibhai Vithaldas Vs. Ganeshbhai Keshavji

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, how ever, 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 R s. 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 t he 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 notice. 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/- and the applicant was directed "to deposit arrears of rent and future rent at this rate on or before 10th of the nextthe 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 unwillingness 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 i n the lower appellate Court for the first time when the appeal was decided. It is very difficult 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.

Reasoning:
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 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 datedwhich the respondent himself filed in the High Court, it is admitted that the tenant had not been paying the rent regularly as contemplated by the order ofp.m. after depositing "arrears of rent" sod counsel for the respondent could only contend that the deposit of future rent on or before the 10th of the next month indicated 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 forcounsel 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 al l 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 acceptance of a fresh deposit in the High Court itself to cover theVora Abbasbhai Alimahomed v. Haji Gulamnabi Haji Safibhai, ([1964] 5 S.C.R. 1 57.) it was held that, according to s. 12(3) (a) of the Act, the Court was bound t o pass the decree for eviction if statutory terms are not complied with. The answer given on behalf of the respondent tenant 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 Abbasbhais 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 deliberately 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 admitted 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 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 forstatutory protection can only be given in accordance with the terms on which it is permissible. The Act certainly 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 provisions of theShah Dhansukhlal Chhaganlal v. Dalichand Virchand Shroff &Ors., ([1968] 3 S.C.R. 346.) 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 accepting 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 standard rent was actually fixed by the appellate Court for the first time whereas what had happened was that the application 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 protection conferred upon tenants under thereadiness and the 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". 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 statutoryunderstand 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 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 inappears to us that where a tenant does not prosecute an application for fixation of standard rent and deliberately permits it to be dismissed forp.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.of the application for 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 fory protection can only be given in accordance with the terms on which it is permissible. The Act certainly 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 provisions of thefacts found, there was such a failure to deposit in the case before us. The High Court appears to have condoned the defaults by accepting the version of thethat the default was due to his difficulty in finding money to pay up the rent. Hence, on the admission of thealso, it seems a clear case of defaults which deprive theof the protection of s. 12 of the Act.Learned counsel for thehas, 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 theclearly outside the protection conferred by the Act.. The High Court seems to have accepted the erroneous. view that standard rent was actually fixed by the appellate Court for the first time whereas what had happened was that the application for fixation of standard rent had been dismissed forThis 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 protection conferred upon tenants under thes and the 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". 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 statutoryd that theis a Carpenter. If he is unable to find means to pay rent we cannot dismiss the suit for his eviction on the ground of