JUDGMENT R.M.S. Khandeparkar, J.
1. Heard the learned Advocates for the parties.
2. The petitioner challenges rejection of the application for eviction of the respondent from the suit premises by the Trial Court as well as by the Lower Appellate Court by the impugned judgments.
3. The petitioner is the owner of the house No. 5646, situated at Panchpir Chavadi, Ahmednagar. One of the rooms of the said house was let out to the respondent since 1958. The tenancy of the respondent was terminated by the petitioner on 2-9-1982 arid subsequently the application for eviction was filed on three grounds, namely, default in payment of rent; bona fide need of the premises for personal occupation and thirdly, nuisance by respondent. Upon issuance of the notice in relation to arrears of rent, the respondent filed application dated 14-9-1982 for fixation of standard rent. It is to be noted that the rent claimed by the petitioner was Rs. 30/- per month, whereas it was the contention of the respondent in the application for fixation of standard rent that the rent was Rs. 15/- per month. The trial Court fixed the interim rent at Rs. 17.50 per month and directed the respondent to pay the arrears claimed by the petitioner within ten days from the date of the order which was passed on 20th December, 1982. The order further directed the respondent to continue to deposit the monthly rent regularly by 10th of each month. The actual proceedings for eviction were initiated on 19-1-1985 being Regular Civil Suit No. 58 of 1985 in the Court of the Civil Judge Senior Division, Ahmednagar. The suit came to be dismissed on 1-2-1990. The appeal preferred by the petitioner being Regular Civil Appeal No. 504 of 1990 was also dismissed by the lower Appellate Court on 9th July, 1999.
4. The impugned judgment rejecting the relief of eviction of the respondent from suit premises, are sought to be challenged in relation to grounds of bona fide need of premises, default in payment of rent while giving up the claim on the basis of nuisance by the respondents. As regards the challenge to the impugned judgment pertaining to the ground of bona fide need of the premises, it is the contention of the petitioner that the assessment of material on record by the Courts below in the impugned judgment apparently discloses the changes which have occurred in the course of hearing of the matter and bearing in mind the law laid down by the Apex Court as well as by this Court that the Courts dealing with the cases of eviction by the landlords against tenants should take into consideration the changes which occurred in the course of the hearing, and the eviction can be ordered even on the grounds which have arisen subsequent to the filing of the proceedings and during the pendency of the proceedings. The Courts below considering the changes which have occurred during the pendency of the proceedings should have granted the relief of eviction in favour of the petitioner. As regards the ground pertaining to default in payment of rent, it is the contention of the learned Advocate for the petitioner that irrespective of the fact as to whether there was default in regular deposit of the rent by the respondent during the trial of the case or not, the fact remains that the respondent was directed to deposit the arrears within ten days from the date of the order dated 20th December, 1982 and, therefore, the respondent was duty bound to deposit the amount on or before 30th December, 1982. However, it is a matter of record that the rent was deposited only on 4-1-1983 i.e. beyond the period fixed by the Court and that therefore, there was no compliance, not only of the directions of the Court but also of the provisions of law contained in Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and, therefore, the eviction of the respondent from the suit premises on that count alone was justified and both the Courts having ignored this fact have acted illegally warranting interference by this Court under writ jurisdiction.
5. It is contended on behalf of the respondent that the petitioner has not established the case as pleaded in the application justifying the claim for bona fide need of the premises for the occupation by the petitioner and, therefore, he having not established the same, no fault can be found with the impugned order rejecting the relief of eviction. As regards the default in payment of rent, it is the contention of the learned Advocate for the respondent that though there is a delay of five days in depositing the arrears of rent, the respondent had been depositing the rent regularly and in fact, in advance besides the fact that at the time of first deposit itself the respondent had deposited the amount in excess of arrears of rent. Considering the same, delay of five days in depositing the amount should not be considered as sufficient to warrant the eviction of the respondent from the suit premises on the ground of default in payment of rent. It is also contended that in the writ jurisdiction it is not permissible for this Court to reassess the evidence on record. The learned Advocate for the petitioner has placed reliance in the decision of the Apex Court in the matter of Mistry Premjibhai Vithaldas v. Ganeshbhai Keshavji, , whereas the learned Advocate for the respondent has sought to rely upon the decision of the Apex Court in the matter of Mohan Laxman Rede v. Noormohamed Adam Shaikh , Chandavarkar S.R. Rao v. Ashalata S. Guram and Venkatlal G. Pittie and Anr. v. Bright Bros. Pvt. Ltd. .
6. The Apex Court in V.G. Pittie's case has held that when a finding arrived at by the Court relates to mixed question of law and fact and the same is arrived at after taking into consideration all the relevant factors and correct legal principle being applied, then irrespective of the fact whether finding is right or wrong, interference under Article 227 of the Constitution of India is not warranted. In Chandavarkar's case the Apex Court has held that in exercise of jurisdiction under Article 227 the High Court can go into the question of facts or look into the evidence if justice so requires it and that the High Court, however, should not interfere with a finding within the jurisdiction of the inferior tribunal or court except where the finding is perverse in law in the sense that no reasonable person properly instructed in law could have come to such a finding or there is misdirection in law or view of fact has been taken in the teeth of preponderance of evidence or the finding is not based on any material evidence or it resulted in manifest injustice. Considering the contention sought to be raised by the petitioner in the petition in hand, apparently the reliance on the decisions of the Apex Court referred to above is totally misplaced. It is not the case of the petitioner that there has been wrong appreciation of evidence as such. On the contrary, it is the case of the petitioner that on the appreciation as has been done by the Courts below and from the findings arrived by the Courts below, it is apparent that there is a material on record which discloses that changes which have occurred in the course of hearing of the matter which in turn justify the order of eviction on the ground of bona fide need of the premises in favour of the petitioner.
7. In Mistry Premjibhai's case, the Apex Court, while dealing with the scope of the expression "readiness and willingness" of the tenant to pay the rent under Section 12(3)(a) of the said Act, has held that the readiness and willingness of the tenant to pay could be found only if he had complied with the provisions of the Act and 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". It has been further held that the statutory protection can only be given in accordance with the provisions of law and as permissible under the said Act. In other words, it is not permissible for the Court to widen the protection which has been assured to the tenants under the said Act.
8. In Mohan Laxman Hede's case the Apex Court has held that to take advantage of protection from eviction under Section 12(3)(b) of the said Act it cannot be said that exact or mathematical punctuality was required in the deposit of rent by a tenant and few defaults committed by tenant cannot amount to violation of the provisions of the said section so as to deny the protection to the tenant assured under the said Act.
9. Perusal of the judgments of Courts below disclose that there are some concurrent findings of facts arrived at by both the Courts. As regards the point of bona fide need of the premises for personal occupation, both the Courts have found that the petitioner had claimed the premises on the ground that the same are required for residence of himself and his family members as the existing premises which are in his occupation are not sufficient, but the evidence which was led in the course of hearing of the matter was pertaining to requirement of the suit premises for the sons of the petitioner for the purpose of carrying out their business activities therein. On the ground that the evidence led by the petitioner in support of the claim of the premises being required for personal occupation being in variance with the case pleaded in that regard by the petitioner, both the Courts have refused to grant the relief of eviction on the said ground of bona fide need of the premises. In that regard, as already observed above, the contention of the learned Advocate for the petitioner is that irrespective of absence of the pleadings as regards the requirement of the premises for business purposes, fact remains that there is evidence on record in that respect and the changes which warranted the need of the premises for such business purposes are also brought on record and they are reflected from both the judgments. It cannot be disputed that the Rules pertaining to the pleadings as contemplated in the Code of Civil Procedure are not applicable to the proceedings under the said Act. However, at the same time it is to be borne in mind that the parties to the proceedings are entitled to know each others case so that they can meet the same effectively by producing evidence in support of their rival contentions. Viewed from this angle, it is necessary for the landlord seeking eviction of the tenant from the leased premises on the ground of bona fide need of the premises for personal occupation to disclose the purpose for which the premises are required. Once the landlord approaches the Court with the plea that the premises are required for the purposes of residence, any evidence sought to be brought on record justifying the said claim on the ground of business purposes cannot be entertained and even if it is entertained, the same cannot be looked into to justify the grant of relief prayed for. Being so, as far as the findings of the Courts below that on account of variance between the pleadings and the evidence produced by the petitioner, the petitioner is not entitled for the relief of eviction on the ground of bona fide need for personal occupation, cannot be found fault with. At the cost of repetition, it is to be noted that there are concurrent findings on that aspect by both the Courts below.
10. As regards the ground of eviction on the basis of default in payment of rent, the main contention of the learned Advocate for the petitioner is that the records as well as the findings arrived at by both the Courts apparently disclose that there was no justification for delay in depositing the rent in arrears at the first instance after the order of the Trial Court specifically directing the respondent to deposit the amount within a specified period. Indeed, the order of the Trial Court was apparently to the effect that the respondent should deposit the arrears of rent at the interim amount of rent fixed by the Court on the application for fixation of standard rent within a period of ten days from the date of the said order. The order was passed on 20th December, 1982. Ten days expired on 30th December, 1982. Admittedly, amount of arrears of rent was not deposited by the respondent within the specified period and the same was deposited only on 4-1-1983. The statutory protection available to the tenant being only in accordance with the terms on which it is permissible under the said Act, and as Section 12 of the said Act specifically provides that the amount shall be deposited on or before the date fixed by the Court and the Court having already fixed such date by prescribing the period within which the amount was to be paid, it is the contention of the learned Advocate for the petitioner that there is a clear violation of the said direction and statutory provision by the respondent justifying the eviction of the respondent on the ground of default in payment of rent. At the same time, referring to the decision of the Apex Court in Mohan Laxman Hede's case it was sought to be contended that the provision of law which requires the tenant to pay the rent regularly cannot be construed to mean exact or mathematical punctuality on the part of the tenant in the matter of the deposit of the rent so as to deny advantages to the tenant under the said Act. At the outset, it must be pointed out that the decision in the case of Mohan Laxman Hede works is in relation to the deposit of the rent falling due subsequent to the first deposit of rent and not pertaining to the first deposit of rent after fixation of rent in standard rent proceedings. This is apparent from para 6 of the said decision, wherein it has been held thus:--
"In the present case, both sides accepted the position that the appellant had deposited in Court the entire arrears of rent on the basis of interim rent fixed well within time as directed by the Court. It is common ground that until the application of standard rent made by the tenant is finally decided, the interim rent fixed by the Court must be regarded as the standard rent. The only question, therefore, is whether it can be said that the appellant, after the first deposit, of the arrears of rent, continued to deposit in court the rent and the permitted increased "regularly " till the suit was finally decided as contemplated under Section 12(3)(b) of the Act."
Apparently, therefore, the issue for consideration before the Apex Court in Mohan Laxman Hede's case was pertaining to the scope of expression "regularly" vis-a-vis the obligation of the tenant to deposit the rent subsequent to the first deposit of the rent after issuance of the order in standard rent proceedings. All the observations of the Apex Court in the said case, therefore, have to be understood in that context.
11. The Apex Court in Premjibhai's case has ruled that the statutory 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 the Act. Bearing in mind the said ruling of the Apex Court and considering the findings arrived at by the Courts below, the rival contentions in the case are to be considered. It is a matter of record that the order by the Trial Court directed the respondent to deposit arrears of rent on or before 30-12-1982 and yet the respondent chose to deposit the arrears of rent only on 4-1-1983. Section 12(3)(a) of the said Act provides that where the rent is payable by month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increases are in arrears for a period of six months or more and 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 shall pass a decree for eviction in any such suit for recovery of possession. This provision is not relevant for the decision in the case. However, while considering the scope of Clause (b) of Sub-section (3), it assumes importance and, therefore, is referred to. Section 12(3)(b) provides that in any other case, no decree for eviction shall be passed in any such 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 increases till the suit is finally decided and also pays costs of the suit as directed by the Court. In other words, Section 12(3)(b) provides that the tenant would not be faced with the order of eviction if he pays or tenders in the Court the standard rent along with permitted increases along with all arrears on the first day of the hearing or on or before such other date as Court may fix. It is nobody's case that the amount of arrears was paid on the first day of hearing of the suit. Certainly 4-1-1983 was neither the first day of hearing of the suit nor it was the date fixed by the Court by the order dated 20-12-1982 being the date for payment of arrears of rent. In these circumstances, can it be said that the tenant/respondent has complied with the provisions of law contained in Clause (b) of Section 12(3) of the Act?
12. The Trial Court, while dealing with the issue in relation to the default in payment of the rent has observed that the respondent had deposited Rs. 735/-on 4-1-1983 being all the arrears of rent along with future rent at the rate of Rs. 17.50 per month from 1-12-1979 onwards and after considering the observations of the Apex Court in Mohan Laxman Hede's case has held :--
"Even the defendant some times paid rent not as per order of the Court, it does not mean that he lost protection of Section 12(3)(b) of Bombay Rent Act, According to me, in this case, defendant had complied the order of the Court and he shown his readiness and willingness to pay the rent regularly."
On the part of the lower Appellate Court in that regard, the observations are to the effect that:--
"However, due to winter vacation from 27-12-1982 to 2-1-1983 arrears were not deposited within 10 days. But arrears of rent were deposited on 4-1-1983 to the tune of Rs. 735/- when in fact arrears were to the tune of Rs. 647.50 and as such the defendant-tenant has paid advance rent and since then defendant tenant paid advance rent even at the time of appeal."
The learned Advocate for the petitioner, referring to the observations of the lower Appellate Court regarding the winter vacation submitted that the records nowhere disclose it being the case of the respondent that the winter vacation was obstruction to the respondent from depositing the rent in arrears within the period specified by the Court and that in any case even during the winter vacation the office of the Court remains open and for the purpose of payment of rent it is not necessary that the same should be made in the presence of a Judicial Officer and the same can very well be made with the Court staff who attend the office work during vacation. There is no doubt, the records nowhere disclose as to from where the Appellate Court was able to arrive at a finding regarding the difficulty of the respondent to make payment during winter vacation so as to enable the respondent to get exemption of the said period from the period of ten days specified by the Court for deposit of the arrears. However, at the same time, it is also to be noted that the Trial Court by referring to the chart of payments made from time to time during the pendency of the proceedings has observed that the respondent has complied with the order of the Court inasmuch as that he had shown readiness and willingness to pay the rent regularly. It is to be noted that under Section 12(3)(b) it is in the discretion of the Court to fix the date for payment of rent in arrears after fixation of the standard rent. Undisputedly such a date was fixed by the order dated 20th December, 1982 being the 30th December of the said year. At the same time, the same Court after taking into consideration the readiness and willingness shown by the tenant in the matter of payment of rent during the pendency of the proceedings has observed that there has been substantial compliance of the order dated 20-12-1982 in the matter of deposit of the arrears of rent by having deposited the same on 4-1-1983. Section 12(3)(b) clearly gives a discretion to the Court to fix the date for payment of arrears of rent. Once it is a matter of discretion of the Court to fix the date for payment of rent, it goes without saying that the Court is also empowered to extend such date for justifiable reasons. From the reading of the order of Trial Court it is apparent that though the Trial Court has not specifically stated in so many words that such discretion was exercised in the matter in hand to extend the date from 30th December, 1982 till 4-1-1983, the observation in the judgment of the Trial Court to the effect that the respondent had complied with the order of the Court by showing readiness and willingness to pay the rent regularly discloses the exercise of discretion by the Trial Court in favour of the respondent for extending the date to 4-1-1983 for the payment of the arrears of rent. Being so, the question which arises is, whether in the facts and circumstances of the case, the Trial Court was justified in exercising such discretion and whether the same is judiciously exercised.
13. It cannot be disputed that the chart of payment of rent which has been referred to and quoted by the Trial Court in its judgment discloses deposit of rent in advance from time to time by the respondent. The order of the lower Appellate Court also discloses that the initial payment though was required to be made to the tune of Rs. 647.50, the respondent had deposited the sum of Rs. 735/- being arrears of rent along with the advance rent for a period of five months in terms of the quantum of interim rent fixed in the standard rent proceedings. This along with subsequent deposit of the rent by the respondent admittedly shows the readiness and willingness on the part of the respondent to deposit the rent regularly as has been observed by the Trial Court in its judgment. Being so, it goes to show that the Trial Court has exercised its discretion judiciously and for justifiable reason. Hence there is substantial compliance of the provisions of Section 12(3)(b) of the said Act in the matter in question by the respondent and on that count also there is no substance in the contention of the petitioner that the petitioner was entitled to get eviction order against the respondent on the ground of default in the first deposit after the order regarding standard rent.
14. In the circumstances, the petition fails and is hereby dismissed. Rule discharged. No order as to costs.