Ramdas Vithal Chauhan vs Pushpavati Mansukhlal Shah And ...
2001 Latest Caselaw 834 Bom

JUDGMENT

V.C. Daga, J.

1. This petition by the tenant arises from the judgment and decree of eviction passed by the Civil Judge, Junior Division, Vasai on 25th August, 1982 and confirmed by the Assistant Judge, Thane on 21st November, 1984. The Regular Civil Suit No. 195 of 1979 was filed by the respondent landlady against the petitioner tenant for possession of the suit premises consisting of 3 rooms located in the house bearing No. 75 situated at Municipal Ward No. 17 at Vasai. The said premises was let out to the petitioner on monthly rent of Rs. 13/- exclusive of permitted increases.

BACKGROUND FACTS

2. On 17th October, 1978, the respondent landlady issued notice (Exh. A, page 19) calling upon the petitioner tenant to pay permitted increases at the rate of Rs. 1.30 per month for the past 7 years within a period of 30 days from the date of receipt of notice. The said notice was replied by the petitioner tenant vide his reply dated 30th October, 1978 through his advocate, wherein he admitted the possession of the suit premises as a tenant on monthly rent of Rs. 13/- but contended that the said monthly rent was inclusive of municipal taxes. By this letter the petitioner further called upon the respondent landlady to furnish details with respect to the permitted increases for the previous years. He further called upon the landlady to furnish information with respect to the mode and manner as to how the permitted increases were calculated and claimed and how the said amount

was sub-divided amongst the existing tenants and how the same were apportioned to the account of the respective tenant, so as to enable him to remit the amount of permitted increases. It appears from the record that the petitioner tenant was satisfied by giving aforesaid reply to the notice of the respondent landlady. However, he did not pursue his contention and demand beyond this reply.

3. The respondent landlady finding non-payment of permitted increases filed the suit for possession of the suit premises and also claimed arrears of permitted increases being Regular Civil Suit No. 195 of 1979, which came to be allotted to the file of Civil Judge, (Junior Division) Vasai.

4. On being summoned, the petitioner tenant appeared and filed his written statement denying allegations made by the respondent landlady and contended that the notice dated 17th October, 1978 was not legal, and valid and pleaded that the suit premises were let out to the petitioner on a monthly rent of Rs. 14/- inclusive of permitted increases, which, according to him, was the standard rent. However, he did not dispute that the rent of the premises was Rs. 13/- per month. The petitioner had specifically pleaded in para-4 of the written-statement that initially he was occupying the suit premises on monthly rent of Rs. 14/- inclusive of all taxes. However, since the said rent was exorbitant, he got the standard rent fixed at Rs. 13/- per month inclusive of all taxes but the petitioner/defendant did not furnish any material particulars; such as civil suit number, when it was filed, when it was decided, by whom and by which order the standard rent was fixed at the rate of Rs. 13/- per month inclusive of taxes and permitted increases. Thus it was not in dispute that the rent was in the sum of Rs. 13/- per month in view of the admission on the part of the petitioner in the written statement. However, the burden of proof was on the defendant/tenant to prove that the monthly rent of Rs. 13/- was inclusive of taxes and permitted increases and that the said amount was fixed by way of standard rent by the competent Court. The trial Court, therefore, rightly placed the burden of proving this fact on the petitioner.

5. The trial Judge after framing issues on 9th September, 1981, permitted both parties to the suit to lead their respective evidence. The trial Court, after appreciating the documentary and oral evidence, answered all the issues in favour of the respondent landlady. The trial Judge held that the petitioner did not pay permitted increases from 1st May, 1971 onwards and failed to prove that the standard rent of the suit premises, at any time, was fixed at the rate of Rs. 13/- per month inclusive of permitted increases. The trial Court recorded specific finding in the following words:

" .... The defendant has filed certified copy of decree in R. C. Section 109/71 at Exh. 21 and the copy of judgment in R. C. S. 49/65 at Exh. 22, which are the suits between these parties, litigated in the past.

In'the decree of R. C. S. 109/71 at EXB. 21, which seems to have been dismissed with costs, there is nothing to infer that the

standard rent might have been disputed by the defendant or that Court might had considered and determined the same. Though the burden of this issue is cast upon the defendant, he has not produced a certified copy of judgment in R. C. S. 109/71 to show that issue about the standard rent was struds and determined by the Court in R. C. S. 109/71. The non-production of copy of judgment must lead us to an inference adverse to the interest of defendant, the standard rent was not determined in R.C.S. 109/71. ....

Then coming to the judgment in R. C. S. 49/65, from paragraphs 2 and 3 of the same, which give the 'narration of the contentions raised by the parties in pleadings, it is evident that plaintiff had pleaded that agreed rent was Rs. 13/- p.m. and the defendant had contended that agreed rent to be Rs. 14/- p.m. On going through, the issues and the reasons for the findings, I find that the issue about the standard rent was neither struds nor adjudged by the Court. On the contrary from issue No. 6 and its findings, it is evident, that the Court had accepted the story of plaintiff that agreed rent was Rs. 13/-p.m.

Hence the say of the defendant that the court had fixed the standard rent of the suit premises Rs. 13/- per month and the same, is inclusive of permitted increases of all types, will have to be rejected."

The trial Court, based on the above findings, decreed the suit holding that the respondent/plaintiff was entitled for possession as prayed and directed the petitioner/defendant to deliver vacant and unobstructed possession of the suit premises to the respondent/plaintiff. The 'trial Court held that the respondent/plaintiff was entitled to Rs. 479.70, from the amount deposited in the Court, to cover the rent and permitted increases for the period ending on 31st July, 1982.

6. The appeal against the aforesaid decision of the trial Court was carried to the Court of Assistant Judge, Thane. The lower Appellate Court confirmed the order of the trial Court and held that the petitioner was in arrears of permitted increases for the period of 7 years and negatived the contention of the petitioner tenant, whereby he was claiming shelter of Section 12(l)(3)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the "Bombay Rent Act" for short) on the premise that he having paid the amount due for the permitted increases on the first day of hearing of the suit was not liable to be evicted from the suit premises. The lower Appellate. Court on the text of Section 12(l)(3)(b) of the Bombay Rent Act held that the petitioner tenant did not deposit the standard rent along with permitted increases then due, and observed that he ought to have thereafter regularly continued to pay and/or deposit in the Court the amount of rent and permitted increases. This having not been done by the tenant, the view taken by the trial Court was held to be

legal and proper. The lower Appellate Court as a fact, found that the amount deposited by the tenant on the first date of hearing of the suit was not sufficient to cover the entire arrears due and recoverable on that date. The lower Appellate Court in the aforesaid premises confirmed the order of eviction passed by the trial Court.

7. The petitioner tenant invoked writ jurisdiction of this Court under Article 227 of the Constitution of India. This petition was heard and allowed by this Court vide judgment dated 1st April, 1997. However, in the Civil Appeal No. 5681 of 1997, the Supreme Court by allowing the appeal set aside the said order of the High Court dated 1st April, 1997 and restored the writ petition to the file of this Court for hearing afresh. Accordingly, matter was heard afresh by giving opportunity of hearing to both the parties.

RIVAL SUBMISSIONS

8. The learned counsel appearing for the petitioner contended before me that both the Courts below committed serious error of law relying upon clause (a) of Sub-section (3) of Section 12 of the Bombay Rent Act. According to him, the correct provision which ought to have been applied was clause (b) of Sub-section (3) of Section 12 of the said Act. According to him his case would fall under Section 12(3)(b) and not under Section 12(3)(a) of the Bombay Rent Act.

9. In order to put strength to this contention he drew my attention to the specific grounds raised in this behalf by him in this petition. The said grounds are reproduced hereinbelow:

"18. It should have been held that the burden is upon the plaintiff to prove the nature, particulars of the alleged permitted increases to be recovered from the tenant which in this case she miserably failed to do and her suit should have been dismissed.

26. In any case the lower courts ought to have held that if the defendant is held in arrears of permitted increases his case fell under Section 13(3)(b) of the Bombay Rent Act. The statement of payment of rent submitted by the defendant in the lower courts showed that the defendant had paid the entire payment in the court during the pendency of the suit is not at all taken into account or its effect is lost by both the lower courts.

30. The lower Courts erred in holding that the instant case fell under 12(3)(a) and not under Section 12(3)(b) of the Bombay Rent Act."

10. The learned counsel appearing for the petitioner, in order to prove his contention, relying upon the provisions of Section 12(3)(b) of the Bombay Rent Act; furnished one chart showing the amount of rent and permitted increases deposited by him in Regular Civil Suit No. 195 of 1979 calculated at the rate of Rs. 14.40 per month (13.00 + 1.40 = 14.40). The details thereof are as under:

Amount of rent and permitted increases ofRs. 14.40 per month deposited by the defendant in R, C. S. No, 195/1979 in the Court ofC. J. J. D., Vasai.

Receipt Nos.

Date of Deposit

   Amount

   Period Covered etc.

9-1-1979

Rs.

39/-

Jan.

1979 to March 1979

9-4-1979

Rs.

130/-

April 1979 to Jan. 1980

22-1-1980

Rs.

60/-

Rent and Tax.

3-3-1980

Rs.

57.60

Feb.

1980 to May 1980

30-7-1980

Rs.

100.80

June 1980 to Dec. 1980

5-1-1981

Rs.

43.20

Jan.

1981 to March 1981

12-3-1981

Rs.

86.40

April 1981 to Sept. 1981 (arrears as on 31-8-1981 is Rs. 503/-)

10-12-1981

Rs.

86.40

Oct.

1981 to March 1982

15-3-1982

Rs.

115.20

April 1982 to Dec. 1982

26-11-1982

Rs.

479/-

As per Court order

26-11-1982

Rs.

100.80

1-12-19821030-6-1983

27-6-1983

Rs.

115.20

July 1983 to Feb. 1984

27-2-1984

Rs.

144/-

March 1984 to Dec. 1984

10-10-1984

Rs.

143/-

Jan.

1985 to Oct. 1985

20-12-1984

Rs.

1000/-

Nov.

1985 to July 1991

24-4-1986

Rs.

500/-

August 1991 to May 1994

24-9-1990

Rs.

500/-

June 1994 to March 1997

10-11-1993

Rs.

500/-

April 1997 to Jan. 2000

25-3-1997

Rs.

1000/-

Feb.

2000 to Oct. 2005

In the submission of the learned counsel for the petitioner, if the above chart and figures disclosed therein are taken into account then, it would be clear that the tenant was regularly depositing the amount of arrears of rent and permitted increases, that is how he tried to show that the petitioner tenant complied with the requirements of clause (b) of Sub-section (3) of Section 12 of the Bombay Rent Act. Alternatively, he also urged that even if the provision of clause (a) of Sub-section (3) of Section 12 of the said Act are taken into account, even then his case will have to be treated as proved under the said provision of the Act, in view of the fact that the petitioner tenant had raised a dispute within one month, by challenging the notice issued by the respondent landlady, and through his contentions raised in the written statement. He thus prayeds that the petition needs to be allowed by setting aside the judgment and decree suffered by the petitioner tenant.

11. Per contra, the learned counsel appearing for the respondent landlady seriously challenged the contention of the petitioner that his case would fall under clause (b) of Sub-section (3) of Section 12 of the Bombay Rent Act. However, without prejudice to his contention, he tried to first meet the alternate submission made by the petitioner on the basis of the provision

of the Bombay Rent Act; so as to explain the scheme of the Act. He contended that the tenant not making unconditional payment of rent within one month of notice issued under Section 12(a) of the Bombay Rent Act but wishing to raise a dispute regarding standard rent can claim protection from operation of Section 12(3)(a), only, if he makes an application under Section 11(3) at the latest within one month from the service of notice terminating tenancy by raising dispute as to the standard rent and permitted increases. It is only when such application disputing the rent and standard rent is made, within the time contemplated by Explanation-I to Section 12, the provisions of Section 11(3) are attracted. He contended that, the petitioner tenant, having failed to make any such application under Section 11(3) of the Bombay Rent Act within one month from the service of notice terminating tenancy, cannot be allowed to claim protection from the operation of Section 12(3)(a) and, therefore, he contended that the finding recorded by both the courts below that the case of the petitioner was clearly covered by Section 12(3)(a) of the Bombay Rent Act cannot be upset or disturbed. In substance, he contended that if there is statutory default or neglect on the part of the tenant, whatever may be its cause, the landlady acquires right under Section 12(3)(a) to get a decree of eviction. He further contended that where the conditions of Section 12(3)(a) are not satisfied, there is a further opportunity given to the tenant to protect himself from eviction. He can comply with the conditions set out in Section 12(3)(b) and defeat the landlady's claim for eviction. However, if he does not fulfil those conditions, he cannot claim protection under Section 12(3)(b) and in that event, there being no other protection available to him, a decree for eviction would have to be passed against him. Alternatively, it was further contended that assuming but not admitting that the case of the petitioner that Section 12(3)(b) of the Bombay Rent Act was applicable then the petitioner tenant ought to have complied wiu\the conditions laid down in the said provision. The Court cannot exercise discretion in favour of the tenant not fulfilling the required conditions of the said sub-section. He further contended that both the Courts below concurrently found that the petitioner was defaulter under Section 12(3)(a) and has failed to comply with the conditions laid down in Section 12(3)(b) of the Bombay Rent Act, as such, this is not a fit case for exercising discretion in favour of the petitioner, In his submission the circumstances do not justify exercise of discretion in favour of the petitioner unless the petitioner demonstrates clearly perverse and patently unreasonable finding. He contended that not a single perverse finding has been demonstrated by the petitioner and, therefore, concurrent findings of fact recorded by both the Courts below should not be interfered with under Article 227 of the Constitution. He, consequently, prayed for dismissal of the petition with costs.

CONSIDERATIONS AND FINDINGS

12. Having heard the parties at length and having gone through the record and proceedings, I propose to examine the case of the petitioner on the

touch stone of both the clauses of Sub-section (3) of Section 12 of the Bombay Rent Act so as to find out whether the petitioner can be given protection of either of the clauses of the said provision.

THE SCHEME

In order to examine the issues raised, it is necessary to take review of the provisions contained in Section 12(3)(a) and (b) of the Bombay Rent Act. The same are as follows :

"12(3)(a) where the rent is payable by the 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 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 shall pass a decree for eviction in any such suit for recovery of possession.

12(3)(b) In any other case, no decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before such 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."

Explanation I to Section 12 of the Act is as follows :--

"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 subsection (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.."

13. The provisions with regard to standard rent are to be found in Section 11 of the Bombay Rent Act, which lays down that the Court may, upon an application made to it for that purpose, or in any suit or proceedings, fix the standard rent, inter alia, where there is any dispute between the landlord and the tenant regarding the amount of standard rent. If any application for fixing the standard rent is made by a tenant who has received a notice from the landlord under Sub-section (2) of Section 12, the Court shall forthwith specify the amoimt of rent or permitted increases which are to be deposited in Court by the tenant and make an order directing the tenant to deposit such amount in Court or at the option of the tenant make an order to pay to the landlord such amount thereof as the Court may specify, pending the final decision of the application. Out of any amount deposited in Court, the Court may make an order for 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 or, as the case may be, to pay such amount thereof to the landlord, his application shall be dismissed.

14. Under Section 12 of the Bombay Rent Act the landlord shall not be entitled to the recovery 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, insofar as they are consistent with the provisions of the Act. Subsection (2) of Section 12 of the Bombay Rent Act states that no suit for recovery of possession shall be instituted by a landlord against the 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. Clause (a) of Sub-section (3) of Section 12 of the Bombay Rent Act provides for the passing of the decree for eviction; first, where the rent is payable by the month; second, there is no dispute regarding the amount of standard rent or permitted increases : third, the rent or increases are in arrears for the period of six months : and fourth, the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in Sub-section (2) of Section 12 of the Bombay Rent Act. Clause (b) of Sub-section (3) of Section 12 of the Act, states that in any other case, no decree for eviction shall be passed in any such 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 standard rent and permitted increases then due and thereafter continues to pay or tender in Court regularly such reht and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court.

Explanation-1 to Section 12 of the Bombay Rent Act provides that 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.

15. The aforesaid provisions and interpretation thereof were considered by the Apex Court in the case of Harbanslal vs. Prabhudas, 1976 Mh.LJ. 419 and the question which squarely fell for consideration of the Apex Court was as to when the tenant is expected to raise the dispute concerning standard rent so as to enable him to claim protection of Section 12(3)(a) of the Bombay Rent Act. While answering this question, the Apex Court held that the tenant not making unconditional payment of arrears of rent within one month of receipt of notice under Section 12(2) of the Bombay Rent Act but wishing to raise a dispute concerning standard rent can claim protection from operation of Section 12(3)(a), only, if he makes an application under Section 11(3) at the

latest, within one month of the service of notice terminating tenancy, by raising a dispute as to standard rent. Applying this test to the facts of the present case, it would be clear that the respondent landlady gave notice to the petitioner tenant on 17th October, 1978 demanding arrears of permitted increases for last 7 years and warned him that failure on his part to pay the charges within 30 days of the receipt of notice, he will have to face legal consequences. The said notice was received and replied by the petitioner tenant vide his reply dated 30th October, 1978. The suit for ejectment was filed on 4th November, 1979 on the ground that the petitioner tenant was in arrears of permitted increases, as such, not entitled to the protection under the Act. While applying provision of Section 12(3)(a) read with Explanation-I, the tenant can only be said to be ready and willing to pay such amount, if, before the expiry of the period of one month after notice referred to in subsection (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.

16. The Apex Court in Shah Dhansukhlal Chhaganlal vs. Dalichand Virchand Shroff and others, finding, the tenant having made no payment within the period of one month of the notice of ejectment; although, in his written statement had raised a dispute about the standard rent but made no application in terms of Section 11(3) of the Bombay Rent Act, was held not entitled for protection from the operation of Section 12(3)(a) of the Bombay Rent Act. It was held that the tenant can only claim protection under Section 12(3)(a) or the Act, if he makes an application within one month of the service of the notice terminating the tenancy by raising a dispute as to standard rent and permitted increases. Applying the ratio of the above two judgments of the Apex Court to the facts of the present case, it is not in dispute that even after the receipt of notice the tenant did not file any application under Section 11(3) of the Bombay Rent Act within one month of the service of the notice. Under these circumstances and considering the findings recorded by both the Courts below, the submission advanced by the learned counsel for the respondent that the petitioner tenant was not entitled to claim protection under Section 12(3)(a) deserves acceptance. Consequently, no fault can be found with the finding recorded by both the Courts below in this behalf.

17. One of the passing submissions made by the petitioner was that the permitted increases were npt to be paid at the end of every month, but were payable yearly. Considering the submission made in this behalf, even if it is assumed that the permitted increases were not payable at the end of every month, even then the tenant ought have raised dispute in this behalf by making application under Section 11(3) of the Bombay Rent Act. Even such dispute could be done into under Section 11(3) or the Bombay Rent Act and, if mat be so, in absence of any such application it was not open for the petitioner tenant to contend that there was a dispute with regard to the amount

of permitted increases or the same could not have been claimed by the respondent landlady.

18. So far as applicability of Section 12(3)(b) of the Bombay Rent Act is concerned, assuming that the petitioner failed to comply with the conditions laid down in Section 12(3)(a), and that he was entitled to protect himself against eviction by showing compliance under Section 12(3)(b); so as to defeat the claim of the respondent landlady for eviction, then one has to turn to the facts of the present case and submissions advanced by the learned counsel for the petitioner to answer the issue on the touch stone of Section 12(3)(b) of the Bombay Rent Act. In order to appreciate this contention, the schedule of payment produced by the petitioner along with his Civil Application No. 1026 of 2001 (reproduced in para-8 supra) needs to be taken into account. In this behalf, the calculations were made by the trial Court while considering issue No. 1 and it reached to the conclusion that the various amounts deposited by the tenant were not sufficient to meet the arrears of rent and permitted increases. The petitioner tenant while making deposits had taken into account only the amount of permitted increases claimed in the suit and not which were barred by limitation i.e. for the' period from 1st May, 1971 to 1st November, 1976 i.e. an amount of Rs. 85.80 (66 x 1.30).

19. The learned counsel for the petitioner in order to demolish the above finding urged that the Courts below were not justified or competent to calculate the arrears of permitted increases which were barred by limitation on the date of suit, viz. 5th November, 1979.

Clause (b) to Sub-section (3) of Section 12 of the Bombay Rent Act provides that no decree for eviction shall be passed in any suit for recovery of possession instituted by a landlord against a tenant on the ground of nonpayment of the standard rent or permitted increases then due, 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 or permitted increases then flue 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 question for consideration is, what meaning should be given to the words 'rent and permitted increases then due'. The above issue has already been answered by the Division Bench of this Court in Ramrao Raoji vs. Amir Kasam, (1955) 58 BLR 284 and followed by the learned single Judge of this Court in the case of Children Educational Uplift Socy. vs. Kausalya , wherein it has been observed:

" .......... the meaning of the expression 'rent then due' meant not only those dues which were legally recoverable but all rent which was in fact payable by the tenant to the landlord. I do not find the words 'then due' should be in any way distinguished from the words 'reasonably due'. As a matter of fact the word 'due' itself bas got a

moral connotation. It should be, therefore, said that the expression 'reasonably due' is more akin to the expression 'morally due' than to the expression 'legally due'. It can hardly be doubted that the time-barred rent is something which is due morally from the tenant to the landlord. If this is so there is no reason to hold that the time barred rent was not reasonably due from the tenant to the landlord. If this is so, to my mind there is no reason why the court should not have jurisdiction to direct the tenant to deposit even the time barred rent, if he wants his defences to be heard in the suit."

In this view of the matter, it cannot be said that the provision of clause (b) of Sub-section (3) of Section 12 of the Bombay Rent Act were complied with by the petitioner. No fault can be found with the findings recorded by both the Courts below in this behalf.

20. In the aforesaid premises, it is not in doubt that it was obligator}' on the part of the tenant to deposit on the first date of hearing of the suit i.e. 9th September, 1981 or on or before such date as the Court may fix, to pay the standard rent and permitted increases then due and thereafter continue to pay till the suit is finally decided and also pay cost of the suit as directed by the Court. In this behalf, ample material is on record to show that later-part of Section 12(3)(b) has not been complied with by the petitioner tenant. Mere arithmetical calculation is sufficient to prove non-compliance of this part of the Section. In this behalf, it may be seen that issues (Exh. 9) were framed on 9th September, 1981. If this date is treated as first date of hearing of the suit, then the period up to 31st August, 1981, from November, 1976 would be of 46 months. Based on this, if arrears are calculated @ 14.40 per month (rent + permitted increases) then the quantified amount of arrears as on 1st September, 1981, payable to the landlady, would be Rs. 662.40 (Rs. 14.40 x 46 = Rs. 662.40). The arrears of permitted increases for the period as found in para-18 being Rs. 85.80 will have to be further added to calculate the amount due as on 31st August, 1981. It would be in the sum of Rs. 748. 20. In this backdrop, if the deposits made up to the first date of hearing are calculated from the chart, it would be clear that the amount was short by Rs. 246.20. Thus the entire amount was not deposited by the tenant. Under these circumstances, there is absolutely no discretion left with the Court for being exercised in favour of the petitioner tenant in view of the decision of the Apex Court in the case of Ganpat Ladha vs. Sashikant Vishnu Shinde, , wherein the Apex Court held as under :

" ......... The decisions of this Court referred to above in any case, make the position quite clear that Section 12(3)(b) does not create any discretionary jurisdiction in the Court. It provides protection to the tenant on certain conditions and these conditions have to be strictly observed by the tenant who seeks the benefit of the Section. If the statutory provisions do not go far enough to relieve the

hardship of the tenant the remedy lies with the legislature. It is not in the hands of Courts."

21. The submission made by the learned counsel for the respondent landlady that the concurrent findings of fact should not be disturbed deserves acceptance in view of the law laid down by the Supreme Court in Babhutmal Raichand Oswal vs. Laxmibai R. Tarte , wherein the Apex Court in an appeal by special leave from the judgment of this Court observed as under:

"It is a litigation between landlord and tenant and as is usual with this type of litigation, it has been fought to a bitter end. Much of the agony to which the tenant has been subjected in this litigation would have been spared if only the High Court had kept itself within the limits of its supervisory jurisdiction and not ventured into fields impermissible to it under Articles 226 and 227 of the Constitution."

It is thus clear that the High Court while exercising jurisdiction under Article 227 cannot interfere with the findings of fact recorded by the subordinate Courts or Tribunal. Its function is limited to seeing that the subordinate Court or Tribunal functions within the limits of its authority. Considering the dicta of the Apex Court in this behalf, it is not possible to interfere with the judgment and decree passed by the Courts below. The petition is, therefore, dismissed with no order as to costs.

22. At this stage, the learned counsel appearing for the appellant prayed for time to approach higher Court. The appellant is accordingly, granted eight weeks time subject to furnishing an undertaking to this Court within two weeks from today to the effect that he will undertake to vacate the suit premises, if he fails in his challenge before the higher Court and deliver vacant and peaceful possession of the suit premises to the respondent landlady without any demure and/or creating any obstruction and that he will not create any third party interest in the suit premises and that he will pay and/or deposit in the trial Court entire arrears of rent within four weeks from the date of furnishing undertaking and shall continue to pay or deposit in the trial Court an amount equal to agreed monthly rent regularly on or before 10th day of each month. The respondent landlady shall be free to accept and/or withdraw the said amount without prejudice to her rights, treating it as an amount paid towards part payment of compensation. The respondent landlady/decree holder shall not execute the decree for eight weeks from today. On failure to furnish undertaking within a stipulated time, the respondent landlady shall be free to execute the decree and shall also be free to take any other step as may be available in law to get the decree executed in accordance with law.

23. Issuance of certified copy is expedited.