Dattatray Gopal Upadhye Since ... vs Nemichand Shantilal Bakliwal ...
2003 Latest Caselaw 57 Bom

JUDGMENT

S.A. Babde, J.

1. This petition by a tenant questions the judgment and order dated 21-6-1986 passed by the IInd Addl. District Judge, Nasik, confirming the decree of eviction passed by the trial Court.

2. The original petitioner was a tenant of one room admeasuring about 5' x 5' on the eastern side of a double storeyed building. The agreed rate is Rs. 6/- per month and the tenancy commenced on the 14th of each month ending on the 13th of the subsequent month. The respondents resided at Indore and they have major sons. The respondents served a notice dated 1-12-1975 on the petitioner and demanded vacant possession and arrears of rent at the rate of Rs. 6.60 per month being the amount of rent as well as education cess. The petitioner replied to the notice and refused to vacate.

Hence, the respondents instituted a suit for possession and recovery of Rs. 46.20 as arrears and future mesne profits along with notice charge of Rs. 25/-.

3. There were other grounds for eviction alleged by the respondents, but they are not relevant since the decree has been refused on those counts. The respondents have made no grievance about that.

4. The trial Court decreed the suit on the ground that the petitioner was in arrears of rent and has failed to deposit the arrears of rent as required by Section 12(3)(b) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the "Act") as it stood prior to its amendment in 1987. As stated earlier, the grounds of bona fide requirement of the respondents were answered against them.

5. The petitioner appealed against the judgment. The Addl. District Judge, Nasik, also concurred with the judgment of the trial Court and dismissed the appeal. That judgment is impugned before this Court.

6. Mr. Dani, learned counsel for the petitioners, urged only one point. According to the learned counsel, the judgment of the appellate Court is vitiated by a patent error of law in that in spite of the petitioner having deposited the arrears of rent as required by Section 12(3)(b) of the Act, the appellate Court has passed a decree against the petitioner on the ground that a part of the amount deposited by the petitioner was specified by him towards costs and another part was paid under protest.

7. Section 12(3) of the Act, as it stood at the relevant time, reads as follows:--

"(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 may pass a decree for eviction in any such suit for recovery of possession, (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 other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continue 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."

8. The question is whether the petitioner has deposited in Court the standard rent and permitted increases and continue to pay regularly such rent and permitted increases till the suit is finally decided.

9. Admittedly, the petitioners were bound to pay rent at the rate of Rs. 6.60 per month for 48 months which comes to Rs. 316.80. This amount was to be deposited on the first date of the suit which was admittedly on 2-7-1979. The appellate Court has found that on 2-7-1979 i.e. the first date of hearing of the suit, the petitioner has deposited in all Rs. 317/- while he was required to deposit Rs. 316.80 towards the arrears of rent by that time at the rate of Rs. 6.60 per month. The petitioner is further found to have deposited the following amounts :--

Rs. 757- on 10-1-1979.

Rs. 100/- on 17-12-1979.

Rs. 150/- on 3-3-1989.

Rs. 100/- on 12-8-1982.

However, the learned appellate Court accepted the contention of the respondents that an amount of Rs. 200.00 deposited by the petitioner towards arrears prior to 2-7-1979, included in the total amount of Rs. 317.00, is not liable to be treated as payment of Rs. 200.00 because the petitioner has specified that Rs. 158.40 should be appropriated towards rent and Rs. 41.60 towards the costs of the suit. The appellate Court has, therefore, held that the petitioner has not deposited the entire arrears of rent on account of arrears of rent and Rs. 41.60 cannot be computed towards payment of rent. In addition, the appellate court has held that Rs. 100/- which the petitioner has deposited cannot be computed as a deposit of rent because it has been deposited under protest. Thus, though the amount deposited is Rs. 317/-, the same cannot be said to have been deposited towards arrears of rent.

10. It is clear from Section 12(3)(b), which is applicable in the present case, that the tenant is required to pay standard rent and permitted increases and, thereafter, continue to pay such rent and permitted increases till the suit is decided. He is, however, required to pay costs of the suit only as directed by the Court. It is an admitted fact that there was no direction by the Court to the petitioner to deposit costs. Even so, the tenant has specified an amount of Rs. 41.60 as being towards costs of the suit. Having regard to the fact that there was no direction to pay costs, it is clear that the tenant was not bound to pay costs and, therefore, even though he has specified the said amount as payable towards costs since the tenant is entitled to request that the entire amount should be treated as a deposit towards arrears of rent. This appears to be a mistake on the part of the tenant while depositing the amount and specifying a part thereof for the purpose of costs, even though no costs were directed to be paid. I am, therefore, of view that the petitioner must be taken to have deposited the amount of rent as required by Section 12(3)(b).

11. The other reason why the learned appellate Court has held that the petitioner has not deposited the amount of rent is that while depositing the amount of Rs. 100.00 on 5-12-1979, the petitioner deposited the same under protest. The learned Addl. District Judge has, therefore, held that the deposit is unconditional and has held that this cannot be said to be a valid tender of rent. Now it may happen that the tenant deposits a certain amount under protest i.e. believing that the amount is not due from him. But nevertheless he is depositing the same as required by law. This cannot be said to be a conditional deposit in the sense it is not made contingent upon any factor. Moreover, the mere fact that the amount of arrears of rent is deposited under protest, the entire deposit of the amount itself cannot be ignored as if non-existent. It would continue to be a deposit. It is necessary to take a pragmatic view of the matter and treat the whole amount as a deposit. I, therefore, find that the finding of the learned Addl. District Judge suffers from a patent unreasonableness which has resulted in miscarriage of justice. This is, therefore, a sufficient reason to exercise the discretion under Article 227 of the Constitution of India.

12. The learned counsel for the respondents relied on a decision of the Supreme Court in Ganpat Ladha v. Sashikant Vishnu Shinde, . He relied on the observations made in para 11 of the judgment to the following effect:--

"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."

I do not consider this decision applicable to the present case. This is not a case where there is a non-compliance with the conditions imposed by Section 12(3)(b) on a tenant in order to avail of the protection of that section. As observed above, the tenant has, in fact, complied with the conditions by paying the amount of arrears of rent. He has committed a mistake in specifying that a part of the amount is being paid as costs, even though no order of costs was made by the Court and in stating that he is paying the part of the payment under protest. The appellate Court has wrongly treated the amount so specified as not having been paid at all.

13. The learned counsel for the petitioners relied on a decision of this Court in Sulochanabai K. Gujar v. Krishnabai D. Ugvekar, , in support of his contention that this Court ought not exercise its discretion under Article 227 of the Constitution of India. I find that the facts of that case are different inasmuch as the appellate Court had found that the landlord had proved bona fide personal requirement and this Court held that such a finding ought not to be interfered with in exercise of writ jurisdiction under Article 227 of the Constitution of India. Similar is the other case relied upon by learned counsel for the respondents i.e. Hotel Rosalia P. Ltd, v. Metro Hotels, . The appellate Court has found that grounds for eviction pleaded by the landlord, viz., nuisance or bona fide requirement has not been proved. This Court held that in exercise of jurisdiction under Articles 226 and 227, it would not act as a Court of appeal and interfere with the finding of fact unless there is an error apparent on the face of the record. As observed earlier, I am of view that the findings of the learned lower appellate Court that the amount though deposited should be ignored only on the ground that the petitioner had specified that he is depositing the amount towards costs and under protest suffers from patent unreasonableness which has resulted in miscarriage of justice. This is an error of law which is apparent on the face of the record and, therefore, liable to be interfered with.

14. In the result, the petition is allowed and the judgment dated 21-6-1986 passed by the IInd Addl. District Judge, Nasik, in Civil Appeal No. 345 of 1982 is set aside. The rule is made absolute in the above terms. The suit stands dismissed. No order as to costs:

15. P. S. to give ordinary copy of this judgment to the parties concerned.