TMI Blog1989 (10) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... n them as contemplated by Sub-section (2) of Section 12 of the Bombay Rents, Hotel and lodging House Rates Control Act 1947 (hereinafter referred to as the Act) and were consequently liable for eviction under Sub-section (3) (a) of the Act as it then stood. Two other grounds were pleaded by the respondent No. 1 namely that the tenants had changed the user of the suit premises and that they had committed breach of terms and conditions of the tenancy. Subsequently, Arjun Khiamal Makhijani aforesaid was impleaded as defendant No. 6 in the suit on the assertion that the tenants had illegally sublet a portion of the suit premises namely the garage to him and were consequently liable to be evicted on this ground also. The suit was contested both by the tenants as well as by defendant No. 6. The Trial Court recorded findings in favour of the landlord in so far as the pleas of default in payment of rent and illegal sub-tenancy are concerned. The other two pleas namely that the tenants had changed the user of the suit premises and had also committed breach of terms and conditions of the tenancy were decided against the landlord. On the basis of the findings on the pleas of default in paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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. (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 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. 4. After its amendment as aforesaid, it reads: (3) No decree for eviction shall be passed by the Court in any suit for recovery of possession on the ground of arrears of standard rent and permitted increases 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 together with simple interest on the amount of arrears of such standard rent and permitted increases at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een finally disposed of, if in relation to that suit or proceeding, any appeal or proceeding is pending, or, if the period of limitation for preferring an appeal or proceeding, as the case maybe, had not expired before the commencement of this Act. 6. It has been urged by the learned Counsel for the tenants that 14th November 1987 was the first day of hearing of the suit and since in pursuance of an order passed by the Trial Court on that day, the tenants had deposited the entire arrears of rent on 9th January 1968 within the time granted by the Court and continued to deposit the monthly rent thereafter they could not be treated as defaulters in payment of rent even if the amendment made in Sub-section (3) of Section 12 by the Amendment Act 18 of 1987 was ignored. We, however, find it difficult to agree with this submission. It is not denied that the arrears of rent which were for a period of more than six months and in respect of which a notice of demand had been served on the tenants under Sub-section (2) of Section 12 of the Act had not been paid by the tenants to the landlord within one month of the service of the notice. It is also not denied that during the said period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty, learned Counsel for the tenants urged that since the Act was a beneficial legislation the tenants having deposited the arrears of rent within the time granted by the Trial Court and having continued to deposit future rent thereafter the decree for their eviction deserves to be reversed by this Court. In so far as this submission is concerned, it may be pointed out that in Ganpal Ram Shanna and Ors. v. GayatriDevi [1987]3SCR539 , while dealing with almost a similar Rent Control Legislation it was held: But quite apart from the suit being barred by lapse of time, this is a beneficial legislation, beneficial to both the landlord and the tenant. It protects the tenant against unreasonable eviction and exorbitant rent. It also ensures certain limited rights to the landlord to recover possession on stated contingencies. 8. In Ganpat Ladha v. Sashikant Vishnu Shinde [1978]3SCR198 while dealing with the scope of Clauses (a) and (b) of Sub-section (3) of Section 12 of the Act, it was held: It is clear to us that the Act interferes with the landlord's right to property and freedom of contract only for the limited purpose of protecting tenants from misuse of the landl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, for the simple reason that as pointed out in Latham v. R. Johnson and Nephew Ltd. (1913) 1 K.B. 398 sentiment is a dangerous will-of-the-wisp to take as a guide in the search for legal principles. 10. Reliance was placed by learned Counsel for the tenants on Vatan Mal v. Kailash Nath [1989]2SCR192 . In that case provisions of Amending Ordinance No. 26 of 1975 whereby Section 13(a) was inserted in the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, came up for consideration. After pointing out that the object of inserting Section 13(a) was to confer benefit on all tenants against whom suits for eviction on ground of default in payment of rent were pending and to achieve that object, the said Section had been given overriding effect, it was held that the interpretation of Section 13(a) must conform to the legislative intent and the courts should not take narrow restricted view which will defeat the purpose of the Act. In our opinion, in view of the mandatory provisions contained in Section 12(3)(a) of the Act, the decision in the case of Vatan Mal (supra) is not at all attracted to the facts of the instant case. Clauses (a) and (b) of Sub-section (3) of Section 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur of the appellants. What was left was only procedural in nature and inconsistent with our decision to treat the proceeding as a suit. The occasion for filing an application under Section 12(3) can arise only where the matter is covered by Section 12, and as we have made an assumption in favour of the respondents that Section 12 has no application to the present case, there is no point in asking the appellants to file such an application. As mentioned in Article 142 of the Constitution of India, this Court may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and the present case is a most appropriate one for exercise of such power. (Emphasis supplied) 12. The said decision apparently cannot be applied to the facts of the instant case. 13. learned Counsel for the tenants then urged, relying on Praduman Kumar v. Virendra Goyal (Dead) by Lrs. [1969]3SCR950 , that at all events the tenants were entitled to be relieved against forfeiture for non-payment of rent under Section 114 of the Transfer of Property Act benefit of which could be given if deposit of rent was made at any stage of the hearing of the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e consolidated Sub-section (3) of the Amendment Act 18 of 1987, the tenants should have been given the benefit of the deposit of arrears of rent on the first day of hearing in pursuance of the order of the Trial Court dated 14th November, 1967, and of the deposits of future rent thereafter and at all events they were entitled to make the necessary deposit after the commencement of the Amendment Act 18 of 1987. In our opinion, the tenants are not entitled even to the benefit of the amended Sub-section (3) of Section 12 of the Act inasmuch as on a plain reading of the sub-section it is not possible to give it a retrospective operation. In this connection, it will be useful to notice that while amending Sub-section (2) of Section 15 of the Act, it was provided by the Amendment Act 18 of 1987 that the provisions which were substituted in the said sub-section, shall be deemed to have been substituted on the 1st day of February 1973. No such provision was made with regard to the substitution of Sub-section (3) of Section 12 of the Act. Sub-section (3) uses the words on the first day of the hearing of the suit or on or before such other day as the Court may fix . If the deposit of arrear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds when they have been repeated in the amended Sub-section (3) of Section 12 of the Act. The date fixed for settlement of issues in a suit cannot be equated with any other date or dates which may be fixed in the suit or the appeal. The words on or before such other date as the Court may fix occurring after the words on the first day of the hearing of the suit in Sub-section (3) of Section 12 of the Act were obviously meant to meet a situation where for some inevitable reason the necessary deposit could not be made on the day of the hearing of the suit and the Court extended the time to make such deposit. A deposit made on or before such extended date would also meet the requirement of the sub-section. Even Section 25 of the Amendment Act 18 of 1987 would be of no assistance in so far as the interpretation of Section 12(3) of the Act is concerned. The said Section provides for certain exceptions in which a suit or proceeding for the eviction of any person may be reopened. A provision containing exceptions cannot be interpreted so as to enlarge the scope of Sub-section (3) of Section 12 of the Act. The said Section 25 may be applicable to Sub-section (2) of Section 15 as amended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so far as the submission that the landlord was bound by his admission in the pleading is concerned, it is true that such an admission being a judicial admission under Section 58 of the Evidence Act stands on a higher footing that evidentiary admissions as held by this Court in Nagindas Ramdas v. Dalpatram Ichharam [1974]2SCR544 but on the facts of the instant case to which reference shall be shortly made, it is the proviso to Section 58 which comes into play and rights of the parties had to be determined de hors the said admission. The proviso contemplates that the Court may in its discretion require the facts admitted to be proved otherwise than by such admissions. The scope of this proviso did not fall for consideration in the case of Nagin Das (supra). Reverting to the facts of the instant case it would be seen that there was a triangular dispute in this case. After getting the plaint amended the landlord no doubt set up the case that the tenants had illegally sub-let the garage to the defendant No. 6. The case of the tenants, on the other hand, was that defendant No. 6 was a trespasser and they had never sub-let the garage to him. In so far as the defendant No. 6 is concerned, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lated. For instance this rule will not apply if a finding is arbitrary or based on no evidence or is such that no one properly instructed in law could have given it the same being in the teeth of some statutory provision or in ignorance of binding precedents. In our opinion, the instant case is one which falls within the exception to the said rule. It is true that the landlord by getting his plaint subsequently amended set up the plea that the garage had been illegally sub-let by the tenants to defendant No. 6. It is, however, equally true that the said plea was categorically denied by the tenants and it was specifically asserted by them that they had never sub-let the garage to defendant No. 6 and that the defendant No. 6 was a trespasser. As regards the defendant No. 6 himself he pleaded to have come into possession of the garage for a period of six months on the basis of an agreement entered into between him and Daulat, the son of one of the tenants. In the life time of his father Daulat could not have the status of a joint tenant and in the eye of law he had no interest in the garage, apart from using it in his capacity as the son of one of the tenants. He was not in a position ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do not find it necessary to go into this question in view of our conclusion that the finding of the High Court that the garage had not illegally been sub-let to defendant No. 6 and that the said defendant was a trespasser is unassailable. Even if the submission of learned Counsel for defendant No. 6 in this behalf is accepted the nature of possession of defendant No. 6 on 1st February 1973 would be in no way better than of a trespasser. For the same reason, we find it unnecessary to go into the correctness or otherwise of the view of the High Court that a writ petition being an independent proceeding was not a proceeding in relation to suit or proceeding under the Act. 19. It was lastly urged by learned Counsel for defendant No. 6 that after the judgment had been delivered by the High Court on 22 July 1988 dismissing the two writ petitions it was not open to the High Court to reopen and hear the writ petitions on 18 August 1988 and 29 August 1988. So far as this submission is concerned it maybe pointed out that the very first sentence of the order of the High Court dated 18 August 1988 indicates that the judgment had not been delivered earlier but had only been dictated and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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