AI Drafter - (New and Powerful) 
Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter. 
TaxTMI 
TaxTMI 
1961 (12) TMI 102
X X X X Extracts X X X X
X X X X Extracts X X X X
....iff gave notice to the defendant on 4th February 1956 calling upon the defendant to pay up the arrears of rent and also terminated the tenancy of the defendant. The defendant however did not pay any amount to the plaintiff in respect of the arrears of rent even though a period of one month expired from the date of service of the notice on the defendant nor did the defendant make any application to the Court before the expiry of the period of one month for fixing the standard rent of the shop. The defendant also did not hand over possession of the shop to the plaintiff pursuant to the notice to quit. The plaintiff therefore filed the present suit against the defendant on 5th May 1956 to recover possession of the shop as also arrears of rent and mesne profits. The plaintiff contended that the tenancy of the defendant having been terminated by a valid and proper notice to quit the defendant was liable to hand over possession of the shop to the plaintiff. The plaintiff also urged that since the defendant was in arrears of rent for a period of six month and more and the defendant had neglected to make payment thereof until the expiration of the period of one month after the service of t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... The learner advocates appearing on behalf of the defendant stated at the commencement of the hearing of the appeal that to abandoned all his contentions save and except the contention that the defendant had paid the standard rent of the shop on or before the first date of hearing of the suit and that to decree for possession could therefore be passed against the defendant. The learned advocate on behalf of the defendant accordingly urged only one contention before the learned District Judge namely that the defendant had paid the standard Rent of the shop on or before the first date of hearing of the suit and was therefore not liable to be excited from the shop. This contention was obviously based on the provisions of Section 12 of the Rent Act. This contention was negatived by the learned district Judge and since this was the only contention urged before the learned District Judge the learned District Judge dismissed the appeal with costs. The defendant thereupon approached this Court by filing the present Revision Application. 4. Mr. B.R. Shah learned advocate appearing on behalf of the defendant urged various contentions before me in support of the Revision Application. These....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... by contending that even though the contention as regards standard rent was abandoned on behalf of the defendant before the learned District Judge it was open to me sitting as a Court of Revision to consider whether on the facts as found by the trial Court the standard rent which was fixed by the trial Court and which was confirmed by the learned District Judge as a result of the dismissal of the appeal was fixed in breach of the provisions of law and that if I came to the conclusion that the standard rent was fixed illegally I would be justified in exercising my revisional powers. These were broadly the rival arguments urged in regard to the objection raised by Mr. S.B. Vakil and since the same objection was also raised by Mr. S.B. Vakil in regard to some other contentions urged by Mr. B.R. Shah I think it right and proper that I should consider the validity of this objection in some detail. 6. The revisional jurisdiction of the High Court is to be found in Section 115 of the Code of Civil Procedure. There are numerous decisions of various High Courts in this country dealing with the scope and ambit of the revisional jurisdiction of the High Court under Section 115 of the Code ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ection 115 Civil P.C. becomes operative. 7. I shall have occasion to refer to this decision again in connection with another contention urged by Mr. B.R. Shah; but for the present it is enough to state that under Section 115 of the Code of Civil Procedure the High Court can examine the decree or order sought to be revised only as regards three matters namely (a) that the decree or order made by the subordinate Court is within its jurisdiction; (b) that the subordinate Court has in making the decree or order not failed to exercise jurisdiction vested in it; and (c) that in exercising the jurisdiction the subordinate Court has not acted illegally that is in breach of some provision of law or with material irregularity that is by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the decree or order made by the subordinate Court cannot be attacked in respect of any of these three matters the High Court would have no power to revise the decree or order and the application to the High Court to exercise it revisional powers would fail. It is this test which I must apply in deciding whether I can interf....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e plaintiff. The defendant appealed against the decree and in the appeal it was open to the defendant to accept or to challenge the standard rent fixed by the trial Court. If the defendant challenged the standard rent fixed by the trial Court the learned District Judge would have had to consider whether the challenge was justified and if the learned District Judge came to the conclusion that the standard rent fixed by the trial Court was correct and in the process of coming to that conclusion the learned District Judge acted illegally that is in breach of some provision of law it would have been open to the defendant to contend before me; that in confirming the standard rent fixed by the trial Court the learned District Judge had acted illegally that is in breach of some provision of law so as to merit interference in revisional. But unfortunately for the defendant the contention regarding standard rent was expressly abandoned by his advocate with the result that the learned District Judge was not called upon to consider whether the standard rent fixed by the trial Court was correct and proper. The learned District Judge by dismissing the appeal confirmed the standard rent fixed of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rted in Haridas v. Ratansey 23 BomLR 802. In that case a point of law regarding the plaintiffs title to maintain the suit was sought to be taken for the first time in the Court of Revision and dealing with that point Macleod C.J. observed as follows: A new question has been raised before us whether when the plaintiffs gave notice to the defendant the plaintiffs title had been determined. The defendant relies on the explanation to Section 48 of the Presidency Small Causes Court Act. He never raised that point in the Small Causes Court and never attempted to prove that plaintiffs title had been determined prior to the date of the application to the Small Causes Court for possession. No doubt it appears that the plaintiffs had received notice from his landlord but we are not aware of what nature the notice was and it is not the function of this Court in revision to entertain a point of law which has not been taken in the Court below. None of the provisions of Section 115 of the Code of Civil Procedure apply to such a case. If a party does not choose to take a point of law in the Court below then it cannot be said that the lower Court has acted illegally or with material irreg....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ent Act. This contention of Mr. B.R. Shah suffers from two infirmities. In the first place I do not understand how this contention can possibly help Mr. B.R. Shah in getting over the provisions of Section 115 of the Code of Civil Procedure The revisional jurisdiction which is invoked by the defendant is of a limited nature as already pointed out by me above and whatever be the character of the decision as regards standard rent I do not see how the defendant can bring his case within the provisions of Section 115 of the Code of Civil Procedure unless he shows that the learned District Judge acted illegally that is in breach of some provision of law in dismissing the appeal and thereby confirming the standard rent fixed by the trial Court. The learned District Judge was under no obligation to set aside or modify the standard rent fixed by the trial Court when the standard rent so fixed was not challenged by the defendant. The learned District Judge could as a matter of fact follow no other course than that adopted by him namely dismissing the appeal when he came to the conclusion that the only contention urged by the defendant was not sound. This conclusion would follow irrespective ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng the dispute at any stage of a proceeding and agreeing that the rent proposed by the landlord should be decided to be the proper standard rent. If the tenant says at any stage of the proceeding that the landlords figure might be accepted as the fair figure of the standard rent there is no prohibition imposed by the Act forbidding the Court from passing a decree upon that footing. It is always open under the law to the parties to a dispute to settle the dispute by an agreement and if they do so settle it and if it appears to the Court that the settlement is fair and just and not against law nor against the provisions of a statute the Court accepts the settlement and passes a decree upon it. 12. It is therefore clear from the aforesaid passage that it is open to the tenant to abandon the dispute as regards standard rent at any stage of the proceeding. The tenant may settle the dispute as regards standard rent by agreeing to a figure mutually acceptable to the landlord and the tenant or by accepting the standard rent fixed by the trial Court and not appealing against it or abandoning the dispute as regards standard rent in the appeal. This contention of Mr. B.R. Shah must therefo....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... mentioned above would not apply. The finding in the present cases regards standard rent cannot possibly be said to be a finding on a question of law and Mr. B.R. Shah cannot with any justification ask me to apply to this finding the principle which applies only to admissions on a point of law. But apart from this there is another more fundamental objection to the contention urged by Mr. B.R. Shah. Here there is no question of any admission of the advocate being binding on the defendant. The argument of Mr. S.B. Vakil which has found favour with me is not that the defendants advocate having abandoned the contention regarding standard rent and accepted the finding of the trial Court on the question of standard rent such acceptance is binding on the defendant and that the defendant should therefore be precluded from urging the question of standard rent before me. The objection of Mr. S.B. Vakil is based upon an entirely different ground. The objection is raised not because the defendants advocate having made an admission the defendant cannot be allowed to go back upon it but because even if the defendant were held not bound by the admission made by the advocate the defendant cannot q....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the defendant was ready and willing to pay the standard rent and to set aside the decree passed by the trial Court on any such ground. Apart from this it must be remembered that the question whether the defendant was ready and willing to pay the standard rent was a question of fact and the defendant having expressly abandoned the contention as regards his readiness and willingness to pay the standard rent I do not see how the defendant can be permitted to raise the question before me in this Revision Application. I am therefore of the view that sitting as a Court of Revision I cannot permit the defendant to urge before me the plea as regards his readiness and willingness to pay The standard rent so as to bar the plaintiffs right to recover possession of the shop from the defendant. 15. The next contention of Mr. B.R. Shah turned on the provisions of Sub-section (3)(b) of Section 12 of the Rent Act. In order to appreciate this contention it would be necessary to refer to certain provisions of the Rent Act. The material provisions of the Rent Act which bear on this contention are Sections 5(10), 11 and 12 and they may for the sake of convenience be set out as follows: 5 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....his landlord under Sub-section (2) of Section 12 the Court shall forthwith make an order specifying the amount of rent or permitted increases to as paid by the tenant pending the final decision of the application and a copy of such order shall be served upon the landlord. 12 (1) A 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 in so far as they are consistent with the provisions of this Act. (2) No suit for recovery of possession shall be instituted by a landlord against a 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 1882 (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 a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....1 as regards the terminology used in connection with interim rent and standard rent. The standard rent is fixed by the Court while the interim rent is specified in the order made under Sub-section (3) of Section 11. The interim rent is specified in the order as the amount of rent to be paid by the tenant pending the final decision of the application for fixing the standard rent. The standard rent fixed by the Court as a result of the final disposal of the application may be more or less than the interim rent specified in the order made under Sub-section (3) of Section 11. This would become rather material when I consider the language of Section 12. Section 12 has four sub-sections and an Explanation. Sub-section (3) is divided into two Clauses (a) and (b). Section 12 appears to have been enacted for protecting the tenant against dispossession by the landlord. Under the ordinary law of landlord and tenant the landlord is entitled to evict the tenant as soon as the contractual tenancy comes to an end. The tenant is not entitled to continue in possession after the determination of the contractual tenancy. Section 12 protects the possession of the tenant if certain conditions are fulfi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e landlord to recover possession of the premises from the tenant is to be found in Sub-section (3)(b) of Section 12. But in order to understand the provision enacted in Sub-section (3)(b) of Section 12 it is necessary to refer to Sub-section (3)(a) of that section. Sub-section (3)(a) of Section 12 provides that 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 against the tenant. The word may in this sub-section has received judicial interpretation and has been held by a decision of the Bombay High Court reported in Kurban Hussein v. Ratikant 59 BomLR 158 to mean shall. If the tenant is in arrears of standard rent or permitted increases 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) of Section 12 the Court would be bound to pass a ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd 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 pay costs of the suit as directed by the Court and if the tenant does so he cannot be evicted by the landlord. Then comes Sub-section (4) of Section 12 which merely provides for payment to the landlord out of the amount paid or tendered by the tenant. Then follows the Explanation. The Explanation provides that in any case where there is a dispute as to the amount of standard rent or permitted increases recoverable under the Rent 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. The Explanation creates a legal fiction and enacts that if the tenant satisfies certain conditions he shall be deemed to be ready and willing to pay the amount of standard rent and permitted increases so that in such event the landlord shall not....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the context of these facts could mean only the rent fixed by the Court either on the application made by the defendant for that purpose or in the suit filed by the plaintiff against the defendant. The interim rent specified by the Court in the other made under Sub-section (3) of Section 11 could not possibly be equated with the standard rent fixed by the Court on the application made by the defendant for that purpose or in the suit. The interim rent specified by the Court under Sub-section (3) of Section 11 represented merely the amount of rent to be paid by the tenant pending the final decision of the application for fixation of the standard rent and the standard rent fixed by the Court on the application could be more or less than the interim rent. I do not see how under these circumstances the expression standard rent in Sub-section (3)(b) of Section 12 could possibly include within its connotation the interim rent specified by the Court under Sub-section (3) of Section 11. Mr. B.R Shah contended that under Sub-section (10) of Section 5 standard rent meant in any of the cases specified in Section 11 the rent fixed by the Court and according to him the interim rent specified by t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Court under Sub-section (3) of Section 11 before the expiry of the period of one month after notice is served upon him under Sub-section (2) of Section 12. In the present case it is admitted that no such application was made to the Court within the period of one month after service of the notice on the defendant. The application for fixation of standard rent was made by the defendant to the Court on 21st December 1956 long after the period of one month from the date of service of the notice on the defendant had expired. In fact the application was made after the suit was filed by the plaintiff the written statement was filed by the defendant and the issues were raised by the Court. The defendant cannot therefore possibly derive any support from the Explanation. But apart from this I do not see any relation between the explanation and Sub-section (3)(b) of Section 12. The Explanation though it occurs at the end of Section 12 is in reality an Explanation to Sub-section (i) of Section 12. The Explanation creates a legal fiction and provides that if certain conditions are fulfilled the tenant shall be deemed to be ready and willing to pay the standard rent and permitted increases. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ses specified by the Court under Sub-section (3) of Section 11 such payment or tender shall be deemed to be compliance with the requirements of Sub-section (3)(b) of Section 12. The Explanation creates a legal fiction only for the purpose of Sub-section (1) of Section 12 and if the conditions set out in the Explanation are fulfilled the Explanation has the effect of bringing the case within the protection of Sub-section (1) of Section 12 and not within the protection of Sub-section (3)(b) of Section 12. The Explanation is not related at all to Sub-section (3)(b) of Section 12 and it must therefore follow as a logical conclusion that the Explanation cannot avail the defendant in so far as he seeks to rely on the provisions of Sub-section (3)(b) of Section 12. If the defendant had fulfilled the conditions set out in the Explanation the defendant could have contended that he was by reason of the legal fiction enacted in the Explanation ready and willing to pay the amount of the standard rent and permitted increases within the meaning of Sub-section (1) of Section 12 and that the plaintiff was therefore not entitled to recover possession of the shop from him. But the defendant admitted....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y of the notice before the learned District Judge the case would yet fall within the provisions of Clause (a) of Section 115 of the Code of Civil Procedure since the learned District Judge could be legitimately said to have exercised jurisdiction not vested in him by law if the notice was not valid and proper in accordance with the requirements of Sub-section (2) of Section 12 Mr. B.R. Shah relied upon the decision of the Supreme Court reported in Chaube Jagdish Pd. v. Ganga Prasad (supra) in support of this contention. I have already referred to this decision earlier and quoted certain passages from this decision; but for reasons which I shall presently mention I do not see how this decision can be of any help to the defendant. 19. In order to appreciate the contention it would be well to remember that there are two types of cases which may arise before subordinate Courts. Lord Esher M.R. in Reg. v. Commissioner of Income Tax (1888) 21 Q.B.D. 313 classified the two categories of cases as follows: When an inferior court or tribunal or body which has to exercise the power of deciding facts is first established by Act of Parliament the legislature has to consider what pow....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to decide rightly as well as wrongly while in the latter case the subordinate Court has only to see that a certain state of facts exists. In the first case the preliminary facts on the existence of which depends the jurisdiction of the subordinate Court are facts in issue the determination of which is entrusted by the legislature to the subordinate Court and the subordinate Court having jurisdiction to determine the preliminary facts the only ground on which the High Court can interfere in revision with the determination of the subordinate Court would be that under Clause (c) of Section 115 of the Code of Civil Procedure. The grounds specified in Clauses (a) and (b) of Section 115 of the Code of Civil Procedure would not avail the aggrieved party challenging the determination of the subordinate Court. In the second case however the preliminary facts on the existence of which the jurisdiction of the subordinate Court depends are collateral to the actual matter which the subordinate Court has to try and are conditions precedent to the assumption of jurisdiction by the subordinate Court and it is settled law that no Court of limited jurisdiction can give itself jurisdiction by a wrong....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... record did not establish that the jurisdictional fact namely that a valid and proper notice was given by the plaintiff to the defendant existed and the learned District Judge had therefore clearly no jurisdiction to award possession to the plaintiff and the learned District Judge accordingly exercised jurisdiction not vested in him by law in confirming the decree passed by the trial Court. This argument of Mr. B.R. Shah is fallacious and cannot be accepted by me for reasons which I shall immediately proceed to state. 20. I have grave doubt whether the fact that a valid and proper notice is given by the landlord to the tenant under Sub-section (2) of Section 12 can be said to be a fact on the existence of which depends the jurisdiction of the Court for the jurisdiction of the Court is derived from Section 28 of the Rent Act and the only conditions which are required to be satisfied under that section before the Court can have competence to entertain the suit are that the suit should be between landlord and tenant and should be either for recovery of possession or for arrears of rent. The condition which requires that a valid and proper notice should be given by the landlord to t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y the Court under the Rent Act is erroneous there is an appeal provided under Section 29 and the appellate Court can correct the error in appeal. If the appellate Court acts illegally or with material irregularity in determining the question the High Court can interfere with the decision in exercise of its revisional jurisdiction. But the decision cannot be attacked on the ground that it is an erroneous decision which has resulted in the Court exercising jurisdiction not vested in it by law or failing to exercise jurisdiction so vested. If therefore the defendant did not raise the question of the validity or propriety of the notice before the learned District Judge and expressly abandoned his contention as regards that question I do not see how the defendant can contend before me in revision that the learned District Judge erroneously assumed jurisdiction not vested in him by law when he confirmed the decree passed by the trial Court. I therefore reject the present contention of Mr. B.R. Shah. The last contention urged by Mr. B.R. Shah was that even if the conditions specified in Sub-section (3)(b) of Section 12 were not complied by the defendant the Court had jurisdiction apart fr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e decree passed by the trial Court. There was no obligation on the learned District Judge to consider on his own whether the trial Court should have granted relief to the defendant against dispossession even though he did not fulfill the conditions laid down in Sub-section (3)(b) of Section 12 nor was there any obligation on the learned District Judge to set aside the decree passed by the trial Court and to relieve the defendant against dispossession when the defendant did not himself attack the decree passed by the trial Court on that ground and did not apply for relief against dispossession to the learned District Judge. I do not see how under these circumstances it can be contended that the learned District Judge failed to exercise jurisdiction vested in him by law in not granting relief against dispossession to the defendant and confirming the decree for eviction against the defendant. 21. But apart from this objection to the contention urged by Mr. B.R. Shah I do not I see any merit in this contention. I cannot assent to the proposition that apart from the provision of the Rent Act there is any discretion in the Court to grant relief to the tenant against dispossession in a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t necessary for me for the purpose of this Revision Application to trace the history of this equitable jurisdiction in England beyond stating that relief against forfeiture is now granted in England under various statutory enactments. The principle of relief against forfeiture is also the subject matter of statutory enactment in India and is to be found in Section 114 and 114-A of the Transfer of Property Act. It may be that apart from these statutory enactments the equitable jurisdiction to relieve against forfeiture still remains but I need not concern myself with the question whether any such equitable jurisdiction exists or does not exist in the Court. Whether the jurisdiction to relieve the tenant against forfeiture is the jurisdiction derived from statutory enactments or is the general equitable jurisdiction not owing its existence to any statutory enactments one thing is clear that the jurisdiction is to relieve the tenant against forfeiture of an existing term which would continue but for the forfeiture. There can be no scope for the exercise of the jurisdiction to relieve against forfeiture in cases where the tenancy is not determined by forfeiture. If the tenancy is for i....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... upon the tenant as specified in that sub-section. The Legislature also provided another safeguard to the tenant in the shape of the original Sub-section (3) of Section 12 which provided that no decree for eviction shall be passed in any suit for recovery of possession by the landlord against the tenant if at the hearing of the suit the tenant pays or tenders in Court the standard rent or permitted increases then due together with the costs of the suit. This section was interpreted by the High Court of Bombay to mean that the tenant could pay or tender the standard rent or permitted increases together with the costs of the suit even at the hearing of the appeal and save himself from dispossession because the expression suit includes an appeal. The legislature however substantially altered this provision by substituting Sub-sections (3)(a) and (3)(b) for the original Sub-section (3) by Act 61 of 1953. The legislature provided by Sub-section (3)(a) of Section 12 that 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 negle....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the tenant against dispossession by the landlord. These provisions made an inroad on the right of the landlord under the ordinary law of landlord and tenant to recover possession of premises from the tenant on the determination of the tenancy. The result therefore is that even though under the ordinary law of landlord and tenant the landlord is entitled to recover possession of premises from the tenant on the tenancy coming to an end by any of the modes mentioned in Section 111 of the Transfer of Property Act the tenant can successfully resist the landlords claim for possession if he can bring his case within the four corners of any of these provisions. These provisions confer a status of irremovability on the tenant subject to the conditions set out in these provisions. This status of irremovability is commonly referred to as statutory tenancy for the tenant who claims to retain possession of premises after the determination of his tenancy by virtue of the protection afforded by these provisions of the Rent Act is not a tenant in the sense in which the term "tenant" is understood under the ordinary law of landlord and tenant but he has a personal right conferred by the statute to....
X X X X Extracts X X X X
X X X X Extracts X X X X
....b-section (1) of Section 12 enacts as I have pointed out above that the landlord shall not be entitled to recovery of possession of premises so long as the tenant 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 in so far as they are consistent with the provisions of the Rent Act. But that does not mean that if the conditions specified in this sub-section are not fulfilled the landlord must get a decree for eviction against the tenant. If the tenant has otherwise a right to remain in possession of premises such right is not affected by the provision contained in Sub-section (1) of Section 12. The provision enacted in Sub-section (1) of Section 12 is a negative provision inasmuch as it bars the landlords right to recover possession of premises from the tenant under certain circumstances but it does not provide that if those circumstances do not exist the landlord shall be entitled to recover possession of premises from the tenant; for that one must turn to the provisions of the ordinary law of landlord and tenant or any other statute which may govern the relationship between the p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ary law of landlord and tenant or under any other statute. 23. Now it is elementary that when the tenancy of the tenant is determined by any mode other than forfeiture there is no provision in any law apart from the Rent Act which would entitle the tenant to continue in possession notwithstanding the determination of the tenancy. The tenant must in such a case give up possession of premises in favour of the landlord unless he can bring his case within the provisions of the Rent Act. It is only when the determination of the tenancy is by forfeiture that the tenant has a right to be relieved against forfeiture. The tenant can in a case where the tenancy is sought to be determined by forfeiture obtain relief against forfeiture and on the forfeiture being relieved against, the contractual tenancy of the tenant would continue uninterrupted as if no forfeiture had taken place. This right to relief against forfeiture which the tenant possesses is for the reasons which I have mentioned above not affected by the provisions of the Rent Act. But when there is no forfeiture of the tenancy I do not see how the tenant can resist the landlords claim for possession of premises if his case does ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f landlord and tenant entitled to possession. There is no discretion in the Court under the ordinary law of landlord and tenant or under any statute apart from the Rent Act to refuse to award possession to the landlord. Possession must therefore follow as soon as it is established that the tenancy is determined by notice to quit and the tenant cannot bring his case within the four corners of the Rent Act. The effect of accepting the construction contended for by Mr. B.R. Shah would be to confer upon the tenant a right or benefit which is not conferred upon him by the Rent Act. Under the ordinary law of landlord and tenant the tenant has no right to resist possession once the tenancy is determined. The Rent Act has conferred upon the tenant the protection of irremovability if he complies with certain conditions. If he does not comply the protection must go. How can the Court give him a further protection which the Act does not confer? The Rent Act says to the tenant that he shall have protection under certain conditions. Can the Court then say I shall give you protection even though you have not fulfilled the conditions and you are therefore not entitled to protection either under t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ree was entitled to be protected from dispossession under Section (3)(b) of Section 12. The argument which was advanced before the learned Chief Justice was that the arrears of rent were not paid by the tenant on or before the first day of hearing of the suit or on a subsequent day fixed by the Court. It appears that no application had been made by the tenant to the Court for fixing any day or days for payment of the arrears of rent. The tenant without making any application to the Court for fixing any day or days for making payment of the arrears of rent deposited the arrears of rent in Court on two different dates prior to the passing of the decree. This according to the contention urged on behalf of the landlord did not constitute compliance with the requirements of Sub-section (3)(b) of Section 12 and it was argued that the tenant was therefore not entitled to resist eviction. The learned Chief Justice dealing with this contention observed that when the arrears of rent were deposited on two different dates the Court must be deemed to have fixed these dates as the dates on which the tenant should pay the arrears and that there was therefore compliance with the provisions of Sub-....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as laying down any such proposition of law as contended for by Mr. B.R. Shah. As a matter of fact the learned Chief Justice expressed his entire agreement with the decision of Shah J. in Laxminarayan Nandkishore v. Keshardev Narsaria 58 BomLR 1041 and distinguished that decision by observing that: It will be noticed that in the case before Mr. Justice Shah arrears of rent had not been deposited before the date of judgment and therefore the question that I am now considering was never considered by the learned Judge. There the arrears were directed to be paid by the decree and they were paid subsequent to the decree. It is on those facts that Mr. Justice Shah held that a conditional decree could not be passed by him. The tenant was not protected by Section 12(3)(b) in the case before Mr. Justice Shah because he had neither paid the arrears on the first day of the hearing nor on any, subsequent date before the final decision. 26. It will be clear from this observation that according to the learned Chief Justice the decision given by Shah J. was correct because in the case before Shah J. the tenant had not paid the arrears of rent on the first day of hearing or on any subs....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the conditions specified in Sub-section (3)(b) of Section 12 are not satisfied in a case where the tenancy of the tenant is determined by any mode other than forfeiture for that was the case before the learned Judge the decree for eviction must go against the tenant and there is no discretion in the Court to refuse to pass a decree for eviction for if there were any such discretion the learned Judge would have certainly interfered with the decree for possession passed by the learned Assistant Judge particularly in view of the fact that the arrears of rent and permitted increases had been paid off by the tenant subsequent to the conditional decree by the trial Court. The learned Judge in fact held that the arrears of rent and permitted increases cannot be paid or deposited by the tenant subsequent to the date of the final decision of the suit. This decision was as I have pointed out above accepted as good law by Chagla C.J. in Kalidas Bhavan v. Bhagwandas Sakalchand (supra). The decision of Chagla C.J. therefore does not help the argument of Mr. B.R. Shah but on the contrary supports the contention urged by Mr. S.B. Vakil that if the tenant does not comply with the conditions speci....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e namely that if the tenant does not comply with the provisions of Sub-section (3)(b) of Section 12 there is no discretion in the Court in a case where the tenancy of the tenant is determined by any mode other than forfeiture to relieve the tenant against dispossession and to refuse to pass a decree for eviction against the tenant. 28. This view also receives considerable support from a decision of the Kings Bench Division of the High Court of England in Brewer v. Jacobs. (1923) 1 K.B. 528. In that case the landlord had let a dwelling house to the tenant for a period of five years. At the expiration of the term the tenant remained in possession as statutory tenant. He subsequently became in arrear with rent and also committed a breach of covenant to repair. The landlord thereupon issued a summons for possession on these grounds. Subsequent to the summons but before trial the tenant paid the rent and costs into Court. No notice of breach of covenant was served by the landlord on the tenant under Section 14 of the Conveyance Act 1881 The tenant contended that the landlord could not claim relief of possession since under Section 212 of the Common Law Procedure Act 1852 the proceedi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....case and accordingly passed a decree for eviction against the tenant. Tarkunde J held that it was not Sub-section (3)(a) but Sub-section (3)(b) of Section 12 that applied to the facts of the case and after referring to the decision of Chagla C.J. in Kalidas Bhavan v. Bhagvandas Sakalchand (supra) observed as follows: That the Court has discretion of granting or refusing a decree for possession in cases where the tenant fails to act according to the explanation to Section 12 Is clear from the observations of Chagla C.J. as he then was in Kalidas Bhavan v. Bhagvandas Sakalchand. and even though the tenant had not paid the arrears of standard rent and permitted increases before the date of the decree passed by the trial Court refused to pass a decree in favour of the landlord on the ground that he had a discretion whether or not to grant a decree for eviction. It is clear from the judgment of the learned Judge that he did not consider the question on its merits but merely followed what he thought was the ratio of the decision of Chagla C.J. in Kalidas Bhavan v. Bhagvandas Sakalchand (supra) namely that even where the tenant does not comply with the provisions of Sub-sec....