BAI REVABEN WD O SITARAM GANGARAM Vs. SINDHI MEGHNATH ENSHIRAM
HIGH COURT OF GUJARAT
BAI REVABEN WD/O SITARAM GANGARAM
SINDHI MEGHNATH ENSHIRAM
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(2.) Second contention raised en behalf of the petitioner is that a tenant who has not deposited rent regularly during the pendency of his revision application filed under sec. 29(2) of the Rent Act cannot be said to have complied with the conditions of sec. 12(3)(b) of the Rent Act as a revision application being a continuation of suit the suit cannot be said to have been finally decided till the decision of the revision application. He has submitted that it is well-settled that an appeal is a continuation of a suit; and that the revision application under sec. 29 of the Rent Act is in the nature of an appeal. He has relied upon the decision of the Supreme Court in SHANKER V. KRISHNA A.I.R. 1970 Supreme Court 1 wherein it has been observed as under:
"Now when the aid of the High Court is invoked on the revisional side it Is done because it is a superior Court and it can interfere for the purpose of rectifying the error of the Court below. Sec 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior Court. It is only one of the modes of exercising power conferred by the Statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense."
(3.) Identical contention based upon the decision of the Supreme Court in Shankers cave (supra) was raised before this Court in Civil Revision Application No. 478 of 1978 decided by M. C. Trivedi J. On September 19 1975 and was rejected. It was held that So far as the provisions of sec. 12(3)(b) are concerned it should be held that the suit is finally decided by the decision in appeal. The tenant is not obliged to abide by the conditions of sec. 12(3)(b) of the Act pending the decision of the revision application if any filed under sec 29(2) of the Act. Such a contention was also raised before this Court in Civil Revision Application No. 1053 of 1973 decided on March 18 1976 and the same was rejected by S. H. Sheth. J. observing that In LALCHAND JEMATMAL V. NANABHAI RANCHHODDAS AND OTHERS 17 G.L.R. 1 a Full Bench of this Court has held that the expression:
" 'till the suit is finally decided' refers to the decision of the suit in appeal by the appellate Court and that therefore the tenant must continue to pay or tender in Court regularly the standard rent till the decision of the appeal. No Court has taken the view that the expression till the suit is finally decided used in sec. 12(3)(b) also applies to revisional proceedings in the High Court. I do not propose to take such a rigid view of law."
In view of these two decisions of this Court the second contention raised by Mr. Abichandani cannot be upheld. Even if a tenant has not paid rent regularly during the pendency of his revision application under sec. 29 of the Rent Act it cannot be said that he has not complied with the conditions laid down by see 12(3)(b) of the Rent Act and that he has deprived himself of the benefit of that section. Application dismissed.;
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