- (1.) By way of the present Revision Application under Section 29(2) of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947 ("the Rent Act" for short) original defendants/ respondents in Appeal, have challenged the judgment and order dated 25.1.2002, passed by the Second Extra Assistant Judge, Veraval, in Regular Civil Appeal No. 77 of 1999, (Old No. 101 of 1992), by which the appeal filed by the present respondent original plaintiff came to be allowed and the present petitioners tenants are directed to hand over vacant and peaceful possession of the suit premises to the respondent landlord.
(2.) Brief facts arising from the case are as under: 2.1 That the present respondent Nirmalaben Narshibhai Vaya, landlady of the suit premises, rented the same to one Jatubhai Kalyansinh Parmar, the predecessor of the present petitioners tenants. The suit came to be filed in the court of learned Civil Judge (JD), Veraval, being Regular Civil Suit No.79 of 1980 and prayed to pass a decree for possession of the suit premises against the defendants, who are tenants of the suit premises, on several grounds. The possession of the suit premises was demanded on several grounds and the same was opposed by the defendants tenants by filing written statement. During the pendency of the suit, the original tenant Jatubhai Kalyansinh Parmar died and, therefore, the present petitioners were brought on record as the legal heirs of said Jatubhai Kalyansinh Parmar. 2.2 That the learned Trial Court framed issues at Exhibit-41 and after considering the documentary evidence and depositions of parties, came to the conclusion that, the original plaintiff landlady was not entitled for recovery of possession of the suit premises on any of the grounds which were advanced by the original plaintiff and dismissed the Suit on 13.11.1992. 2.3 That the said judgment and decree came to be challenged by the original plaintiff i.e. landlady by way of filing an appeal, which was originally registered as Regular Civil Appeal No. 101 of 1992 and subsequently it was renumbered as Regular Civil Appeal No. 77 of 1999. 2.4 The Appellate Court, while deciding the appeal, considered several questions of law relying upon the facts involved in the case. The Appellate Court considered about eight points for its determination. Except 'Point No.5' the Appellate Court held in favour of the present petitioners - tenants whereas Point No.5 was decided against the present petitioners. The point No. 5 is with regard to "whether the case falls under Section 12(3)(b) of the Rent Act or not". The learned Appellate Court decided the said Point No.5 at the time of finally deciding the Appeal and came to the conclusion that the petitioners tenants have committed breach of Section 12(3)(b) of the Rent Act and, therefore, the appellant original plaintiff landlady was entitled for possession of the suit premises. Hence, this Revision Application by the defendants/respondents - tenants.
(3.) Mr. Narendra Gaekwad, learned Advocate, appearing with Mr. B.P. Munshi for the petitioners tenants has assailed the judgment and order of the appellate court on the ground that the learned Appellate Court has erred in framing point No.5 in absence of any pleadings in the memo of Appeal. He submitted that it was not the case of the respondent landlady that the tenants had committed breach of Section 12(3)(b) of the Rent Act and, therefore, there was no occasion for the learned Appellate Court to hold against the tenants. He has further submitted that the learned Appellate Court has erred in calling information suo motu from the Department whether the rent was paid or not by the petitioners tenants during the pendency of the Appeal. He has submitted that there is no direction issued by the learned Appellate Court as provided under Section 12(3)(b) of the Rent Act directing the petitioners - tenants to deposit the rent amount before the Appellate Court during the pendency of the Appeal. Mr. Gaekwad further submitted that when the suit was filed in the year 1980, the unamended provision of Section 12(3)(b) of the Rent Act was applicable, however, when the appeal was heard and finally decided, Section 12(3)(b) of the Rent Act was amended by deleting word "regularly" and, therefore, when the landlady filed the appeal, she should have prayed to the Appellate Court to direct the tenants to pay the rent during the pendency of appeal. In absence of such direction, the Appellate Court has erred in passing the decree of possession by arriving at the conclusion that the tenants have committed breach of the provision of Section 12(3)(b) of the Rent Act. In support of his submission, Mr. Gaekwad relied upon a decision of this Court in the case of Murlis Chandrakant Chokshi vs. Maganbhai Hansjibhai Patel, 2002 3 GLH 411and submitted that while dealing with the case under Section 12(3)(b) of the Rent Act, this Court has held that amendment in Section 12(3)(b) of the Act is made to remove the hardships caused to the tenant with regard to depositing the rent. Relying upon paragraphs 7 and 9 of the said judgment, he has submitted that, in absence of any direction by the court, the tenants were not bound to deposit the amount. 4 On the other hand, learned Advocate Mr. Mehul S. Shah, appearing for the opponent has supported the judgment delivered by the Appellate Court and submitted that the appeal arising from the proceedings under the Bombay Rent Act is a continuous proceeding and, therefore, no specific direction is necessary by the Appellate Court for depositing the amount of rent during the pendency of the appeal. He has submitted in the present case, an objection was raised by the tenants before the Trial Court about the standard rent of the suit premises. When the landlady submitted an application at Exhibit-71, requesting the Trial Court to direct the tenants to pay arrears of rent to the tune of Rs. 70/- per month, the court after considering the objections with regard to the standard rent, passed an order on 10.8.1989 and fixed the standard rent at the tune of Rs.60/- per month and directed the tenants to deposit the arrears within two months from the date of the order. The Tenants deposited the entire amount and continued to pay the rent at the tune of Rs.60/- per month during the pendency of the suit and, therefore, when the suit was finally decided on 23.11.1992, the tenants had not committed any breach of Section 12(3)(b) of the Rent Act. He submitted that while deciding the suit, the Trial Court did fix the standard rent @ Rs. 50/- per month which was tentatively fixed at Rs. 60/- per month when the application - Exhibit-71 was decided. Since the rent @ Rs. 50/- per month was finally decided, the tenants were bound to pay the monthly rent @ Rs.50/- to the landlady during the pendency of appeal and till the appeal is decided. He has submitted that no specific direction was necessary by the Appellate Court in absence of any challenge to the rent fixed by the Trial Court @ Rs. 50/- per month. He would submit that examining the question of breach of Section 12(3)(b) of the Rent Act would come into picture only at the time of hearing the appeal and, therefore, the arguments were advanced by the landlady about the breach the provisions of Section 12(3)(b) of the Act committed by the tenants. The court found that the tenants had not paid any amount towards rent during the pendency of appeal and, therefore, the decree is rightly passed by the Trial Court having found that the tenants have not paid any rent during the pendency of appeal and committed breach of Section 12(3)(b) of the Act. He would submit that Advocate appearing before the Appellate Court for the tenants, did argue the appeal on this question by relying upon several reported decisions and therefor they were aware about the question of law with regard to provisions of Section 12(3)(b) of the Act.;