RATILAL BALABHAI NAZAR Vs. RANCHHODBHAI SHANKERBHAI PATEL

JUDGEMENT

(1.) This litigation has had a checkered history and it is necessary to Set out briefly the relevant facts leading upto the filing of this petition. A recapitulation of these facts is necessary for the purpose of appreciating the preliminary objection raised on behalf of the respondents against the maintainability of the petition. The dispute in the petition relates to two rooms on the ground floor of a building known as Himmat Nivas situate in Ahmedabad. The premises were let out by the original owner to the petitioner at a monthly rent which according to the petitioner was Rs. 50 per month inclusive of municipal taxes and electricity charges. The rent according to the respondents however was Rs. 50 per month plus municipal taxes plus Rs. 5 in respect of electricity charges. We shall presently refer to this dispute about the rent but in the meantime it Day be pointed out that the original landlords sold the premises to the first respondent on 2nd January 1956 and the first respondent accordingly become the landlord of the premises. The petitioner admittedly fell in arrears of rent from 1st April 1956 and the first respondent therefore gave a notice dated 20 February 1957 to the petitioner under sec. 12(2) of the Bombay Rents Hotel and Lodging House Rates (Control) Act 1947 (hereinafter referred to as the Rent Act) demanding arrears of rent at the rate of Rs. 50 pet month plus municipal taxes plus Rs. 5 per month in respect of electricity charges. The petitioner did not give any reply to the notice nor did he comply with the requisitions contained in the notice. The first respondent therefore filed a suit against the petitioner on 1st April 1957 seeking to recover possession of the premises from the petitioner. Those were three grounds on which possession was sought but out of them only one survives for consideration and that is the ground based on arrears of rent. The petitioner in his written statement did not dispute that he was in arrears of rent at the date of the institution of the suit but his contention was that the agreed rent was Rs. 50 per month inclusive of municipal taxes and electricity charges and he was always ready and willing to pay the same to the first respondent but the first respondent wrongly demanded rent at the rate of Rs. 50 per month plus municipal taxes plus Rs. 5 per month in respect of electricity charges. The dispute between the parties therefore was as to what was agreed rent of the premises and at that stage there was no dispute in regard to the standard rent. During the pendency of the suit the premises were sold to the second respondent on 2nd August 1959 and the second respondent was accordingly joined as a co-plaintiff on 28th August 1959. The petitioner thereafter on 1st July 1960 made an application for leave to amend the written statement by introducing a dispute as to the standard rent and the amendment was allowed by the learned trial Judge. The suit was thereafter heard and by judgment dated 19th July 1960 the learned trial Judge rejected the respondent claim to recover possession of the premises from the petitioner. The learned trial Judge held that the standard rent was Rs. 50 per month inclusive of municipal taxes and electricity charges and since the amount of Rs. 2 890 deposited by the petitioner in Court during the pendency of the suit was more than sufficient to cover the arrears of rent at the rate so determined the learned trial Judge held that se petitioner was entitled to the protection of sec. 12(3)(b). The respondents being aggrieved by this decision preferred an appeal to the District Court and the appeal was transferred to the City Civil Court on the latter Court coming into existence. The learned Principal Judge on a review of the evidence came to the conclusion that the standard rent was Rs. 50 per month plus municipal taxes plus Rs. 5 per month in respect of electricity charges and the determination of the standard rent made by the trial Court Was incorrect. The question then arose as to which provision applied to the facts of the case:- sec. 12(3)(a) or sec. 12(3)(b). The learned Principal Judge held that neither of these two provisions applied for on a correct construction of the various sub-sections of sec. 12 the applicability of sec. 12(3)(a) and 12(3)(b) was confined to cases in which there was no dispute as to the standard rent was raised by the petitioner in the written statement sec. 12(3)(a) and 12(3)(b) had no application and the case was governed exclusively by sec. 12(1) and the proviso. The learned Principal Judge then proceeded to apply sec. 12(1) and the proviso to the facts of the case and held that since the petitioner was admittedly in arrears of rent at the date of the institution of the suit and no application for fixation of standard rent was made within one month of the notice under sec. 12(2) as contemplated by the proviso the petitioner was not entitled to the protection of the Rent Act. The learned Principal Judge accordingly passed a decree for eviction against the petitioner. The petitioner being aggrieved by the decree for eviction preferred a Revision Application to this Court but the Revision Application was summarily rejected by a single Judge of this Court on 9th July 1962. The petitioner then appealed to the Supreme Court by special leave but this appeal was also unsuccessful. The Supreme Court rejected the appeal on the ground that though the construction placed by the learned Principal Judge on the various sub-sections of sec. 12 was erroneous that was not a ground for interference under sec. 115 of the Code of Civil Procedure and the High Court was therefore right in rejecting the revision application. This decision was given on 23rd August 1965 and immediately thereafter on 2nd September 1965 the petitioner filed the present petition under Article 227 of the Constitution challenging the legality of the decision of the learned Principal Judge.

(2.) It is clear from the aforesaid statement of facts that the decision of the learned Principal Judge impugned in the petition was given in 15th January 1962 while the petition was filed after a period of about 31/2 years on 2nd September 1965. Mr. S. B. Vakil learned advocate appearing on behalf of the respondents therefore urged by way of preliminary objection that the petitioner was guilty of laches and gross delay and we should in the exercise of our discretion refuse to interfere with file decision the learned Principal Judge even if it disclosed an error of law apparent on the fact of the record. The remedy under Article 227 of the Constitution being a remedy analogous to a revision application he submitted the period of 90 days provided for filing a revision application should be relief as a reasonable period within which the remedy under Article 227 should be adopted and any delay beyond that period if unexplained or unaccounted for should be held sufficient to disentitle the petitioner to relief under Article 227. The delay in the present case be contended was a delay of more than 39 years and the explanation for the delay given by the petitioner was not a proper or adequate explanation which should induce the Court to entertain the petition despite the delay. Now there can be no doubt and the respondents are right to this extent that the remedy under Article 227 is a discretionary remedy and the Court will not ordinarily exercise its discretion in favour of a petitioner who is guilty of laches or delay but there can be no hard and fast rule no mathematical formula laying down the period within which the remedy must be invoked beyond which delay would be considered fatal to the exercise of discretion in favour of the petitioner. Delay or laches is a factor which bears on the discretion of the Court and what is essentially a matter of discretion cannot be cast in any right would or encased in any straight-jacket formula. Whether or not delay in any particular case is sufficient to disentitle the petitioner to relief under Article 227 must depend on the facts and circumstances of the case. We cannot therefore accept the submission of the respondents that merely because the petition is filed more than 90 days after the date of the impugned decision the petition must be thrown out on the ground of laches and delay. The period of 90 days provided for pursing the analogous remedy of revision is certainly a relevant factor and would have to be taken into account but it would not be proper to regard it as invested with such sanctity that any delay beyond it would necessarily be fatal. What is of the essence is and that constitutes the principle behind the rule that the petitioner must not be guilty of inaction in asserting his rights; he must not sleep over his rights his delay must not have resulted in prejudice to the other party. This principle is stated clearly in the latest decision of the Supreme Court given on 28th February 1967 in Civil Appeal No. 22 of 1966 Moon Mills Ltd. v. M. R. Mehar & Others. That case related to the issuance of a writ of certiorari and while dealing with the question as to what should be the true principle which must guide the Court in the exercise of its discretion where a question of laches or delay is raised against the petitioner Ramaswami J. speaking on behalf of the Supreme Court said:-

(3.) That takes us to the merits of the petition. So far as merits are concerned there is little doubt that the judgment of the learned Principal Judge suffers from an error of law apparent on the face of the record The learned Principal Judge took the view that the applicability of sec. 12(3)(a) and 12(3)(b) was confined to cases in which there was no dispute as to the standard rent and where there was such dispute the case fell to be governed exclusively by sec. 12(1) and the Explanation. This view was patently erroneous as it in now well-settled by several decisions of this Court and the Supreme Court that the various Subsections of sec. 12 confer protection on a tenant at different stages. Sec. 12(1) enacts a rule of decision that if at the date of the institution of the suit the tenant pays or is ready and willing to pay the standard rent and permitted increases he shall be protected from eviction subject to the provisions of sec. 12(3)(a). Sec. 12(2) gives an opportunity to the defaulting tenant to pay up the arrears and save himself from being evicted :-if the tenant pays up the arrears within one month of the service of the notice under sec. 12(2) he gets the protection of sec 12(1). If the tenant disputes the amount of standard rent and permitted increases he can avail himself of the Explanation and show his readiness and willingness to pay the standard rent and permitted increases by complying with the conditions laid down in the Explanation. Sec. 12(3)(a) specifies the circumstances in which the tenant forfeits the protection under the Rent Act. There are four conditions which have to be satisfied in order to attract the applicability of sec. 12(3)(a) and they are:- (1) the rent must be payable by the month; (2) there must be no dispute regarding the standard rent or permitted increases right upto the expiration of a period of one month from the date of the notice under sec. 12(2) (3) the rent must be in arrears for a period of six months or more at the date of such notice; and (4) the tenant must neglect to make payment of such arrears until the expiration of a period of one month after the date of such notice. If in any case these four conditions are satisfied the landlord is entitled to obtain a decree for eviction against the tenant. Sec. 12(3)(b) opens with the words in any other case and obviously refers to cases other than those covered by sec. 12(3)(a). If the case does not fall within sec. 12(3)(a) it would have to be decided by reference to sec. 12(3)(b) Whether the rent is not payable by the month or there is a dispute as to the standard rent or permitted increases at the date of the notice under sec. 12(2) or at any rate before the expiration of a period of one month from such notice or the rent in arrears at the date of such notice is rot for a period of six months or more the case would all within sec. 12(3)(b) and if the conditions of sec 12(3) are complied with the tenant would be entitled to protection not with standing that he was not ready and willing or deemed to be ready and willing to pay the standard rent and permitted increases within the meaning of sec 12(1). This being the undoubted position in law it was not seriously disputed by Mr. S.B. Vakil on behalf of the respondents that the judgment of the learned Principal Judge was vitiated by an error of law apparent on the face of the record. But he contended that even so the decree for eviction passed by the learned Principal Judge should not be set aside since the petitioner was admittedly in arrears of rent at the date of the institution of the suit and was consequently not entitled to the protection of sec. 12(1) and his case was governed by sec. 12(3)(a) and in any event even if sec. 12(3)(a) did not apply sec. 12(3)(b) did not afford any protection to the petitioner since the conditions of that section were not satisfied. Miss Daboo ready conceded that the petitioner was not entitled to the protection of sec. 1(1) as he was admittedly in arrears of rent at the date of the institution of the suit but her contention was that sec 12(3)(a) did not apply and the case was therefore governed by sec. 12(3)(b) and the conditions of sec. 12 being satisfied no decree for eviction was liable to be passed against the petitioner. These rival contentions raised the question as to whether the case was governed by sec 12(3)(a) or sec 12(3)(b). We have already set out the four conditions which are necessary to be satisfied in order to attract the applicability of sec 12(3)(a) and the dispute between the parties centered round the fulfillment of the first condition denoted by the words where the rent is payable by the month. The argument of the petitioner was that the rent in the present case was Rs. 50.00per month plus municipal taxes plus Rs. 5.00per month in respect of electricity charges and since the municipal taxes were payable by the year the rent could not be said to be payable the month with in the meaning of sec. 12(3)(a). The respondents on the other hand urged that the word rent was used in sec. 12(3)(a) not in its legal technical sense but in its popular sense and according to the popular sense it did not include municipal taxes and that in any event if it included municipal taxes there was sufficient compliance by the month. The argument of the petitioner was supported by a decision given by me sitting as a single Judge in Mohanlal v. Maheshwari Mills Ltd. (1962) III G.L.R. 57 and the correctness of this decision was also therefore questioned on behalf of the respondents. But for the purpose of deciding the present petition it is not necessary to go into the question whether the decision in Mohanlal v. Maheshwari Mills Ltd. (supra) is correct for we are of the view that even if the decision is correct and the case does not fall within sec. 12(3)(a) and must therefore be governed by sec. 12(3)(b) the conditions of sec. 12(3)(b) are not satisfied and the petitioner is therefore not entitled to protection under sec. 12(3)(b). Our reasons for saying so are as follows.