LexMISTRY PREMJIBHAI VITHALDAS versus GANESHBHAI KESHAVJI
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• 569 MISTRY PREMJIBHAI VITHALDAS A v. GANESHBHAI KESHA VJI April 14, 1977 [M. H. BEG, C.J., A. C. GUPTA AND P. S. KAILASAM, JJ..] Bombay Rents, Hotel and Lodgi11,:: !louse Rates Control Act, 1947-PrQ- tection against eriction-Prote.ction under sec. 12 (3) ( b), when ava!lab!e-- Statutory powers of the Court under s. 12 of the Act. B Under s. 12(1) of the Bombay Rents. Hotel and Lodging House Rates Control Act, 1947, a tenant is entitled to claim protection from eviction so long as be is willing and ready to pay the standard rent as defined in s. 5(10) C and permitted increases and observes other conditions of the Act. The prO- tection is subject to the limitations contained in s. 12(2) and 12(3). Under s. 12(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 are in arrears for a period of 6 months or more and the tenant neglects to make payment thereof uµtil the expiration of the period of one month ad'ter notice referred to in sub-section ( 2) , the court ·may pass a decree for eviction in any such suit for recovery of possession. Under s. 12(3)(b) no decree for eviction shall be passed in any suit if on the first day 0, of hearing of the suit or on or before such other date as the court may fix, the tenant pay3 or tenders in court the standard rent and permitted increases then due and thereafter continues to pay or tender in court regulairly such rent and pern1itted increases till the suit is finally 'decided and also pays costs of the suit as directed by the court. The respondent-tenant was in arrears of rent amounting to Rs. 990/ - for the period from 6th March 1967 to 5th December 1969, house tax amounting E to R~. 27.49 and electricity charges amounting to Rs. 210.18. The appellant- Jandlord served a notice upon him under s. 106 of the Transfer of Property Act terminating the tenancy and filed a suit for eviction. The respondent filed an application for fixation of the standard rent within a month under 1. 11(2) of the Act. He also filed an application for fixation of interitn rent on the &round that he being a poor man was unable to pay rent and the total amount due at once. On these applications, the interim rent wa<> fixed at !ls. 25/- by Ml order dated 3-2-1970 and he was directed to deposit arrears of rent and future rent at this rate on or before 10th of the next F month. These applications were dismissed for non-prosecution later on. The trial court helcl that as the respondent-tenant was "ready and willing" to pay the rent to the appellant-landlord, the suit for ejectment could not be decreed in spite of the fact it found that the notice was validly issued and the arrears were true and correct. The appellate court held that the unwillingness of the respo.Qdent to pay the rent which was apparent from the patent focts and admis3ions and conduct disentitled .him from the protection under s. 12 and decreed the suit for ejectment. The High Court. however, relying on an affidavit dated 18-9-75 filed by the respondent allowed the revision application G made by him under s. 29(2) of the Act. Allo\ving the nppea•l by special leave, the Court. HELD : (1 )_ T~e ~tatutory !'rotection can only be given in accordance with the terms on which it 18 pernuss1ble. The Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 does not confer a po,ver ur:ion the court to excu~e a violati_on of the provisions of the Act by making 'vrong assumptions or ~n compassionate grounds. The Court. could not. therefore, exercise what would ·H be in effect a power to condone infringement of the Act. [575F, 576B] (2) In cases \\·here there is no dispute regarding the amount of standard rent if the proYisions of s. 12(3) (a) are not s·ho,vn to be complied with, . A B c D 570 SUPREME COURT REPORTS [1977] 3 S.C.R • the Court is bou~d !o pass a de_crec for eviction. Where ,1 tenant does not prosecut~ a~ appllcatton for fi~at~on o.f standard rent and delibe1ately permits lo be dismissed for non-prosecution, 1t could be reasonably inferred that it was not a bona fide application at all. [575 G-H, 576 AJ . (3) A fixation of. standard. rent can o?IY tak.e place by means of the sr,e- c1fied procedure provided for it. There ts nothing in the instant case whi•:::h could be "deemed" a fi~ation under the Act. It being admitted that -the agreed rent was R
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