VASANT GANESH DAMLE versus SHRIKANT TRIMBAK DATAR AND ANR.

Citation: [2002] 2 S.C.R. 198 · Decided: 05-03-2002 · Supreme Court of India · Bench: R.P. SETHI · Disposal: Dismissed

Judgment (excerpt)

A 
V ASANT GANESH DAMLE 
v. 
SHRIKANT TRIM BAK DAT AR AND ANR. 
MARCH 5, 2002 
B 
[R.P. SETHI AND K.G. BALAKRISHNAN, JJ.] 
Rent Control and Eviction 
· Bombay Rents, Hotel and Lodging House Rates Control Act, 1947-S. 
C 12(3)--Evictioi:-Default in payment of rent-Application for depositing the 
arrears of rent-Not made on the first day of hearing of suit-Held, tenant not 
entitled to avail protection under S. 12(3)-Eviction order upheld-Code of 
Civil Procedure, 1908-S. 107. 
D 
Words and Phrases 
Expression "such other date as the court may fvc "-Meaning of in the 
).._ 
context of S. 12(3) of the Bombay Rents, Hotel and Lodging House Rates 
· 
Control Act, 1947. 
E 
Respondent-landlords filed a suit for eviction of appellant-tenant on the 
ground of default in payment of rent. The said suit was dismissed by the trial 
court. On appeal, the Appellate Court found that as the appellant-tenant had 
defaulted in payment of rent, he was liable to be evicted from the leased 
premises. Appellant-tenant's writ petition before the High Court was 
dismissed. Hence the present appeal. 
F 
On behalf of appellant-tenant it was contented that appellant was not 
liable to be evicted as he had deposited the arrears of rent in the court in 
terms of the provisions of the Bombay Rents, Hotel and Lodging House Rates 
Control Act, 1947; that even if the order of the trial court was not an order 
in terms of S. 12(3) of the Act, as the appeal was the continuation of a suit, 
G the appellate court had the jurisdiction to pass the order in terms of S. 12(3) 
of the Act directing the tenant to deposit the arrears of rent and since the 
direction was complied with no decree of eviction could be passed. 
On behalf of respondent-landlords it was contended that the order of 
H the trial court could not be termed to be an order within the meaning of S. 
198 
 
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V ASANT GANESH DAMLE v. SHRIKANT TRIMBAK DAT AR 
199 
12(3) of the Act and the order of the appellate court was passed without A 
prejudice to the rights of the parties; that though the appeal was the 
continuation of the suit, the provisions of S. 12(3) being a concession conferred 
upon the tenant had to be availed of on the first day of hearing of the suit or 
on or before such other date as the court may fix which could not be stretched 
to authorize the tenant to avail the benelicial 11rovision at any time according B 
to his convenience and even· at the appellate stage. 
Dismissing the appeal, the Court 
HELD: 1.1. The High Court was, justified in holding that the appellant 
cannot take advantage of Section 12(3) of the Act at the appellate stage which 
he had failed to avail before the trial court. The appellant was rightly held to C 
be in arrears of rent for more than 6 months from the date of filing of the 
suit and had failed to apply before the trial court on the first day of hearing 
of the suit for depositing the arrears of rent [204-B-C] 
1.2. A perusal of the trial order clearly and unambiguously shows that D 
the said order had not been passed in terms of sub-section (3) of section 12 of 
the Act. The aforesaid order was not passed at the request of the tenant but 
passed on the application of the respondents-plaintiffs who had prayed for 
payment of the rent The said order was passed not on the first day of hearing 
or on or before any other date as fixed by the court. The amount mentioned 
in the order was the suit amount which did not include permitted increase or E 
interest and costs as contemplated by the aforesaid provision. Despite the 
aforesaid order the appellant did not make the payment within time specified 
and defaulted the payment of future rent in terms thereof. The suit of the 
plaintiff could not, therefore, be dismissed on the basis of the trial court's 
order. [202-H; 203-A-B) 
F 
2. Appeal is considered to be an extension of the suit because under 
Section 107 of the Code of Civil Procedure, the appellate court has the same 
powers as are conferred by the Code on courts of original jurisdiction in 
respect of suits instituted therein. Such a power can he exercised by the 
appellate court "as nearly as may be" exercised by the trial court under the G 
Code. However, in the instant case the appellant, by filing the application 
under Section 12(3) of the Act, had not made a prayer to the appellate court 
for passing any order which the trial court was intended to pass under the 
Code of Civil Procedure. His prayer was to invoke the benefit conferred 

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