Full Judgment Text
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PETITIONER:
ARJUN KHIAMAL MAKHIJANI ETC.
Vs.
RESPONDENT:
JAMNADAS C. TULIANI & ORS. ETC.
DATE OF JUDGMENT05/10/1989
BENCH:
VENKATACHALLIAH, M.N. (J)
BENCH:
VENKATACHALLIAH, M.N. (J)
OJHA, N.D. (J)
VERMA, JAGDISH SARAN (J)
CITATION:
1989 SCR Supl. (1) 380 1989 SCC (4) 612
JT 1989 (4) 74 1989 SCALE (2)780
ACT:
Bombay Rents, Hotel and Lodging House Rates Control Act,
1947: Section 12--Tenant--Eviction on ground of being de-
faulter--On or before such other date as the Court may
fix’--Date fixed for settlement of issues, cannot be equated
with ’any other date fixed in the suit.’
HEADNOTE:
Jamunadas C. Tuliani is the owner and the landlord of
the suit premises. He instituted a suit for ejectment
against five defendants on the ground that they were tenants
of the said premises and were in arrears of rent for a
period of more than six months which had not been paid
inspite of notice having been served on them as required by
Section 12(2) of the Bombay Rents, Hotel and Lodging House
Rates, Control Act, 1947 (hereinafter referred to as the
Act) and were consequently liable for eviction under sub-
section 3(a) of the Act as it then stood. Two other grounds
were that the tenants had changed the user of the suit
premises and they had committed breach of the terms and
conditions of the tenancy. Subsequently Arjun Khiamal Mak-
hijani was impleaded as defendant No. 6 in the suit on the
assertion that the tenants had illegally sub-let a portion
of the premises namely garage to him and were thus liable to
be evicted on that ground also.
The Trial Court decreed the suit in favour of the land-
lord on the plea of default in payment of rent and illegal
sub-letting. The other two pleas that the tenants had
changed the user of the suit premises and had committed
breach of terms and conditions of tenancy were decided
against the landlord.
Two appeals were preferred against the judgment of the
Trial Court, one by the tenants and the other by the defend-
ant No. 6 and both these appeals were dismissed. Aggrieved
by the said decree the tenants and defendant No. 6 filed two
writ petitions in the High Court. Against the common judg-
ment of the High Court dismissing these writ petitions, the
present civil appeals have been preferred.
381
Dismissing both the appeals, the Court,
HELD: (i) On a plain reading of clause (a) of sub-sec-
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tion (3) of section 12 of the Act as it stood at the rele-
vant time, the said clause was clearly attracted and the
consequence provided therein had to follow namely a decree
for eviction against the tenants had to be passed. Clause
(b) of sub-section (3) of the face of it was not attracted
inasmuch as the said clause applied only to a case not
covered by clause (a). This is amply borne out by the use of
the opening words "In any other case" of clause (b). [387A-
B]
(ii) Article 142 of the Constitution does not contem-
plate doing justice to one party by ignoring mandatory
statutory provisions and thereby doing complete injustice to
the other party by depriving such party of the benefit of
the mandatory statutory provisions. [390B]
(iii) In a case where a tenant renders himself liable to
be evicted on the ground of being defaulter in the payment
of rent as contemplated by sub-sections (2) and 3(a) of
Section 12 of the Act, bar from the way of the landlord in
instituting a suit for ejectment of a tenant is removed and
he gets a right to have a decree for eviction. Such removal
of bar is not in any sense forfeiture of any rights under
the lease which the tenant held. In the instant case, the
suit was not based on such forfeiture of lease under the
Transfer of Property Act but was filed for the enforcement
of the statutory right conferred on the landlord by sub-
sections (2) and 3(a) of Section 12 of the Act. [391D;
391H;392A]
(iv) The tenants are not entitled even to the benefit of
the amended sub-section (3) of Section 12 of the Act inas-
much as on a plain reading of the sub-section it is not
possible to give it a retrospective operation. [392C ]
The date fixed for settlement of issues in a suit cannot
be equated with any other date or dates which may be fixed
in the suit or the appeal. [393C]
The words "on or before such other date as the Court may
fix" occurring after the words "on the first day of the
hearing of the suit" in sub-section (3) of Section 12 of the
Act were obviously meant to meet a situation where for some
inevitable reason the necessary deposit could not be made on
the day of the hearing of the suit and the Court extended
the time to make such deposit. [393D]
382
By taking recourse to the process of reopening of pro-
ceedings one cannot put the hands of the clock back and
create an artificial date as the "first day of the hearing
of the suit." [393H; 394A]
(v) Interpretation of statutes:
"When the Act contains provisions, some of which fall
under the category of beneficial legislation with regard to
the tenant and the others with regard to the landlord, the
assertion that even with regard to such provisions of the
Act which fail under the purview of beneficial legislation
for the landlord an effort should be made to interpret them
also in favour of the tenant is a negation of the very
principle of interpretation of a beneficial legislation on
which reliance is placed on behalf of the tenants. The
argument indeed is self-defeating and only justifies the
cynical proverb-Head I win tail you lose. It is difficult to
countenance the sentimental approach made by learned counsel
for the tenants, for the simple reason that as pointed out
in Latham v. R. Johnson and Nephew Ltd., [1913] 1 K.B. 398
(408) sentiment is a dangerous will-of-the-wisp to take as a
guide in the search for legal principles." [389B-D]
Harbanslal Jagmohandas and Anr. v. Prabhudas Sivlal,
[1977] 1 SCC page 576; Jaywant S. Kulkarni & Ors. v. Mino-
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char Dosabhai Shroff & Ors., [1988] 4 SCC P. 108; Ganpat Ram
Sharma & Ors. v. Gayatri Devi, [1987] 3 SCC P. 576; Ganpat
Ladha v. Sashikant Vishnu Shinde, [1978] 2 S.C.C.P. 573;
Latham v. R. Johnson & Newhew Ltd., [1913] 1 K.B. 398 (408);
Vatan Mal v. Kailash Nath, [1989] 3 S.C.C.P. 79; B.P. Khemda
Pvt. Ltd. v. Birendra Kumar Bhowmick & Anr., [1987] 2
S.C.R.P. 559; Smt. Kamala Devi Budhia & Ors. v. Hem Prabha
Ganguli & Ors., [1989] 3 S.C.C.P. 145; Praduman Kumar v.
Virendra Goyal (Dead) by L.Rs., [1969] 3 S.C.R.P. 950; S.D.
Chagan Lal v. Dalichand Virchand Shroff & Ors., [1968] 3
S.C.R.P. 346 and Nagindas Ramdas v. Dalpatram Ichharam,
[1974] 1 S.C.C.P. 242, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4180 and
4181 of 1989.
From the Judgment and Order dated 20/21/22-7-1988 and
18/298-1988 of the Bombay High Court in Writ Petition Nos.
3313 and 3417 of 1987.
N.N. Keshwani and R.N. Keshwani for the Appellants.
383
A.B. Rohatgi, Mrs. Gool Barucha, M.J. Paul, Kailash
Vasdev, R. Karanjawala, Mrs.M Karanjawala (NP) and H.S.
Anand for the Respondents.
The Judgment of the Court was delivered by
OJHA, J. Special leave granted.
These civil appeals have been preferred against a
common judgment of the Bombay High Court dismissing writ
petition No. 33 13/87 filed by Arjun Khiamal Makhijani who
is the appellant in one of these appeals and writ petition
No. 3417/87 by Prithdayal Chetandas and others who are the
appellants in the other civil appeal. Jamnadas C. Tuliani
who is respondent No. 1 in both these appeals is the owner
and tile landlord of the suit premises comprising two bed
rooms flat together with a garage on the ground floor and a
store room on Bhulabhai Desai Road in the city of Bombay. A
suit was instituted by him for ejectment from the said
premises against five defendants on the ground that they
were tenants of the said premises and were in arrears of
rent for a period of more than six months which they had not
paid in spite of a notice of demand having been served on
them as contemplated by sub-section (2) of Section 12 of the
Bombay Rents, Hotel and Lodging House Rates Control Act 1947
(hereinafter referred to as the Act) and were consequently
liable for eviction under sub-section (3)(a) of the Act as
it then stood. Two other grounds were pleaded by the re-
spondent No. 1 namely that the tenants had changed the user
of the suit premises and that they had committed breach of
terms and conditions of the tenancy. Subsequently, Arjun
Khiamal Makhijani aforesaid was impleaded as defendant No. 6
in the suit on the assertion that the tenants had illegally
sublet a portion of the suit premises namely the garage to
him and were consequently liable to be evicted on this
ground also. The suit was contested both by the tenants as
well as by defendant No. 6. The Trial Court recorded find-
ings in favour of the landlord in so far as the pleas of
default in payment of rent and illegal sub-tenancy are
concerned. The other two pleas namely that the tenants had
changed the user of the suit premises and had also committed
breach of terms and conditions of the tenancy were decided
against the landlord. On the basis of the findings on the
pleas of default in payment of rent and illegal subletting,
the suit was decreed. Two appeals were preferred against the
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judgment of the Trial Court, one by the tenants and the
other by defendant No. 6. Both these appeals were dismissed
and the tenants and defendant No. 6 aggrieved by the said
decree filed two writ petitions in the High Court.
384
Against the common judgment of the High Court dismissing
these writ petitions, the present civil appeals have been
preferred.
Before dealing with the respective submissions made by
learned counsel for the parties it may be pointed out that
even though the finding that the tenants were defaulters in
payment of rent has been upheld by the High Court, the other
finding namely that the tenants had illegally sublet the
garage of the suit premises to defendant No. 6 has been set
aside and it has been held accepting the case of the tenants
that the defendant No. 6 was a trespasser. The tenants had
also claimed before the High Court the benefit of sub-sec-
tion (3) of Section 12 of the Act as substituted by Amend-
ment Act 18 of 1987 which came into force on 1st October
1987. This plea too was repelled. The defendant No. 6 before
the High Court on the other hand took up the plea that in
view of the finding in the suit that he was an illegal sub-
tenant of the garage since 1967, he was entitled to the
benefit of sub-section (2) of Section 15 of the Act as
amended by the aforesaid Amendment Act 18 of 1987. The High
Court repelled this plea on the finding that he was not a
sub-tenant but a trespasser and also on the ground that he
was not in possession on 1st February 1973, the relevant
date mentioned in the said sub-section. The High Court also
held that benefit of subsection (2) of Section 15 as amend-
ed, could not be given to defendant No. 6 in a writ peti-
tion, the same being not a proceeding contemplated by Sec-
tion 25 of the Amendment Act. In order to appreciate the
submissions made by learned counsel for the parties, it will
be useful to extract sub-section (3) as it stood at the time
when the suit was instituted and sub-section (3) as it
stands after its amendment. Subsection (3) as it stood when
the suit was instituted reads as hereunder:
"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 six months or more and the tenant
neglects to make payment thereof until the
expiration of the period of one month after
notice referred to in sub-section (2), the
Court. shall pass a decree for eviction in any
such suit for recovery of possession.
(b) In any other case no decree for
eviction shall be passed in any such suit if,
on the first day of hearing of the suit or on
or before such other date as the Court max
fix, the tenant pays or tenders in Court the
standard rent and permitted increases then due
and thereafter continues to
385
pay or tender in Court regularly such rent and
permitted increases till the suit is finally
decided and also pays costs of the suit as
directed by the Court."
After its amendment as aforesaid, it reads:
"(3) No decree for eviction shall be passed by
the Court in any suit for recovery of posses-
sion on the ground of arrears of standard rent
and permitted increases if, on the first day
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of hearing of the suit or on or before such
other date as the Court may fix, the tenant
pays or tenders in Court the standard rent and
permitted increases then due and together with
simple interest on the amount of arrears of
such standard rent and permitted increases at
the rate of nine per cent per annum; and
thereafter continues to pay or tenders in
Court regularly such standard rent and permit-
ted increases till the suit is finally decided
and also pays costs of the suit as directed by
the Court;
Provided that, the relief provided under this
sub-section shall not be available to a tenant
to whom relief against forfeiture was given in
any two suits previously instituted by the
landlord against such tenant."
Sub-section (2) of Section 15, on the other
hand, after its amendment as aforesaid runs
thus:
"(2) The prohibition against the sub-letting
of the whole of any part of the premises which
have been let to any tenant, and against the
assignment or transfer in any other manner of
the interest of the tenant therein, contained
in subsection (1), shall, subject to the
provisions of this subsection, be deemed to
have had to effect before the 1st day of
February 1973, in any area in which this Act
was in operation before such commencement; and
accordingly, notwithstanding anything con-
tained in any contract or in the judgment,
decree or order of a Court, any such sublease,
assignment or transfer of any such purported
sublease, assignment or transfer in favour of
any person who has entered into possession,
despite the prohibition in subsection (1), as
purported sub-lessee, assignee or transferee
and has continued in a possession on the date
aforesaid shall be deemed to be valid and
effectual for all purposes,
386
and any tenant who has sub-let any premises or
part thereof, assigned or transferred any
interest therein, shall not be liable to
eviction under clause (e) of sub-section (1)
of Section 13.
The provisions aforesaid of this sub-section
shall not affect in any manner the operation
of sub-section (1) after the date aforesaid."
Since considerable emphasis has been
placed on Section 25 of the Amendment Act 18
of 1987, the same may also be usefully quoted.
It reads:
25. Nothing contained in the principal Act, as
amended by this Act, shall be deemed to autho-
rise the re-opening of any suit or proceeding
for the eviction of any person from any prem-
ises to which the principal Act applies as if
such proceeding had been finally disposed of
before the commencement of this Act.
Explanation--For the purposes of this
section, suit or proceeding, as the case may
be, shall not be deemed to have been
finally disposed of, if in relation to that
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suit or proceeding, any appeal or proceeding
is pending, or, if the period of limitation
for preferring an appeal or proceeding, as the
case may be, had not expired before the com-
mencement of this Act."
It has been urged by the learned counsel for the tenants
that 14th November 1967 was the first day of hearing of the
suit and since in pursuance of an order passed by the Trial
Court on that day, the tenants had deposited the entire
arrears of rent on 9th January 1968 within the time granted
by the Court and continued to deposit the monthly rent
thereafter they could not be treated as defaulters in pay-
ment of rent even if the amendment made in sub-section (3)
of Section 12 by the Amendment Act 18 of 1987 was ignored.
We, however, find it difficult to agree with this submis-
sion. It is not denied that the arrears of rent which were
for a period of more than six months and in respect of which
a notice of demand had been served on the tenants under
sub-section (2) of Section 12 of the Act had not been paid
by the tenants to the landlord within one month of the
service of the notice. It is also not denied that during the
said period of one month, no dispute regarding the amount of
standard rent or permitted
387
increases was raised by the tenants. On a plain reading of
clause (a) of sub-section (3) of Section 12 of the Act as it
stood at the relevant time, the said clause was clearly
attracted and the consequence provided therein had to follow
namely a decree for eviction against the tenants had to be
passed. Clause (b) of sub-section (3) on the face of it was
not attracted inasmuch. as the said clause applied only to a
case not covered by clause (a). This is amply borne out by
the use of the opening words "In any other case" of clause
(b). In Harbanslal Jagmohandas and Anr. v. Prabhudas Shiv-
lal, [1977] 1 S.C.C. page 576, these clauses (a) and (b) of
sub-section (3) of Section 12 of the Act came up for consid-
eration and it was held that the tenant can claim protection
from the operation of the Section 12(3)(a) of the Act only
if he makes an application raising a dispute as to standard
rent within one month of the service of the notice terminat-
ing the tenancy. In the instant case this had not admittedly
been done by the tenants. The consequence of non-payment of
arrears of rent claimed in the notice of demand was, there-
fore, inevitable. In Jaywant S. Kulkarni and Others v.
Minochar Dosabhai Shroff and Others, [1988] 4 S.C.C.p.108,
clauses (a) and (b) of sub-section 3 of Section 12 again
came up for consideration. It was held:
"Sub-section (3)(a) of Section 12 categorical-
ly provided that where the rent was payable by
the month and there was no dispute regarding
the amount of standard rent or permitted
increases, if such rent or increases were in
arrears for a period of six months or more and
the tenant neglected to make payment thereof
until the expiration of the period of one
month after notice referred to in subsection
(2), the court shall pass a decree for evic-
tion in any such suit for recovery of posses-
sion. In the instant case, as has been found
by the court, the rent is payable month by
month. There is no dispute regarding the
amount of standard rent or permitted in-
creases..Such rent or increases are in arrears
for a period of six months or more. The tenant
had neglected to make payment until the expi-
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ration of the period of one month after notice
referred to in subsection (2). The Court was
bound to pass a decree for eviction in any
such suit for recovery of possession."
Faced with this difficulty, learned counsel for the
tenants urged that since the Act was a beneficial legisla-
tion the tenants having deposited the arrears of rent within
the time granted by the Trial Court and having continued to
deposit future rent thereafter the decree for
388
their eviction deserves to be reversed by this Court. In so
far as this submission is concerned, it may be pointed out
that in Ganpat Ram Sharma and others v. Gayatri Devi, [1987]
3 SCC page 576, while dealing with almost a similar Rent
Control Legislation it was held:
"But quite apart from the suit being barred by
lapse of time, this is a beneficial legisla-
tion, beneficial to both the landlord and the
tenant. It protects the tenant against unrea-
sonable eviction and exorbitant rent. It also
ensures certain limited rights to the landlord
to recover possession on stated contingencies.
In Ganpat Ladha v. Sashikant Vishnu Shinde, [1978] 2 SCC
page 73 while dealing with the scope of clauses (a) and (b)
of sub-section (3) of Section 12 of the Act, it was held:
"It is clear to us that the Act interferes
with the landlord’s right to property and
freedom of contract only for the limited
purpose of protecting tenants from misuse of
the landlord’s power to evict them, in these
days of scarcity of accommodation, by assert-
ing his superior rights in property or trying
to exploit his position by extracting too high
rents from helpless tenants. The object was
not to deprive the landlord altogether of his
rights in property which have also to be
respected. Another object was to make possible
eviction of tenants who fail to carry out
their obligation to pay rent to the landlord
despite opportunities given by law in that
behalf. Thus Section 12(3)(a) of the Act makes
it obligatory for the Court to pass a decree
when its conditions are satisfied as was
pointed out by one of us (Bhagwati, J.) in
Ratilal Balabhai Nazar v. Ranchhodbhai Shan-
kerbhai Patel, AIR 1968 Guj 172. If there is
statutory default or neglect on the part of
the tenant, whatever may be its cause, the
landlord acquires a right under Section
12(3)(a) to get a decree for eviction. But
where the conditions of Section 12(3)(a) are
not satisfied, there is a further opportunity
given to the tenant to protect himself against
eviction. He can comply with the conditions
set out in section 12(3)(b) and defeat the
landlord’s claim for eviction. If, however, he
does not fulfil those conditions, he cannot
claim the protection of Section 12(3)(b) and
in that event, there being no other protection
available to him, a decree for eviction would
have to go against him. It is difficult to
389
see how by any judicial valour discretion
exercisable in favour of the tenant can be
found in Section 12(3)(b) even where the
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conditions laid down by it are satisfied to be
strictly confined within the limits prescribed
for their operation."
(Emphasis
supplied).
When the Act contains provisions, some of which fall
under the category of beneficial legislation with regard to
the tenant and the others with regard to the landlord, the
assertion that even with regard to such provisions of the
Act which fall under the purview of beneficial legislation
for the landlord an effort should be made to interpret them
also in favour of the tenant is a negation of the very
principle of interpretation of a beneficial legislation on
which reliance is placed on behalf of the tenants. The
argument indeed is self-defeating and only justifies the
cynical proverb--Head I win tail you lose. It is difficult
to countenance the sentimental approach made by learned
counsel for the tenants, for the simple reason that as
pointed out in Latham v.R. Johnson and Nephew Ltd., [1913] 1
KB 398 (408) sentiment is a dangerous will-of-the-wisp to
take as a guide in the search for legal principles.
Reliance was placed by learned counsel for the tenants
on Vatan Mal v. Kailash Nath, [1989] 3 SCC page 79. In that
case provisions of Amending Ordinance No. 26 of 1975 whereby
Section 13(a) was inserted in the Rajasthan Premises (Con-
trol of Rent and Eviction) Act, 1950, came up for considera-
tion. After pointing Out that the object of inserting Sec-
tion 13(a) was to confer benefit on all tenants against whom
suits for eviction on ground of default in payment of rent
were pending and to achieve that object, the said Section
had been given overriding effect, it was held that the
interpretation of Section 13(a) must conform to the legisla-
tive intent and the courts should not take narrow restricted
view which will defeat the purpose of the Act. In our opin-
ion, in view of the mandatory provisions contained in Sec-
tion 12(3)(a) of the Act, the decision in the case of Vatan
Mal, (supra) is not at all attracted to the facts of the
instant case. Clauses (a) and (b) of sub-section (3) of
Section 12 of Act are calculated to meet entirely different
situations and the object of clause (b) was not to defeat
the mandatory requirement of clause (a) scope of which has
already been discussed above. For the same reason, the
decision of this Court in B.P. Khemka Pvt. Ltd. v. Birendra
Kumar Bhowmick & Anr., [1987] 2 SCR page 559 on which too
reliance has been placed by the learned counsel for the
tenants is of no assistance to them.
390
It was then urged by the learned counsel for the tenants
that notwithstanding the provisions contained in Section
12(3)(a) of the Act, this Court can still grant relief to
the tenants in view of the power conferred on it under
Article 142 of the Constitution "for doing complete justice"
in the case. Reliance in support of this submission has been
placed on Smt. Kamala Devi Budhia and others v. Hem Prabha
Ganguli and Others, [1989] 3 SCC page 145. This submission
ignores the basic concept that Article 142 does not contem-
plate doing justice to one party by ignoring mandatory
statutory provisions and thereby doing complete injustice to
the other party by depriving such party of the benefit of
the mandatory statutory provision. In the case of Smt.
Kamala Devi Budhia, (supra), the question arose as to wheth-
er an application under Section 12 of the Bihar Buildings
(Lease, Rent and Eviction) Control Act was competent or in
the circumstances of the case only a suit under Section 11
thereof could be filed. It was pointed out that it is the
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same Court before which both a suit under Section 11 and an
application under Section 12 are to be filed and it was in
this background that it was held:
"If it is assumed that an application under
Section 12 of the Act is not maintainable in
the facts and circumstances of the present
case, in our opinion, the proceeding has to be
treated as a suit and the judgment of the
learned Munsif as a decree therein. A further
question may arise as to the effect of the
Judicial Commissioner, Ranchi declining to
pass a formal decree of eviction and directing
the appellants to make an application under
Section 12(3) of the Act for that purpose. Can
this Court restore the decree of the trial
court in absence of an appeal by the appel-
lants before the High Court? We think.that we
can and we should...the question does not
affect the substantive right of the parties as
the controversy was concluded by the first
appellate court in favour of the appellants.
What was left was only procedural in nature
and inconsistent with our decision to treat
the proceeding as a suit. The occasion for
filing an application under Section 12(3) can
arise only where the matter is covered by
Section 12, and as we have made an assumption
in favour of the respondents that Section 12
has no application to the present case, there
is no point in asking the appellants to file
such an application. As mentioned in Article
142 of the Constitution of India, this Court
may pass such decree or make such order as is
necessary for doing complete justice in any
cause or matter pending before it,
391
and the present case is a most appropriate one
for exercise of such power."
(Emphasis
supplied)
The said decision apparently cannot be applied to the
facts of the instant case.
Learned counsel for the tenants then urged, relying on
Praduman Kumar v. Virendra Goyal (Dead) by L.Rs., [1969] 3
SCR page 950, that at all events the tenants were entitled
to be relieved against forfeiture for non-payment of rent
under Section 114 of the Transfer of Property Act benefit of
which could be given if deposit of rent was made at any
stage of the hearing of the suit. In our opinion, there is
no substance in this submission either inasmuch as Section
114 of the Transfer of Property Act cannot be applied to a
case where the suit for eviction of a tenant has been insti-
tuted not on the basis of forfeiture of lease under the
Transfer of Property Act but on the basis of statutory
provision dealing specifically with the rights and obliga-
tions of the landlords and tenants such as Section 12 of the
Act. In a case where a tenant renders himself liable to be
evicted on the ground of being defaulter in the payment of
rent as contemplated by sub-sections (2) and (3)(a) of
Section 12 of the Act, bar from the way of the landlord in
instituting a suit for ejectment of a tenant is removed and
he gets-a right to have a decree for eviction. Such removal
of bar is not in any sense forfeiture of any rights under
lease which the tenant held. Section 114 of the Transfer of
Property Act which provides relief against forfeiture for
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non-payment of rent applies to a case where a lease of
immovable property has determined by forfeiture for non-
payment of rent. Section 111 of the Transfer of Property Act
deals with various contingencies whereunder a lease of an
immovable property determines. Clause (g) contains one.of
such contingencies being by forfeiture inter alia in case
the lessee breaks an express condition which provides that
on breach thereof the lessor may re-enter. In a case where
forfeiture of lease is claimed for non-payment of rent, it
would, therefore, have to be established that one of the
express conditions of the lease provided that on breach of
that condition namely on nonpayment of rent the lessor was
entitled to re-enter. It is only in those cases where such
an express condition is contained in the lease and the
lessee breaks the said condition and the lessor on his part
gives notice in writing to the lessee of his intention to
determine the lease that a lease of immovable property
determines by forfeiture for non-payment of rent. In the
instant case, the suit was not based on any such forfeiture
of lease under the Transfer of Property Act but was filed
for the
392
enforcement of the statutory right conferred on the landlord
by subsections (2) and (3)(a) of Section 12 of the Act.
Lastly, it was urged by the learned counsel for the
tenants that after clauses (a) and (b) of sub-section (3) of
Section 12 were substituted by the consolidated sub-section
(3) of the Amendment Act 18 of 1987, the tenants should have
been given the benefit of the deposit of arrears of rent on
the first day of hearing in pursuance of the order of the
Trial Court dated 14th November, 1967, and of the deposits
of future rent thereafter and at all events they were enti-
tled to make the necessary deposit after the commencement of
the Amendment Act 18 of 1987. In our opinion, the tenants
are not entitled even to the benefit of the amended sub-
section (3) of Section 12 of the Act inasmuch as on a plain
reading of the sub-section it is not possible to give it a
retrospective operation. In this connection, it will be
useful to notice that while amending sub-section (2) of
Section 15 of the Act, it was provided by the Amendment Act
18 of 1987 that the provisions which were substituted in the
said sub-section, shall be deemed to have been substituted
on the 1st day of February 1973. No such provision was made
with regard to the substitution of sub-section (3) of Sec-
tion 12 of the Act. Sub-section (3) uses the words "on the
first day of the hearing of the suit or on or before such
other day as the Court may fix". If the deposit of arrears
of rent on 9th January 1968 is pleaded as compliance of the
deposit contemplated by the amended sub-section (3) and even
if for the sake of argument this plea is accepted, the said
deposit would still not confer on the tenants the benefit of
sub-section (3) for the obvious reason that the said sub-
section contemplates not only the deposit of standard rent
and permitted increases then due but also of simple interest
on the amount of arrears of such rent and permitted in-
creases at the rate of nine per cent per annum. Such amount
of interest was admittedly not deposited by the tenants
either on 9th January 1968 or on any date thereafter. We owe
turn to the submission of the learned counsel for the ten-
ants that the tenants were entitled to make the deposit
contemplated by sub-section (3) "on the first day of the
hearing of the suit or on such other day as the Court may
fix" after sub-section (3) being substituted by the Amend-
ment Act 18 of 1987. This argument ignores the difference
between the terms "at the hearing of the suit" as used in
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Section 114 of the Transfer of Property Act and the term "on
the first day of the hearing of the suit". In the case of
former, it may be possible to argue that the deposit can be
made at any hearing of the suit either in the Trial Court or
the Appellate Court, an appeal being a continuation of the
suit but the said argument is not available in the latter
case where the words used are "on the first day
393
of the hearing of the suit". In the very nature of things it
is not possible to contemplate numerous dates all of which
may fulfil the requirement of being "the first day of the
hearing of the suit". In this connection, it would be useful
to notice that the words "on the first day of the hearing of
the suit or on or before such other day as the Court may
fix" occurring in sub-section (3) of Section 12 of the Act
after its amendment by the Amendment Act 18 of 1987 occurred
in clause (b) of the unamended sub-section (3) also. In S.D.
Chagan Lal v. Dalichand Virchand Shroff and Others, [1968] 3
S.C.R. page 346 while dealing with the clauses (a) and (b)
of the unamended sub-section (3) of the Section 12 of the
Act, it was held that the date fixed for settlement of
issues was September 3, 1956 which can be taken to be the
date of the first hearing of the suit for the purpose of
the-Act. The same meaning obviously has to be given to the
aforesaid words when they have been repeated in the amended
sub-section (3) of Section 12 of the Act. The date fixed for
settlement of issues in a suit cannot be equated with any
other date or dates which may be fixed in the suit or the
appeal. The words "on or before such other dates as the
Court may fix" occurring after the words "on the first day
of the hearing of the suit" in subsection (3) of Section 12
of the Act were obviously meant to meet a situation where
for some inevitable reason the necessary deposit could not
be made on the day of the hearing of the suit and the Court
extended the time to make such deposit. A deposit made on or
before such extended date would also meet the requirement of
the subsection. Even Section 25 of the Amendment Act 18 of
1987 would be of no assistance in so far as the interpreta-
tion of Section 12(3) of the Act is concerned. The said
Section provides for certain exceptions in which a suit or
proceeding for the eviction of any person may be reopened. A
provision containing exceptions cannot be interpreted so as
to enlarge the scope of sub-section (3) of Section 12 of the
Act. The said Section 25 may be applicable to sub-section
(2) of Section 15 as amended by the Amendment Act 18 of
1987, the amendments whereunder were given retrospective
effect as indicated earlier or also to a similar provision.
Clause (a) of the unamended sub-section (3) of the Section
12 of the Act conferred a substantive right on the landlord
to have a decree for eviction in his favour as held by this
Court in the case of Ganpat Ladha, (supra) and such a right
could be taken away only by a provision which either ex-
pressly took away that fight or could be interpreted to have
taken away that right by necessary inendment We do not find
any such indication either in the amended sub-section (3) of
Section 12 of the Act or even in Section 25 of the Amendment
Act 18 of 1987. By taking recourse to the process of reopen-
ing of proceedings one cannot put the hands of the clock
back and create an artificial
394
date as the "first day of the heating of the suit". No other
point has been urged by learned counsel for the tenants and
consequently we find no merit in the appeal filed on behalf
of the tenants.
We now turn to the appeal filed by defendant No. 6 to
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whom the garage was found by the courts below to have been
illegally sub-let but who has been found to be a trespasser
by the High Court. As seen above, the High Court in its
judgment under appeal repelled the claim of defendant No. 6
that he was entitled to the benefit of the amended sub-
section (2) of Section 15 of the Act on three grounds (i)
that he was a trespasser and not a person to whom the garage
had been illegally sub-let, (ii) that he was not in posses-
sion on the relevant date namely 1st February, 1973 and
(iii) that the said benefit could be extended only in a suit
or proceeding under the Act and not in a writ petition which
did not constitute a continuation of a suit or proceeding
under the Act but was an independent proceeding under the
Constitution.
It has been urged by learned counsel for defendant No. 6
that since the finding of the Courts below that the garage
had been illegally sub-let to the defendant No. 6 was in
consonance with the pleading of the landlord in this behalf,
the said finding could not be reversed in a. writ petition
first, because it was not within the competence of the High
Court to reverse that finding either under Article 227 or
even under Article 226 of the Constitution and .secondly,
that the landlord was bound by his admission in the plead-
ing. In so far as the submission that the landlord was bound
by his admission in the pleading is concerned, it is true
that such an admission being a judicial admission under
Section 58 of the Evidence Act stands on a higher footing
than evidentiary admissions as held by this Court in Nagin-
das Ramdas v. Dalpatram Ichharam, [1974] 1 SCC page 242 but
on the facts of the instant case to which reference shall be
shortly made, it is the proviso to Section 58 which comes
into play and the rights of the parties had to be determined
de hors the said admission. The said proviso contemplates
that the Court may in its discretion require the facts
admitted to be proved otherwise than by such admissions. The
scope of this provision did not fall for consideration in
the case of Nagain Das (supra). Reverting to the facts of
the instant case it would be seen that there was a triangu-
lar dispute in this case. After getting the plaint amended
the landlord no doubt set up the case that the tenants had
illegally sub-let the garage to the defendant No. 6. The
case of the tenants, on the other hand, was that defendant
No. 6 was a trespasser and they had never sub-let the garage
to him. In so far as the defendant No. 6 is
395
concerned, the plea set up by him was that he came into
possession of the garage in pursuance of an agreement en-
tered into between him and Daulat, son of one of the ten-
ants, for a period of six months. As pointed out by the High
Court in its judgment under appeal no positive plea of sub-
tenancy, whether lawful or unlawful was raised by defendant
No. 6 in the Trial Court. It is in this background that the
controversy on the question as to whether the garage had
been illegally sub-let by the tenants to the defendant No. 6
had to be resolved. First, since the defendant No. 6 himself
had disputed the contention of the landlord that the garage
had been illegally sub-let to him by the tenants and had set
up the agreement with Daulat who apparently had no interest
whatsoever in the garage apart from being the son of one of
the tenants, a finding that the garage had been sub-let to
the defendant No. 6 illegally could obviously not be given
simply on the basis of the case set up by the landlord in
this behalf. Even if defendant No. 6 was permitted to take a
somersault and set up a plea contrary to his pleadings,
admitting the case of the landlord, any finding given on the
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basis of such admission would not be binding on the tenants
who were contesting the plea of the landlord and had set up
a case that defendant No. 6 was a trespasser and that the
garage had never been sub-let by them to him. Such a finding
as aforesaid vis-a-vis tenants would be a finding based on
the admission of the landlord in his own favour. To resolve
the controversy as between the landlord and the tenants in
this behalf, therefore, an independent finding on merits
based on evidence and not on the basis of the plea raised by
the landlord had to be given. These are the peculiar facts
of this case on account of which the proviso to Section 58
of the Evidence Act was clearly attracted and the parties
had to be required to prove their respective cases by adduc-
ing evidence de hors the admission of the landlord in his
plaint.
In so far as the submission made by learned counsel for
defendant No. 6 that a finding of fact could not be inter-
fered with in a writ petition by the High Court is con-
cerned, by and large no exception can be taken thereto. The
rule in this behalf, however, is not inflexible but has
exceptions recognised by judicial decisions which being
well-known are not necessary to be recapitulated. For in-
stance this rule will not apply if a finding is arbitrary or
based on no evidence or is such that no one properly in-
structed in law could have given it the same being in the
teeth of some statutory provision or in ignorance of binding
precedents. In our opinion, the instant case is one which
falls within the exception to the said rule. It is true that
the landlord by getting his plaint subsequently amended set
up the plea that the garage had been illegally sub-let by
the tenants to defendant No. 6. It is,
396
however, equally true that the said plea was categorically
denied by the tenants and it was specifically asserted by
them that they had never sub-let the garage to defendant No.
6 and that the defendant No. 6 was a trespasser. As regards
the defendant No. 6 himself he pleaded to have come into
possession of the garage for a period of six months on the
basis of an agreement entered into between him and Daulat,
the son of one of the tenants. In the life time of his
father Daulat could not have the status of a joint tenant
and in the eye of law he had no interest in the garage,
apart from using it in his capacity as the son of one of the
tenants. He was not in a position either to sub-let the
garage or even to grant a licence thereof. As seen above,
the High Court has emphasised in its judgment under appeal
that no positive plea of sub-tenancy, whether lawful or
unlawful, was raised by defendant No. 6 in the Trial Court.
That apart, defendant No. 6 in unequivocal terms admitted in
his deposition also before the Trial Court that he came in
possession by virtue of the agreement with Daulat, the son
of defendant No. 1. He further admitted that he did not know
that the defendant Nos. 1 to 5 were the tenants of the flat,
store room and garage and that he did not make enquiry as to
who were the tenants. This being the situation there was no
scope for even drawing an inference that taking of posses-
sion of the garage for six months by defendant No. 6 in
pursuance of the-agreement entered into between him and
Daulat may have been with the tacit approval of the tenants
namely defendant Nos. 1 to 5. Nothing has been brought to
our notice to indicate that the case of the landlord was
that the tenants had sub-let the garage to defendant No. 6
in his presence and he had personal knowledge about the
transaction of sub-letting. The High Court has also pointed
out in paragraph 25 of its judgment under appeal that in
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support of their plea that defendant No. 6 was a trespasser
defendant Nos. 1 to 5 had led evidence and that the lower
court had no justification to ignore that evidence. It was
apparently, therefore, a case where no one properly in-
structed in law could have come to the conclusion that the
tenants had illegally sub-let the garage to defendant No. 6.
In this state of affairs it cannot obviously be said that
the High Court committed any error in holding that defendant
No. 6 was a trespasser. This being so, defendant No. 6
indisputably could not derive any benefit out of the amended
subsection (2) of Section 15 of the Act.
The finding of the High Court that defendant No. 6 was
not in possession on the relevant date namely 1st February,
1973 was based on the circumstance that on that date admit-
tedly the garage was in possession of a receiver appointed
by the Court and not in possession of defendant No. 6. It
has been urged by learned counsel for defendant
397
No. 6 that possession of the receiver would enure to the
benefit of defendant No. 6. This proposition has been con-
tested by the learned counsel for the landlord. We, however,
do not find it necessary to go into this question in view of
our conclusion that the finding of the High Court that the
garage had not illegally been sub-let to defendant No. 6 and
that the said defendant was a trespasser is unassailable.
Even if the submission of learned counsel for defendant No.
6 in this behalf is accepted the nature of possession of
defendant No. 6 on 1st February 1973 would be in no way
better than of a trespasser. For the same reason, we find it
unnecessary to go into the correctness or otherwise of the
view of the High Court that a writ petition being an inde-
pendent proceeding was not a proceeding in relation to a
suit or proceeding under the Act.
It was lastly urged by learned counsel for defendant No.
6 that after the judgment had been delivered by the High
Court on 22 July 1988 dismissing the two writ petitions it
was not open to the High Court to reopen and hear the writ
petitions on 18 August 1988 and 29 August 1988. So far as
this submission is concerned it may be pointed out that the
very first sentence of the order of the High Court dated 18
August 1988 indicates that the judgment had not been deliv-
ered earlier but had only been dictated and the transcript
was ready. Listing the matter again for further hearing
became necessary inasmuch as while dictating the judgment a
factual position was noticed that defendant No. 4 had died
and there was nothing to show that his heirs had been
brought on record. Learned counsel for the parties appeared
on that date and an affidavit was taken on record. They
prayed for time to make submissions on the said question.
The matter was ordered to stand over till 29 August 1988 and
in the meantime an affidavit in reply to the affidavit taken
on record as aforesaid was permitted to be filed. Time given
to defendant No. 1 to file affidavit in support of the
undertaking given by him earlier was also extended to 29
August 1988. This submission also made by learned counsel
for defendant No. 6 has, therefore, no substance. In view of
the foregoing discussion, there is no merit even in the
appeal filed by defendant No.6.
In the result, both the appeals fail and are dismissed.
In the circumstances of the case, however, there shall be no
order as to costs.
R.N.J. Appeals dismissed.
398
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