PETITIONER: PIONEER PAPER BOX FACTORY Vs. RESPONDENT: SMT. THAKURDEVI SHRINIWAS DATE OF JUDGMENT: 26/05/1970 BENCH: RAY, A.N. BENCH: RAY, A.N. DUA, I.D. CITATION: 1971 AIR 1781 1971 SCR (1) 626 ACT: Bombay Rent Act (57 of 1947), s. 12(3) (b)--Scope of. Practice--Revision and review dismissed by High Court--Allegation of fact not brought to the notice of the High Court--Whether can be permitted to be raised in this Court. HEADNOTE: In a suit for evicition on the ground of non-payment of rent a decree was passed directing the tenant to pay the landlady's costs, as, by that time, the tenant had paid all the arrears of rent as fixed; but the tenant did not pay or tender the costs. Therefore, the court passed an order of eviction. His appeal, -a revision to the High Court, and a review petition to the High Court were all dismissed. In appeal to this Court, HELD : (1) The tenant would be entitled to the protection under s. 12(3) (b) of the, Bombay Rent Act, only if he complied with its provisions by paying or tendering not only the arrears of rent but also the costs of the suit. Since the appellant admitted his inability to, comply with the provision, he could not claim protection against eviction. [627 D, G] (2) Assuming that the costs were paid at a later date as alleged by the appellant, that fact was not brought to the notice of the High Court, and therefore this Court will not interfere with the exercise of discretion by the High Court in the set of facts and circumstances presented to the High Court.. [628 F-G] JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 36 of 1968.
Appeal by special leave from the judgment and order dated
November 19, 1963 of the Bombay High Court in Civil Revision
Application No. 167 of 1959.
V. M. Tarkunde, P. C. Bhartari, O. C. Mathur and Ravinder
Narain, for the appellant.
A. K. Sen, M. S. Gupta and S. L. Jain, for the respondent.
The Judgment of the Court was delivered by
Ray, J. This appeal is by special leave from the judgment
dated 19 November, 1963 of the High Court of Bombay dismis-
sing the appellant defendant tenant’s application for
revision in a decree for eviction of the defendant.
The appellant was tenant of the respondent. On 28 April,
1954 the appellant filed an application under section II of
the Bombay Rent Act for fixation of standard rent. During
the
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pendency of the application the respondent landlady served a
notice on the appellant in the month of March, 1955
terminating the tenancy on the ground that the appellant had
failed to pay rent from I March, 1954. On 25 April, 1955 a
suit was filed for eviction of the appellant.
During the pendency of the suit on 29 June, 1956, the
standard rent was fixed at Rs.55/7/- p.m. The contractual
rent was Rs. 85/- p.m.
When the suit came up for hearing on 5 October, 1956, it
appeared that the appellant paid all the arrears of rent in
accordance with the standard rent but did not pay the Costs
of the suit. The trial court passed an ejectment decree
against the appellant.
The appellant preferred an appeal. The appellate court took
the view that the order of the trial court was justified
under section 12(3)(b) of the Bombay Rent Act. Section
12(3)(b) of the Bombay Rent Act provides that no decree in
eviction shall be passed, if on the first day of the hearing
of the suit or on or before such other date as the court may
fix, the tenant pays or tenders. in the court the standard
rent and permitted increase in rent due, and thereafter
continues to pay or tender in court regularly the said rent
and permitted increase till the suit is finally decided and
also pays costs of the suit as directed by the Court.
The appellant then filed an application for revision in the
High Court. The contention which was advanced in the High
Court and repeated here was that the courts were in error in
decreeing the suit for non-payment of costs because the
trial court had not passed any order fixing the amount of
costs. It was said that only when an order determining the
amount of costs had been made by the court that the tenant
could be said to be within the mischief of the provisions of
the statute for non-payment of costs so determined by the
courts.
The High Court rightly rejected the contention for two
reasons. First, though a formal order as to costs was not
made, yet the trial court had made an order directing the
appellant to pay the amount of costs and the appellant did
not pay the costs. Secondly, the appellant stated before
the trial court that the appellant was not in a position to
tender what is described as “professional costs” and court
costs of the suit.
It is indisputable that in the trial court the appellant not
only admitted failure to pay costs but also inability to
tender the costs. -The appellant could be entitled to
protection against eviction only if the appellant complied
with the provisions of the statute. The appellant was
required to tender not only the arrears of rent but .also
the, costs of the suit. In the trial court the appellant
admitted non-compliance with the provisions of the statute.
Therefore, the
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trial court rightly held that the appellant was not entitled
to any benefit or protection against eviction.
The appellate court held that because the appellant filed an
application for fixation of standard rent and therefore
there being a dispute between the parties regarding the
standard rent no order in eviction could be passed under
section 12(3) (a) of the Bombay Rent Act. The appellate
court, however, held that the case fell within the
provisions of section 12(3) (b) of the Bombay Rent Act by
reason of the failure of the appellant to pay costs of the
suit.
Counsel for the appellant contended that the costs were
deposited on 22 November, 1956 and therefore the High Court
should have exercised discretion in favour of the appellant.
The High Court stated that the decree was passed on 5
October, 1956 and the appeal was filed on 18 October, 1956
and the amount of costs was not deposited with the filing of
the memorandum of appeal. The High Court concluded by
stating that “the decree of the trial court was made on 5
October, 1956. We are in the year 1963. The attitude
adopted by the petitioner is not such in which a discretion
can be exercised in favour of the petitioner”. The High
Court heard the application on 19 November, 1963. Counsel
for the appellant invited our attention to paragraph 13 of
the application for review made in the High Court where the
appellant alleged that on 7 December, 1956 the costs were
paid. No portion of the judgment of the High Court is open
to any criticism for the obvious reason that when the
memorandum of appeal was filed in the High Court on 18
October, 1956 the costs were not paid. The application for
review also indicates that when the matter was heard before
the High Court it was not brought to the notice of the High
Court that the costs were paid on 7 December, 1956 as
alleged.
The appeal is from the judgment of the High Court. It
would be improper to interfere with exercise of discretion
passed by the High Court when the matter was not brought to
the notice of the High Court. Discretion is exercised by
the court in the facts and circumstances of the case. Any
interference with the exercise of discretion in the present
case would be substituting the discretion ‘of this Court on
a set of facts which were never presented to the High Court.
The appellant was not entitled to any relief under the
provisions of the Bombay Rent Act. The High Court rightly
rejected the application for revision. The appeal fails and
is dismissed with costs.
V.P.S. Appeal dismissed.
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