JUDGMENT
J.N. Bhatt, J.
1. The petitioner is the original defendant-tenant and the respondent is the original plaintiff-landlady. In this revision under Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (‘the Rent Act‘ for short), the main question that falls for consideration is, as to whether the- tenant is entitled to claim protection of Section 12(3)(b) of the Rent Act?
2. The landlady filed Rent Suit No. 2632 of 1975 in the Small Cause Court at Baroda against the tenant for recovery of possession of the demised premises and for recovery of amount of Rs. 4, 893/- towards arrears of rent. The landlady is the owner of property known as ‘Mohan’ bungalow situated at Pratapnagar Road, Baroda and the demised premises are part of the said bungalow situated on the ground floor. The ground floor of the said property was let to the defendant-tenant at the monthly rent of Rs. 140/ – per month plus municipal taxes, electric charges etc. The landlady claimed that the tenant was in arrears of rent from 1-7-1972 and she had not paid the rent and was not ready and willing to pay the rent. Therefore, she claimed ejectment on that ground.
3. The tenant appeared and resisted the suit inter alia contending that she is not liable for payment of taxes, water charges and electric charges over and above the rent. She denied to be irregular in payment of rent. According to the contention of the tenant, her husband was going to pay rent to the landlady but the rent was not accepted and, therefore, it remained due. She denied to have illegally refused the notice. She also raised a dispute of standard rent.
4. On appreciation and analysis of the evidence of the parties, the trial Court reached the conclusion that the landlady is entitled to and the defendant is liable for eviction decree on the ground of non-payment of rent for a period of more than six months. While decreeing the suit for possession, the trial Court held that rent was in arrears from 1-7-1972 and the tenant was not ready and willing to pay the standard rent and permitted increases. The trial Court fixed the standard rent at Rs. 150/- per month. The impugned judgment and decree of the trial Court in the aforesaid suit was passed on 6-5-1978.
5. The tenant carried the matter before the appellate Court by filing Civil Appeal No. 195 of 1978 in the District Court at Baroda. The appellate Court dismissed the appeal on 26-11-1980 fixing the standard rent at Rs. 140/- per month plus taxes. The appellate Court confirmed the findings and the ultimate conclusion recorded by the trial Court, by dismissing the appeal and giving six months time for the tenant to vacate the demised premises. Hence, this revision under Section 29(2) of the Rent Act.
6. When the matter was called out, none appeared for the parties. This revision being almost one and half decades old and the dispute between the parties being more than a quarter century old, it was thought expedient to dispose it of on merits after examining the facts and circumstances and records of the case in absence of the parties and their Advocates.
7. The eviction decree as recorded by the trial Court in respect of the demised premises against the tenant on the ground of non-payment of rent under Section 12(3)(b) came to be confirmed by the appellate Court. This is a pure question of finding of fact. The question of finding of fact cannot be re-examined in a revision under Section29(2) of the Rent Act unless it is found to be perverse or illegal. The proposition of law on this score is very well settled.
8. Though under Section 29(2), the High Court has little wider jurisdiction than the one Section 115 of the Code of Civil Procedure, 1908, the revisional power or jurisdiction can only be exercised for a limited purpose, with a view to satisfying itself that the impugned decision or order is in accordance with law or not. This proposition is very well explained and established by the Apex Court in Bhaichand v. Laxmishanker .
9. The revisional Court while examining the merits of the revision under Section 29(2) cannot substitute its own views or findings in place of the findings of the Courts below when the view or ultimate conclusion impugned in the revision is plausible, possible and reasonable. The Apex Court in Girdharbhai v. Saiyed Mohmed Mirasaheb has held that when two views are possible, it is not open for the High Court to substitute its views in a revision under Section 29(2).
10. The view taken by the trial Court and confirmed by the appellate Court on appreciation of the facts cannot be said to be perverse, unreasonable or illegal. It is a finding of fact and it is not permissible to re-examine and re appreciate the findings in a revision under Section 29(2).
11. However, it may be mentioned that it is very clear from the record of the present case that the tenant was not ready and willing to pay the rent and is not entitled to statutory protection of Section 12(3)(b) in light of the evidence on record. The notice under Section 12(2) Ex. 45 was refused by the tenant wherein rent was claimed from 1-7-1972. Rent was in arrears for more than six months when the notice came to be served under Section 12(2). The notice was obviously not replied and complied with, as it was refused. In the circumstances, refusal of notice was rightly held to be due and legal service on the tenant. Summons also could not be served on the tenant and ultimately service of summons came to be effected by publication in the newspapers. No dispute of standard rent was raised within a period of one month.
12. The tenant raised the dispute in the written statement Ex. 11. The landlady by an application under Section 11(4) of the Rent Act for an order of the Court to the defendant directing the defendant for depositing rent which was then due at Rs. 6,860/- for the period from 1-7-1972 to 31-8-1976.
13. The trial Court passed the order under Section 11(4) and directed the defendant- tenant to deposit amount of Rs. 6,860/- before 15-10-1976. The order was passed on 30-6-1976. The tenant had not complied with the direction of the Court. Since the entire rent was not payable by month and the demand of tax was made, the trial Court rightly found the case as governed by the provisions of Section 12(3)(b). Deposits of rent made during the pendency of the proceedings by Exs. 67 to 71 on different dates are mentioned by the trial Court in para 8 of the judgment. On the facts and circumstances, the trial Court found that the tenant had committed default in making full payment then due on the first date of hearing like that, framing of the issues. No amount was paid till the date of framing of the issues. After having examined the facts and circumstances, the trial Court rightly recorded that the tenant had not deposited all arrears of rent then due on the first date of hearing and thereafter also, the tenant was not regular in payment of rent. Therefore, the trial Court passed the decree under Section 12(3)(b).
14. The appellate Court has also rightly observed that the tenant has failed to pay rent regularly during the pendency of the appeal. It is observed by the appellate Court that though the trial Court had fixed the standard rent, the tenant has failed to make deposit as per the order of the trial Court during the pendency of the appeal. On the finding of fact, the appellate Court recorded that during the pendency of the appeal, the tenant failed to tender or make payment of rent regularly. Therefore, the appellate Court found that the defendant-tenant is not entitled to protection under Section 12(3)(b) of the Rent Act.
15. Having regard to the facts and circumstances and the relevant proposition of law, this Court has no hesitation in finding that the ejectment decree under Section 12(3)(b) is rightly recorded. Nothing is found from the record which would indicate that the tenant is entitled to protection under Section 12(3)(b). Therefore, in the opinion of this Court also, the tenant is liable and the landlady is entitled to ejectment decree on the ground of non-payment of rent under Section 12(3)(b). The present revision is found meritless. Therefore, it is required to be dismissed. It is, therefore, dismissed. Considering the facts and circumstances, the petitioner-tenant is given six months’ time to vacate the premises on usual terms and conditions by filing an undertaking before this Court within a period of four weeks from today. Rule is discharged with no order as to costs.
