M.U. Shah, J.
1. This is a tenant's revision application against a decree of eviction passed by the learned Assistant Judge, Nadiad, in Civil Appeal No. 71 of 1964. The learned Assistant Judge has set aside the conditional part of the decree of eviction that was passed by the learned Civil Judge (Junior Division), Kaira, in Regular Civil Suit No. 10 of 1963 and has made it absolute. The conditional decree passed by the learned trial Judge was that the defendant was to deposit in the Court the amount of standard rent and permitted increases with costs on the appointed day, failing which the plaintiff would be entitled to recover possession of the suit premises from the defendant on another appointed day. The facts are not in dispute. The present applicant was a tenant of the present opponent in the suit premises consisting of the first floor and the second floor of a residential house, situated In the town of Ahemadabad. The contractual rent of the suit premises was Rs. 15/-, payable by the month. The tenant was admittedly in arrears for a period exceeding six months, both at the date of notice and at the date of Institution of the suit. Which latter date was February 6, 1963, the notice having been served earlier on December 8, 1962. In reply to the suit notice, the tenant had raised a dispute as regards the standard rent. He had also raised the same dispute in his written statement. The learned trial Judge had accordingly raised the necessary issue for determination of the standard rent of the suit premises. At a date prior to the settlement of the issues, the defendant-tenant deposited in Court the arrears of rent then due together with the costs of the suit, although there was no such direction in the matter. Even crediting the amount of costs so deposited towards the arrears of standard rent due at the date of the first hearing, the total amount deposited in the Court as at the first day of hearing, admittedly fell short, although by a small amount of Rs. 2. 50 P. Thereafter also, although the defendant deposited various amounts from time to time, the deposit so made did not cover the entire arrears of rent then due. At the date of the decree also, the defendant was in arrears of rent. Although the dispute as to the amount of standard rent was raised in his written statement, the tenant did not make any application to the Court to take up the dispute as to standard rent in the first instance, nor did he at any time, during the pendency of the suit, make any application to the Court to fix a date for payment of the amount of standard rent and permitted increases under Section 12(3)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act. 1947 (Bombay Act No. LVII of 1947), hereinafter referred to as 'the Act'. The landlord also did not move in the matter either. The Court also did not take up the dispute (issue) as a preliminary one, nor did it suo motu pass an order fixing a date other than the first day of hearing of the suit for payment or tender of the standard rent and permitted increases. All the issues raised in the suit including the issue as regards the amount of the standard rent were decided at a time in the judgment dated January 31, 1964, delivered by the Court. The learned trial Judge held that the standard rent of the suit premises was Rs. 15/-per month and further that the defendant-tenant was liable to pay a sum of Rs. 1-15-0 payable by the month as permitted increases. However, in the course of the judgment, the learned trial Judge considered that it was necessary for him to fix the standard rent first and fix a date of payment or tender of such standard rent. Accordingly, the learned Judge fixed a date for such deposit in his final order in his judgment and passed a conditional decree of eviction. The operative portion of the judgment referred to as final order, reads as under:
The standard rent for the suit premises is fixed at Rs. 15/- per month plus the permitted increase of Rs. 1-15-0 per month.
The defendant to deposit in Court on or before 15-2-1964, Rs. 152-50nP for standard rent due upto 6-2-03 plus Rs. 184-50 nP for standard rent due till 15-2-64 plus Rs. 23-81nP for permitted increase due after the date of suit, i. e. total Rs. 360-81 nP with costs. The deposit amount in Court made by the defendant be appropriated towards this amount asked to be deposited by the defendant. If the defendant fails to make such deposit of the full amount on or before 15-2-64, the plaintiff do recover possession of the suit property from the defendant on 1st May 1964. The plaintiff is also entitled to mesne profits then at the rate of Rs. 15/- per month from the date of the suit till delivery of possession and the plaintiff then do recover Rs. 152-50nP from the defendant after 15-2-64. The defendant to bear the costs of the plaintiff in the suit.
A conditional decree of eviction in terms of the judgment was accordingly passed. The defendant-tenant deposited the balance of the entire amount before the appointed day and thus complied with the condition imposed by the learned trial Judge.
2. However, the plaintiff carried the matter to the Court of the District Judge of Kaira by way of Civil Appeal No. 71 of 1964 and it came to be decided by the learned Assistant Judge, who appears to have taken the view that the condition provided for in the judgment and decree of the trial Court purporting to extend the period during which the defendant was called upon to tender in Court the standard rent and permitted increases due upto the appointed day (falling on a day subsequent to the date of the decree) together with the costs of the suit up to another appointed day, also falling beyond the date of the decree, and thus making the decree of eviction a conditional one, was not contemplated by the provisions of Clause (b) of Sub-section (3) of Section 12 of the Act, and, as such, the part of the decree, incorporating such condition, was illegal and liable to be set aside. In this view of the matter, the learned Assistant Judge has found that the tenant did not fulfil the conditions of Clause (b) of Sub-section (3) of Section 12 of the Act and was liable to be evicted. Accordingly, the learned Judge has set aside the conditional part of the decree of eviction passed by the learned trial Judge, passed an absolute decree of eviction against the defendant-tenant, and decreed that the defendant do hand over possession of the suit premises to the plaintiff-landlord on or before October 30, 1965. The learned Judge has, while maintaining the amount of standard rent at Rs. 15/-per month as fixed by the trial Court, however, accepted the cross-objections of the tenant and found that the landlord was not entitled to any amount as permitted increases. But that is not material here, as even the amount of standard rent then due was admittedly not deposited in full in the Court, so as to cover the full amount of standard rent then due. It is against the absolute decree of eviction thus passed in the appeal by the learned Assistant Judge that this revision application is directed and it has now reached hearing before me.
3. The only questions that fall for my consideration in this revision application are: whether an order directing the defendant-tenant to pay or tender the arrears of standard rent then due can be made by the Court of the first instance in its judgment, finally deciding the suit, and whether compliance by the defendant-tenant with the terms of such an order can afford him protection of Clause (b) of Sub-section (3) of Section 12 of the Act. In other words, whether a conditional decree of eviction can be passed by the Court in finally deciding the suit. My answer to the question raised is clearly in the negative as is revealed from the examination of the scheme of Section 12 of the Act and having regard to the language used in Clause (b) of Sub-section (3) of Section 12 of the Act.
4. Section 12(1) of the Act gives protection to the tenant subject to the provisions of Section 13 and also subject to the certain limitations and restric tions procedural as well as substantive contained in Section 12. Sub-section (2) of Section 12 provides:
No suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of nonpayment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in Section 106 of the Transfer of Property Act, 1882.
It enacts a restriction upon the right of the landlord to sue the tenant in ejectment on the ground of non-payment of standard rent or permitted increases, by requiring him to give one more opportunity to the tenant to pay rent due by him. Clause (a) of Sub-section (3) of Section 12 of the Act specifies the circumstances in which the tenant is deemed to forfeit the protection. Clause (b) of Sub-section (2) of Section 12 provides: '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 mar fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to 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.'
Clause (b) clearly deals with cases not falling within Clause (a) and the Instant case is admittedly 'any other case' within the purview of Clause (b). To bring his claim within the clause, the tenant must Day or tender the amount of standard rent and permitted increases then due, on or before the first day of hearing, or on or before such other date as the Court fixes, and also pays costs of the suit if the Court directs, but not otherwise. Section 12(3)(b) requires the tenant to pay or tender the standard rent, and not interim rent. The Legislature has thus prescribed conditions on which die tenant may qualify for protection of his occupation, and one of the important conditions is the readiness and willingness to pay the standard rent and permitted increases, which may be proved by obtaining an order of the Court fixing the rate of standard rent and complying therewith. Application for the purpose may be made by the tenant or the landlord even subsequently after the first date of the hearing of the suit at any time till the suit is finally decided. As observed by Bhagwati, J., as he then was, speaking for a Division Bench of the Court, in Sureshchandra Bhulabhai Jariwala and others heirs of deceased Bhulabhai Nathubhai Jariwala v. Maganlal Lallubhai : (1967)8GLR1003 :
On a plain and grammatical construction of the language employed in Section 12(3)(b), it is clear that the Court may fix some date other than the first day of hearing of the suit for payment or tender of the standard rent and permitted increases by the tenant and the order fixing such date may be passed at any time whether on or before or subsequent to the first day of hearing of the suit and such order may be passed on the application of tenant or the landlord or even suo motu and the application for such order may be made by the tenant or the landlord at any time, whether on or before or subsequent to the first day of hearing of the suit. There is no reason to limit the plain and natural meaning of the words used in Section 12(3)(b) by introducing a requirement that the order fixing a date other than the 3 first day of hearing of the suit can be made by the Court only on the application of the tenant made on or before the first day of hearing of the suit.
Thus, die Court can even suo motu fix some date, other than the first day of hearing of the suit, for payment or tender of standard rent etc. by the tenant and the compliance with such an order would afford the tenant a protection from eviction.
5. The next material question then is as to upto what stage the Court can exercise its powers in the matter suo motu. It may here be remembered that, in the Instant case, no application was ever made by die tenant, but the Court has suo motu fixed the time in die judgment and decree finally deciding the suit. It is clear from the language employed in Clause (b) and in particular, the opening and the ending words used therein, namely, '... no decree for eviction shall be passed in any such suit if...' and 'till die suit is finally decided', and from the imperative requirement of die clause that die tenant must not only pay or tender in Court the standard rent and permitted increases then due on or before such other date as the Court may fix, but must thereafter also continue to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided by the Court, that the protection against the passing of a decree of eviction is available to the tenant only if he complies with the conditions precedent of payment or tender of the standard rent and permitted increases before the suit is finally decided, irrespective of the fact that the order of the Court fixing the standard rent is made on an application by either the tenant or the landlord or suo motu by the Court. The scheme of Section 12 and especially of Clause (b) of Sub-section (3) and the material words used therein, namely, 'till the suit is finally decided', clearly indicate that the power to extend the time must be exercised, in any case, before the suit is finally decided. A Court can fix any other date for payment or tender in Court of the amount of standard rent then due. But, in my view, that date must be a date prior to the date of delivery of the judgment, mat is to say, before the suit is finally decided by the trial Court. The readiness and willingness of the tenant to pay the amount of standard rent and permitted Increases must be at a date prior to the stage of passing of the decree of eviction.
6. Mr. Joshi has, however, relied upon the decision of a Division Bench of this High Court in Sureshchandra Bhulabhai Jariwala and Ors. v. Maganlal Lallubhai (supra), to canvass the view that the Court can suo motu make an order fixing time for payment of standard rent, etc. at any time during the pendency of the suit and even in the judgment. Now, in the case before the Division Bench, the tenant had, on the very day on which the suit was filed, preferred an application in the Court of the first instance for fixation of the standard rent of the premises and thereafter he had filed a written statement disputing the amount of standard rent payable by him and had deposited a certain amount as rent, which, however, fell short of the arrears due at the first hearing of the suit. Thereafter, although the tenant did not obtain an order from the Court fixing another date for payment or tender of the amount of standard rent and permitted Increases in Court, he continued to deposit various amounts at different times with the result that as at the date of the decree, the aggregate amount so deposited was more than sufficient to cover the full amount of standard rent and permitted increases. But, since it was contended on behalf of the landlord that the said amount was not deposited on or before the first date of hearing of the suit, the tenant made an application for fixation of the date for payment or tender under Section 12(3)(b) in order to regularise the deposit already made. It is noteworthy that the application was made on September 4, 1958, before the suit was finally decided, although while it was pending for judgment, which was subsequently delivered on October 11, 1958. It is also noteworthy that the tenant's application in the matter was rejected by the trial Court on the very day on which the application was made, namely, September 4, 1958, on the ground that it was too late. It was on these facts that the Division Bench took the view that the order may be passed even suo motu and that the application for the order may be made by die tenant or the landlord at any time, whether on or before or subsequent to the first day of the hearing of suit as is found in the observations of the Division Bench, set out by me earlier. It is clear that the Division Bench was not considering the case of such an order having been made In the final decision of the suit by the Court of the first Instance. On the contrary, in the course of its judgment, the Division Bench has observed that :'If the learned trial Judge had granted the application and fixed any date prior to the date of delivery of the judgment, the respondent would have been within the protection of Section 12(3)(b).' Thus, the decision of the Division Bench in a way supports the view that I am Inclined to take, namely, that the order must be made prior to the date of delivery of the judgment. In any view of the matter, the decision cannot be pressed In service by Mr. Joshi to support his contention that the order can be passed in the final decision of the suit by the Court of the first instance.
7. Mr. Joshi then relied upon the decision of J.B. Mehta, J., in Civil Revision Application No. 407 of 1963, decided on October 9th/10th, 1967, Harnamsing v Gangaram IX G.I.R. 323 in a case wherein the case of the tenant was held by both the Courts below as coming within the purview of Section 12(3)(a) of the Act, and still the tenant had deposited the amount of rent which was more than the standard rent and the permitted increases due till the date of the decree, not only of the Court of the first instance, but even of the appellate Court. In the revision application before him, Mehta, J., took the view that the tenant's case was covered by Clause (b) of Section 12(3) of the Act and as the deposits of rent made by the tenant In both the Courts below were sufficient to cover the amount of standard rent and permitted increases then due, it was a simple case of regularisation of the deposits which the tenant had already made. Mehta, J., further considered that the trial Court had not gone into the question as to whether the tenant was entitled to the protection under Section 12(3)(b), as the trial Court had found that the case was covered by Section 12(3)(a) and as such, no such subsequent deposit would be of any avail. It was on these special facts of the case that Mehta, J., held in the revision application before him that the tenant was, in any event, entitled to the protection of Section 12(3)(b) and no decree of eviction could be passed against him as none need apply in vain. Thus, it is clear that Mehta, J., was not dealing with a case of a final decision of a Court of first instance, which passes a conditional decree of eviction and postpones the date of payment of the standard rent and permitted increases to a date even later than the date of its decree, as is the case In the revision before me. Mehta, J.'s observations made in the judgment can have, therefore, no bearing on the question I am here called upon to decide. Mr. Joshi has fairly admitted that it was not a case of a conditional decree.
8. Mr. Joshi has, however, contended that in dealing with a case of this kind, the Court must always keep in mind the maxim referred to in C.S.P. & I. Corpn. v. Kerala State A.I.R. 1965 S.C. 1689, at p. 1691: Lex non cogit ad Impossibilis (the law does not compel the doing of impossibilities) under which the performance of an impossible duty must be excused. The submission was that, in absence of a decision of the Court determining the standard rent, it was not possible for the tenant to deposit the amount of standard rent and permitted increases then due. It is precisely to meet this difficulty that their Lordships of the Supreme Court have in their decision in Vara Abbasbhai Alimahomed v. Haji Gulamnabi Haji Saflbhai (1964) V.G.L.R. 55 at p. 61 observed:
But in the practical working of Clause (3)(b) some difficulty may arise. Where there is no dispute as to the amount of standard rent or permitted increases but rent is not payable by the month, or the rent is not in arrears for six months, by paying or tendering in Court the standard rent and the permitted increases and continuing to pay it till the suit is finally decided, the protection granted by the clause is made effective. Where there is a dispute as to the standard rent, the tenant would not be in a position to pay or tender the standard rent, on the first date of hearing, and fixing of another date by the Court for payment or tender would be ineffectual, until the standard rent is fixed. The Court would in such a case on the application of the tenant, take up the dispute as to standard rent in the first instance, and having fixed the standard rent, call upon the tenant to pay or tender such standard rent so fixed, on or before the date fixed. If the tenant pays the standard rent on Or before the date specified, and continues to pay or tender it regularly till the suit is finally decided, he qualifies for the protection of Clause (3)(b) If in an appeal filed against the decree, the standard rent is enhanced, the appeal Court may fix a date for payment of the difference, and if on or before that date the difference is paid, the requirement of Section 12(3)(b) would be complied with.
In my opinion, the aforesaid observations indicate the way out. The tenant must be vigilant to qualify for the protection. I am fortified in this view by the observations of Vakil, J., in Mohanlal v. Keshavlal : (1967)8GLR814 :. Where the tenant disputes the standard rent or permitted increases and finds it difficult to know exactly what amount he should deposit, he has to move the Court to fix the amount. So the tenant who desires to have protection or qualify for protection under Sub-section (3)(b), he has to be vigilant and take the steps of having the standard rent fixed by applying to the Court. If, however, he does not do so and takes the risk of depositing the amount on his own calculation, he cannot then complain if it is ultimately established that he had not deposited the amount of standard rent and permitted increases due to the landlord.' Thus, the maxim can have no play in such cases.
9. Mr. Joshi has contended that the tenant had deposited the various amounts of rent from time to time in the Court and if the aggregate amount so deposited in Court upto the date of the judgment is taken into consideration, the amount did not fall short for the period upto the expiry of the month of tenancy, which fell on January 13, 1964 although on a date prior to the date of the decree. Even assuming the statement of fact to be correct, there is no merit in this contention. Even then, the total deposits did not cover the amount of standard rent then due at the date when the suit was finally decided, the date of the decision being January 31, 1964. This would show that even on such a calculation, the tenant was not ready and willing to pay the amount of standard rent then due at a date immediately prior to the final decision of the suit. The tenant did not comply with the pre-conditions of Clause (b) and, therefore, he is not entitled to any protection on the ground of such a payment either.
10. Now, in the instant case, it is clear that no application was made by the defendant-tenant for fixing another date; nor did the Court suo motu pass any order fixing another date till the final hearing and until the decision of the suit, no such order was either sought or passed. Therefore, there was clear, non-compliance with the material requirement of Clause (b) of Sub-section (3) of Section 12 of the Act, namely, to pay or tender the arrears of rent when due and to continue or to pay or tender the standard rent thereafter, either on or before the first day of hearing or on or before such time as the Court may fix in that behalf. Thus, the tenant is not entitled to the protection provided under Clause (b). The order of the trial Court embodied in the operative portion of the judgment and in the decree giving time to the tenant to pay the decretal amount and the costs in the suit on the appointed day, falling after the date of the final decision, cannot, in my view, save the tenant from the rigors of the law. The tenant having ceased to be a contractual tenant and such relations having been once terminated, he became a statutory tenant, and, in order to be entitled to the remedy or the safeguard provided under Section 12 of the Act, he should have complied with the imperative conditions laid down in Clause (b) of Sub-section (3) of Section 12 of the Act. The tenant having failed to comply with these conditions, he is not entitled to the remedy or the safeguard under Clause (b) and the Court has consequently no jurisdiction to stay its hands. A decree for possession in suck cases must necessarily follow. In my view, therefore, the decision of the trial Court granting the tenant time to deposit the decretal amount of the arrears of rent and the costs of the suit after the delivery of the judgment and within the specified time, was contrary to law and the learned appellate Judge was right in deciding accordingly. I have taken a similar view in Civil Revision Application No. 94 of 1963, decided by me earlier on February 20, 1967.
11. In the result, the decree of eviction is maintained and the revision is dismissed. Having regard to the facts of this case, in my opinion, this is a pre-eminently fit case where I should give adequate time to the tenant to vacate the suit premises. Accordingly, while maintaining the decree of eviction, I extend the time to vacate to October 1, 1968. and order that the applicant-tenant do hand over vacant and peaceful possession of the suit premises to the opponent-landlord on or before October 1, 1968. The opponent to continue to pay by way of mesne profits the amount of standard rent every month until he hands over possession, as aforesaid. The rest of the decree is also maintained.
Rule discharged with costs.