Chhotubhai Zinabhai (Since Decd.) Through His Heirs and Lrs. Gunvantbhai C. Desai Vs. Ishversinh Mohansinh Atodaria - Court Judgment

Excerpt:
- sections 4(3), proviso, 5 & 6: [m.s. shah, d.h. waghela & akil kureshi, jj] complaint alleging inaccuracy or deficiency in maintaining record in prescribed manner as required under section 4(3) - held, it need not contain allegation of contravention of provisions of section 5 or section 6. burden to prove that there was contravention of provisions of section 5 or 6 does not lie upon prosecution. sections 5 & 6 & pre-conception & pre-natal diagnostic techniques (prohibition of sex selection) rules, 1996, rule 9: [m.s. shah, d.h. waghela & akil kureshi, jj] deficiency or inaccuracy in filling form f - held, deficiency or inaccuracy in filling form f prescribed under rule 9 of the rules made under pndt act, being a deficiency or inaccuracy in keeping record in the prescribed manner, it is not a procedural lapse but an independent offence amounting to contravention of the provisions of section 5 or 6 of the pndt act and has to be treated and tried accordingly. it does not, however, mean that each inaccuracy or deficiency in maintaining the requisite record may be as serious as violation of the provisions of section 5 or 6 of the act and the court would be justified, while imposing punishment upon conviction, in taking a lenient view in cases of only technical, formal or insignificant lapses in filing up the forms. for example, not maintaining the record of conducting ultrasonography on a pregnant woman at all or filling up incorrect particulars may be taken in all seriousness as if the provisions of section 5 or 6 were violated, but incomplete details of the full name and address of the pregnant woman may be treated leniently if her identity and address were otherwise mentioned in a manner sufficient to identify and trace her. section 28: [m.s. shah, d.h. waghela & akil kureshi, jj] cognizance of offence held, use of the words appropriate authority twice, at the beginning and end of clause (a) of sub-section (1) of section 28, clearly conveys that complaint could be made by an officer who is authorised in that behalf by the central government, the state government or the appropriate authority, besides the appropriate authority itself. the power to delegate and authorise an officer to make a complaint is clearly conferred upon all the three authorities under the provisions of section 28, and, therefore, a court can take cognizance of an offence under the act on a complaint made by any officer authorised in that behalf by the appropriate authority. - it is thus clear that only when these three conditions are satisfied by the tenant that he can save his eviction. thus, the same procedure is to be followed by the tenant namely he has to deposit the rent regularly in appeal as well. he also contended that neither any interim direction was given by the trial court to deposit the interim standard rent and that the trial court did not decide the dispute of standard rent before finally deciding the suit and even at the time of finally deciding the suit, the trial court did not give any opportunity or reasonable opportunity to make good the deficiency in payment of rent according to the standard rent fixed by the trial court and in this view of the matter, the tenant cannot be deprived of the protection of section 12(3)(b) of the rent act. it was laid down in this case that in order to avail benefit of section 12(3)(b) of the rent act, the tenant must know at what rate he has to go on paying the rent and if there was any note of the trial court as well as of the appellate court, the question of deciding what the standard rent is, the tenant can be said to be technically not able to deposit the rent fully even though he may be willing to do so. thus, under section 11(1) of the act, the standard rent can be fixed in any suit or proceeding as well. if this was so, then the failure of the respondent-tenant in not depositing the entire arrears of rent on the first date of hearing will not deprive him of the protection of section 12(3)(b) of the bombay rent act. since the trial court did not grant any time to the tenant to make good the deficiency of rs. 29/-,he cannot be said to have defaulted in the second stage as well. the revision in these circumstances has no merit and is bound to fail.d.c. srivastava, j.1. this is landlord's revision under section 29(2) of the rent control act, 1947.2. brief facts giving rise to the present revision are as follows:3. the disputed premises was lei out by the plaintiff-landlord to the defendant on monthly rent of rs. 14/- besides rs. 3/- per month towards electricity charges. in this way, rs. 17/- per month were treated as standard rent and permitted increases. the rent amounting to rs. 272/- from 1-1-1974 to 30-4-1975 was due from the tenant. notice of demand was sent through registered post on 2-5-1975 in which the tenancy was also terminated. neither the rent was paid within a month of service of notice of demand nor the premises was vacated. hence, the landlord filed suit for eviction etc., against the tenant.4. the tenant contested the suit disputing the standard rent to be rs. 17/- per month. according to him, similar portion was let out previously between rs. 6/- to rs. 7/- per month and as such, the dispute of standard rent was raised by the tenant. he also alleged payment of rent upto march, 1975. it was alleged by him that the rent was remitted thereafter by money order which was refused by the landlord. some payments were alleged by the tenant with the allegation that no receipt was issued by the landlord. he, therefore, alleged that he was not in arrears of rent exceeding six months on the date of service of notice of demand.5. the trial court found that the case was not covered by section 12(3)(a) of the rent act. the trial court further found from various deposits made by the tenant that the tenant was not entitled to protection of section 12(3)(b) of the rent act. according to the trial court, deposit on the first date of hearing was short and subsequent deposits were not regularly made on account of which the tenant was not entitled to the benefit of section 12(3)(b) of the rent act. accordingly, decree for eviction was passed against the tenant.6. an appeal was preferred by the tenant against the judgment and decree of eviction before the lower appellate court and the lower appellate court allowed the appeal and set aside the judgment and decree for eviction. hence this revision by the landlord.7. the short point for consideration in this revision is whether the tenant-respondent is entitled to the protection of section 12(3)(b) of the rent act. in order to decide this point, section 12(3)(b) of the rent act has to be kept in mind. it reads as under:(b) in any other case, no decree for eviction shall be passed in any suit if, on the first day 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 thereafter,-(i) continues to pay or tender in court such rent and permitted increases till the suit is finally decided; and(ii) pays costs of the suitas directed by the court]8. it may also be mentioned at this stage that the word 'regularly' previously occurring under section 12(3)(b) of the rent act was deleted by section 2 of the gujarat act 7 of 1985. this amendment came into operation in the year 1985. the suit of the landlord was filed in the year 1975 and was decided by the trial court on 6-5-1978. the appeal was preferred on 23-6-1978 and was decided on 11-3-1980. thus, when the suit and the appeal were decided, old act was in operation, hence, the word 'regularly' as previously occurring in section 12(3)(b) has also to be taken into consideration.9. it is, therefore, obvious from the provision of section 12(3)(b) of the rent act as they stood prior to the amendment of 1985, that if the case is not covered by section 12(3)(a) of the rent act, decree for eviction can be passed under section 12(3)(b) of the act. however, the tenant can save eviction under section 12(3)(b) provided he deposited on the first date of hearing of the suit or on or before such other date as the court may fix the standard rent and permitted increases and further continues to pay or tender in court such rent and permitted increases regularly till the suit is finally decided and pays costs of the suit as directed by the court. it is thus clear that only when these three conditions are satisfied by the tenant that he can save his eviction. the first condition is that he should have deposited the rent on the first date of hearing of the suit or on any subsequent date as directed by the court. the second condition is that the tenant continues to deposit such rent or standard rent regularly in court till the suit is finally decided. the word 'suit' is inclusive of the word 'appeal' inasmuch as the appeal is continuation of the suit. thus, the same procedure is to be followed by the tenant namely he has to deposit the rent regularly in appeal as well. the third condition is that the tenant shall pay the costs of the suit as directed by the court. if any of these three conditions are not fulfilled by the tenant, he will not be entitled to protection of section 12(3)(b) of the rent act.10. the tenant in this case raised the dispute of standard rent in the written statement. specific issue no. 4 was framed by the trial court as to what is the standard rent of the suit premises. this issue was decided only along with the final judgment and the trial court found that the standard rent was rs. 14/- per month exclusive of electricity charges.for grant of benefit of section 12(3)(b) of the rent act, the court has to consider three stages. the first stage is the position on the date of first hearing of the suit. the second is the period till the judgment is delivered and the suit is decided by the trial court. the third stage is the period during the pendency of the appeal.11. so far as the first stage is concerned, learned counsel for the respondent has contended that since the bona fide dispute of standard rent was raised by the tenant and specific issue was framed, the tenant did not know at what rate he was to deposit the rent on the first date of hearing and if in such state of affairs, the tenant deposited something short, it cannot be said that compliance of section 12(3)(b) of the bombay rent act was not made by the tenant. he also contended that neither any interim direction was given by the trial court to deposit the interim standard rent and that the trial court did not decide the dispute of standard rent before finally deciding the suit and even at the time of finally deciding the suit, the trial court did not give any opportunity or reasonable opportunity to make good the deficiency in payment of rent according to the standard rent fixed by the trial court and in this view of the matter, the tenant cannot be deprived of the protection of section 12(3)(b) of the rent act. the case of rupaben wd/o. kaththu dhanji and anr. v. babubhai devjibhai : air1983guj187 was referred to in support of this contention. it was laid down in this case that in order to avail benefit of section 12(3)(b) of the rent act, the tenant must know at what rate he has to go on paying the rent and if there was any note of the trial court as well as of the appellate court, the question of deciding what the standard rent is, the tenant can be said to be technically not able to deposit the rent fully even though he may be willing to do so. the pronouncement in champaben v. gopi nath 1980 glr 709 was also referred. in case of harnamsing lalsing v. gangaram itchharam 1968 glr 323 also, similar view was taken and it was laid down that where there is dispute about 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 tendering would be ineffective until the standard rent is fixed. it was laid down in this case that the dispute of standard rent can be resolved on the application of tenant or on the application of the landlord and even suo motu the court can decide this issue and regularise the payments made by the tenant.12. learned counsel for the revisionist, placing reliance upon the case of shah dhansukhlal chhaganlal v. dalichand virchand shroff (deed.) by his lrs. 1968 glr 759, which is the decision of the apex court, contended that the tenant should have moved an application under section 11(3) of the bombay rent act for fixation of standard rent and unless this is done, he cannot claim protection under section 12(1) by merely offering to pay the rent or by paying the rent when the court is about to pass the decree. the apex court, in this decision, was considering the question of readiness and willingness of the tenant to pay the rent and had also considered the applicability of section 12(3)(a) of the bombay rent act and observed that the tenant must apply under section 11(3) of the rent act and then continue to pay the rent as ordered by the court. to claim protection under section 12(3)(b) of the bombay rent act, the tenant must pay all arrears and regularly pay the rent and permitted increases in the court. it was further observed that to be within the protection of section 12(1) of the bombay rent act, where the tenant has raised the dispute about the standard rent, he must make an application to the court under sub-section (3) of section 11 and thereafter to pay or tender the amount of rent and permitted increase, if any, as specified in die order made by the court. if he does not approach the court under section 11(3), it is not open for the tenant to thereafter claim the protection under section 12(1).13. it would be necessary to recapitulate section 11(1) of the bombay rent act. it provides that in any of the following cases, the court may, upon an application made to it for that purpose or in any suit or proceedings fix the standard rent at such amount as having regard to the provisions of this act and the circumstances of the case, the court deems just. the apex court has, in the above case, observed that the application must be made under section 11(3) of the bombay rent act. but section 11(1) of the act provides that the standard rent can be fixed upon an application made to the court or in any suit or proceedings. thus, under section 11(1) of the act, the standard rent can be fixed in any suit or proceeding as well. if, therefore, the tenant raised dispute of standard rent in the written statement and the issue was framed on the point, the trial court should have fixed the standard rent before proceeding further in the matter. if this course was not adopted by the trial court and it chose to decide all the issues together, it should have granted time to the tenant to deposit the deficiency in rent at the rate of standard rent fixed by it within the time granted by it. since this was not done, the tenant-respondent, by no stretch of imagination, could have known at what rate he was required to deposit the rent or the standard rent on the first date of hearing. if this was so, then the failure of the respondent-tenant in not depositing the entire arrears of rent on the first date of hearing will not deprive him of the protection of section 12(3)(b) of the bombay rent act. it is also necessary to mention that two charts have been submitted by the learned counsels for the parties respectively and from the said charts, it is undisputed that the first date of hearing of the suit was 18-8-1977. according to the learned counsel for the revisionist, on that date, entire arrears of rent was not deposited and there was deficiency of rs. 29/-. according to the learned counsel for the revisionist, the deposit of rs. 50/- towards the costs of the suit cannot be adjusted towards the arrears of rent. the contention may be technically correct inasmuch as the cost would be deposited only under the directions of the court and not otherwise. there was no direction of the court on the date of first hearing of the suit to deposit the cost of the suit. however, insignificant deficiency in depositing the arrears of rent on the first date of hearing of the suit has to be ignored because on that date, the respondent-tenant did not know at what rate he was required to deposit or tender the rent and still he deposited the rent at the agreed rate. thus, in the first stage, the respondent cannot be said to have committed default due to which the protection under section 12(3)(b) should not be granted to him.14. then comes the second stage namely deposits made during the pendency of the suit. the suit was decided by the trial court on 6-5-1978. according to the chart submitted by the learned counsel for the revisionist, an amount of rs. 834/- was deposited towards the rent and rs. 50/- towards the cost. as against this, the arrears of rent from 1-1-1974 to 31-9-1977 including the electricity charges come to rs. 765/- and the arrears of rent from 1-10-1977 to 30-4-1978 come to rs. 417/- including the electricity charges. thus, from 1-1-1974 to 30-4-1978, total amount due from the respondent was rs. 860/- but he deposited rs. 834/- towards the rent and rs. 50/- towards the cost of the suit and in this way, there was deficiency in depositing rs. 29/- but this deficiency has to be ignored because even till the disposal of the suit and on the date of the judgment of the trial court, the respondent could not know what was the standard rent in the mind of the trial court. since the trial court did not grant any time to the tenant to make good the deficiency of rs. 29/-, he cannot be said to have defaulted in the second stage as well.15. then comes the third stage namely the period during pendency of appeal. the appeal was filed on 23rd june, 1978. in the trial court, the rent was deposited last on 11-4-1978 in the sum of rs. 171/- and thereafter no deposit was made in the trial court. the chart filed by the learned counsel for the revisionist shows that after filing of the appeal, the respondent committed default by not paying the rent from the month of march, 1978 to july, 1978 for five months. but this appears to be incorrect statement. from the chart of the learned counsel for the revisionist, it is clear that on 5-4-1978, rs. 51/- were deposited towards the rent from 1-4-1978 to 30-6-1978 and rs. 171/- were deposited on 11-4-1978. the suit was decided on 6-5-1978. thus, on 5-4-1978, the rent was deposited in advance for two months namely for may and june, 1978. again, rs. 171/- were deposited on 12-4-1978. in this way, the chart submitted by the learned counsel for the respondent discloses that on 12-4-1978, rs. 35/- were deposited in excess which seems to be correct. the rent upto june, 1978 was already deposited by the tenant in the trial court on 5-4-1978. thus, if no rent was deposited on 23-6-1978 when the appeal was filed, the tenant cannot be said to be defaulter. from the chart of calculation filed by the learned counsel for the respondent, it appears that the rent was deposited regularly in the appellate court rattier excess amount was being deposited in the appellate court. thus, from the comparative study of the two charts submitted by the learned counsel for the respective parties, it is clear that even during the pendency of appeal, the respondent-tenant cannot be said to have committed default in depositing the rent regularly rather went on depositing the rent in the appellate court in advance. thus, even at the third stage, the respondent cannot be said to have committed any default in regularly depositing the rent. the lower appellate court, in these circumstances, was justified in giving benefit of section 12(3)(b) of the bombay rent act to the tenant.16. the judgment and decree of the lower appellate court is, therefore, in accordance with law, hence it requires no interference. the revision in these circumstances has no merit and is bound to fail. the revision is, therefore, dismissed. no order as to cost.