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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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