http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: PIONEER PAPER BOX FACTORY

       Vs.

RESPONDENT: SMT. THAKURDEVI SHRINIWAS

DATE OF JUDGMENT: 26/05/1970

BENCH: RAY, A.N. BENCH: RAY, A.N. DUA, I.D.

CITATION:  1971 AIR 1781            1971 SCR  (1) 626

ACT: Bombay Rent Act (57 of 1947), s. 12(3) (b)--Scope of. Practice--Revision    and   review   dismissed    by    High Court--Allegation  of fact not brought to the notice of  the High  Court--Whether can be permitted to be raised  in  this Court.

HEADNOTE: In a suit for evicition on the ground of non-payment of rent a  decree  was  passed  directing  the  tenant  to  pay  the landlady’s costs, as, by that time, the tenant had paid  all the arrears of rent as fixed; but the tenant did not pay  or tender  the costs.  Therefore, the court passed an order  of eviction.  His appeal, -a revision to the High Court, and  a review petition to the High Court were all dismissed. In appeal to this Court, HELD  : (1) The tenant would be entitled to  the  protection under  s.  12(3)  (b) of the, Bombay Rent Act,  only  if  he complied with its provisions by paying or tendering not only the  arrears of rent but also the costs of the suit.   Since the  appellant  admitted his inability to, comply  with  the provision,  he could not claim protection against  eviction. [627 D, G] (2)  Assuming  that the costs were paid at a later  date  as alleged  by the appellant, that fact was not brought to  the notice of the High Court, and therefore this Court will  not interfere with the exercise of discretion by the High  Court in the set of facts and circumstances presented to the  High Court.. [628 F-G]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 36 of 1968. Appeal  by special leave from the judgment and  order  dated November 19, 1963 of the Bombay High Court in Civil Revision Application No. 167 of 1959. V.  M. Tarkunde, P. C. Bhartari, O. C. Mathur  and  Ravinder Narain, for the appellant. A. K. Sen, M. S. Gupta and S. L. Jain, for the respondent. The Judgment of the Court was delivered by Ray,  J. This appeal is by special leave from  the  judgment

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

dated 19 November, 1963 of the High Court of Bombay  dismis- sing  the  appellant  defendant  tenant’s  application   for revision in a decree for eviction of the defendant. The  appellant was tenant of the respondent.  On  28  April, 1954 the appellant filed an application under section II  of the  Bombay Rent Act for fixation of standard rent.   During the 627 pendency of the application the respondent landlady served a notice  on  the  appellant  in  the  month  of  March,  1955 terminating the tenancy on the ground that the appellant had failed to pay rent from I March, 1954.  On 25 April, 1955  a suit was filed for eviction of the appellant. During  the  pendency  of the suit on  29  June,  1956,  the standard  rent was fixed at Rs.55/7/- p.m.  The  contractual rent was Rs. 85/- p.m. When  the  suit came up for hearing on 5 October,  1956,  it appeared that the appellant paid all the arrears of rent  in accordance with the standard rent but did not pay the  Costs of  the  suit.  The trial court passed an  ejectment  decree against the appellant. The appellant preferred an appeal.  The appellate court took the  view  that the order of the trial court  was  justified under  section  12(3)(b) of the Bombay  Rent  Act.   Section 12(3)(b)  of the Bombay Rent Act provides that no decree  in eviction shall be passed, if on the first day of the hearing of the suit or on or before such other date as the court may fix,  the tenant pays or tenders. in the court the  standard rent  and  permitted increase in rent  due,  and  thereafter continues to pay or tender in court regularly the said  rent and permitted increase till the suit is finally decided  and also pays costs of the suit as directed by the Court. The appellant then filed an application for revision in  the High  Court.  The contention which was advanced in the  High Court and repeated here was that the courts were in error in decreeing  the  suit for non-payment of  costs  because  the trial  court had not passed any order fixing the  amount  of costs.  It was said that only when an order determining  the amount  of costs had been made by the court that the  tenant could be said to be within the mischief of the provisions of the  statute for non-payment of costs so determined  by  the courts. The  High  Court  rightly rejected the  contention  for  two reasons.   First, though a formal order as to costs was  not made,  yet the trial court had made an order  directing  the appellant  to pay the amount of costs and the appellant  did not  pay the costs.  Secondly, the appellant  stated  before the trial court that the appellant was not in a position  to tender  what is described as "professional costs" and  court costs of the suit. It is indisputable that in the trial court the appellant not only  admitted  failure to pay costs but also  inability  to tender  the  costs.  -The appellant  could  be  entitled  to protection  against eviction only if the appellant  complied with  the  provisions  of the statute.   The  appellant  was required  to tender not only the arrears of rent  but  .also the,  costs of the suit.  In the trial court  the  appellant admitted non-compliance with the provisions of the  statute. Therefore, the 628 trial court rightly held that the appellant was not entitled to any benefit or protection against eviction. The appellate court held that because the appellant filed an application  for  fixation of standard  rent  and  therefore there  being  a dispute between the  parties  regarding  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

standard  rent  no order in eviction could be  passed  under section  12(3)  (a) of the Bombay Rent Act.   The  appellate court,   however,  held  that  the  case  fell  within   the provisions  of section 12(3) (b) of the Bombay Rent  Act  by reason  of the failure of the appellant to pay costs of  the suit. Counsel  for  the appellant contended that  the  costs  were deposited on 22 November, 1956 and therefore the High  Court should have exercised discretion in favour of the appellant. The  High  Court  stated that the decree  was  passed  on  5 October,  1956 and the appeal was filed on 18 October,  1956 and the amount of costs was not deposited with the filing of the  memorandum  of  appeal.  The High  Court  concluded  by stating  that "the decree of the trial court was made  on  5 October,  1956.   We  are in the year  1963.   The  attitude adopted by the petitioner is not such in which a  discretion can  be  exercised in favour of the petitioner".   The  High Court  heard the application on 19 November, 1963.   Counsel for  the appellant invited our attention to paragraph 13  of the application for review made in the High Court where  the appellant  alleged that on 7 December, 1956 the  costs  were paid.  No portion of the judgment of the High Court is  open to  any  criticism  for the obvious  reason  that  when  the memorandum  of  appeal  was filed in the High  Court  on  18 October, 1956 the costs were not paid.  The application  for review also indicates that when the matter was heard  before the High Court it was not brought to the notice of the  High Court  that  the  costs were paid on  7  December,  1956  as alleged.  The  appeal  is from the judgment of the  High  Court.   It would  be improper to interfere with exercise of  discretion passed by the High Court when the matter was not brought  to the  notice of the High Court.  Discretion is  exercised  by the  court in the facts and circumstances of the case.   Any interference with the exercise of discretion in the  present case would be substituting the discretion ’of this Court  on a set of facts which were never presented to the High Court. The  appellant  was  not entitled to any  relief  under  the provisions  of the Bombay Rent Act.  The High Court  rightly rejected the application for revision.  The appeal fails and is dismissed with costs. V.P.S.                                Appeal dismissed. 629