ARJUN KHIAMAL MAKHIJANI ETC.versusJAMNADAS C. TULIANI & ORS. ETC.

                  ARJUN KHIAMAL MAKHIJANI ETC.
A
                               v.
                 JAMNADAS C. TULIANI & ORS. ETC.

                               OCTOBER 5, 1989

B            [M.N. VENKATACHALIAH, N.D. OJHA AND
                        J.S. VERMA, JJ.]

         Bombay Rents, Hotel and Lodging House Rates Control Act,
  1947: Section 12-Tenant-Eviction on ground of being defaulter-
  'On or before such other date as the Court may fix'-Date fixed for
C settlement of issues, cannot be equated with 'any other date fixed in the
  suit.'

          Jamunadas C. Tuliani is the owner and the landlord of the suit
    premises. He instituted a suit for ejectment against live defendants on
    the ground that they were tenants of the said premises and were in
D   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 sµtt,section 3(a) of the Act as it then sl\iod. Two
    other grounds were that ihe tenants had changed the user of the suit
E   premises and they had coiltitted breach of the terms and conditions of
    the tenancy. Subsequently Arjun Khiamal Makhijani was impleaded as
    defendant No.. 6 in the suit on the assertion that the tenants had illegally
    sub-let a po"rtion of the premises namely garage to him and were thus
    liable to be evicted on that ground·also.

p         The Trial Court decreed the suit in favour of the landlord on the
    plea of default in p_ayment 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.

G         Two appeals were preferred against the judgment of the Trial
    Court, one by the tenants and the other by the defendant 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 judgment of the High Court dismissing these writ peti-
    tions, the present civil appeals have been preferred.
H
                                         380.
                     A .K. MAKHIJANI v. J.C. TULIANI                     381

       Dismissing both the appeals, the Court,                                  A

        HELD: (i) 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) of the face of it was not attracted inasmuch as the    B
  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 contemplate 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 defanlter 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      D
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 bot was filed for ·the enforce-
ment of the statutory right conferred mi the hµidlord by sub-sections (2)       E
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 inasmuch as on a
plain reading of the sub-section,it is not possible to give it a retrospec-
tive operation. [392C]                                                          F

     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"             G
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. [3930]
                                                                                H
    382         "suPREME COURT REPORTS               (1989] Supp. 1 S.C.R.

          By taking recourse to the process of reopening of proceedings one
A   cannot put the hands of the clock back and create an artificial date as
    the "first day of tbe hearing of the suit." [393H; 394A]

          (v) Interpretation of statutes:

B          "Wben 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 nnder 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
C 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 tbat as pointed out in Latham v. R.
    Johnson and Nephew Ltd., (1913] I K.B. 398 (408) sentiment is a
D dangerous will-of-the-wisp to take as a guide in tbe search for legal
  ; principles." [389B-D]

          Harbansla/ Jagmohandas and Anr. v. Prabhudas Sivia!, [1977] I
    SCC page 576; Jaywant S. Kulkarni & Ors. v. Minochar Dosabhai
    Shroff & Ors., (1988] 4 SCC P. 108; Ganpat Ram Sharma & Ors. v.
E   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] l K.B. 398 (408); Vatan Mal v. Kai/ash 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 Kumarv.
F   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 lchharam, (1974] 1 S.C.C. P. 242,
    referred to.

        CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
G   4180and4181ofl989.

          From the Judgment and Order dated 20/21/22-7-1988 and 18/29-
    8-1988 of the Bombay High Court in Writ Petition Nos. 3313 and 3417
    of 1987.

H         N.N. Keshwani and R.N. Keshwani for the Appellants.
               K.K. MAKHJJANI v. J.C. TULIANI IOJHA, J.]              383

     A.B. Rohatgi, Mrs. Gaol Barucha, M.J. Paul, Kailash Vasdev, R.
                                                                             A
Karanjawala, Mrs.· M. ,J).araµjawala (NP) and H.S. Anand for the
Respondents.

      The Judgment of the Court was delivered by

      OJHA, J. Special leave granted.                                        B

      These civil appeals have been preferred against a common judg-
ment of the Bombay High Court dismissing writ petition No. 3313/87
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 btoh these appeals i~ the owner
                                                                             c
and the landlord of the suit premises comprising two bed rboms 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           D
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 refer-
red to as the Act) and were consequently liable for eviction under
sub:section (3)(a) of the Act as it then stood. Two other grounps were       E
pleaded by the respondent 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 a_ssertion that the tenants had illegally sublet a portion of the suit
premises namely the garage to him and were consequently liable to be         F
evicted on this ground also. The suit was contested both by the tenants
as well as by defendant No. 6. The Trial Court recorded findings 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             G
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 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 petitio'!_S~he High Court.       H
    384        SUPREME COURT REPORTS                 [1989] Supp. 1 S.C.R.

A   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
B 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-section (3) of Section 12 of
  the Act as substituted by Amendment Act 18 of 1987 which came into
C 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
D 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 sub-
  section (2) of Section 15 as amended, could not be given to defendant
  No. 6 in a writ petition, the same being not a proceeding contemplated
  by Section 25 of the Amendment Act. In order to appreciate the
E 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. Sub-
  section (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
F              no dispute regarding the amount of standard rent or permit-
               ted 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 poss;ssion.

                      (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
H               permitted increases then due and thereafter continues to
             A.K. MAKHIJANI v. J.C. TULIANI (OJHA, J.]                 385

           pay or tender in Court regularly such rent and permitted
                                                                               A
           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         B
           any suit for recovery of posession on the ground of arrears
           of standard rent and permitted increases 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
           together with simple interest on the amount of arrears of
           such standard rent and permitted increases at the rate of
                                                                               c
           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;
                                                                               D
           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          E
as. aforesaid runs thus:

           "(2) The prohibition against the sub-letting of the whole or
           any part of the premises which have been let to any tenant,
           and against the assignment or tansfer in any other manner
           of the ihterest of the tenant therein, contained in sub- F
           section (1), shall, subject to-the provisions of this sub-
           section, 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 contained in any contract or in
           the judgment, decree or order of a Court, any such sub- · G
           lease, assignment or transfer of any' such purported sub-
           lease, assignment or transfer in favour of any person who
           has entered into possession, depsite the prohibition in sub- /
           section (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, H
    386         SUPREME COURT REPORTS                [ 1989] Supp. 1 S.C.R.

                and any tenant who has sub-let any premises or part
A
                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
B               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:
c               25. Nothing contained in the principal Act, as amended by
                this Act, shall be deemed to authorise the re-opening of
                any suit or proceeding for the eviction of any person from
                any premises to which the principal Act applies as if such
                proceeding had been finally disposed of before the com-
D               mencement of this Act.

                      Explanation-For the purposes of this section, suit or
                proceeding, as the case may be, shall not be deeme<!. to
                have been finally disposed of, if in relation to that suit or
                proceeding, any appeal or proceeding is pending, or, if the
H               period of limitation for preferring an appeal or proceeding,
                as the case may be, had not expired before the commence-
                ment of this Act."

          It has been urged by the learned cimnsel forthe tenants that 14th
    November 1967 was the first day of .hearing of the suit and since in·
F   pursual)lle of an order passed by the Trial Court on that d!!Y, 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
    payment of rent even if the amendment made in sub-section (3) of
    Section 12 by the Amendment Act 18 of 1987 was ignored. We, how-
G ever, find it difficult to agree with this submission. 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
1-1 month, no dispute regarding the amount of standard rent pr permitted
              A.K. MAKHIJANI v. J.C. TULIANI [OJHA, J.)               387

incr~ases was raised by the tenants. On a elain reading of clause {a) of
                                                                           A
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 B
opening words "In any other case" of clause (b). In Harbanslal
Jagmohandas and Anr. v. Prabhudas Shiv/al, _[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 consideration 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 terminating the tenancy. In the c
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, therefore, 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 qatne up for ;D
consideration. It was held:

           "Sub-section (3)(a) of Section 12 categorically 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            E
           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 rc;ferred to in sub-
           section (2), the court shall pass a decree for eviction in any
           such suit for recovery of possession. In the instant case, as
           has been found by the court, the rent is payable month by         F
           tnonth. There is no dispute regarding the amount of
           standard rent or permitted increa.ses . .Such rent or increases
           are in arrears for a period of six months or more. The
           tenant had neglected to make payment until the expiration
                                                               to
           of'the j>erio_d of one month after-notice referred in sub-
           section (,2). The Court was bound to pass a decree for evic- G
           tion 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 legislation 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 H
    388         SUPREME COURT REPORTS                 [1989] Supp. 1 S.C.R.

A   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
a               time, this is a beneficial legislation, beneficial to both the
                landlord and the tenant. It protects the tenant against
                unreasonable 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
                a;;oommodation, by asserting his superior rights in property
                or trying to exploit his position by extracting too high rents
                f{Om helpless tenants. The object was not to deprive the
                1andlord altogether of his rights in property which have also
                to be respected. Another object was to make possible evic-
                tion 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 condi-
                tions are satisfied as was pointed out by one of us
                 (Bhagwati, J.) in Ratilal Balabhai Nazar v. Ranchhodbhai
                Shankerbhai 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 condi-
                 tions 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 sec-
                 tion 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 p_!"otecti_on available to him, a decree
                 for eviction would have t() go against him. It is difficultto
               A.K._MAKHDANl v. J.C. TULIANI [OJHA, J.}                  389

            see how by any iudicial valour discretion exercisable in            A
            favour of the tenant can be found in Section 12(3)(b) even
            where the conditions laid down by it are satisfied to be
            strictly confined within the limits prescribed for their
            operation.''
                                                 (Emphasis supplied).
                                                                          B
       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 C
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 taHyou lose. It is difficult to
countenance'the sentfrnenial approach made by learned counsel forlthe
tenants, for the simple reason that as pointed out in J,,atham v. R.
Johnson and Nephew Ltd., [1913] 1 KB 398 (408) sentiment is a D
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. Kai/ash Nath, [1989] 3 SCC page 79. In that case provisions of
Amending Ordinance No. 26 of 19-75 whereby Section 13(a) was                    E
inserted il1 the Rajasthan Premises (Control of Rent and Eviction)
Act, 1950, came up for consideration. After pointing out that the
object of inserting Section !3(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         F
13( a) must conform to the legislative intent and the courts should not
take narrow restricted view which will defeat the purpose of the Act.
In our opinion, 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-secti~n (3) of Section 12 of Act are calculated to meet entirely         G
different situations and the object of clause (b) was not to defeat the
mandatory requirement of clause (a) scope of which has already been
discu~sed 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.                            H
    390         SUPREME COURT REPORTS                  [1989] Supp. 1 S.C.R,

          It was then urged by the learned counsel for the tenants that
A
    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 com-
    plete justice" in the case. Reliance in support of this submission has
    been placed on Smt. Kamala Devi Budhio nnd. oihers v. Hem Prabha
B   Ganguli and Others, [1989] 3 SCC page 145. This submission ignores
    the basic concept that Article 142 does not contemplate 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 whether an
q   application under Section 12 of the Bihar Buildings (Lease, Rent annd
    Eviction) Control Act was competent or in the circumstances of the
    case only a suit under Section 11 thereof could he filed. It was pointed
    out that it is the 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:
D
                "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 appel-
                lants 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 appellants before
                the High Court? W~ think.that we can and _we should, ,the
F               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 pro-
                cedural in nature and inconsistent with our decision to treat
                the proceeding as a suit. The occasion for filing an applica-
                tion under Section 12(3) can arise only where the matter is
G               covered by Section 12, and as we have made an assumption
                in favour of the respondents that Section 12 has no applica-
                tion to the present case, there is no point in asking the
                appellants to file such an appliction. As mentioned in Arti-
                cle 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,
              A.K. MAKHIJANI v. J.C. TULIANI [OJHA, J.]               391

            and the present case is a most appropriate one for exercise      A
            of stich _pOWer."
                                                 (Emphasis supplied)

      The said decision apparently cannot be applied to the facts of the
instant case.
                                                                             B
       Learned counsel for the tenants then urged, relying on Pradu-
man Kumar v. Virendra Goyal (Dead) by L.Rs., [1969] 3 SCR page
950, that at .!ill events the tenants were entitled to be relieved against
forfeiture for non-payment of rent under Section 114 of the Transfe.r:_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    C
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
eviciion of a tenant has been instituted 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 obligations of the
landlords and ienants such _is "Section 12_oJ t_he Act. In a case where a    D
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. Sec-       E
tion 114 of the Transfer of Property Act which provides relief against
forfeiture for non-payment ot 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 deter-
mines. Clause (g) contains one_of such contingencies being by forfei-        F
lure 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 non-
payment of rent the lessor was entitled to re-enter. It is only in those     G
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 Jessee of his intention to determine the lease that a
lease of immovable property detemines by forfeitllre for non-payment
of rent. In the instant case, the suit was not based on any such forfei-
ture of lease under the Transfer of Property Act but was filed for the       H
    392          SUPREME COURT REPORTS                 (1989] Supp. 1 S.C.R.

    enforcement of the statutory right conferred on the landlord by sub-
A
    sections (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 (bl of sub-section (3) of Section 12 were sub-
   • stituted by the consolidated sub-section (3) of the Amendment Act 18
B 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 entitled 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
C 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
I]> substituted on the !st day of February 1973. No such provision was
     made with regard to the substitution of sub-section (3) of Section 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-oeposit contemplated by the amended sub-section (3fand even
El 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 J3) for the
     obvfous · 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
     increases at the rate of nine per cent per annum. Such amount of
Fl interest was admittedly not deposited by the tenants either on 9th
     January 1968 or on any date thereafter. We ow turn to the submission
     of the learned counsel for the tenants t)lat 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.Qtl!er.day ~s _t.Iie C_ou!! may fix" after
     sub-section ~-0 !Jeing substituted by _t?e Amendment Act 18 of11987.
O This argurnent ignores the difference between the terms "at the hear-
     ing of the suit" as used in'sectiion 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
J-1 available in the latter case where the ~ords used ar.e "on the first day
                A.K. MAKHIJANI v. J.C. TULIANI [OJHA, J.]                393

  of the hearing of the suit". In the very nature of things it is not possible
                                                                                 A
  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 amend-
  ment by the Amendment Act 18of1987 occurred in clause (b) of .the              B
  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          C
   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 sub-         D
   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. A deposit made on or before
   such extended date would also meet the requirement of the sub-
 -section. Even Section 25 of the Amendment Act 18 of 1987 would be              E
.. of no assistance in so far as the interpretation of Section 12(3) of the
   Act isconcern/d. The said Sectio~ provides for certain exceptions in
   which a su_iVor 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         F
   amended by the Amendment Act 18 of 1987, the.amendments where-
 . un.der 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 GanpatLadha, (supra) and such a right could be taken away only by          G
   a provision which either expressly took away that right or could be
   interpreted to have taken away that right by neces8ary inendment We
   do not find any such indication either in the amended sub'8ection (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 reopening of proceed-
   ings one cannot pur the hands of the cloek back and create an artificial      ,H
     394         SUPREME COURT REPORTS               [ 1989] Supp. I S.C.R.

  date as the "first day of the hearing or' the suit". No other point has
A 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 whom the
   garage was found by the courts below to have been illegally sub-let but
 B who has been found to be a trespasser by the High (ourt. As seen
   above, the High Court in its judgment under appeal repelled the claim
   ~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 illeg-
   ally sub-let, (ii) that he was not in possession on the relevant date
 C namely !st 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.

 p         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 eithet .under Article 227 or even .
.E under Article 226 of the Constitution aqd secondly, that the landlord
     was bound by his admission in the pleading•: ln so far as the submission
     that the landlord was bound by his admission ;n the pleading is con-
     cerned, 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 Nagin1Jas Ramdas v.
 f 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 contemp-
     lates that the Court may in its discreation require the facts admitted to
     be proved otherwise than by such admissions. The scope of this pro-
 G visio 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 triangular 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
.H: never sub-let the garage to him. In so far as the defendant No. 6 is
                A.K. MAKHIJANI v. J.C. TULIANI [OJHA, J.}                     395

concerned, the plea set up by him was that he came into possession of                 A
the garage in pursuance of an agreement entered into between him and
Daulat, son of one of the tenants, 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               B
sub-let by the tenants to the defendant No. 6 had to be resolved. First,
since the defendant 1'/o. 6 himself had disputed the contention of t)le
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
                                                                                      c
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 plead-
ings, admitting the case of the landlord, any finding given on the 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              D
No. 6 was a trespasser and that the garage had never been sub-let by
them to him. Such a findig as aforesaid vis-a-vis tenants would be a
finding based on the admission of the landlord in his own favo~r. 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 )Jy the landlord had to be given.             E
These are the peculiar facts of this case on account of which the pro-
viso to Section 58 of the Evidence Act was clearly attracted and the
parties had to be required to prove their respective cases by adducing
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 interfered with in a
 writ petition by the High Court is concerned, by and large no excep-
 tion can be taken thereto. The rule in this behalf, however, is not
 inflexible but has exceptions recognised by judicial decisions whiCh
-being
  -
          weil.:\<nown
        - -- -- - --·
                           are not
                      ·- - - - -
                                   necessary
                                   --
                                   ~--     - -·
                                                to-be
                                                  - --
                                                       recapitulated.
                                                         -
                                                                        Forinstance
                                                                   . . ·-·-
 this rule wiU not apply if a finding is arbitrary or based on no .evidence           G
 cir is such thatll.o one properly instructed 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 illega.lly sub-let ~y the tenants to defendant No. 6. It is,                .H.
        396          SUPREME COURT REPORTS                 [1989] Supp. 1 S.C.R.

         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
  B      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
 c       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. l.
         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
 I)      not make enquiry as to who were the tenants. This being the situation
         there was no scope for even drawing an inference that taking ofposses-
        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
, If,   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 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 ingnore that evidence. It was
 F      apparently, therefore, a case where no one properly instructed 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 sub-
 qJ     section (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 admittedly the garage was in
   possession of a receiver appointed by the Court and not in possession
 H of defendant No. 6. It has been urged by learned counsel for defendant
               A.K. MAKHIJANI v. J.C. TULIANI {OJHA, J.]               397

No. 6 that possesion of the receiver would enure to the !Jenefit of            A
defendant No. 6. This proposition has been contested 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 th.e 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
                                                                               B
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 independent
_proceeding was not a proceeding in relation to a suitor procee_di_ng
under the Act.                                                            ·    c
        It was lastly 1uged by learned counsel for defendant No. 6 that
 a.fter 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         D
 out that the very first sentence of the order of the High Court dated 18
 August 1988 indicates that the judgment had not been delivered
.earlier but had only been dictated and the transcript was ready. Listing
 the matter again for further hearing became necessary inasmuch as
 while dic\ating the judgment a factual position was noticed that
 defendant No. 4 had died and there was nothing to show that his heirs         E
 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     F
 support of ille uncte'riakillg gfven by him earlier was 'also extenctect 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.
         ' '                                                                   G
     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.