# PIONEER PAPER BOX FACTORY v. SMT. THAKURDEVI SHRINIWAS

- **Citation:** [1971] 1 S.C.R. 626
- **Court:** Supreme Court of India
- **Decided:** 1970-05-26
- **Case number:** Civil Appeal No. 36 of 1968
- **Bench:** A. N. Ray, I. D. Dua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pioneer-paper-box-factory-v-smt-thakurdevi-shriniwas-5104
- **Pages:** 3

## Headnote

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 per·
mit•ed to be raised in this Court.
A
B
ln a suit for evicition on the ground of non-payment of rent a dccrtc
C
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 : (I) The tenant would be entitled to the
protection under
D
s. 12(3)(b) of the. Bombay Rent Act. only if he complied with it. pro·
visions by paying or tendering not only the arrears of rent but ah10 the
costs of the suit. Since the appellant admi~ted his inability
to comply
with the provision, he could not chim protection against eviction. [627
D, OJ
·
(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,
E
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)

## Text

PIONEER PAPER BOX FACTORY
v.
SMT. THAKURDEVI SHRINIWAS
May 26, 1970
[A. N. RAY AND I. D. DUA, JJ.]
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 per·
mit•ed to be raised in this Court.
A
B
ln a suit for evicition on the ground of non-payment of rent a dccrtc
C
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 : (I) The tenant would be entitled to the
protection under
D
s. 12(3)(b) of the. Bombay Rent Act. only if he complied with it. pro·
visions by paying or tendering not only the arrears of rent but ah10 the
costs of the suit. Since the appellant admi~ted his inability
to comply
with the provision, he could not chim protection against eviction. [627
D, OJ
·
(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,
E
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)
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, 0. C. Mathur and Ravt'nder
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
dated 19 November, 1963 of the High Court of Bombay dismis·
sing the appellant defendant tenai1fs application for revision in a
decree for eviction of the defendant.
·
The appellant was ten;nt of the respondent.
On 28 April,
1954 the appellant filed an application under section 11 of the
Bombay Rent Act for fixation of standard· rent.
During the
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PIONEER PAPE'!. BOX v. THAKURDEVI (Ray, /,)
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 sui~ 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!(bl of the Bombay Rent Ac!.
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 iii error .in
dl:creeing 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 rejecte<l
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 arid the appellant did not pay the cost~.
Secondly, !he appellant stated before the trial court that the
appellant was not in a position \o tender what is described as
"professional costs" and court costs of the suit.
It is indisputable that in the trial court the ar pellant not only
admitted failure to pay costs but also inability to tender the costs.
The appellant could be entitled to protection [\gains! 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-conipliance· with the provisions of the statute. Therefore, the
-
628
SUPREME COURT REPORTS
[1971] i s.c.Jt.
trial court rightly held th!it 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 pispute between the parties regarding the standard rent
no
oraer 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 vf the failure of the appellant to pay costs of
the suit.
. Counsel for the appellant contended that the cost;
were
deposited on 22 November,_ 1956 and therefore the High Court
snould have exercised discretion in favour of the appellant. The
High Court stated that the decree was passed on 5 October, 1950
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.
Cou!lsel for the appellant invited our attention to paragra ?h 13
of the application for review made in the High Court where the
appellant aileged 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 9i_fa_cts 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.
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