Full Judgment Text
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PETITIONER:
VASUMATIBEN GAURISHANKAR BHATT
Vs.
RESPONDENT:
NAVAIRAM MANCHHARAM VORA AND ORS.
DATE OF JUDGMENT:
14/08/1964
BENCH:
GAJENDRAGADKAR, P.B.
BENCH:
GAJENDRAGADKAR, P.B.
GUPTA, K.C. DAS
CITATION:
1967 AIR 405 1964 SCR (4) 324
ACT:
Landlord and Tenant-Tenant in arrears of rent for about two
years-Notice served by the landlord-A few days later. the
Act amended-suit filed by the landlord for eviction-Pending
the hearing of suit all arrears paid by tenant-Whether the
tenant can be evicted an the ground of arrears of rent-
Bombay Remts, Hotel .and Lodging House Rates Control Act,
1947 (Bom. 57 of 1947) s. 12.
HEADNOTE:
The appellant was a tenant of the respondents occupying one
,room of a building belonging to them. She was in arrears
of rent,. The respondents served a notice on her claiming
to recover arrears of rent for a period of two years and two
months. A few days after the service of this notice the
Bombay Rents, Hotel and Lodging House Rates Control Act,
1947, which governs this case was amended. The respondents
thereafter filed a suit for the eviction of the appellant on
the ground that they required the premises for bona fide
personal use and on the ground that the appellant was in
arrears of rent for more than 6 months. The suit was
resisted by the appellant on several grounds but pending the
hearing of the suit and before the decree was passed she
deposited the entire rent due from her.
The trial Judge upheld both the contentions of the
respondent and decreed the eviction of the appellant. On
appeal the District Judge rejected the contention of bona
fide personal use put forward by the respondent but found
that the appellant was in arrears of rent and dismissed the
appeal. The revision filed by the present
325
appellant failed; the present appeal is by way of special
leave granted by this Court.
It was contended on behalf of the appellant that the
provisions of s. 12(1) and (2) were mandatory and that in
construing s. 12(3) (a) it must be borne in mind that the
object of the statute and particularly s. 12 was to give
protection to the tenant It was further contended that
before s. 12(3)(a) was amended it was open to the tenant to
pay the arrears at any time during the pendency of the suit
or even during the pendency of the appeal. In order to
avoid hardship to the tenant s. 12(3)(a) should be read as
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requiring the landlord to issue a fresh notice after the
amended section came into force. It was also urged that s.
12(3)(a) suggests that the neglect or failure of the tenant
to make the payment of arrears must be subsequent to the
date on which the amendment came into force. Lastly it was
argued that the right given to the tenant to deposit arrears
was a vested right and therefore s. 12(3)(a) should not be
construed in such a way as to take away this vested right.
Held : (i) S. 12(3)(a) refers to a notice served by the
landlord as required by s. 12(2) and in s. 12(2) the
legislature has made no amendment when it amended sub-s.
(3). The notice served by the appellant in the present case
satisfies the requirements of s. 12(2). If the notice has
been served as required by s. 12(2) and the tenant is shown
to have neglected to comply with the notice until the expiry
of one month thereafter s. 12(2) is satisfied and s.
12(3)(a) comes into operation.
(ii)S. 12(3)(a) does not confer any right or vested right on
tenant and even if such a right is conferred it would not
alter the plain effect of the words of s. 12(3)(a). The
plain meaning of s. 12( 3)(a) is that if a notice is served
on the tenant and he hap, not made the payment as required
within the time specified in s. 12(3)(a) the court is bound
to pass a decree of eviction against the tenant.
The appeal is dismissed.
Dayaram Kashiram Shimpi v. Bansilal Ragkunath Marwari,
(1952) 55 Bom. L.R. 30, Laxminarayan Nandkishore Shravagi
v. Keshardev Baijnath Narsaria, (1956) 58 Bom. L.R. 1041
and Kurban Hussen Sajauddin v. Ratikant Nilkant, A.I.R. 1959
Bom. 401.,
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 293 of 1963.
Appeal by special leave from the judgment and order dated
December 17, 1962 of the Gujarat High Court in Civil
Revision Application No. 175 of 1960.
G. B. Pai, 0. C. Mathur, 1. B. Dadachanji and Ravinder
Narain,for the appellant.
M. S. K. Sastri and M. S. Narasimhan, for respondents Nos.
1 -and 2.
326
August 14, 1963. The Judgment of the Court was delivered by
GAJENDRAGADKAR J.-This appeal by special leave raises a
short question about the construction and effect of s.
12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates
Control Act, 1947, (No. 57 of 1947) (hereinafter called ’the
Act’). The appellant has been tenant of one room in a
residential building known as Lalbang situated in Badekhan’s
Chakla in the City of Surat since October 18, 1935. Under
the rent note, she is required to pay a monthly rent of Rs.
18. On October 12, 1949, respondents 1 and 2 purchased the
said property. It appears that on November 21, 1950, they
served a notice on the appellant to vacate the premises let
out to her on the ground that she was in arrears of rent
from July 1, 1950. On receiving the said notice, the ap-
pellant paid a part of the rent, but again fell into
arrears, and so, the respondents served a second notice on
her, on February 7, 1951, claiming arrears from October 1,
1950. The appellant did not vacate the premises, nor did
she pay all the arrears due from her. A third notice was
accordingly served on her on March 27. 1953, in which the
respondents claimed to recover arrears from January 1, 1951,
that is to say, arrears for two years and two months. A few
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days after this notice was served, s. 12(3) of the Act was
amended by the Bombay Amending Act No. 61 of 1953, and the
amendment came into force on the 31st March, 1954. The
respondents then filed the present suit against the
appellant on April 12, 1954, in which they asked for a
decree for eviction against the appellant on the ground that
they wanted the premises let out to the appellant bona fide
for their personal use, and that the appellant was in
arrears for more than six months. This suit was resisted by
the appellant on several grounds. Pending the hearing of
the suit, the appellant paid by installments in all Rs. 470
before the date of the decree, so that at the date when the
decree was passed, no arrears were due from her.
The learned trial judge upheld both the pleas made by the
respondents and passed a decree for eviction against the
appellant. He held that the respondents reasonably and bona
fide required the property for their personal use and that
the appellant was in arrears of rent for more than
327
six months. This decree was challenged by the appellant by
an appeal preferred before the District Court at Surat. The
learned District judge held that the respondents had failed
to prove that they needed the premises reasonably and bona
fide for their personal use, but he accepted their case that
the appellant was in arrears of rent for more than six
months and that the suit fell within the scope of s. 12(3)
(a) of the Act. That is how the decree passed by the trial
Court was confirmed in appeal. The appellant then chal-
lenged the correctness of this decree by a revisional
petition filed before the Gujarat High Court. This petition
ultimately failed and the decree passed against her was con-
firmed. It is against this decision that the appellant has
come to this Court: and on her behalf. Mr. Pai has con-
tended that the High Court was in error in holding that the
requirements of s. 12(3) (a) as amended justified the pas-
sing of the decree against the appellant.
It appears that section 12 of the Act has been amended from
time to time. Before the Amending Act No. 61/1953 came into
force, the said section read thus:
"12(1)-A landlord shall not be entitled to the
recovery of possession of any premises so long
as the tenant pays or is ready to pay, the
amount of the standard rent and permitted
increases, if any, and observes and performs
the other conditions of the tenancy, in so far
as they are consistent with the provisions of
this Act.
(2)No suit for recovery of possession shall be
instituted by a landlord against a tenant on
the ground of non-payment of the standard rent
or permitted increases due, until the
expiration of one month next after notice in
writing of the demand of the Standard rent or
permitted increases has been served upon the
tenant in the manner provided in section 106
of the Transfer of Property Act, 1882.
(3)No decree for eviction shall be passed in
any suit if, at the hearing of the suit, the
tenant pays or tenders in Court the standard
rent or permitted increases then due together
with the costs of the suit."
The explanation to this section dealt with cases where there
was a dispute between the landlord and the tenant in regard
to the amount of the standard rent. With that explanation
328
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we are not concerned in the present appeal.
It appears that the Bombay High Court interpreted the words
"at the hearing of the suit" in s. 12(3) as including the
hearing of the appeal arising from the suit, and so, it was
held that under s. 12(3) of the Act, an appeal Court cannot
confirm a decree for eviction if before the passing of the
order in appeal, the tenant pays or tenders in Court the
standard rent or permitted increases then due together with
the costs of the suit and also appeal, vide Dayaram Kashiram
Shimpi v. Bansilal Raghunath Marwari(1). After s. 12(3) was
amended by the Amending Act 61 of 1953, the words "at the
hearing of the suit" were construed by the Bombay High Court
to mean that the application which the tenant ran make
offering to deposit the arrears due from him must be made
before the Court of first instance and cannot be reserved to
be made in the Court of appeal, vide Laxminarayan
Nandkishore Shravagi v. Keshardev Baijnath Narsaria(2).
There is one more decision of the Bombay High Court to which
reference must be made before dealing with the points raised
for our decision in the present appeal. In Kurban Hussen
Sajuddin v. Ratikant Nilkant and Anr.(3), it was held that
the word "may" used in s. 12(3) (a) as amended really meant
"must" and that in cases where the conditions of the said
provision were satisfied, the Court had to pass a decree for
the recovery of possession in favour of the landlord. It is
in the light of these decisions that we have to consider the
contention of the appellant that under s. 12(3) (a) as
amended, it was not open to the Court to pass a decree for
ejectment against her in the present proceedings.
On behalf of the appellant Mr. Pai has emphasised the fact
that the provisions of s. 12, sub-ss. (1) and (2) are
mandatory and there can be no doubt that they imposed
,severe restrictions on the landlord’s right to sue the
tenant in ejectment. He, therefore, contends that in
construing the effect of s. 12(3) (a), we must bear in mind
the fact that the legislature has enacted the present
statute and particularly the provisions of s. 12 with a view
to protect -the interests of the tenant. He further
contends that it
(1) (1952) 55 Bom. L.R. 30. (2) (1956) 58 Bom. L.R. 1041.
A.I.R. 1959 Bom. 401.
329
cannot be disputed that before s. 12 (3)(a) was amended, it
was open to the tenant to pay the arrears at any time during
the pendency of the suit, or even during the pendency of the
appeal, and so, when the tenant failed or neglected to-pay
the arrears due from her immediately after receiving the
notice of demand from, the landlord, it is easy to imagine
that she knew that her failure to pay the arrears of rent
immediately on receiving the notice would not lead to her
eviction and that she would have the option to deposit the
amount as required by s. 12(3) either in the trial Court or
in the Court of Appeal. That being so, he suggests that in
order to avoid hardship to the tenant, s. 12(3)(a) should be
read is requiring the landlord to issue a fresh notice after
the amended section came into force. The notice given by
the landlord prior to the date of the amendment did not
convey to the tenant the knowledge that her failure to
comply with it would necessarily lead to her ejectment, and
so, the relevant provisions of this beneficent statute
should be construed in a liberal way. That, in substance,
is the first contention raised by Mr. Pai before us
We are unable to accept this argument. What S. 12(3)(a)
requires is that in cases where there is no dispute between
the landlord and the tenant regarding the amount of standard
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rent or permitted increases, if the landlord is able to show
that the tenant is in arrears for a period of six months or
more and the said arrears continued in spite of the fact
that a notice was served on him before the institution of
the suit and no payment was made within a month thereafter,
the landlord is entitled to get a decree for ejectment
against the tenant. It is true, that s. 12(3)(a) refers to
a notice, but in terms, it refers to a notice served by the
landlord as required by s. 12(2), and in s. 12(2) the
legislature has made no amendment when it amended sub-
section (3). If we turn to s. 12(2),. it would be noticed
that the notice given by the respondents to the appellant in
the present case satisfies the requirements of the said sub-
section. The respondents told the appellant by their notice
that arrears were due from her, and there is no doubt that
the arrears were not paid up by the appellant until the
expiration of one month next after the notice in writing was
served on her in that behalf
22 - 2 SC India/64
330
Section 12(2) never required the landlord to state to the
tenant what the consequences would be if the tenant neg-
lected to pay the arrears demanded from him/her by the
notice. Therefore, if the notice served by the respondents
on the appellant prior to the institution of the -present
suit is in order and it is shown that the arrears have not
been paid as required, then s. 12(2) has been complied with.
and it is on that footing that the case between the parties
has to be tried under s. 12(3)(a).
Mr. Pai then contends that s. 12(3)(a) seems to suggest that
the neglect or failure of the tenant to make the payment of
arrears must be subsequent to the date on which the Amending
Act came into force. He relies on the fact that s. 12(3)(a)
refers to the case where the tenant "neglects to make
payment’ of the rent. The section does not say "has
neglected to make payment", says Mr. Pai. In our opinion,
there is no substance in this argument. The use of the word
"neglect" in the present tense has to be construed in the
light of the fact that the clause refers to the tenant
neglecting to make payment of the rent until the expiration
of one month next after receipt of the notice’ and that
clearly would have made the .use of the past tense
inappropriate. The position, therefore, is that if notice
has been served as required by s. 12(2) and the tenant is
shown to have neglected to comply with the notice until the
expiration of one month thereafter, s. 12(2) is satisfied
and s. 12(3) (a) comes into operation.
Mr. Pai also argued that the right given to the tenant :to
pay the arrears at the hearing of the suit was a vested
right, and so, in construing s. 12(3)(a) we should not adopt
the construction which would defeat that vested right. It
is not easy to accept the contention that the provisions of
s. 12(3)(a) really confer any vested right as such on the
tenant. What s. 12(3)(a) provided was that a decree ,shall
not be passed in favour of the landlord in case the tenant
pays or tenders in Court the standard rent at the ,hearing
of the suit. This provision cannot prima facie be said to
confer any right or vested right on the tenant. But even if
the tenant had a vested right to pay the money in court at
the hearing of the suit, we do not see how that
consideration can alter the plain effect of the words used
in s. 12(3)(a). The suit was filed after the amended
331
section came into force, and clearly the amended provision
applies to the suit and governs the decision of the dispute
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between the parties. If that is so, the plain meaning of s.
12(3) (a) is that if a notice is served on the tenant and he
has not made the payment as required within the time
specified in s. 12 (3) (a), the Court is bound to pass a
decree for eviction against the tenant. That is the view
taken by the Gujarat High Court and we are satisfied that
that view clearly gives effect to the provisions of s.
12(3)(a) as amended in 1953. We must accordingly hold that
there is no substance in the appeal. The appeal, therefore,
fails and is dismissed with costs.
Appeal dismissed