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Dattu Subrao Patil Vs. Dattatraya Pandurang Patil and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpl. Civil Appln. Nos. 1409 and 1762 of 1965 and 861 and 1430 of 1967
Judge
Reported inAIR1972Bom72; (1971)73BOMLR285; ILR1972Bom1129; 1972MhLJ75
ActsBombay Tenancy and Agricultural Lands Act, 1948 - Sections 25 (2); Tenancy Laws
AppellantDattu Subrao Patil
RespondentDattatraya Pandurang Patil and anr.
Appellant Advocate K.J. Abhyankar, ;J.M. Baphana, ;M.A. Rane, ;B.Y. Deshmukh, Adv. for R.W. Adik, Adv. for Heirs of Original Petitioner and ;S.C. Pratap,
Respondent AdvocateR.G. Samant, ;Y.S. Chitale, ;V.N. Ganpule, ;K.J. Abhyankar, ;M.V. Paranjpe, ;V.V. Divekar, ;R.S. More and ;H.D. Gole, Advs.
Excerpt:
bombay tenancy and agricultural lands act (bom. lxvii of 1948), sections 25, 14 - applicability of section 25(2)--defaults made and remedied before application for ejectement whether attract section 25(2).;section 25(2) of the bombay tenancy and agricultural lands act, 1948, applies only in cases where at the date of the institution of the application for ejectment by landlord, the tenant can be held to be in arrears of payment of rent for any three years. defaults previously made and remedied by payments made by the tenant before the institution of an application for ejectment will not attract the provisions in section 25(2) of the act. therefore, unless the landlord proves and establishes that at the date of the institution of his application for ejectment the tenant was in arrears.....k.k. desai, j. 1. in the special civil application no. 861 of 1967 instituted on behalf of the original opponent - tenant, the only contention that is made is that the maharashtra revenue tribunal, the district deputy collector and the tenancy awal karkun who had heard the application of the original applicant - landlord for ejectment of the tenant erred in holding that the provisions of section 25(2) of the bombay tenancy and agricultural lands act, were applicable to the facts of the case and for that reason the mamaltdar had no jurisdiction under section 25 (1) of the act to make an order directing the tenant to pay arrears of rents within 3 months and that upon such payment to make an order directing that the tenancy had not been terminated.2. it is stated that in the three next.....
Judgment:

K.K. Desai, J.

1. In the Special Civil Application No. 861 of 1967 instituted on behalf of the original opponent - tenant, the only contention that is made is that the Maharashtra Revenue Tribunal, the District Deputy Collector and the Tenancy Awal Karkun who had heard the application of the original applicant - landlord for ejectment of the tenant erred in holding that the provisions of Section 25(2) of the Bombay Tenancy and Agricultural Lands Act, were applicable to the facts of the case and for that reason the Mamaltdar had no jurisdiction under Section 25 (1) of the Act to make an order directing the tenant to pay arrears of rents within 3 months and that upon such payment to make an order directing that the tenancy had not been terminated.

2. It is stated that in the three next Special Civil Applications on our board the same question has arisen between tenants and landlords. We have, therefore, in this Special Civil Application heard Advocates of landlords and tenants in these three next following Special Civil Applications. We, however, propose to decide the question and arguments advanced by both sides in this Special Civil Application.

3. The short facts leading to the institution of the present Special Civil Application may be stated as follows :-

4. On January 20, 1964, the opponent No. 1- landlord instituted an application for ejectment of the petitioner - tenant from land bearing S. No. 225/7B situated at Shiroli on the ground that the tenant had defaulted in payment of rents from 1956 - 57 to 1962 - 63. For defaults for the last three years, i.e., 1960 - 61 to 1962 - 63 due intimations as required under the Act had been given. The tenancy had been terminated by notice dated September 12, 1963. As the tenant had made defaults in payment of rents in respect of the last 3 years i.e., 1960 - 61 to 1962 - 63, the landlord was entitled to an ejectment order. One of the contentions made on behalf of the tenant was that in respect of the previous defaults relied upon on behalf of the landlord, the tenant had from time to time paid off all rents and thus remitted the defaults and/or breach of law, if any. In fact, at the date of the notice dated September 12, 1963, terminating the tenancy, the tenant had paid off the arrears of rents in respect of all the years including the years 1961 - 62. That fact was admitted in the notice itself. The tenant had remained in arrears only for one year i.e., 1962 - 63. As the default that remained outstanding and/or rent in arrears was for one year only, it was obligatory on the Mamaltdar under Section 25 (1) to make an order directing the tenant to pay outstanding arrears within three months of the date of the order and on the tenant complying with that direction, to dismiss the ejectment application and direct that the tenancy had continued in existence. This very contention is repeated before us and in that connection the main argument is that the finding of the authorities below including the Maharashtra Revenue Tribunal that to the above facts of the case provisions in sub - section (2) of Section 25 were applicable and that accordingly the Mamaltdar had no power to give relief to the tenant against forfeiture of tenancy under Section 25 (1) is incorrect. In connection with this contention, reliance is placed on the language of Section 25 (2) read with Section 14 (1) (a) and (b) and the general scheme of the Act. In connection with the reliance placed on behalf of the landlord on the decision of the Supreme Court in the case of Raja Ram v. Aba Maruti, : AIR1962SC753 , the submission is that the true effect of the observations in that case and the ratio thereof was as ascertained by the Supreme Court itself in the case of Vithal Vasudeo v. Maruti, : [1968]1SCR541 . There was accordingly nothing in the decision in the case of : AIR1962SC753 which was against the submissions made on behalf of the tenant. The alternative submission is that if it is held that the observations in the case of : AIR1962SC753 completely supported the findings made by the lower authorities that decision did not help the landlord. The reason for that was that since the decision in the case of : AIR1962SC753 material amendments had been incorporated into the relevant Sections 14 and 25. The alterations and amendments were such that the observations in the case of : AIR1962SC753 entirely ceased to be applicable. In other words, the submission is that the contents of amended Sections 25 and 14 have, hitherto, not been decided by the Supreme Court and have arisen for decision by a Division Bench of this Court for the first Time.

5. Before referring to the arguments advanced on behalf of the landlords, it is convenient to refer to the scheme in the amended Sections 14 and 25 of the Act that came into force on August 1, 1965, and then to notice the relevant parts of these very sections as existing prior to the amendments. The relevant parts of the amended Sections 14 and 25 run as follows :-

'14. (1) Notwithstanding any law, agreement or usage, or the decree or order of a court, the tenancy of any land shall not be terminated -

(a) unless the tenant -

(i) has failed to pay the rent for any revenue year before the 31st day of May thereof ;

(ii) x x x x x

(iii) x x x x x

(iv) x x x x x

(v) x x x x x

(b) unless the landlord has given three months' notice in writing informing the tenant of his decision to terminate the tenancy and the ground for such termination, and within that period the tenant has failed to remedy the breach for which the tenancy is liable to be terminated.

(2) x x x x x

6. The marginal note against Section 25 reads : 'Relief against termination of tenancy for non - payment of rent.' The section provides :

'25 (1) Where any tenancy of any land held by any tenant is terminated for non - payment of rent and the landlord files any proceeding to eject the tenant, the Mamaltdar shall call upon the tenant to tender to the landlord the rent in arrears together with the cost of the proceeding, within three months from the date of order, and if the tenant complies with such order, the Mamaltdar shall , in lieu of making an order for ejectment, pass an order directing that the tenancy had not been terminated and thereupon the tenant shall hold the land as if the tenancy had not been terminated :

x x x x x

(2) Nothing in this section apply to any tenant whose tenancy is terminated for non - payment of rent if he has failed for any three years to pay rent and the landlord has given intimation to the tenant to that effect within a period of three months on each default.'

7. The relevant parts of the unamended sections provided as follows :-

'14 (1) Notwithstanding any agreement, usage, decree or order of a Court of law, the tenancy of any land held by a tenant shall not be terminated unless such tenant --

(a) (I) has failed to pay in any year, within fifteen days from the day fixed x x x x, the rent of such land for that year, or

(ii) x x x x x, or

(iii) x x x x x;

provided that no tenancy of any land held by a tenant shall be terminated on any of the grounds mentioned in this sub-section, unless the land lord gives three months' notice in writing intimating the tenant his decision to terminate the tenancy and the ground for such termination.

x x x x x x x'

8. The Sub-section (1) of Section 25 was the same as now appears in the amended Section 25 (1) except that the period of three months mentioned in the sub-section (1) was previously 15 days only.

'25 (2) Nothing in this section shall apply to any tenant whose tenancy is terminated for non-payment of rent if he has failed for any three years to pay rent within the period specified in Section 14.'

9. At the very outset, it requires to be emphasized that by introducing clause (b) in Section 14 (1) the Legislature afforded to the tenant himself an opportunity to remedy the breach, i.e. default in payment of rent, by making payment, and date fixed under Section 14 (1) (a) (I) in that connection, is three months from the date of the notice to be given by the land lord. Apparently, the effect of this provision is that default in payment of rent for a particular previous year on or before May, 31 would be rendered useless and cease to be any default in the event of the tenant remedying the default, by making payment within three months from the date of the notice tendered by the landlord. Thus the cause of action for ejectment based on default in payment of rent on May 31, would altogether cease to exist in cases where the tenant remedies the default. The sub-section (2) of Section 25 are the deletion of the last phrase 'within the period specified in Section 14' and addition of the phrase 'and the landlord has given intimation to the tenant to that effect within a period of three months on each default'. As we will point out whilst dealing with the observations of the Supreme Court in the case of : AIR1962SC753 on which reliance has been placed for the landlord, these amendments make considerable alteration in the scheme of these sections and render the observations of the Supreme Court in that case inapplicable to case governed by these amended sections.

10. It is convenient at this stage to discuss the true construction and effect of these two sections. Apparently, under sub - section (1) of Section 25, duty is cast on the Mamlatdar in the matter of every application for ejectment filed on the ground of defaults made in payment of rent to make an order granting relief against termination of tenancy for non -payment of rents and for that purpose to make an order as provided in the sub - section. This sub - section has the effect of providing that if the defendant - tenant pays arrears of rents within three months from the date of the order of Mamaltdar, the defaults and the cause of action for ejectment will have ceased to exist. The termination of tenancy by the landlord on the ground of such defaults will have ceased to exist. The scheme of the section is that upon the Mamlatdar making such an order, the tenant 'shall hold the land as if the tenancy had not been terminated.' It is also clear that a tenant who remains a defaulter and even after notices tendered by landlord pays off all arrears of rents before landlord institutes an application for ejectment will by his own conduct of payment get the same benefit which he could get the same payment in accordance with an order made by the Mamlatdar under Section 25 (1). The tenant's voluntary payment of all arrears of rents to the landlord prior to institution of an application for ejectment would have the same effect as waiver of the termination of tenancy by the landlord by accepting rent in ordinary law. There is no reason why a breach which could be remedied by the tenant upon the Mamlatdar making order under sub - section (1) of Section 25 could not be remedied by the tenant himself by voluntary action of payment of all arrears of rents prior to the date of application for ejectment that might have been made by his landlord.

11. Now, the language of sub - section (2) of Section 25 is clear. If there is any ambiguity in the language, the above true construction and effect of Section 25 (1) will assist us in arriving at correct construction of the sub - section (2). For ascertaining the true construction and effect of this sub - section it is convenient to read it without the phrase 'whose tenancy is terminated for non - payment of rent.' The sub -section will then read as follows :-

'Nothing in this section shall apply to any tenant if he has failed for any three years to pay rent x x x x x.'

The word 'any' is of importance and meets with the arguments advanced on behalf of some of the landlords that the failure to pay rent must be in respect of the aggregate of three years' rents. Failure to pay rent involves failure to pay even any part of rent of any year. Even if one rupee of rent for any year remains outstanding, the tenant will not be justified in submitting that he had not failed to pay rent for that year. The failure mentioned in the sub - section, therefore, has nothing to do with the aggregate of the rents of the three years referred to in the section. It is also true that the word 'any' indicates that the three years may not be connected with each other in any manner whatsoever. It is more important to ascertain the point of time at which the failure mentioned in sub - section must exist. Having regard to the scheme and language of the amended Section 14 (1) including Clause (b) thereof, the first failure will occur on May 31 of each year. The second failure will occur when on the expiry of the three months from the date of the notice tendered under clause (b). The third failure will occur when the three months' period mentioned in the order made by the Mamlatdar under Section 25 (1) expires. The fourth point of time which also is relevant is the date of the institution of the application for ejectment. The question of the failure and/or the issue that the tenant has failed to pay rent for any three years will arise in the proceedings of the application for ejectment. That question will arise only in connection with the tenant's claim that is incumbent on the Mamlatdar to make an order under sub - section (1) of Section 25 for granting relief against termination of tenancy. The question relates to the exercise of the powers invested in the Mamlatdar and the duty cast upon him under sub - section (1) of Section 25. Apparently, in relation to a tenant whose defaults were complete on each of the three points of time indicated above for any three years, but who has by making payments subsequently ceased to be in arrears of rents at the date of the institution of an application for ejectment. The landlord cannot justifiably contend that the tenant has filed to pay rents for any three years. The payment and/or the wiping of all arrears of rents has the effect of wiping off the cause of action for ejectment. It is difficult to appreciate how the facts which lead to the wiping off of cause of action for ejectment have not the effect of wiping off the failure and defaults in payment of rents. Having regard to these circumstances, in our view, the point of time with reference to which the question whether a 'tenant' has failed for any three years to pay rent' arises for decision is the date on which an application for ejectment is instituted. The other points of time indicated above do not fit in with the scheme of the Section 25 (1) and the policy of law in favour of the tenants as can be ascertained from diverse sections of the Act. In that connection, in passing, one may notice, though it was not argued at the Bar, that a bar of limitation of two years from the date on which the right to obtain possession of land accrues to the landlord is provided in connection with all applications for ejctment. This provision has the effect of making all defaults made prior to the above period of two years ineffective.

12. It has been rightly pointed out on behalf of the tenants that the word 'default' is used in this Act at several places including the sub - section (2) of Section 25. The word 'failed' is used also in connection with the liability for payment of rent under Section 14 as well as in sub - section (2) of Section 25. Reliance has been rightly placed on the fact that in sub - section (2) the Legislature used the phrase 'he has failed' instead of the phrase 'he has defaulted' and that must also be a relevant fact in arriving at the true construction of the provisions in the sub - section. In our view, the word 'failed' in sub - section (2) cannot be replaced by and has not been used to mean 'defaulted'. As the provision in this sub - section relates to withdrawal of powers vested in the Mamlatdar, the failure mentioned in this sub - section must exist at the date of the institution of an application for ejectment. Having regard to the plain language of the sub - section, we are not in a position to accept the contention that defaults previously made even when remedied by payments made before the institution of an application for ejectment, will attract provisions in S. 25 (2). The above construction is supported by the fact that from this sub - s. (2), by the amendment made in 1956, the phrase 'within the period specified in S. 14' has been deleted. That phrase could not have justified any finding as made by us this morning. The failure mentioned in the unamended section would always be connected with the period specified in Section 14. The existence of that phrase in sub - section (2) before 1956 compelled Courts to hold that the failure mentioned in the sub - section occurred on the expiry of the period for payment specified in Section 14. This position has been altogether altered by deletion of this phrase from sub - section (2) and by addition of clause (b) in Section 14 (1). Under that clause, the default is incomplete even if rent is not paid on May 31 of the yer in question. If the landlord wants to rely on that failure or default, the landlord is required to give specific notice of termination of tenancy on the basis of the default and the tenant has been afforded an opportunity to remedy the default by paying the rent due within three months from the notice given by the landlord. These alterations in these relevant sections have been made significant difference and the meaning and effect of the provisions in sub - section (2) of Section 25 have not remained the same as prior to the above amendments.

13. On behalf of a landlord Mr. Paranjape contended that for application of the provisions in sub - section (2) of Section 25 defaults in payment of rents for any three years must exist at the date when notice of termination of tenancy is given by the landlord. He contended that the phrase 'he has failed for any three years to pay rent' was not independent of the phrase 'whose tenancy is terminated for non - payment of rent'. Both these phrases are descriptive of tenant. In his submission, the construction which we have arrived at above has the fault of adding the word 'and' in the sub - section after the phrase 'for non - payment of rent'. This submission made by Mr. Paranjape was not acceptable to Mr. Chitale who also appeared for another landlord. Mr. Chitale's submission was that the provision in sub - section (2) of Section 25 was limitation on the powers vested in the Mamlatdar under sub - section (1) of Section 25. He accordingly submitted that unless there were some arrears at the date of the institution of the ejectment application, the question under Section 25 (1) and/or 25 (2) would not arise at all. In his submission, a tenant who makes defaults in payment of rents after the period of three months from the date of the notice tendered by a landlord under clause (b) of Section 14 (1) (a) would continue to be a defaulter and in connection with the question arising under Section 25 (2) he would be a tenant who has 'failed' for the year in question to pay rent. He supported this submission by reading the judgments of the Supreme Court in the above two cases. We have already discussed the true effect of the provisions in sub - sections (1) and (2) of Section 25 and we cannot accept Mr. Paranjape's submissions. In connection with the submissions made by Mr. Chitale and other Advocates appearing for landlords, we will no refer to the decisions in the cases of : AIR1962SC753 and : [1968]1SCR541 . IN the case of : AIR1962SC753 , the issue first decided by the Supreme Court was regarding the relief against forfeiture of tenancy granted by the authorities below and this court on principles of equity, though the relief could not be granted under any of the provisions of the Act itself. In that connection, the Supreme Court first noticed that the tenancy under the Act was not contractual but compulsory tenancy of 10 years. The Supreme Court then noticed that right of termination of tenancy and to ejectment was invested in the landlord under the scheme of Sections 14 and 29. In connection with that right, relief was liable to be granted only if the tenant's case was covered by the provisions in Section 25 (1). This relief could not be granted if the tenant's case was covered by the provisions in Section 25 (2). The Supreme Court held in the first three appeals before it that admittedly the facts were such that the tenant's case was covered by the provisions in sub - section (2) of Section 25. It was admitted that for the above reason the Mamlatdar had no power under sub - section (1) of Section 25 to give against forfeiture of tenancy. Having noticed that situation, the Supreme Court held that on principles of equity, relief could not be granted to the tenants in question. The main reason for the finding was that the tenancy was not contractual. The right to relief against forfeiture of tenancy was not available except as provided in the stature itself. The Supreme Court accordingly reversed the decision of this Court whereby relief against forfeiture of tenancy was granted to the tenants in spite of the provisions in sub - section (2) of Section 25. In the fourth case, relief against termination of tenancy was granted defaulter in compliance with order made by Mamlatdar under Section 25 (1), made payments and had obtained order that his tenancy had not terminated. The question whether such tenant can be held to have 'failed' to pay rent under Section 25 (2). The Supreme Court referred to the fact that the sub - section (2) of Section 25 provided that 'nothing in sub - section (1) of S. 25 shall apply to any tenant whose tenancy is terminated for non - payment of rent if he has failed for any three years to pay rent 'within the period specified in Section 14'.' Having regard to the last underlined phrase (underlying being ours), the Supreme Court observed :

'We are unable to appreciate the contention that when a tenant has been granted relief under Section 25 (1) in respect of any year's default, the default merged in the order granting relief and ceased to be a default'.

Similar are further observations of the Supreme Court which are all based, in our view, on the now deleted phrase 'within the period specified in Section 14.' The observations of the Supreme Court based on this deleted phrase, therefore, are now not applicable to the facts of cases which are governed by the amended Sections 14 and 25.

14. It also requires to be noticed that the contentions made on behalf of the landlord in the case of : [1968]1SCR541 were almost similar to those made before us. The submission was that the scheme of Section 25 (2) was mandatory and the revenue authorities were bound to order eviction even though the tenant had paid up the rent and landlord had accepted it before filing application for ejectment. This submission was based on the fact that admittedly the tenant had defaulted in paying the rents within the period specified in Section 14 of the Act. The tenant had at a very late date paid up the arrears and at the date of the application for ejectment there were no arrears. The Supreme Court negatived the submissions made on behalf of the landlord by observing that sub - section (1) of Section 25 pre - supposes that there are arrears at the date of the application and sub - section (2). ON the other hand, deals with a case where there is persistent default by the tenant for three years and provides that to such a case the provisions of sub - section (1) would not apply. The finding was that sub - section (2) 'pre - supposes (i) that the tenant has made defaults for more than two years and (ii) that the tenant was in arrears at the date of the application.

x x x x x'.

The Court further observed :

'If this was not the correct construction of sub - section (2) and if the appellant's construction were to be accepted it would lead to a very astonishing result, viz., that even where the tenant had paid up all the arrears and the landlord has accepted them, he would still have the right to evict the tenant, though his reason for terminating the tenancy and his cause of action for an eviction have disappeared by his acceptance of the arrears due to him. The Legislature could never have intended such a result which also would be contrary to all principles governing the relationship between landlords and tenants'.

Reference was then made to the policy of law indicated in Section 20 and other sections that no provisions in the Act 'shall be construed to limit or abridge the rights or privileges of any tenant x x x x x.' The material observation was : 'The Act, therefore, does not rule out the payment by the tenant and acceptance by the landlord of arrears of rent before a suit for eviction is instituted resulting in waiver by the landlord of the termination of tenancy by him'. In discussing the ratio of the case of : AIR1962SC753 the Court observed :

'It will, however, be noticed that this court did not hold that even where there are no arrears at the date of application for ejectment and the landlord has prior thereto received and accepted the arrears which entitled him to terminate the tenancy, he would still have the right to obtain eviction against such a tenant'.

The Court's construction of the sub - section (2) of Section 25 as then existing was :

'x x x x x Sub - section (2) took away the power of the Mamlatdar to give relief which he can give under sub - section (1) viz., to call upon the tenant to pay the arrears and on such payment to direct that the tenancy had not been terminated. It is this power which is denied to the Mamlatdar by sub - section (2), if the conditions there contemplated exist. that is, the tenant is in arrears of rent for more than two years on the date when the application for ejectment is filed.'

15. Mr. Chitale has asked us to read this observation by substituting at certain places the phrase 'default' for the phrase 'in arrears'. ON behalf of the tenants, with emphasis, it is pointed out that even in connection with the provisions in sub - section (2) of Section 25 as then existing, the Supreme Court has understood the case of : AIR1962SC753 to mean that where arrears of rent for more than two years did not exist the Mamlatdar was bound to exercise powers of giving relief against forfeiture of tenancy under sub - section (1) of Section 25. We are unable to read the judgment of the Court in the manner submitted by Mr. Chitale. As we have already observed, the amendments made in Section 14 and particularly in sub - section (2) of Section 25 have rendered the observations and construction of that sub - section in these two previous decisions inapplicable. The observations are accordingly useful in arriving at correct construction of the present sub - section (2) but not binding.

16. In our view, the sub - section (2) of Section 25 applies only in cases where at the date of institution of the application for ejectment by landlord, tenant can be held to be in arrears of payment of rent for any three years. The defaults made by him at any previous dates are not relevant. Unless the landlord proves and establishes that at the date of the institution of his application for ejectment the tenant was in arrears and/or had failed to pay rent for any three years, the Mamlatdar's power under sub - section (1) of Section 25 will have to be exercised and relief will have to be granted against termination of tenancy.

17. In this Special Civil Application, admittedly, before the date of the notice of termination, i.e., September 12, 1963, the tenant had committed several defaults. He had paid arrears of rents after suits had been filed. Admittedly, at the date of the above notice, he had paid off all arrears of rents for the previous years including the year 1961 - 62. The only default which had continued was for the year 1962 - 63. There was thus at the date of the institution of the application for ejectment one default that was in existence. It is, therefore, clear that he was not a tenant who had failed to pay rent for any three years as required for attracting the provisions in Section 25 (2). The order for ejectment was passed against the petitioner - tenant by holding that the payments made by him for wiping off previous arrears of rents were not relevant as the defaults had been completed. This finding was contrary to law and the order for ejectment passed by the Tenancy Awal Karkun and confirmed by the District Deputy Collector and the Maharashtra Revenue Tribunal was wrong and is set aside. The matter is remanded back to the Tenancy Awal Karkun to proceed to consider the question of the order to be made under sub - section (1) of Section 25 having regard to the findings made above.

18. Rule absolute. No order as to costs.

Special Civil Application No. 1409 of 1965.

19. In this Special Civil Application, the tenant has challenged the order of remand dated February 27, 1965, made by the Maharashtra Revenue Tribunal. The only relevant facts which need to be noticed are as follows :-

20. The opponent No. 1 landlord instituted an application for ejectment of the petitioner - tenant on the ground that he had made defaults in payments of rents for three years, i.e., 1958 - 59, 1960 - 61 and 1961 - 62. It is admitted that at the date when the application for ejectment was instituted, i.e., on January 8, 1963, the tenant had paid off all arrears of rents including the arrears for 1960 - 61. The payment of the arrears of rents for that year was made on September 18, 1962. On January 8, 1963, the rent was not paid only for the year 1961 - 62. After the institution of the application, the rent for that year was also paid on March 12, 1963. In connection with the years mentioned in the application, arrears of rents are not outstanding even till this date. In the result and having regard to what we have observed above, the finding of the Prant Officer in his order dated June 25, 1964, in Tenancy Appeal No. 340/63 that the tenant was entitled to relief against forfeiture of tenancy is correct. He was, therefore, right in setting aside the order of the Tenancy Awal Karkun and directing that the possession of the suit land should be continued with the tenant. Having regard to the findings which we have now made, the order of the Maharashtra Revenue Tribunal directing that the issue whether there was any agreement between the landlord and tenant that the landlord should accept rent with interest and about the waiver of notice should be tried appears to be unnecessary. Even without any findings being made on that issue, the order made by the Prant Officer is liable to be sustained.

21. In the result, the order of the Maharashtra Revenue Tribunal remanding the matter for trial of issue is set aside. The order made by the Prant Officer is confirmed. Rule absolute as above. No order as to costs.

Special Civil Application No. 1762 of 1965.

22. The present Special Civil application is by the landlord challenging the correctness of the order made by the Maharashtra Revenue Tribunal dated April 20, 1965, setting aside the order of the Additional Collector granting ejectment of the opponents - tenants and restoring the order of the Tenancy Mahalkari dismissing the landlord's application for ejectment.

23. On the issue whether the tenants had committed defaults in payment of rent for years 1951 - 52 to 1954 - 55, on appreciation of oral and documentary evidence, the Mahalkari held that as regards the years 1953 - 54 there had been late payment but he found that at the date of the institution of the application for ejectment there were no arrears at all. He accordingly rejected the application for ejectment. The Additional Collector in his appellate order dated September 14, 1964, held that the fact that the rent was paid beyond the stipulated time could not erase the default. He, therefore, held that the sub - section (2) of Section 25 applied and the tenant was not entitled to relief against termination of tenancy and/or forfeiture of tenancy. In this connection, by the impugned order dated April 20, 1965, the Maharashtra Revenue Tribunal held that the tenant had committed defaults and not paid the rents, but at the date of the institution of the application for ejectment there were no defaults in payment of rent. In that connection, it further held : 'Even it is seen from the record and admitted by the opponent - landlord that the rent for the year 1955 - 56 was accepted by the landlord though not as a rent but as a compensation'. On the ground that there were no arrears at the date of the institution of the application for ejectment the Tribunal restored the order of the Mahalkari rejecting the application for ejectment.

24. Mr. Pratap for the landlord contends that since defaults had been made by the tenants in payment of the rent for three years and since rents due for three years had not been paid by the date fixed under Section 14 (1) (a) of the Act. The provisions in sub - section (2) of Section 25 were attracted and the tenants were not entitled to an order relieving them from forfeiture of tenancy by reason of non - payment of rent.

25. In that connection, it is sufficient to state that in the case of : [1968]1SCR541 the Supreme Court definitely held that the question of application of the provisions in sub - section (1) of Section 25 could not arise and the application for ejectment could not be sustained in a case where at the date of the application arrears had ceased to exist. As the finding of fact in this case is that there were no arrears of rent at the date of the application for ejectment, following the judgment of the Supreme Court in the above case, we are bound to hold that the cause of action in favour of the landlord for ejectment had altogether ceased to exist at the date of the application for ejectment. As there were no outstanding arrears of rents in respect of any prior period at the date of the institution of the application for ejectment, the same was liable to be dismissed.

26. Under the circumstances, the rule is discharged. There will be no order as to costs.

Special Civil Application No. 1430 of 1967.

27. This is the tenants' Special Civil Application challenging the correctness of the order of the Maharashtra Revenue Tribunal dated April 13, 1967, whereby, after setting aside the order passed by the lower Courts, the tenants were directed to hand over possession of lands in suit to the opponent No. 1 - landlord.

28. Mr. Abhyankar for the tenants contends that the finding of the Tribunal was that the aggregate sum of Rs. 1010-3-0 was the arrears of rents at the date of the institution of the application for ejectment. The annual rent was fixed at Rs. 685-15-0. The aggregate rent for the two years would come to Rs. 1,390/-. As the arrears of rents were for a sum which was less than the aggregate of two years' rents. The Tribunal should have held that the tenants had not failed to pay rent for any period in excess of two years and were entitled to relief against forfeiture of tenancy under sub - section (1) of Section 25. The Tribunal was accordingly wrong in granting the ejectment application of the landlord.

29. Now, in connection with this submission, it is necessary to notice that there is no dispute on the fact that the arrears of Rs. 1,010-3-0 were in respect of the rents for 1953 - 54 to 1955 - 56 in the following particulars, viz. :-

1953 - 54

Rs. 170-10-0.

1954 - 55

Rs. 685-15-0.

1955 - 56

Rs. 154-04-0.

This being the true position, it is quite clear that the tenants had failed to pay the total rents due for the above three years. Defaults had been committed in payment in respect of the rents which became due for each of the years. At the date when the application for ejectment was instituted, the arrears as mentioned in the above particulars for the three years mentioned above had remained outstanding and payable. As already discussed in the judgment delivered in the above first Special Civil Application, we have not been able to appreciate the argument that the phrase 'failed for any three years to pay rent' contained in sub - s. (2) of S. 25 has the effect of providing that there would be no failure if the aggregate amount in arrears does not exceed the aggregate of the rent for two years. Arrears for any year, even if it is as small as one rupee, will have to be considered as failure to pay rent in respect of that year whilst considering the application of the provisions in sub - section (2) of Section 25. As in the present case, the arrears for all the three years mentioned above existed at the date of the institution of the application for ejectment, the landlord was bound to succeed. The tenants' application is without any substance.

30. Rule discharged with costs.

31. The amount deposited in Court to be paid to the landlord towards satisfaction of the rents due.

32. Order accordingly.


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