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Smt. Josephine Mathew Concessio Vs. Sowr Langdya Kini - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 1750 of 1963
Judge
Reported in(1964)66BOMLR194; 1964MhLJ328(SC)
AppellantSmt. Josephine Mathew Concessio
RespondentSowr Langdya Kini
Excerpt:
.....the words 'to that effect' in our opinion, should be read with the words 'if he has failed. to pay any rent' and mean 'to the effect that the tenant has failed to pay the rent of that year'.6. we, therefore, set aside the order made by the revenue tribunal and remand the matter to the revenue tribunal for hearing the revision application filed by the petitioners on merits and thereafter disposing of it in accordance with law......collector, but the appeal was dismissed. thereafter the petitioners applied in revision to the revenue tribunal. the revenue tribunal took the view that under sub-section (2) of section 25 the intimation, must not only be in regard to the default in the payment of rent, but also that if the rent was not paid the tenancy would be terminated. it was urged before the tribunal that such intimations need not refer to the termination of the tenancy and that demand of rent only is sufficient. the revenue tribunal did not accept this contention and dismissed the application filed by the petitioners on the ground that the petitioners had not informed the opponent that if he did not pay the rent which was due his tenancy would be terminated. thereafter the petitioners filed the present special.....
Judgment:

H.K. Chainani, C.J.

1. The petitioners are the owners of five lands, which are held by opponent No. 1, hereinafter referred to as the opponent, as a tenant. The petitioners made an application to the Mamlatdar for obtaining possession of the lands on the ground that the opponent had not paid rent for four years 1956-57 to 1959-60. The Mamlatdar appears to have found that the opponent had not paid the rent due from him. He, however, did not accept the petitioner's evidence that intimations required by Sub-section (2) of Section 25 had been given. He, therefore, held that the petitioners were not entitled to possession of the lands and accordingly dismissed their application. The petitioners appealed to the Deputy Collector, but the appeal was dismissed. Thereafter the petitioners applied in revision to the Revenue Tribunal. The Revenue Tribunal took the view that under Sub-section (2) of Section 25 the intimation, must not only be in regard to the default in the payment of rent, but also that if the rent was not paid the tenancy would be terminated. It was urged before the Tribunal that such intimations need not refer to the termination of the tenancy and that demand of rent only is sufficient. The Revenue Tribunal did not accept this contention and dismissed the application filed by the petitioners on the ground that the petitioners had not informed the opponent that if he did not pay the rent which was due his tenancy would be terminated. Thereafter the petitioners filed the present special civil application.

2. The first question, which arises for determination in this application, is whether the intimation, which a landlord has to give to his tenant under Sub-section (2) of Section 25 of the Tenancy Act, in order that the provisions of Sub-section (1) of this section may not be attracted, should refer only to the default in the payment of rent or whether it should also contain an expression of the intention or decision of the landlord to terminate the tenancy.

3. Sub-section (1) of Section 14 of the Act enables a landlord to terminate the tenancy of his tenant on the ground of non-payment of rent by giving three months' notice in writing informing the tenant of his decision to terminate the tenancy and the ground for such termination. The tenancy will, however, not be terminated if within the period of three months the tenant remedies the breach and pays the arrears of rent. Sub-section (1) of Section 25 states that 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 Mamlatdar 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 Mamlatdar 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. There is a proviso to this sub-section, with which we are not concerned. Under this sub-section the Mamlatdar is required to give the tenant three months' time to pay the rent in arrears together with the costs of the proceeding and if the tenant does so, the tenant will be relieved from forfeiture and he will continue to hold the land as a tenant. Sub-section (2) of this section states that 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 and the landlord has given intimation to the tenant to that effect within a period of three months on each default. Analysing this sub-section, what it says is that nothing in this Section 25 shall apply to any tenant, whose tenancy is terminated for non-payment of rent,

(1) if he (the tenant) has failed for any three years to pay rent, and

(2) if the landlord has given intimation to the tenant to that effect within the period of three months of each default.

Both the conditions (1) and (2) must be satisfied before the tenant can lose his right of relief against forfeiture. In the context it is clear that the words 'to that effect' in (2) have reference to the condition (1), that is, to the tenant's having failed to pay rent. The intimation may, therefore, only be that the tenant has failed to pay rent. The object of requiring the landlord to give an intimation probably is that each default should be brought to the notice of the tenant so that if he does not wish to lose the right to relief against forfeiture given to him by Sub-section (1), he may not commit similar defaults in future years. From this point of view it is not necessary that the tenant should also be told that the landlord had decided to terminate the tenancy. Moreover, a tenant cannot be refused relief against forfeiture unless he has committed, defaults in at least three different years. No useful purpose will, therefore, be served by formally terminating the tenancy after each default. We do not also find anything in Sub-section (2) which makes it obligatory on a landlord to state in the intimation that he intended to or had decided to terminate the tenancy.

4. The view taken by the Revenue Tribunal in this case is based on its earlier decision in Revision Applications Nos. 675, 676 and 677 of 1962. We have seen the judgment of the Revenue Tribunal in those applications. That main reason given by the Tribunal in support of its view is that 'having regard to the history of the introduction of the principle of relief against termination of tenancy for non-payment of rent in Section 25 of the Tenancy Act' it appeared that the intimation to be given must relate not only to the default in the payment of rent but also to the intention of the landlord to terminate the tenancy in case the default was not made good. 'The words 'and the landlord has given intimation to the tenant to that effect within a period of three months of each default' were added in Sub-section (2) of Section 25 in 1955. This provision appears to have been made so that a tenant should not be deprived of relief against forfeiture unless after his attention has been drawn to each of the first two defaults, he again commits another default. The history of legislation does not, therefore, warrant the inference, which has been drawn by the Revenue Tribunal. In any case, the history of legislation cannot be relied upon to give a meaning to the words, which they do not properly bear. To give effect to the view taken by the Revenue Tribunal, it will also be necessary to add in Sub-section (2) words which are not there.

5. In our opinion, therefore, the view taken by the Revenue Tribunal is not correct. The words 'to that effect' in Sub-section (2) of Section 25 mean 'to the effect that the tenant has failed to pay the rent.' Consequently, it is sufficient if the intimation given to the tenant only refers to his failure to pay the rent. The view, which we are taking in this case, is in accordance with the view taken in 1958 in Dhundiraj Govind Vinod v. Ambaji Ramdas Patil (1958) Special Civil No. 2558 of 1958. In that case it was observed:

The words 'to that effect' in our opinion, should be read with the words 'if he has failed.to pay any rent' and mean 'to the effect that the tenant has failed to pay the rent of that year'.

6. We, therefore, set aside the order made by the Revenue Tribunal and remand the matter to the Revenue Tribunal for hearing the revision application filed by the petitioners on merits and thereafter disposing of it in accordance with law. It will be open to the petitioners to urge before the Revenue Tribunal that the findings recorded by the Mamlatdar and the Deputy Collector, that no intimations about non-payment of rent had been given to the opponent, are erroneous. We may add that even if the petitioners are found not to be entitled to possession of the lands, it will be necessary to make an order directing the tenant to pay the arrears of rent as required by Sub-section (1) of Section 25. The Revenue Tribunal may pass appropriate orders in the matter. No order as to costs.


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