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Hirachand Sonu Bhavsar Vs. Mahadeo Waman Upasani - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case Number Civil Revision Application No. 533 of 1959
Judge
Reported in(1961)63BOMLR855
AppellantHirachand Sonu Bhavsar
RespondentMahadeo Waman Upasani
DispositionAppeal Dismissed
Excerpt:
.....for more than six months-part payment by tenant of such arrears before expiry of one month after notice of demand of rent by landlord-whether such part payment protects tenant from operation of section 12(3) (a).;the wording of section 12(3) (a) of the bombay rents, hotel and lodging house rates control act, 1947, that '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)' implies that the tenant must make payment of the entire amount of rent or increases which are in arrears for a period of six months or more if he wishes to avoid the consequences of his earlier default. a part payment of such arrears before the expiry of..........rent was accepted on the basis of monthly tenancy. on this ground, plaintiff's evidence that the suit tenancy was a monthly tenancy was accepted by the two lower courts and there is no reason whatever why i should differ from that finding of fact.3. but then mr. pendse contends that plaintiff had also admitted that all the defendants had passed a rent-note in his favour, about ten years before suit. mr. pendse says that admittedly the notice was only served on defendant no. 1; and if that be so, it would be a case where the other joint tenants are not served and it cannot, therefore, be held that the notice was validly served on all the defendants. mr. pendse also argues that the notice is only addressed to defendant no. 1 and on that ground also, according to mr. pendse, the notice.....
Judgment:

Gokhale, J.

1. This is a revision application filed by the original defendants against whom a decree for possession was passed by the trial Court and the same has been confirmed in appeal. It is the case of the petitioners that the premises in suit were let out to the father of the petitioners some fifteen years before the suit and after the death of the father, petitioners had been paying rent to the opponent-landlord. On July 3, 1956, the landlord served petitioner No. 1 with a notice terminating the tenancy and asking for possession on the ground that the petitioners were in arrears of payment of rent from October 1, 1955, to June 30, 1956. There is no dispute that the rent of the premises is Rs. 12 per month and the notice demanded payment of Rs. 108 in respect of arrears of 9 months' rent. Immediately on receipt of this notice, on the very next day, i.e., July 4, 1956, the petitioners appear to have paid an amount of Rs. 24, and on August 1, 1956, another amount of Rs. 24 was paid. On October 9, 1956, the landlord filed the present suit for possession, out of which this revision application arises. In the suit, defendant No. 3 filed his written statement. In the plaint, the allegation made by the plaintiff was that defendant No. 1 was a monthly tenant, but defendant No. 3 denied this and stated that defendant No. 1 was not a monthly tenant and asserted that defendants' father was a yearly tenant. He further stated that whenever plaintiff was in need he used to demand rent and defendants used to pay the rent at any time. It was further contended that the notice to quit was invalid as defendants were treated as monthly tenants. It may be mentioned that there is no dispute that before the institution of the suit, an amount of Rs. 48 came to be paid on behalf of defendants, as already indicated, viz., an amount of Rs. 24 on July 4, 1956, and a further amount of Rs. 24 on August 1, 1956. It seems that on October 18, 1956, a money order was sent by the defendants for Rs. 72, but that was refused by the landlord apparently on the ground that the suit had been already instituted. That is why on October 27, 1956, defendants deposited an amount of Rs. 72 in Court. It is the case of the defendants that as these amounts had been deposited and as plaintiff has accepted the two earlier payments, he could not sue on the strength of the notice given by him. It was further urged that defendants were willing to pay the entire rent and plaintiff should not be given possession. On these pleadings, several issues were raised. The trial Court held that the tenancy was a monthly tenancy and not an annual tenancy and that the notice to quit was valid. It was held that plaintiffs had not waived the notice by acceptance of rent. It was also found that defendants had not proved that they were ready and willing to pay rent and costs of the suit. On these findings, the trial Court came to the conclusion that plaintiff was entitled to possession as sought by him, and, accordingly, a decree for possession was passed in favour of the plaintiff. Against this decision, defendants went in appeal and in the lower appellate Court two contentions appear to have been taken. The first contention was that the notice to quit was not a valid notice, since it was not served on all the defendants but given to defendant No. 1 only. This contention had not been taken in the written statement and the learned appellate Judge came to the conclusion that defendant No. 1 alone paid rent and was a tenant and, therefore, the contention about the validity of service of the notice was not sound. The second contention raised was that defendants were not monthly tenants but yearly tenants. That contention was also negatived. The lower appellate Court held that the tenancy was a monthly tenancy and the rent was payable by month. There does not appear to have been any dispute raised in the lower appellate Court about defendants being in arrears of rent for more than six months on the date of the suit and, therefore, the lower appellate Court held that defendants' case fell within Section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Bates Control Act, 1947 (which will hereafter be referred to as the Act) and the decree passed by the trial Court for possession was, therefore, upheld. It is against this decision that the present revision application has been filed.

2. Several contentions have been raised before me by Mr. L. P. Pendse, learned advocate appearing on behalf of the defendants in this revision application. But before I deal with the principal contention raised by Mr. Pendse, I will first of all deal with the contention raised by him about the legality of the notice. Mr. Pendse contends, in the first instance, that the finding of the Courts below that it was a monthly tenancy was not a correct finding because though it has been admitted that a rent-note was executed by defendants about ten years before the suit, that rent-note has not been produced by plaintiff. On this point, Mr. Pendse has relied on the cross-examination of plaintiff himself. It is no doubt true that according to plaintiff's admission a rent-note was executed by the defendants in his favour, but he stated that it was a monthly tenancy though he conceded that he had not produced the rent-note. There is nothing on the record to show that before plaintiff was examined, defendants had called upon plaintiff to produce the rent-note. The rent-receipts do not justify the contention of the defendants that they were in possession under an annual tenancy. Both the Courts have held on the evidence and the counterfoils of the receipts produced by plaintiff that the rent was accepted on the basis of monthly tenancy. On this ground, plaintiff's evidence that the suit tenancy was a monthly tenancy was accepted by the two lower Courts and there is no reason whatever why I should differ from that finding of fact.

3. But then Mr. Pendse contends that plaintiff had also admitted that all the defendants had passed a rent-note in his favour, about ten years before suit. Mr. Pendse says that admittedly the notice was only served on defendant No. 1; and if that be so, it would be a case where the other joint tenants are not served and it cannot, therefore, be held that the notice was validly served on all the defendants. Mr. Pendse also argues that the notice is only addressed to defendant No. 1 and on that ground also, according to Mr. Pendse, the notice was not properly served. In the first instance, this contention was not raised in the written statement. All that was contended in the written statement was that defendant No. 1 was not a monthly tenant. The allegation in the plaint was that defendant No. 1 was a monthly tenant; so that there does not appear to be a dispute between the parties, on the basis of the written statement, that defendant No. 1 alone was the tenant of the premises. It is not disputed that the other defendants are brothers of defendant No. 1 and Mr, Pendse frankly stated that it is not the defendants' case that they are separated brothers. Defendant No. 3 alone put in a written statement, it appears, on behalf of all the defendants. But Mr. Pendse says that plaintiff has admitted in his evidence that 'defendants' had passed a rent-note in his favour ten years before suit. In the first instance, this is a very vague admission and that does not necessarily mean that the rent-note was executed by all the defendants, Mr. Pendse says that plaintiff should have produced the rent-note. But if no point about the validity of service of notice was taken on the basis that it was a joint tenancy in favour of all the defendants, I fail to see how it was necessary for plaintiff to produce the rent-note, especially as no notice appears to have been given calling upon plaintiff to produce the said rent-note. In support of his argument, Mr. Pendse has relied on a ruling of the Calcutta High Court in Bejoy Chand v. Kali Prasanna : AIR1925Cal752 , where it was held that it was necessary in order to bind even a joint tenant that the notice must be addressed to and served on him in one of the ways mentioned in the second clause of Section 106 of the Transfer of Property Act. It should be addressed to him and may be served either on him personally or to one of the family or servants or affixed to a conspicuous part of the property. In that case, one of the joint tenants does not appear to have been served with the notice. It appears from the facts of that case that all the brothers were treated as tenants. In the present case, as already indicated, in the plaint the allegation was that defendant No. 1 alone was the tenant and was a monthly tenant; and to that the answer of the contending defendant No. 3 was that defendant No. 1 was not a monthly tenant. In my view, therefore, the contention raised by Mr. Pendse that the service of the notice is not proper because the notice was not addressed to all the defendants and was not served on all the defendants cannot be accepted.

4. That brings me to the principal contention of Mr. Pendse, viz., that this is not a case which is governed by Section 12(3)(a) of the Act. Mr. Pendse alternatively contends that even if it is a case under Section 12(3)(a) of a default of six months or more in payment of rent, it would yet be open to the Court to grant relief to the petitioners because as soon as notice was received by them, an amount of Rs. 24 was paid on July 4, 1956, a further amount of Rs. 24 was paid on August 1, 1956, and Rs. 72 were deposited in Court within a few days after the institution of the suit, since plaintiff had refused the money order previously sent to him a few days after the suit, and even during the pendency of the suit payments have been made by the defendants from time to time; so that there are no arrears due from the petitioners to the opponent. Now, the scheme of Section 12 of the Act is that a landlord will not be allowed recovery of possession of any premises so long as the tenant pays and is ready and willing to pay the amount of standard rent and the permitted increases and observes and performs the other conditions of the tenancy in so far as they are consistent with the provisions of the Act. This is what is provided under Section 12(1) of the Act. Section 12(2) provides that a suit by a landlord for recovery of possession cannot be instituted 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. So that, even if the tenant has committed default in paying standard rent or permitted increases, as a condition of instituting the suit, a notice of demand has to he served on the tenant as provided in Section 106 of the Transfer of Property Act. On the finding now recorded, there cannot be any dispute that such a notice was given to the defendants in the present case. Under Sub-section (5) (a) of Section 12 of the Act, where the rent is payable by the month and there is 110 dispute regarding the amount of standard rent or permitted 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 may pass a decree for eviction in any such suit for recovery of possession. Mr. Pendse contends that even though a Division Bench of this Court has taken the view that the word 'may' in this section has to be given the sense of 'shall' or 'must', it would yet be open to the Court to exercise its discretion even under Section 12(3)(a) of the Act. In Kurban Hussen v. Ratikant (1956) 59 Bom. L.R. 158 this Court has held that the word 'may' in Section 12(3)(a) of the Act is used in its compulsory, obligatory sense and means 'shall' or 'must' and, therefore, the Court is bound to pass a decree for eviction as soon as it is satisfied that the requirements of Section 12(3)(a) of the Act are satisfied. Mr. Pendse has faintly argued that some of the English cases on the question of interpretation of the word 'may' in statutes do not appear to have been brought to the notice of the learned Judges deciding that ease, and in this connection he drew my attention to the case, In re Baker; Nichols v. Baker (1890) 44 Ch. D. 262, and the observations of Cotton L.J. in that case at p. 270 to the following effect:-

I think that great misconception, is caused by saying that in some cases 'may' means 'must'. It never can mean 'must', so long as the English language retains Its meaning; but it gives a power, and then it may be a question in what case, where a Judge has a power given him by the word 'may', it becomes his duty to exercise it.

In my view, the mere fact that the observations in this case may not have been brought to the notice of the Division Bench which decided the case of Kurban Hussen v. Ratikant does not make the Division Bench ruling the less binding upon me.

5. But then it is argued by Mr. Pendse that in order that Section 12(3)(a) of the Act should apply, all the conditions stated in that sub-section must be satisfied. The conditions to be satisfied under Section 12(3)(a) are firstly, that the rent must be payable by the month; secondly, that there must be no dispute between the parties regarding the amount of standard rent or permitted increases, thirdly, that such rent or increases must be in arrears for a period of six months or more; and, fourthly, that the tenant must be proved to have neglected to make payment thereof until the expiration of the period of one month after notice referred to in Sub-section (2) of Section 12. If these conditions are satisfied, then alone the Court has to pass a decree for eviction in a suit brought by the landlord for recovery of possession. The first condition that the rent must be payable by the month is satisfied in the present case, because of the finding of the lower Courts, which has been accepted by me, viz., that the tenancy was not an annual tenancy but a monthly tenancy and the rent was, therefore, payable by the month. The second condition is also obviously satisfied, because it is nobody's case that there is any dispute between the parties regarding the amount of standard rent. But Mr. Pendse contends that at the date of the suit the rent was not in arrears for a period of six months because after the notice in fact Rs. 48 came to be paid to plaintiff prior to the institution of the suit on October 9, 1956, and, therefore, the third condition is not satisfied. It is further contended that the fourth condition about the tenant neglecting to make payment is also not satisfied, because of the fact that Rs. 48 were in fact paid by the tenant towards his dues under the notice, within the period of one month contemplated under Section 12(5)(a) ; and Mr. Pendse argues that since the tenant had bona fide taken steps to pay the amount of rent due from him, it would not be a case of the tenant neglecting to make payment until the expiration of the period of one month. In support of his argument, Mr. Pendse has relied on certain observations in the judgment of Mr. Justice Gajendragadkar in the case of Kurban Hussen v. Ratikant, referred to above, at p. 163, which are as follows:-. In our opinion, it is clear that the scheme of Section 12 indicates that, in regard to tenants who are in arrears for a long period and who refuse to pay the rent even within a month after receiving notice, a decree for ejectment shall follow as a matter of course. Cases where there is a dispute about the standard rent or permitted increases are covered by the explanation to Section 12. In such cases, the tenant is required to make an application to the Court in the manner and within the period mentioned in the explanation for fixation of standard rent; so that these cases do not fall within the purview of Section 12, Sub-section (3)(a). Section 12, Sub-section (3)(b) naturally deals with cases where the rent due from the tenant is for a period less than six months. In respect of such cases Legislature has provided that no decree for ejectment shall be passed provided the payment of rent is made as provided in the sub-section. Having given adequate protection to tenants who are not in arrears, for such a long period as six months, Legislature appears to have taken the view that where tenants are in arrears for such a long period as six months, if the tenants do not take steps to pay the rent within one month after receiving notice from the landlord, they are not entitled to any further protection and the landlord would be entitled to obtain a decree as a matter of right. That is why we are inclined to take the view that, in the context in which the word 'may' is used in Section 12, sub-s.(3)(a), it must be held that the said word introduces an element of obligation or compulsion and in effect means 'must' or 'shall'.

Mr. Pendse has laid stress on the words 'if the tenants do not take steps to pay the rent' in the observations quoted above and he contends that in the present case it is established that the tenant had in fact taken steps to make the payment due from him by paying Rs. 48 within one month of the notice, and, therefore, it cannot be held that the tenant has neglected to make payment. This argument is devoid of any substance. The mere fact that a tenant makes a part payment in respect of rent or permitted increases in arrears, about which a notice is given to him under Section 12(2) of the Act before the expiration of the period of one month, will not protect him. The wording of Section 12(3)(a) that '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) 'must imply in the context that the tenant must make payment of the entire amount of rent or increases which are in arrears for a period of six months or more if he wishes to avoid the consequences of his earlier default. A part payment of such arrears before the expiry of the period of one month after notice would not prevent the bringing into operation of the provisions of Section 12(3)(a). Mr. Pendse's contention that two of the conditions which would bring into operation Section 12(5)(a) of the Act have not been satisfied in the present case and in consequence the case of his clients would be governed by Section 12(3)(b) of the Act has, therefore, to be rejected.

6. The result is that all the contentions raised by Mr. Pendse fail and the rule in this revision application will have to be discharged. In view, however, of the fact that before the trial Court decided the suit, the petitioners had paid all the arrears and also in view of the fact that, according to Mr. Pendse, the petitioners are not now in arrears, there will be no order as to costs in this revision application.


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