1. The plaintiff in this suit seeks to evict the defendant who is a monthly tenant of the plaintiff's house at Sandhurst Road and, on July 18, 1921, gave notice to quit terminating the tenancy on September 1, 1921. The defendant pleads the Bombay Rent (War Restrictions) Act No. II of 1918 and the plaintiff's reply is that the defendant is not entitled to protection under the Rent Act as he has not paid the rent. The defendant admits that his rent is in arrears from July 1, 1919, but he states that he tendered arrears of rent to the plaintiff in August 1921 and that the plaintiff refused to accept the rent.
2. On these pleadings the following issues were framed:
(1) Whether the defendant did not in August 1921 offer to pay all arrears of rent?
(2) Whether plaintiff declined to recover arrears as he said he had terminated the tenancy by his letter of July 1921?
(3) Whether in any event the plaintiff under Section 9 of the Rent Act is entitled to an order for possession?
3. Now the plaintiff had in Suit No. 941 of 1920 sued the defendant for possession and the suit had been dismissed on the ground that the plaintiff's requirements had not been proved, and that dismissal was without prejudice to the plaintiff s claim to recover the arrears of rent from the defendant. Since the dismissal of that suit the plaintiff's attorneys have been repeatedly demanding payment of rent. The first letter was Exh. A of June 23, and it was followed up by a second letter of August 9, 1920. To neither of these letters did the defendant make any reply until April 1921 when the defendant wrote demanding payment of the taxed costs in Suit No. 941 of 1920. The plaintiff in reply, on April 19, 1921, claimed to set off the amount of taxed costs against the amount of rent which was payable by the defendant, but the defendant objected to this and the plaintiff's demands of payment of the arrears of rent continued on May 5, 1921, Ex. D, and June 24, 1921, Ex. E, without eliciting any reply from the defendant. Eventually, on July 18, 1921, the plaintiff gave notice to quit.
4. Now, the defendant admits that he received these letters and that he made no reply to them a ad the only excuse that he gives is, his wife was dying and that he was absent with her at Miraj and then at Deolali. This excuse is very inadequate, for the house was in the occupation of a son and son-in-law who could have paid for him; and after he returned from Miraj he spent some time in Bombay and could have paid then.
5. His unwillingness to pay the rent is manifest from his objection even to allow the amount of taxed costs to be set off against the arrears of rent.
6. I, therefore, disbelieve his uncorroborated statement that in August 1921 he offered to pay the plaintiff the arrears of rent and I have not called upon Mr. Taleyarkhan for evidence to contradict that statement.
7. That disposes of the first and second issues, but however that may be the fact remains that no rent has been paid since July 1919. That is admitted in the written statement and it is only after suit filed that the defendant with his written statement, on February 8, 1922, paid into Court all the arrears of rent including rent up to the end of April 1922.
8. Mr. Campbell contends, and has contended very strenuously, that under Section 9(1) of the Bombay Rent Act the effect of this payment is that the Court is unable to make an order for eviction. Section 9(1) runs as follows:
No order for the recovery of possession of any premises shall be made so long as the tenant pays or is ready and willing to pay rent to the full extent allowable by this Act and performs the conditions of the tenancy.
9. Mr. Campbell's contention is that the conditions here laid down are conditions which apply at the date of the order, and that even if a tenant has made any default in paying the rent and is in arrears at the time that the suit is filed, yet be has under Section 9(1) a locus ponitentio and if he brings the arrears of rent into Court the Court Cannot make an order for the recovery of possession.
10. The section is based on the corresponding section of the English Act, the Increase of Rent and Mortgage Interest (War Restrictions) Act, 1915, which is as follows:
No order for the recovery of possession of a dwelling-house to which this Act applies or for the ejectment of a tenant therefrom shall be made so long as the tenant continues to pay rent at the agreed rate as modified by this Act and performs the other conditions of the tenancy.
11. This section is also in the present tense but nevertheless it has been construed in England as importing a condition precedent which must be fulfilled by the tenant not at the time when the Court has to make its order, but at the time when the writ is served.
12. In Beavis v. Carman (1920) 36 T.L.R. 396 Lawrence J. said:
There was a right in the landlord to possession when the writ was served,...and there was no locus ponitentio on the part of the tenant, nor could he (his Lordship) reinstate the tenant, as though he had continued to pay the rent and perform the terms of the tenancy.
13. So also in the case of Davies v. Bristow  3 K.B. 428 the section was construed as constituting a condition precedent to the right of a tenant to claim the protection of the Act, that he should have paid the rent and performed his obligations under the tenancy agreement.
14. I think that is the proper construction of Section 9(1) of the Bombay Rent Act. The present tense is used not to describe anything that the tenant does or may do at the time when the Court's order is made, but to describe the conduct of the tenant which entitles him to plead the Rent Act, i.e., the conduct of the tenant up to or at the time when the suit was filed.
15. Mr. Campbell contends that there is a distinction between Section 9(1) of the Bombay Act and the English section in that the English section uses the words 'continues to pay' the rent instead of the word 'pays' which is used in the Indian section. But I do not think that the words 'continues to pay' import any distinction. Whether the words are 'continues to pay' or 'pays', the real question is whether they refer to the time anterior to the filing of the suit or the time subsequent thereto. I think that in both the English and the Indian section the words 'continues to pay' and the word 'pays' respectively, refer to the time anterior to the filing of the suit.
16. Then Mr. Campbell refers to the words 'is ready and willing to pay the rent to the full extent allowable by this Act'. These words do not appear in the English section, but here again the question is whether readiness and willingness to pay refers to the time before the suit is filed or the time subsequent to the filing of the suit. I think it refers to the time prior to the filing of the suit and it has been inserted to meet cases in which failure to pay rent has been due to a dispute between the landlord and the tenant as to the amount of standard rent. Mr. Campbell says that this cannot be the true construction because otherwise a tenant who made a wrong estimate as to what the standard rent was would find himself evicted merely because his estimate was wrong and the landlord's estimate was right. But that is a case which could easily be met by the tenant offering not to pay any fixed sum as rent, but such sum as the Rent Controller or the Court may adjudge to be the standard rent.
17. Mr. Campbell's third argument is that the use of the past tense in Section 9(2) as contrasted with the present tense of Section 9(1) shows that the acts of the tenant referred to in Section 9(2) are past acts while the acts referred to in Section 9(1) are present acts, i.e., acts at the date of the order. But I do not think that that is so. Section 9(2) is in the past tense because it refers to past acts of waste or conduct in the past which has been an annoyance. Section 9(1) is in the present tense because that section merely describes the sort of tenant who is entitled to claim protection under the Act.
18. I think that is the only admissible construction of the section for otherwise the tenant might refuse to pay rent and the landlord will be unable to evict him. For every time that the landlord filed a suit to evict him he would bring the rent into Court and then withhold it &gain; until such time as the landlord should file a fresh suit.
19. I, therefore, think that the conditions in Section 9(1) are conditions precedent which must be fulfilled at the date of the cause of action. The defendant has contumaciously refused to pay rent and I think he was encouraged to this attitude by the dismissal of Suit 941 of 1920 in June 1920.
20. Mr. Campbell says that the Court has jurisdiction to relieve against forfeiture. But this is not a case for the exercise by the Court of its equitable jurisdiction, for the tenancy was not determined by forfeiture but by a notice to quit. The question is one simply whether the defendant has proved that he has fulfilled the conditions of Section 9(1), for unless he has fulfilled those conditions, he is not entitled to protection of the Kent Act. The Act gives the Court jurisdiction to create a statutory tenancy after the termination of the previous tenancy by the notice to quit. The jurisdiction does not arise unless the terms on which the statute gives it are strictly complied with. The principle is that set forth in the judgment of the Privy Council in Nusserwanjee Pestonjee v. Meer Mynoodeen Khan (1855) 6 M.I.A. 134. I therefore, find issue No. 3 in the affirmative and that the plaintiff is entitled to an order for possession.
21. Decree for the plaintiff for rent from July 1, 1919, to August 31, 1921, at the rate of Rs. 45 per mensem, less a sum of Rs. 403-0-8 and for rent and compensation at the same rate per mensem from September 1, 1921, till possession given. Liberty to plaintiff to recover this amount from the amount paid into Court by the defendant. Decree for plaintiff for possession on or before July 30, 1922. No order as to costs.