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Shantabai Vishnumal Vs. Ganpat Ladha and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 334 of 1970
Judge
Reported inAIR1976Bom288; 1976MhLJ332
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 5(11) and 12(2)
AppellantShantabai Vishnumal
RespondentGanpat Ladha and ors.
Appellant AdvocateD.K. Jha, Adv.
Respondent AdvocateM.V. Paranjpe and ;Narendra L. Gada, Advs.
Excerpt:
a) the case dealt with the definition of 'tenant' within the frame work of section 5(11) (c) of the bombay rents, hotel and lodging house rates control act, 1947 -the court ruled that section 5 (11) (c) of the act was not limited to residential premises only.;b) the court ruled that after the death of statutory tenant, the member of such tenant's family residing with him at the time of death became a statutory tenant.;c) the case dealt with the discretion of court in respect of substantial compliance with section 12 (2) (b) of the bombay rents, hotel and lodging house rates control act, 1947 - it was ruled that the court could exercise discretion and refrain from passing eviction decree. - [couto; m.l. pendse, jj.] in the first instance the order passed under s. 132(5) is an order of a.....mukhi, j. 1. this petition has been referred to a division bench because along with other pontes it involves a question of public importance.2. that question is whether in the case of tenancies of business premises the legal representative of a statuary tenant or persons residing with him at the time of his death would be entitled to be considered as the tenants of such business premises under the definition of 'tenant' under section 5(11)(c) of the bombay rents, hotel and lodging house rates control act 1947 (hereinafter referred to as 'the rent act').3. it is of course a matter of regret that the litigation leading ultimately to the present petition has been a long and protracted one and commenced as far ace as 1956. when, on the 3rd of september 1956 the petitioner smt. shantabai.....
Judgment:

Mukhi, J.

1. This petition has been referred to a Division Bench because along with other pontes it involves a question of public importance.

2. That question is whether in the case of tenancies of business premises the legal representative of a statuary tenant or persons residing with him at the time of His death would be entitled to be considered as the tenants of such business premises under the definition of 'tenant' under Section 5(11)(c) of the Bombay Rents, Hotel and Lodging House Rates Control Act 1947 (hereinafter referred to as 'the Rent Act').

3. It is of course a matter of regret that the litigation leading ultimately to the present petition has been a long and protracted one and commenced as far ace as 1956. when, on the 3rd of September 1956 the petitioner Smt. Shantabai Vishnumal Siche deceased filed a Standard Rent Application, bearing No. R.A.N. 1032 of 1956, in the Court of Small Causes at Bombay.

4. The landlord of the said application for fixing standard rent, the rent of Shop No. 1 in Chawl No. 1, Bhumaji Shivaji Estate, Voola Santacruz, Bombay was fixed at Rs. 47-10-0 per month instead of the contractual rent of Rs. 80/- per month..

5 The landlord of is the premises Shri Ganpath Ladha then filed a revision application against that order wt the result that on the 17th of February 1960 standard rent was re fixed at Rs. 54.25p. per month.

6. The second stage of the litigation commenced very shortly thereafter, in the sense, that on the 29th of June the 1st respondent as the landlord of the premises issued to the petitioner a notice to quit, which also contained a demand for arrears of rent from May 1956 to May 1960, at the standard rent now fixed at Rs. 54.25p per month.

7. The registered packet containing the said notice t quit and the demand for arrears of rent s said to have been refused but it is now common ground that it can be said to have been served onto tenant on the 15th of July 1960.

8. It would appear, however, that on the 18th of July 1960 a civil Revision Application bearing No. 1126 of 1960 was filled by the petitioner in this High Court. t was however summarily rejected on the 1st of September 1960. Now in so far as question of fixation of standard rent is concerned the dispute became concluded on the 1st of September 1960 and the standard rent came to be fixed at Rs. 54-25p. per month.

9. On the bass of the quit notice given by the 1st respondent to the petitioner refereed to above, the 1st respondent proceed to flee a summary suit for eviction as well as for recovery of arrears of rent. This suit was filed on the 6th of November 1960 and is referred to as R.A.E. and R. Summary Suit No. 483/4658/60. The 1st respondent took out a summons for judgment which came up for hearing on the 13th of April 1961. It would appear that on that date the petitioner paid into Court a sum of Rupees 3,200/- being the rent of the suit premises payable in accordance with the standard rent fixed upto the 31st of March 1961 and leave to defiant was granted to the petitioner by the Court. A few months thereafter the suit came up for hearing. On the 30th of August 1962 issues were framed.

10. It is significant that on that very day the petitioner paid a sum of Rs. 1,042.10 as the rent from the 1st April 1961 to the 31st of August 1962, together with permitted increases. The petitioner also paid a sum of Rs. 266.56 as Court fees and Rs. 125.10 as professional costs. The suit was then adjourned from time to time from the 4th of October 1962 to the 5th June 1963, and on one of these dates, that is to say, on the 20th of November 1962. the petitioner paid a further sum of Rs. 162.75 as rent for three months from the 1st of September 1962 to the 31st of November, 1962.

11. On the 5th of June 1963 additional issues were framed and on that day also the petitioner paid a further sum of Rs. 325.50 as rent from December 1962 to May 1963 together with the sum of Rs. 31.13 as permitted increases. The actual amount paid on that day, however, was Rs. 362.23.

12. On the 6th of June 1963 evidence was recorded and the hearing closed. On the 18th of June 1963 the trial Court gave its judgment and awarded a decree for possession.

13. Some time in August 1963 the petitioner filed an appeal against the decree for possession being Appeal No. 321 of 1963. The appellate Bench of the Small Causes Court by its order and judgment dated the 19th of April 1963 set aside the decree for possession on the ground that the notice to quit had not been a valid notice.

14. Some time in August 1963 the 1st respondent being aggrieved by the decision of the Appellate Bench of the Small Cause Court in setting aside the decree for possession filed a Special Civil Application , being Special Civil Application No. 174 of 1969, in this Court. The said Special Civil Application came up for hearing in April, 1969. This High Court held that the notice to quit was a valid Noticed that it had been duly served, but on other points the matter was remanded back to the Appellate Bench of the Small Cause Court.

15. The petitioner's appeal was therefore, reheard, and on the 22nd of January 1970 the Appellate Bench of the Small Cause Court delivered its judgment holding that the 1st respondent was entitled to a decree for eviction under sub-section (3) (a) section 12 of the Rent Act and that even if the case was governed by sub-section (3) (b) of Section 12, the petitioner had not complied with the conditions thereof, so that it could not be said that dictation vested in the Court to refuse to pass a decree for eviction.

16. It is in these circumstance that the petitioner filed the present Special Civil Application No. 334 of 1970, which has come up for hearing more than five years after it was filed

17. It requires to be noticed that in the meantime the original petitioner, Smt. Shantabai vishnumal, died on the 9th of December 1973. This court on an application preferred by the her of the deceased Shri Shashikant V. Shinde allowed by on order dated the 6th of January 1975. for him to be brought on record.

18. Before considering the contention on merits it is appropriate first to consider the preliminary objection raised by Shri M.V. Paranjpe, the learned Advocate for the 1st respondent. In substance, his contentions that there is a lacuna in the rent Act so that in respect of non-residential premises the legislature has not made any provision for the protection of the heirs of the legal representatives of a deceased tenant. According to Mr. Paranjpe, Section 5(11)(c) of the Rent Act is restricted to residential premises so the Shri Shashikant V. Shinde, who as the heir of the deceased tenant has been brought on record, would neither be entitled to continue the petition nor continue in possession of the suit premises which are business premises.

19. Now, the relevant portion of the definition of 'tenant' is contained in the sub-section (11) of Section. 5 of the Rent Act, and the opening words of the sub-section are that a, ''tenant' means any person by whom or on whose account rent is payable for any premises and includes --- (amount other persons).

(c) any member of the tenant's family residing with him at the time of his death as may be decided in default of agreement by the Court.'

20. Mr. Paranjpe's contention, no doubt an attractive one, was that when contractual tenancy was terminated by the landlord, the tenants interest n the premises ceased, although statutory protection was nevertheless available to him to remain in possession. This protection, according to Mr. Paranjpe, was available to a member of the tenant's family after the death of the tenant because of the provision in that behalf contained in Section 5(1) of the Rent Act, but the plain words of Section 5(11)(c), according to Mr. Paranjpe, clearly showed that they refer to those premises in which the original tenant was himself residing at the time of his death. Mr. Paranjpe thus sought to suggest that on this view, Shri Shashant Vishnu Shinde could get no protection because the premises in suit are business premises to which the relevant provision has no application.

21. Mr. Paranjpe sought support for this contention from a judgment of the Gujarat High Court in Parubai v. Baldevdas (1964) 5 Guj LR 563. In that case Bhagwati, J. (as he then was ) held that on the death of a statutory tenant in respect of business premises, the statutory tenancy would come to an end and neither the heirs nor the members of the family of the statutory tenant would be entitled to resist the landlord's claim for recovery of the premises. The learned Judge also held that Section 5(11)(c) of the Bombay Rent Act cannot apply to the cases of premises which were used by the tenant as business premises and that in respect of such business premises it could not be said that a member of the tenant's family was residing with him at the time of his death.

22. Now, this judgment of the Gujarat High Court no doubt supports the argument of Mr. Paranjpe and it would appear that the Gujarat High Court came to this conclusion because of the words of section 5(11)(c) of the rent Act, which contain the requirement that the member of the tenant's family must be residing with him at the time of his death. According to the High Court, this showed that the intention of the legislature was to protect a member of the tenant's family residing with his at the time of his death and prevent such a member of the family from being thrown out of the premises in which he was residing.

23. The Court proceeded on the footing that the legislature had provided protection to the members of the family of the deceased actually residing with him at the time of his death so that they would not be thrown on the street after the tenant's death.

24. It is required to the noticed that Section 5(11)(c) of the Bombay Rent Act once again came up for consideration before a Division Bench of the Gujarat High Court in Heirs of deceased Mohanlal Lavji v. Muktabai Shamji, reported in (1971) 12 Gun LR 272, where it was held, however, that the provisions of Section 5(11)(c) of the Bombay rent Act were not limited to residential premises only. The Division Bench of the Gujarat High Court referred to the judgment of Bahgwati, j. in Parubai's case (1964) 5 Guj LR 563 (supra) and came to a contrary conclusion, viz. that Section 5(11)(c) of the Bombay Rent Act was not limited to residential premises only.

25. The Court made a specific note of the fact that the entire sub-section (11) of Section 5 of the Bombay Rent Act made no reference whatsoever to the nature of the premises leased and that the various sub-clauses of Section 5(11) referred only to persons or classes of persons who are entitled to be treated as tenants.

26. After quoting the relevant passage from Praia's case. (1964) 5 Guj LR 563 the Division Bench observed as follows:---

'With great respect it is difficult to agree with the said reasoning. A plain reading of the provisions of clause (c) of Section 5(11) of the Act indicates that the words 'residing with him control the expression any member of the family' and the said words do not refer to the nature of the premises which are let out. The main part of the definition of the word 'tenant' relates to any premises. Subclasses (a) , (aa) and (b) also apply to all premises. There are no words in the provisions of Section 5(11)(c) of the Act which limit the application of the clause to residential premises. The Legislature intended to give protection to the member of the tenant's family residing with him, possibly with a view to permit the continuance of the business which in many cases is the only or main source of maintenance for such person. Thus there is obviously a nexus between the requirement of residence of the tenant's family with the tenant at the time of his death or immediately three months prior to it and the creation of statutory tenancy in respect of business premises in favour of such member. The factotum of residence has a nexus between the deceased and the members of the family who are entitled to the benefit of the protection under the Act.'

27. With respect, we prefer the construction placed on the relevant section by the Division Bench of the Gujarat High Court to that of the Single Judge. In our view, the definition of 'tenant' really considers the basic unity of interest and what is provided by sub-clause (11) (c) of Section 5 of the Rent Act s that any member of the tenant's family residing with him at the time of his death may be treated as a tenant within the definition. This person would then be entitled to the protection of the Rent Act in relation to any premises, of which the deceased was a tenant at the time of his death. It is not inconceivable that a person may be a tenant of several premises and also entitled to protection in respect of all such tenancies.

28. It is significant that is Section 5(11)(c) of the Rent Act there is no indication that the protection granted by that provision is limited to those premises in which the tenant and members of his family were residing at the time of the tenant's death.

29. If one were to hold that Section 5(11)(c) of the Rent Act has reference to the premises which the members of the tenant's family were residing with him at the time of his death, then one would be introducing words in the section which do not exist. This is clearly not permissible.

30. Mr. Paranjpe has stated that the Rent Act in its application to Gujarat has been since amended and a specific provision introduced in relation to business premises. According to him, this demonstrated that there was lacuna and the Section 5(11)(c) of the Rent Act did not cover business premises. In our view, the fact that an enactment has been amended cannot be decisive about its interpretation or meaning in its unattended condition. The Courts are required to construe a provision in accordance with the relevant rules of interpretation and as we have said, we are in respectful agreement with the interpretation placed on Section 5(11)(c) of the Bombay Rent Act by the Division Bench of the Gujarat High Court in Heirs of Deceased Mohanlal Lavji v. Muktabai Shamji (1971) 12 Guj LR 272. The preliminary objection urged by Mr. Paranjpe is, therefore, rejected.

31. This brings us to the other contentions raised by the parties.

32. Mr. Jha, the learned Advocate for the petitioner, placed the following propositions before the Court. He said, firstly, that the original petitioner's son, Tashkent, who has been brought on record, became entitled to the same protection as the deceased statutory tenant. In other words, the contention is that he is entitled to the protection of Section 12(3)(b) of the Rent Act, because the conditions thereof has been complied with.

33. According to Mr. Jha the petitioner's case is covered by Section 12(3)(b) and not Section 12(3)(a) of the Rent Act, and while the Court is under an obligation to pass decree for eviction in cases falling under Section 12(3)(a) of the Rent Act, it is under no such obligation even if the tenant were not to fully satisfy the conditions laid down in Section 12(3)(b) of the Rent Act.

34. Mr. Jha has also, argued that the scheme of Section 12(3)(b) of the Rent Act contemplates substantial compliance and that if substantial compliance is found then the Court is required to protect the tenant from eviction.

35. As regards the petitioner's son Shashikant, who is now on record as the petitioner, it appears to be settled law that he would and has become a statutory tenant in place of his mother, the original petitioner Shrimati Shantabai. As held by this Court in the Jam . v. Sadashiv Sitaram, : AIR1967Bom43 , to the limited extent stated in Section 5(11)(c) of the Rent Act, the tenancy of a statutory tenant is to be transmissible and inheritable.

36. Now, as to the question of rent payable, there is no doubt that in the matter before us there is no doubt that in the matter before us there was a dispute as to the amount of standard rent right from 1956, and that that dispute continued right up to the day the petitioner's Civil Revision Application to the High Court was rejected on the 1st of September 1960.

37. It was faintly suggested that the period of one month in the notice to quit remained suspended till the dispute as to standard rent concluded on the 1st of September 1960 and then revived so that the case falls under Section 12(3)(a) of the Rent Act. We see no warrant for such a proposition. It is only to be stated to be rejected.

38. In these circumstances, it cannot be said that the petitioner's case is covered by Section 12(3)(a) of the Rent Act, which only applies when there s no dispute as regards the amount of standard rent, when the notice contemplate by that clause is served. It requires to be noticed that the notice has been held to have been served on the 15th of July 1960. The period of one month, therefore, expired on the 15th of August 1960. But at that date the dispute as to standard rent continued since Civil Revision Application No. 1126 of 1960 had been filed by the petitioner which only came to be rejected on the 1st of September 1960.

39. In our view, the petitioner's case is governed by Section 12(3)(b) of the Rent Act because on the date of the notice under sub-section (2) of the Section there was a dispute as to standard rent.

40. If that is so, then it requires to be considered if the conditions predicated in Section 12(3)(b) of the Rent Act have been complied with and if the petitioner is protected from eviction.

41. Section 12(3)(b) of the Rent Act reads as follows:---

'(b) In any other case, no decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the Standard rent and permitted increases then due and thereafter continues to pay or tender n Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court.'

Now, in cases falling under Clause 3 (b) of Section 12 of the Rent Act, the first injection is that the tenant is required to pay or tender in Court on the first day of the hearing of the suit the standard rent and permitted increases then due.

42. It is significant that what is required to be paid is standard rent and not contractual rent and such payment is to be made on the first day of hearing of the suit or such other date as the Court may fix. It is obvious that the condition would not be capable of compliance unless somehow the standard rent is fixed. There is no difficulty as to first day of the hearing of the suit, because it has been held that ordinarily that would be the day on which the Judge applies his mind to the case, which ordinarily he would do at the time when the issues were determined. (See Khanderao Malkarjun v. Anandrao, : AIR1959Bom471 ).

43. But if the standard rent is not fixed, it would be necessary for the petitioner to adopt appropriate proceedings and get the standard rent fixed either as interim or final. Indeed, a tenant cannot be heard to say that he is entitled to claim the protection of Section 12(3)(b) of the Rent Act, without showing that he has taken diligent steps to get the standard rent or interim standard rent fixed.

44. If prior to the filing of the suit, as in the case before us, the standard rent has already been fixed, then the statutory tenant must ensure that on or before the first day of hearing the rent has been paid to the landlord or tendered in Court.

45. NOW, Mr. Jha has shown to us that before the 30th of August 1962 when the issues were framed, he had paid Rs. 3,200/- as being rent upto the 31st of March 1962 itself he paid Rs. 1,432.56, as the rent upto the 31st of August 1962, along with permitted increases then due.

46. The difficulty that arises now is as to whether the petitioner has complied with the second part of Section 12(3)(b) of the Rent Act in so far as it enjoins that the tenant shall 'thereafter continue to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided.'

47. Has the petitioner complied with this requirement? Mr. jha says that he has done so. His argument is that Section 12(3)(b) of the Rent Act is a Section 12(3)(b) of the Rent Act is a section for his protection and if it is construed liberally, then there is compliance because he had been making payments from time to time and that in any event on the 5th of June 1963 when additional issues were framed just before the trial he paid Rs. 362.63 in all, which, together with Rs. 162.765 paid earlier on the 20th of November 1962, meant that he had paid the rent and permitted increases due unto May 1963. Mr. jha argues that thus when the suit was decided on the 18th of June 1963 all payments due had already been paid.

48. The petitioner's contention is that even though the word 'regularly' is used in the Section, it does not mean that even a slight delay would disentitle the tenant to the protection afforded by the section. According to him, what s required is that there is substantial compliance with the provisions.

49. In support of this contention Mr. Jha has cited a judgment of this Court in Kalidas Bhavan v. Bhagwandas : (1958)60BOMLR1359 , where Chagla, C. J. sitting singly said that the emphasis in Section 12(3)(b) of the Rent Act was not on payment on the first day of the hearing but the emphasis was that the arrears should be paid before judgment is delivered in the suit for eviction. Now, there is no doubt that the reference here was to the first condition as to arrears and not to the second condition as to payment thereafter being made regularly but in our view the principle would appear to be the same.

50. The learned Chief Justice took the view that when a case fell under S. 12 (3) (b) of the Rent Act substantial compliance was enough to give to the Court a discretion not to pass a decree for eviction. He said---

'............... ............... ............... As I read Section 12(3)(b) and as I read the scheme of the Rent Act, I cannot accept the view that although the tenant has paid arrears in full before the judgment is delivered there is an obligation cast upon the Court to pass a decree for eviction because there has not been at best a technical compliance with the provisions of Section 12(3)(b).'

51. It is appropriate to notice that the Court then proceeded to discuss the difference between Section 12(3)(a) and Section 12(3)(b) of the Rent Act and the nature of the obligation cast upon the Court by respective provisions. This is what was observed:---

'Now, the first important aspect of this sub-section which one has to notice that whereas sub-section (3) (a) casts an obligation upon the Court to pass a decree if the tenant fails to comply with the conditions laid down in that sub-section, no such provision is made in sub-section, no such provision is made in sub-section, no such provision is made in sub-section, no such provision is made in sub-section (3) (b). The Legislature does not call upon the Court to pass a decree for eviction if the tenant does not satisfy the conditions laid down in sub-section (3) (b). All that the Legislature says is that if the tenant satisfies the conditions laid down, the Court shall not pass a decree for eviction. The difference between the two positions is clear. In one case the Court has discretion not to pass a decree for eviction. It may or it may not pass a decree for eviction. It may take circumstances into consideration and not pass a decree for eviction. In the other case, no discretion is left in the Court. The Court cannot take any factor into consideration and pass a decree in favour of the landlord if the tenant has complied with conditions laid down in sub-section (3) (b)............'

52. His Lordship then went on to say that if the tenant did all that was enjoined by sub-section (3) (b), then the Court would have no jurisdiction to pass a decree for eviction. His Lordship added 'But it is a far cry from this position to say that if the tenant did not do all these things the Court was compelled to pass a decree for eviction against him.'

53. We find ourselves in respectful agreement with this view and hold that if on the facts of each case there is found to be substantial compliance with the provisions of Section 12(3)(b) the Court may exercise its discretion and refrain from passing a decree for eviction.

54. It has been suggested that the observations of Chagla, C. J. in the above case have been impliedly overruled by the Supreme Court in Shah Dhansukhlal v.Dalichand, : [1968]3SCR346 , by reason or certain observations at p. 719 (of Bom LR ) = (at p. 1112 of AIR). Theses observation are that -

' To be within the protection of that provision (Section 13(2)(b) the tenant must thereafter continue to pay or tender n Court regularly the rent and permitted necroses till the suit is finally decided.'

55. Now this appears to looks to be only a paraphrase of the relevant provision and we are unable to appreciate how it can be sad that the Supreme Court has even dealt with, much less overruled the decision of this Court In Kalidas Bhavan v. Bhagwandas : (1958)60BOMLR1359 (supra)

56. Now what is the position in the case before us. There is no doubt that all the arrears together with court - fee and costs were paid on the first day of hearing of the suit when issues were framed on the 30th of August 1962. The original petitioner also pad all the rent due upto the date of the judgment.

57. It is true that thereafter she has not strictly complied with the provision as to payment of rent regularly but all payments required to be made before the judgment was delivered. In the words of Chagla, C.J. 'there has not been at best a technical compliance of the second condition of Section 12(3) as to regular payments of rent as it became due.'

58. If this is so, then the Court's discretion not to pass a decree for eviction is clearly not taken away.

59. The learned Chief Judge of the Small Cause Court was clearly in error when he seemed to feel that the observations of the Supreme Court in Shah Dhansukhlal v. Dalichand : [1968]3SCR346 (supra) compelled him to hold that if the conditions in Section 12(3)(b) had not been fulfilled, there was no dissection vested in the Court to refuse to pass the decree for eviction.

60. As we have held, even if the condition of Section 12(3)(b) are not strictly complied with, the Court has discretion, on the facts and circumstances of each case, to decline to pass a decree for eviction.

61. Now, there is no doubt that a tenant seeking protection under sub-section (3) (b) of Section 12 has to be vigilant and must ensure that standard rent be fixed if there is a bona fide dispute and thereafter regularly pay to same to the landlord or tender it in Court but is not to say that the court has no discretion not to pass a decree when the case falls under sub-section (3) (b).

62. Our attention has been invited to an unreported judgment of Chagla, C.J. again sitting singly, in Civil Revision Application No. 412 of 1957, decided on the 8th of July 1958 (Bom), where the learned Chief Justice appears to have observed that the second condition in clause (b) of Section 12(3) was not complied with because rent for five months had not been paid in time.

63. Now, this was a case where the lower appellate Court had passed a decree for possession in favour of the landlord and the view taken by the learned District Judge was that the case fell under Section 12(3)(a) and inasmuch as there was no dispute with regard to the amount of the standard rent and the statutory notice was served and the tenant was in arrears of rent for six months and failed to pay the arrears with in one month the Court was obliged to pass a decree.

64. It would appear that on behalf of the tenant it was urged before the High Court that the case did not fall under Section 12(3)(a) but that it fell under section 12(3)(b) and it was then, contended that the tenant had paid what ultimately turned out to be the standard rent and that, therefore, he had satisfied the first condition laid down by Section 12(3)(b).

65. As regards the second condition that the tenant continues to pay the rent regularly till the suit is fanny decided, t was noticed that the rent for Fe months had not been pad in time although it was ultimately deposited. The learned Judge did to in this case consider the scope of Section 12(3)(b) and as to whether on facts it could be said that there was a substantial compliance. He proceeded t deal with the case from the point of view as to whether it was proper to interfere with the judgment of the appellate Court which, according to him, was right in law.

66. Now, as we have mentioned, the decree in that case was passed on the footing that the case fell under Section 12(3)(a) and circumstances that the learned Chief Justice felt that he should uphold the decision of the lower appellate Court, which appeared to Him to be right.

67. In our view this authority does not help the respondent. In any event, we have already expressed our respectful agreement with the judgment of this Court in Kalidas Bhavan v. Bhagwnadas : (1958)60BOMLR1359 , where it was held that substantial compliance with the provision of Section 12(3)(b) may be such that the court may exercise its desecration and not pass a decree for eviction.

68. It requires to be noticed that Section 12 of the Rent Act provides that the landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays or is ready and willing to pay the amount of standard rent with 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 the Rent Act. The Section is clearly a section of protection and enjoins the Court to find cut whether the tenant has paid or is ready and willing to pay the appropriate rent. It is true that sub-section (3) (a) makes it compulsory for the Court to pass a decree for eviction if a particular case falls under that provision. But the basis idea or object underlying Section 12 of the Rent Act is to ensure that the tenant pays the rent due under penalty of eviction if he fails to do so.

69. Sub-section (3) (b) of Section 12 on the other hand goes a little further, in that it provides that no decree for eviction shall be passed in any such suit if the arrears of rent are paid and the tenant thereafter continues to pay rent regularly.

70. While there is no doubt that each case will always depend upon its own facts, it would not, it our opinion, be proper to construe this section in the manner suggested by the landlord so that the failure to strictly comply with the conditions, for whatever reason would entail compulsory denial of the protection of this section to the erring or unwary tenant. The Court may, of course, pass a decree for eviction but it would not be bound to do so.

71. It requires to be mentioned that in the petition before us although the first decree for eviction was passed on the 18th of June 1963 the litigation continued until the ultimate dismissal of the appeal on the 22nd of January 1970 by the Appellate Bench of the Small Causes Court, who re-heard the appeal on remand, thereafter the present petition was filed and has come up for hearing before us in 1975.

72. It has been stated by Mr. Jha at the Bar that throughout this period from the 18th of June till today the petitioner has paid the rent regularly. This assertion of the petition is not denied by the respondent-landlord. In our view, these also shows that the tenant has been ready and willing to pay the rent has in fact done so, except on two occasions at the end of 1962 and the beginning of 1963, when rent was not paid for some time.

73. We have given this matter our careful consideration and we have come to the conclusion that there is sufficient and substantial compliance by the petitioner of the provisions of Section 12(3)(b), and that the circumstances of the case are such that the discretion of the Court be exercised in favour of the petitioner. This is not a case in which a decree for possession should be allowed to go.

74. In the result the Rule is made absolute in terms of prayer (a). There will be no order as to costs.

75. Leave to appeal under Article 133 (1) is asked for. Leave refused.

76. Order accordingly.


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