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Bai Mohinibai Dharmasey Vs. Khimji Tokarshi Jivraj and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 645 of 1969
Judge
Reported inAIR1976Bom295; 1976MhLJ256
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 12(3) and 23; Transfer of Property Act, 1882 - Sections 108; Constitution of India - Article 227
AppellantBai Mohinibai Dharmasey
RespondentKhimji Tokarshi Jivraj and anr.
Appellant AdvocateM.A. Rane and ;G.M. Mewani, Advs.
Respondent AdvocateK.J. Abhayankar and ;L.V. Talaulikar, Advs. for ;Y.S. Chitale, Adv.
Excerpt:
a) the case examined whether the action of the tenant in filling up a well amounted to 'repairs' within the framework of section 23 of the bombay rents, hotel and lodging house rates control act, 1947 - according to the terms of the agreement, the tenant was at liberty to get the well in the suit land filled, for which the landlord would pay half the cost - the tenant, directed by the municipal authorities to cover up the well, incurred the expenditure to fill it up - there was no evidence regarding the fact that the well needed repairs - the court held that the tenant could not be said to have effected any repairs in the suit premises and that he was not entitled to appropriate expenses towards the arrears of rent;b) the case examined the meaning of the phrase 'tenant neglects to make.....order1. this is a tenant's petition under article 227 of the constitution challenged the judgment delivered by the appellate bench of the small cause court dismissing her appeal and affirming the judgment passed by the trial judge decreeing the plaintiff's claim for possession under clause (a) of sub-section (3) of section 12 of the bombay rents, hotel and lodging house rates control act, 1947, (hereinafter called as the 'rent act')2. the petitioner had taken on lease for 30 years two plots of land admeasuring 825 sq. yards on 1st november 1948 from the respondent on an agreed rent of rs. 367/- per month. this lease was for the purpose of constructing a building on those plots. on expiration of the lease, the lessee was entitled to remove the structures in case the lesser was not prepared.....
Judgment:
ORDER

1. This is a tenant's petition under Article 227 of the Constitution challenged the judgment delivered by the appellate bench of the Small Cause Court dismissing her appeal and affirming the judgment passed by the Trial Judge decreeing the plaintiff's claim for possession under Clause (a) of sub-section (3) of Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, (hereinafter called as the 'Rent Act')

2. The petitioner had taken on lease for 30 years two plots of land admeasuring 825 sq. yards on 1st November 1948 from the respondent on an agreed rent of Rs. 367/- per month. This lease was for the purpose of constructing a building on those plots. On expiration of the lease, the lessee was entitled to remove the structures in case the lesser was not prepared to purchase them at half the price. It is petitioner's case that in pursuance of this agreement, the petitioner constructed a structure worth Rs. 1,00,000/- In 1953 dispute arose between the parties and the landlord filed a suit being Suit No. 3307/16647 of 1953 for eviction on 23rd December 1953. In that suit, a consent decree was passed on 17th April 1957. According to the consent terms, the petitioner was to deliver a part of the premises, viz., the plot admeasuring 825 sq. yards to the landlord and to retain the plot admeasuring 1692 sq. yards. The rent was reduced to Rs. 245/- per month. The petitioner surrendered the plot admeasuring 825 sq yards to the respondent No. 1. The term of the tenancy in respect of the plot retained by the petitioner continued to be the same on which the lease was originally granted in 1948 except the rent. There was a well in the suit premises and it is not disputed that this well is situated on the border between these two plots. It was agreed that the petitioner should fill and cover the well. The landlord agreed to pay half of the cost of filing up the well. The petitioner and the respondent No. 1 were prosecuted by the Municipal authorities for not covering the well and it is the case of the petitioner that because of this prosecution and in order to abate the nuisance of mosquitoes, she undertook to fill up and cover the well in terms of the aforesaid agreement. The work of filling up the well was started in February 1960 and was completed in April 1960. The petitioner incurred an expenditure of Rs. 5800/- for that purpose, she got that work executed by a contractor whose bill was sent by the petitioner to the respondent No. 1 along with her claim on 12th April 1960 by a registered letter calling upon him to pay Rs. 2900/- as his share. The petitioner also sent a copy of that letter by ordinary post under certificate of posting. The registered packet was returned unserved with an endorsement unclaimed. The copy of the letter sent under certificate of posting was not returned to the petitioner., The petitioner did not pay the rent from 1st October 1959. On 22nd July 1960, informing her that she had not paid rent for 9 months, viz from 1st October 1959 to 30th June 1960 amounting to Rs. 2,205/- By this notice , the petitioner, tenancy was terminated. She was asked to deliver possession by 31st August 1960 and was also called upon to pay the arrears of rent. On receipt of this notice, the petitioner replied on 2nd August 1960. In that reply she stated that she had to recover from him Rs. 2900/- as the landlord's share of expenses of filling up the well. She informed the landlord that she had already demanded that amount by her registered letter dated 12th April 1960. She enclosed a copy of that letter along with that reply. She also requested the respondent No. 1 to adjust the arrears of rent from the amount which the petitioner was entitled to recover in terms of the agreement from the respondent No. 1. The respondent No. 1 landlord did not immediately reply to this letter and it is the case of the petitioner that he deliberately postponed to reply till one month was over to enable him to take advantage of the provisions of clause (a) of sub-section (3) of Section 12 of the Rent Act. The landlord replied on 24th August 1960 disputing the expenditure incurred by the petitioner for filling up the well. The landlord also stated that his consent was not obtained before she undertook to fill up the well. On receipt of this reply, the petitioner sent another letter on 9th September 1960 informing him that the petitioner would satisfy the landlord about the expenditure and she also sent a cheque for Rs. 2695/- as arrears of rent upto the end of August 1960. The plaintiff, however filed a suit on 12th September 1960 against the petitioner for possession of the suit premises on the ground of default of payment of rent. On 20th September 1960 Harkhchand Khimji, the son of the plaintiff, sent a reply that his father was out of Bombay and that he was, therefore, returning the cheque.

3. The suit was resisted by the petitioner on various grounds, some of which were (1) that the notice was bad and (2) that she has not neglected to pay the arrears of rent, more so, when she had incurred expenditure for filling up the well on behalf of the plaintiff and he had not paid that amount in spite of demand. She also stated that the amount spent for filling up the well was more than the amount which she had to pay as arrears of rent. The petitioner claimed that she has not neglected to pay the arrears of rent and therefore, the plaintiff was not entitled to get the possession.

4. The parties led evidence in their support. The trial Court held that the tenancy of the petitioner was validly terminated and that the petitioner has filled up the well and had incurred an expenditure of Rupees 5800/= for that purpose but she has not right to appropriate the expenses for filling up the well towards the arrears of rent. He held that the petitioner was in arrears of rent for more than six months and that she had, therefore, neglected to pay the arrears of rent within one month from the service of the demand notice. He, therefore, held that the landlord was entitled to possession under Section 12(3)(a) of the Rent Act. The petitioner then filed an appeal. The appellate bench of the Small Cause Court affirmed the findings of the trial Court and dismissed the petitioner's appeal. It is against this judgment that the present petition has been filed.

5. This petition was heard by Bhasme, J who after hearing the parties observed:

'Mr. Rane who appears for the petitioner, has raised a contention that this filling up of the well was a kind of repair work done by the petitioner and the petitioner is entitled to claim adjustment of the said amount from out of the rent arrears. Mr. Abhyankar, without conceding the question that this is a repair work, submitted that under section 23 of the Rent Act, the tenant can ask for adjustment only to the extent of rent due for two months. The petitioner was in arrears of rent for nine months at the date of the quit notice. Mr. Rane , on the other hand, submitted that the petitioner right to adjust the rent amount on account of the repair charge will not be restricted to the provisions of Section 23 of the Rent Act. Section 23 expressly saves an agreement to the contrary by the tenant . Such an agreement will be governed by the Transfer of Property Act in general and the provisions of section 108(f) of the Transfer of Property Act in Particular. Before considering these rival contentions about the respective rights of the parties, it is necessary to have a clear finding on the question of the nature of the work done by the petitioner in respect of the well. Whether the filling up of the well amounts to repair work or not within the meaning of Section 23 of the Rent Act or Section 108(f) of the Transfer of Property Act will have to be found out with reference to the evidence on record. Unfortunately , parties had not raised clear pleas in this behalf . No specific issue was framed and no evidence was adduced for the petitioner, has raised a contention that this filling up of the well was a kind by the parties. I, therefore, propose to call for a finding from the courts below on the following issue:-- 'Whether the filling up of the well amounts to repair work within the meaning of Section 23 of the Rent Act and / or Section 108(f) of the transfer of Property Act.''

He, therefore remanded the case to the trial Court for that purpose with a direction to record evidence and certify the same to the appellate Court on or before 3rd August 1974. He has also directed the appellate bench of the Small Cause Court to certify the finding to the High Court on or before 3rd September 1974. This was done by the trial Court after recording the finding in the negative on the issue referred and that finding has also been affirmed by the appellate bench of the Small Cause Court.

6. On receipt of this finding,. Mr. Rane, the learned counsel for the petitioner, filed objections to the finding recorded by the Courts below. He has not been able to show how those findings were any way unwarranted by the evidence on record. the well was in existence when the lease was taken by the petitioner in 1948. It is not the case that the well has been dilapidated and, therefore, it was repaired. What is alleged to have been done is to fill up the well. The filing up of the well is one thing and repairing the well is another thing and both the Courts below have observed that there was no evidence at all, that the well has become dilapidated and needed repairs. It was filled up because the squatters in the locality were using the water from that well and therefore, causing nuisance. The Municipal Authorities had also directed the petitioner only to cover up the well and not to repair it. That being so, there was no question of any repairs being effected to the suit premises. It is also not the case of the petitioner that the land had sunk or that any crevices have occurred in the land and that they were filled in. There was no occasion of any repairs of the premises or the land. That being so, it cannot be said that the petitioner has effected any repairs to the suit premises. It was, in fact not the case of the petitioner, right from the inception, of any repairs being effected. Her case was that it was in accordance with the terms agreed between the parties that she had incurred that expenditure for filling up the well Clause No. 5 of the consent terms reads:

'The Defendant shall be at liberty to get filled and closed the well which is situated in the plot market B on the plan annexed to the lease. The plaintiff shall bear and pay to the defendant half of the cost of filling and closing the said well'.

It is because of this that the petitioner has incurred the expenditure and has called upon the plaintiff to pay half of the expenditure. Therefore, both the Courts below were right in holding that the petitioner had not effected any repairs on the suit premises and therefore, the provisions of Section 23 of the Rent Act and Section 108(f) of the Transfer of Property Act were not, at all, attracted in this case.

7. Mr. Rane then urged that both the Courts below have found as a fact that the petitioner was entitled to fill up the well and claim half of the expenditure in terms of Clause 5 reproduced above. The plain tiff also has not disputed this clause of the consent terms. Both the Courts below have recorded a finding that the petitioner has, in fact incurred the expenditure of Rs. 5758/- for the purpose.

8. Mr. Rane further urged that after incurring the expenditure, the petitioner had called upon the plaintiff by her letter dated 12th April 1960 to pay Rs. 2900/- within 7 days from the receipt of that letter as his share of the expenditure. She sent this letter by registered post and also a copy of that letter was sent under certificate of posting. The registered letter was returned unserved but the copy which was sent by ordinary post was not returned to the petitioner. Mr. Rane, therefore, urged that the petitioner was under the impression that the letter sent by ordinary post must have been received by the plaintiff. In the meanwhile, the landlord gave a notice dated 18th July 1960 terminating the tenancy of the petitioner and asking her to deliver possession by 31st August 1960. He also informed her that she was in arrears of rent for a period of 9 months from 1st October 1959 to 30 th June 1960 and called upon her to pay the arrears of rent amounting to Rs. 2205/- He has also invited her attention to the term of the lease that the landlord was entitled to re-enter on the premises if the tenant was in arrears of rent for three months. On receipt of this notice, the petitioner on 22nd August 1960 sent a reply to the landlord telling him that she had sent the letter dated 12th April 1960 calling upon him to pay his share of the expenditure incurred by the petitioner for filing up of the well and that letter was sent by registered post but that was returned back. She has also stated that she had sent a copy of that letter was sent along with this letter dated 2nd August 1960 and the petitioner requested the landlord to appropriate the sum of Rs, 2900/- payable by him towards the rent claimed by the landlord and remit the balance to her. The landlord replied to this letter on 25th August 1960. He stated that the demand for Rupees 2900/- was uncalled for and that the expenditure to filled up and cover the well could not be Rupees 5800/- as claimed by the petitioner. He further stated that she ought to have consulted him before filing up of the well and that her claim was unfair and that he was not liable to pay that amount.

9. Mr. Rane urged that the landlord deliberately delayed to reply to the letter dated 2nd August 1960 in order to take advantage of clause (a) of sub-section (3) of Section 12 of the Rent Act. On receipt of this letter, the petitioner informed the landlord that the work was executed by a contractor and that the petition was prepared to show the landlord all the details of the expenditure. She , however, sent a cheque of Rs. 2695/- for the arrears of the rent. This cheque was returned by the son of the landlord on 20th September 1960. Mr. Rane, on the basis of these facts, urged that it cannot be said that the petitioner has neglected to pay the rent.

10. The petitioner does not dispute the quantum of the rent nor does she dispute that the rent from 1st October 1959 to 30th June 1960 was due when the notice was issued. She also does not claim to have made any other payment to the landlord towards the rent. All that she says is that she has incurred an expenditure on behalf of the landlord in terms of the agreement and that she had claimed that amount before she received the notice from the landlord claiming the arrears of rent. She had made a claim in this month of April 1960 and that claim was far in excess of the amount which she was liable to pay as rent to the landlord. The petitioner had sent a letter by registered post asking him to pay the amount and also a copy of that letter was sent by ordinary post. It is true that the registered letter was returned with the endorsement unclaimed but the copy of the letter which was sent by ordinary post was not returned back. Under these circumstances, she might have bona fide belief that the landlord must have received the letter which was sent by the ordinary post . Soon After the receipt of the notice by the landlord , she replied to the notice of the landlord that an amount larger than the arrears of rent claimed by the landlord was due to the petitioner by the landlord. A copy of the letter dated the 12th April 1960 demanding the share of expenditure was sent to him along with the letter dated 2nd August 1960 to adjust the amount of rent due by the petitioner to the landlord from that amount. This letter, she sent within one landlord. No reply was given by the landlord to this letter. It was only after the one months's period was over that the landlord replied disputing the amount of expenditure, Under these circumstances can it be said that the petitioner has neglected to pay the arrears of rent? It is true that the landlord has stated that the petitioner ought to have consulted the landlord before she incurred the expenditure. The term, under which the petitioner has incurred the expenditure, is clearly explicit in authorising the petitioner to spend necessary amount in that behalf. The term reads:

'5. The defendants shall be at liberty to get filed and closed the well which is situated in the plot marked 'B' on the plan annexed to the lease. The plaintiff shall bear and pay to the defendant half of the cost of filling and closing the said well '

Nowhere it is stated that the plaintiff should have been consulted by the defendant before she undertook the work of filling up and covering of the well. There is also no mention about the amount which the petitioner should not exceed. Nothing has been brought on record to show that the expenditure incurred by the petitioner was out of proportion with the work she had carried out . Mere denial by the landlord in his reply that the expenditure is unreasonable cannot be of any assistance to the plaintiff to disown his liability to pay that amount. The denial of his liability by the plaintiff to pay that amount was halting and very much delayed. The plaintiff has also deliberately not disowned his liability even after the receipt of the reply given by the petitioner to his notice of termination. A copy of the letter dated 12th April 1960 was enclosed by the petitioner with her letter dated 2nd August 1960. This ought to have been replied by the plaintiff within 2 or 3 days after the receipt of this letter. The plaintiff deliberately delayed is disowning his liability regarding the expenditure. It is only on 24th August 1960 that he disowned the liability to pay that amount. Under these circumstances, Mr. Rane, rightly urged that it cannot be said that the petitioner has neglected to pay the arrears of rent.

11. Clause (a) of sub-section (3) of Section 12 of the Rent Act reads:

'Where the rent is payable by the month and there is no 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 shall pass a decree for eviction in any such suit for recovery of possession'.

It is true that where there is no dispute regarding the amount of standard rent or permitted increases and when the rent is in arrears for a period of six months or more, and the tenant neglects to make the payment thereof until the expiration of the period of one month after the notice referred to in sub-section (2). the Court shall pass a decree for eviction in any such suit for recovery of possession. If all these conditions are satisfied then there is no option to Court but to pass a decree for eviction. There is no dispute that the rent is payable by month and there is also no dispute regarding the amount of standard rent and permitted increases. There is also no dispute that the arrears of rent for a period of more than six months were due when the notice of termination was given and when the suit was filed and that the tenant had not paid the amount of arrears of rent within one month from the receipt of the quit notice. The only point that has to be decided in this case is whether the tenant has neglected to pay the rent due. The words used are that the tenant neglected to pay the arrears of rent. The intention of the legislature is very clear by the use of the word neglect'. It shows that there is something deliberate and something more than mere failure to pay the amount.

12. In Stroud's Judicial Dictionary, 4th Edition, neglect has been defined.

'(1) A solicitor did not neglect to apply for his certificate during the time he was under sentence of suspension, because he could not then have got it if he applied for it.

(2) A gas company did not neglect or refuse to supply gas when prevented from doing so by viz major, e.g. an extraordinary frost'

(3) Where there was a real dispute as to liability, a company did not neglect to pay by not complying with a demand under Companies Act 1862.

The last meaning is from the case reported in Re London and Paris Banking Corporation reported in (1875) 19 Eq. 444 where the Master of the Roll observed.:

'It is very obvious, on reading that enactment, that the word neglected is not necessarily equivalent to the word omitted. Negligence is a term which is well know to the law. Negligence is paying a debt on demand, as I understand it is, omitting to pay without reasonable excuse. Mere omission by itself does not amount to negligence. Therefore I should hold, upon the words of the statute, that where a debt is bona fide disputed by the debtor, and the debtor alleges, for example, that the demand for goods sold and delivered is excessive, and says that he ,the debtor, is willing to pay such sum as he is either advised by competent values to pay, or as he himself considers a fair sum for the goods, then in that case he has not neglected to pay, and is not within the wording of the statute'.

This is exactly what the petitioner has stated. She has stated that she had incurred some expenditure on behalf of the plaintiff which she is entitled to recover and she claimed that amount before the plaintiff sent the notice demanding arrears of rent. On receipt of the notice, she also informed the plaintiff again that she had already demanded the amount. She requested the plaintiff to adjust the arrears of rent from that amount. The plaintiff did not do so. It , therefore, cannot be said that the petitioner has neglected to pay the arrears of rent. To the same effect are the observations of the Gujarat High Court in the case of Sarabhai Jeshingbhai v. Babulal reported in (1972) 13 Guj LR 870 where this very clause , viz. clause (a) of sub-section (3) of Section 12 of the Rent Act was considered. The learned Judge has observed:

'These different meanings of the word neglect have been referred to earlier with a view to emphasize only that in using the phrase neglects to make payment in Section 12(3)(a) of the Act, the Legislature intended to convey something more than a mere non-payment of arrears of rent demanded by the notice under Section 12(2).'

13. To the same effect are the observations of Chagla C.J. in Civil Revn. Appln. NO. 1924 of 1957 decided on 18-12-1957 (Bom ) where he observed:

'The notice referred to in this sub-section is the statutory notice provided for under Section 12(2) which has to be served by the landlord on the ground of non-payment of rent. It is significant to notice that the Legislature has not made the mere factum of non payment of rent after the notice a ground for eviction. If that had been so, then the language used would not have been the language which is actually used in this sub-section. The language used is the tenant neglects to make payment. The language is not the tenant does not make payment or does not pay'. Mr. Kaji for the opponent suggests that the expression 'neglects' means either actual payment or a tender of payment. I am not prepared to accept that contention because in the eye of the law a proper tender then the expression used would not have been the tenant neglects to make payment.' Therefore, something more is necessary than mere non-payment the tenant has not neglected to make payment. One can easily conceive of cases where the landlord may tell the tenant that he is not prepared to accept rent. In that case it would be futile on the part of the tenant to try and make a tender. In such case Court may well hold that there is no neglect on the part of the tenant to make payment.'

Here in this particular case, the tenant had infact incurred expenditure on behalf of the plaintiff of an amount more than which she had to pay as arrears of rent. This amount, she claimed before the landlord issued notice demanding the arrears of rent. It is true that the registered letter was returned back with the endorsement unclaimed but then the petitioner immediately on receipt of the notice of the landlord sent a copy of that letter to the landlord and the landlord did not immediately disown his liability to pay the amount. It appears that he deliberately kept quiet and replied to this letter only after the period of one month prescribed by clause(a) of sub-section (3) of Section 12 of the Rent Act was over. It is in that reply that he disowned, for the first time , his liability to pay that amount. Under these circumstances, it cannot be said that the petitioner has neglected to make the payment. Immediately on receipt of this letter of the landlord, the tenant also sent a cheque for the arrears of rent in spite of the fact that the landlord had to pay her his share of his expenditure which she had incurred for filling up of the well. This cheque was also rejected. This clearly shows that the tenants has not neglected to make the payment. It was her bona fide that the amount would be adjusted.

14. Mr. Abhyandkar, the learned counsel for the respondent NO. 1 urged that if such defence was available to the tenant, then it will be open to the unscrupulous tenants to take frivolous defence of claims against landlords under clause (a) of sub-section (3) of Section 12 of the Rent Act . He invited my attention to the Full Bench Decisions of this Court in the case of Dattu Subhana v. Gajanan Vithoba reported in : AIR1971Bom396 (FB) where it is observed:

'Under sub-section (3) (a) four conditions are laid down : (1) that the rent is payable monthly (2) that there is no dispute regarding the amount of standard rent or permitted increases; (3) that such rent or increases should be in arrears for a period of six months or more and (4) that the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-section (2). If these conditions are fulfilled then it is clear that the mandatory requirement of sub-sec (3) (a) is that a decree shall be passed. Obviously therefore sub-section (3) (a) is a very special case, special because of the very gross circumstances created by the conduct of the tenant. Sub-section (3) (a) provides an exception to the general rule laid down in sub-section (1). Being an exception to the general rule sub-section (3) (a) must necessarily be strictly construed and the Courts must insist that its several conditions are strictly fulfilled. Secondly, it may be noted that this is the only case contemplated in the whole of Section 12 where the Court is let with no option but to pass a decree.

The next thing to notice about sub-section (3) (a) is that the question of the tenant's willingness or readiness to pay the amount of the standard rent and permitted increases as contemplated in sub-section (1) of Section 12 does not count at all so far as the applicability of sub-section (30 (a) is concerned. This is of some importance because of the argument that has been advanced in this case that the Explanation I to Section 12 applies to Section 12(3)(a).'

I do not see how this decision is of any assistance to the respondent No.1. On the contrary, this clearly shows that this sub-section must be strictly construed and the Courts must come to the finding that all the four conditions enumerated in that Section are fulfilled. The Court must find as a fact that the tenant has neglected to make the payment of the rent or the permitted increases. Mr. Abhyankar, the learned counsel for the respondent has failed to notice that the Full Bench has nowhere stated that mere failure or omission to make the payment amount to neglect'

15. Mr. Abhayankar, the learned counsel for the respondent , then invited my attention tot he following observations in the case of Hirachand Sonu v. Mahadeo Waman reported in : (1961)63BOMLR855 :

'The mere fact that the 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).'

I do not see how these observations are of any assistance to the respondents. This is not the case of a tenant making a part payment . Similarly, the decision in the case of Babulal v. Purshottam reported in : (1963)65BOMLR434 cannot be of any assistance to the respondents inasmuch as the defence taken in that case was that the tenant had handed over the amount to his pleader for being paid to the landlord but his pleader had not paid that amount to the landlord. It was urged that under these circumstances it could not be said that the tenant has neglected to make the payment.

16. It was next contended by Mr Abhayankar that the deductions which the tenant is entitled to claim from the rent should be those which are permissible either under the Rent Act or the Transfer of Property Act. This is not the case of the petitioner claiming deductions from the rent due. All that the petitioner claims is that he should not be held to have neglected to make the payment. He had claimed the amount of the expenditure of filling up of the well from the plaintiff and that is why he has not paid the amount of arrears of rent He offered to make the payment of the arrears of rent due immediately when the plaintiff refused to adjust that amount.

17. Mr. Abhayankar then urged that whether the defendant has neglected to pay, is a pure question of fact and relied on the decision of the Supreme Court in the case of Gulamhussain Gulam Mohiuddin. v. Pinjara Ismailbhai Umarbhai reported in Civil Appeal No. 2099 of 1966 decided on 22-9-1969: 1966 2SCWR 561 where it is observed.:

'The question whether there was neglect on the part of the tenant to pay the rent to essentially a question of fact and the High Court exercising jurisdiction under Section 115 of the Code of Civil Procedure was not competent to go into that question; and this court will not allow that question to be canvassed in an appeal under Article 136 of the Constitution against the order of the High Court.'.

These observations were made in the context of the facts of that case. In that case, there was a dispute regarding the amounts tendered and about the standard rent. In that context, the Supreme Court has made those observations, but in this case the facts are not disputed. at all. The inference whether the petitioner has neglected to pay or not from those facts is a mixed question of fact and law and it is not a pure question of fact. Therefore, the observation of the Supreme Court in that case are not applicable to the facts of this case.

18. Mr. Abhyankar invited my attention to the recent decision of the Supreme Court in the case of Babhutmal Raichand v. Laxmibai reported in : AIR1975SC1297 where the Supreme Court , after referring to its earlier decision in Waryan Singh v. Amarnath, : [1954]1SCR565 and Nagendra Nath Bora v. Commr. of Hills Division : [1958]1SCR1240 has observed.

'It would , therefore be seen that the High Court cannot, while exercising jurisdiction under Article 227, interfere with finding of fact recorded by an subordinate court or tribunal. Its function is limited to seeing that the subordinate court or tribunal functions within the limits of its authority. It cannot correct mere errors of fact re-appreciating it.

If an error of fact, even though apparent on the face of the record, cannot be corrected by means of a writ of certiorari it should follow a fortiori that it is not subject to correction by the High Court in the exercise of its jurisdiction under Article 227. The power of superintendence under Article 227 cannot be invoked to correct an error of facts which only a superior court can do in exercise of its statutory power as a court of appeal. The High Court, cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts'.

Here in this particular case, I am not interfering with the findings of fact recorded by the Court below but here is a case which on facts found by the Courts below, the Courts have come to the conclusion that the petitioner has neglected to make the payment only because the petitioner has not made the payment within one month from the receipt of the notice. The inference is totally unwarranted on the facts found.

19. The decree passed by the Courts below, is , therefore, liable to be set aside. In my opinion, the trial Court and the appellate Court have committed an error in recording the finding that the petitioner has neglected to make the payment when the petitioner was entitled to recover a larger amount from the landlord on the basis of the agreement which was existing between the two. The petitioner has also offered a cheque immediately when she found that the respondent -landlord. was not prepared to make the adjustment. It is true that she offered a cheque after the period was over but that was because the landlord himself refused to reply the petitioner's letter requesting the landlord to adjust the arrears of rent from the amount which she was claiming from the landlord. That being so, the finding that the tenant had neglected to pay the arrears of rent recorded by the Courts below is liable to be set aside.

20. The petition is allowed and the findings recorded by the Courts below that the petitioner has neglected to make the payment are set aside and the plaintiff's suit is dismissed. The rule is made absolute. Under the circumstances, of the case, there will be no order as to costs.

21. Petition allowed.


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