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Abdul Gani Dinalli MomIn Vs. Mohamed Yusuf Mohamed Isak - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 5334 of 1976
Judge
Reported in(1978)80BOMLR646
AppellantAbdul Gani Dinalli Momin
RespondentMohamed Yusuf Mohamed Isak
DispositionAppeal dismissed
Excerpt:
.....of 1947), sections 11, 12(1), 12(3)(a) and (b)-ejectment suit on the ground that the tenant was in arrears of rent for more than six months and that he had not paid or tendered the amount within one month after the notice was issued to him under section 12(2) of the bombay rent act--defence of tenant that prior to the quit notice he had sent several money orders and the landlord had refused to accept them--whether the tenant could be said to be ready and willing to pay the rent within the meaning of section 12.;in october 1972 the landlord had terminated the tenancy of the petitioner tenant with effect from the end of november 1972. at the time of the notice the tenant was in arrears of rent for nearly twenty-five months. the tenant had sent money orders prior to the quit notice but the.....jahagirdar, j.1. on a concurrent finding that the petitioner was in arrears of rent for more than six months, the two courts below have passed a decree for eviction against him. the petitioner was occupying one gala in house no. 102 of bhiwandi in thane district. the rent of the suit premises was rs. 5 per month. the present respondent became the landlord of the suit house in 1970 when this house was allotted to him to his share in a family partition. on october 4, 1972, the respondent served a notice upon the petitioner terminating his tenancy with effect from november 30, 1972. at the time of the notice, the petitioner was in arrears of rent for nearly twenty-five months.2. thereafter the respondent filed a suit being regular civil suit no. 318 of 1973 in the court of the civil judge,.....
Judgment:

Jahagirdar, J.

1. On a concurrent finding that the petitioner was in arrears of rent for more than six months, the two Courts below have passed a decree for eviction against him. The petitioner was occupying one gala in House No. 102 of Bhiwandi in Thane District. The rent of the suit premises was Rs. 5 per month. The present respondent became the landlord of the suit house in 1970 when this house was allotted to him to his share in a family partition. On October 4, 1972, the respondent served a notice upon the petitioner terminating his tenancy with effect from November 30, 1972. At the time of the notice, the petitioner was in arrears of rent for nearly twenty-five months.

2. Thereafter the respondent filed a suit being Regular Civil Suit No. 318 of 1973 in the Court of the Civil Judge, Junior Division, Bhiwandi, for possession of the premises in occupation of the petitioner on various grounds, one of which was that the petitioner was in arrears of rent for more than six months and that he had not paid or tendered the amount within one month after the notice was issued to him under Section 12(2) of the Bombay Rent Act. Though the trial Court negatived the claim of the respondent on other grounds, it upheld the contention of the respondent that a decree ought to be passed in view of the provisions contained in Section 12(5)(a) of the Rent Act and accordingly by the judgment and order dated June 16, 1975, the suit for possession was decreed.

3. The appeal being Civil Appeal No165 of 1975 preferred by the petitioner was dismissed by the learned Assistant Judge of Thane by his judgment and order dated October 12, 1976. In so dismissing the appeal, the learned Assistant Judge took note of the recent decision of the Supreme Court in Harbanslal v. Prabhudas & Fasanacht v. W.E. Works (1976) 78 Bom. L.R. 213 By correctly following the law laid down by this judgment of the Supreme Court, the learned Assistant Judge was left with no alternative but to confirm the decree passed by the learned trial Judge.

4. Aggrieved by the aforesaid order passed by the learned Assistant Judge, the petitioner has approached this Court under Article 227 of the Constitution. The petition supported before me by the learned advocate Mr. Nathan challenges the decree passed by the two Courts below on the ground that the Courts below were in error in holding that the petitioner was not ready and willing to pay the standard rent. This is so especially in view of the fact that the petitioner had prior to the quit notice issued on October 4, 1972 sent several sums by money orders and the landlord had refused to accept the same. Mr. Nathan indignantly complains that this is the way in which the landlord allowed arreas to be artificially accumulated and taking advantage of his own wrong by refusing money orders, he should not be allowed to evict the tenant from the suit premises.

5. In support of his contention, Mr. Nathan relied upon the judgment of Bhole J. in Suka Ishram v. Jamnabai : AIR1972Bom273 , wherein on facts which are, according to Mr. Nathan, analogous to the facts in the present case, Bhole J. held that the tenant could not be held to be not ready and willing to pay the rent. In that case the quit notice had been served by the landlord on June 1, 1965 on the ground that the tenant was in arrears of rent from November 1, 1964 to May 1, 1965. It was found as a matter of fact that the tenant in that case had sent several sums by way of money orders between April 24, 1963 and June 29, 1964 and if the landlord had accepted those amounts then on the date on which the quit notice was given by the landlord, the tenant would not have been in arrears of rent for six months or more.

6. Bhole J. on a reading of Section 12 of the Rent Act was pleased to hold that on the facts and circumstances of the case before him, the petitioner was ready and willing to pay the rent. He took particular note of the provisions contained in Section 12(1) of the Rent Act and after noting that the tenant had made efforts to tender the amount of rent to the landlord even before the landlord had asked for the rent, he thought that the tenant was ready and willing to pay the rent within the meaning of Section 12(1) of the Rent Act.

7. But for the subsequent elucidation of the correct legal proposition by the Supreme Court in this regard, Mr. Nathan's reliance on this judgment would have been justified. It has been held by the Supreme Court that Section 12(1) of the Rent Act must be read along with the other sub-sections and the Explanation to the said section. It may be noted that in the present case, the rent is payable monthly and on the date of the notice as well as oh the date of the suit, the tenant was admittedly in arrears of rent for more than six months. It is true that he fell in such arrears because of the conduct of the landlord. The landlord issued a notice in accordance with Sub-section (2) of Section 12 pointing out that the tenant was in arrears of rent for more than six months. After this notice was given by the landlord on the tenant in the present case, the tenant has not admittedly tendered any amount in compliance with that notice to the landlord. This necessarily takes the present case squarely within the four corners of Section 12(3)(a) of the Rent Act, because the rent is payable by the month and there is admittedly no dispute regarding the amount of the standard rent or permitted increases. The arrears also are for a period of more than six months and admittedly again the tenant has neglected to make payment thereof until the expiration of a period of one month after the notice was given under Sub-section (2). When once these conditions are satisfied, the decree for possession must follow.

8. What is being contended by Mr. Nathan and what was apparently upheld by Bhole J. on analogous facts is that if prior to the notice the tenant had remitted the amounts which were not accepted by the landlord, it could not be said that the tenant was not ready and willing to pay the rent.

9. In Harbanslal v. Prabhudas & Fasanacht v. W.E. Works, the Supreme Court has analysed the scheme of the Act and in particular the provisions contained in Sections 11 and 12 of the Act. In order to escape the consequences in Section 12(3)(a) of the Act, says the Supreme Court, it is incumbent upon the tenant to make an application under Section 11(3) of the Act for fixation of the standard rent, thus taking the case out of Section 12(3)(a) and carrying it to the province of Section 12(3)(b). In the present case, there is no dispute about the standard rent. But what is being contended is that an attempt had been made and that too a genuine attempt by the tenant to tender the amount to the landlord who has refused to accept the same. But it must be noted that this tender was made not after the issue of notice under Section 12(2), but before it. In Harbanslal's case the Supreme Court pointed out its own earlier decision in S.D. Chhaganlal v. D.V. Shroff : [1968]3SCR346 , wherein it has been laid down that Section 12(1) of the Act must be read with the Explanation and so read it means that a tenant can only be considered 'to be ready and willing to pay' if, before the expiry of the period of one month after notice referred to in Sub-section (2), he makes an application to the Court under Sub-section (5) of Section 11 and thereafter pays or tenders the amount of rent or permitted increases specified by the Court.

10. A tenant cannot be said to be ready and willing to pay the rent within the meaning of Section 12(1) unless he has complied with the other requirements mentioned in Section 12 and, in particular, unless he has paid or tendered the amount in arrears within one month after the expiry of the notice referred to in Sub-section (2). Sub-section (1) of Section 12 forms a part of the entire scheme relating to the payment of rent by the tenant to the landlord which is contained in Section 12 and Sub-section (1) could not be read in isolation in so far at least it relates to the payment of the standard rent. In the light of the observations of the Supreme Court in both S.D. Chhaganlal v. D.V. Shroff and in Harbanslal v. Prabhudas & Fasanacht v. W.E. Works, where S.D. Chhaganlal's case has been referred to and reaffirmed, it cannot be said that the ratio in the judgment of Bhole J. in Suka Ishram's case represents the correct law. Bhole J. himself has mentioned specifically as follows (p. 275):.In my view, therefore, the facts and circumstances of the instant case show that the petitioner-tenant was ready and willing to pay rent.

Despite these observations, if it is meant by Mr. Nathan that there is a legal proposition laid down in the judgment of Bhole J., it is not possible for me to hold that it represents the correct legal position in view of the clear dicta given by the Supreme Court in the two judgments to which I have referred.

11. In my view, therefore, the view taken by the learned Assistant Judge in appeal relying upon Harbanslal's case is correct and, therefore, the petition is liable to be dismissed. Rule is discharged. No order as to costs.


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