M.N. Chandurkar, Ag. C.J.
1. This is a petition filed by the tenant challenging the decision of the Appeal Bench of the Court of Small Causes at Bombay holding that the tenant was liable to be evicted from the suit premises on the ground that there were arrears of rent and the case was covered by section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter the Bombay Rent Act). The plaintiff is admittedly the mother of one Manganlal. Maganlal was admittedly recovering rent from the defendant. According to the plaintiff, the defendant was in arrears of rent for the period July 1968 to January 1969, the monthly rent being Rs. 64.75 p. An Advocate's notice was issued on 7th February, 1969. It is rather curiously worded. The noticed states that the plaintiff is the owner and also the constituted attorney of her son Manganlal Mohanlal and the defendant is his tenant of the premises at a monthly rent of Rs. 64.75 p. The notice further states that rent from 1st July, 1968 to 31st January, 1969 was due and since he was in arrears his tenancy was being terminated.
2. Now in the suit filed nothing has been stated about the plaintiff becoming the exclusive owner of the property, though it has transpired in the course of evidence that the plaintiff and her son Manganlal separated some time in November 1969. In the suit arrears of rent upto 31st March, 1969 amounting to Rs. 582.75 p. and a decree for possession of the suit premises were claimed.
3. In the written statement the defendant's positive case was that the suit filed by the plaintiff was not maintainable. It was stated that the plaintiff claimed to be the constituted attorney of her son Manganlal and the defendant was his tenant of the suit premises and, therefore, the suit filed in the name of the plaintiff was not maintainable. The defendant called upon the plaintiff to prove her ownership of the suit premises. The validity of the notice was denied. It was denied that the defendant was not ready and willing to pay the rent. A dispute with regard to standard rent was raised. The further case of the defendant was that in January 1969 he had paid Rs. 70/- to Manganlal but Manganlal did not issue a receipt.
4. When evidence was recorded, the plaintiff came out with the case that the constructed the suit property in 1966-67. Objection was raised on behalf of the plaintiff when questions were put in cross examination with regard to her title. That objection was overruled. The plaintiff in her statement in cross-examination stated that the defendant had paid rent to her only for one or two months in the beginning of 1968 and thereafter he did not pay the rent, but she admitted that the defendant had paid rent to Manganlal for the year 1967. She later on stated that rent received by her was for April and May 1967. This statement was immediately falsified by the production of the rent receipts which were signed by Manganlal for April and May 1967. She then stated that they had separated in 1968. Further, in cross-examination she came out with the story that when the property was constructed by her she and Manganlal were the owners. She stated that the defendants had paid her rent from June 1968, but did not produce the counterfoils, though her claim was that the counterfoils were with her. The separation from Manganlal was stated to be in November 1968. A notice signed by Manganlal was produced by which the tenants of Mohanlal were said to have been intimated that they were attorned to the present plaintiff and rent, including all arrears, should be paid to her. She made a bald statement that the notice was delivered to all the tenants by hand delivery. Who had delivered the notices is not clear. Admittedly there is no signature or acknowledgement of the defendant of having received this notice. The defendant in his evidence claimed that rent for June to August 1968 was paid by him to Manganlal and that he was not a tenant of the plaintiff of the tenant of the plaintiff and Manganlal jointly. He stated that Manganlal was her stepson. He stated that the factory and the suit property was joint family property of the plaintiff and Manganlal prior to 1961, but he denied knowledge of the partition.
5. On this evidence the trial Court came to the conclusion that it was not satisfied that the defendant was attorned to the plaintiff as a tenant. In any case, according to the trial Court, the defendant would be liable to pay rent to the plaintiff only after November 1968. There was, therefore, according to the trial Court a dispute, which was bona fide, about the right of the plaintiff to recover rent. The trial Court negatived the defendant's case that rent for July and August 1968 was paid to Manganlal. The trial Court, therefore, took the view that the case was not covered by section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter the Bombay Rent Act). Since on taking account it was found that the defendant was liable to pay only Rs. 158.25 p. and this deficiency was already made good by payment in cash by the plaintiff's Counsel in Court on the day of the judgment, the suit for eviction was dismissed.
6. The plaintiff then appealed to the Appeal Bench. The Appeal Bench took the view that there was nothing to hold that Manganlal was the sole owner of the property and that the plaintiff was, therefore, entitled to recover rent for the time when the premises were let out to the defendant. Admittedly no application for determination of standard rent having been made within one month of the receipt of the notice, the Appeal Bench proceeded to invoke the provisions of section 12(3)(a) of the Bombay Rent Act and set aside the decree of dismissal made by the trial Court and instead passed a decree for possession. This decree is now challenged by the petitioner in this petition.
7. Now the learned Counsel appearing on behalf of the petitioner-tenant has substantially raised two contentions. The first contention was that rent having been paid to Manganlal for June to August 1968, the amount of arrears of rent would not be for six months, and this would take the case out of section 12(3)(a) of the Bombay Rent Act. The other contention was that since no intimation of attornment was given to the defendant, the plaintiff would be entitled to arrears of rent only from November 1968 on her own showing which would again mean that there were no arrears of rent for a period of six months, and, therefore, the trial Court was right in dismissing the suit. Mr. Devnani appearing on behalf of the respondent landlady has vehemently contended that on the admission of the defendant, the suit property, being the joint property of the plaintiff and her son Manganlal, she was alone entitled to file the suit and claim rent, and, therefore, the plaintiff could ask for a decree under section 12(3)(a) of the Bombay Rent Act. Alternatively it is urged that the that the defendant would not, be entitled to the benefit of section 12(3)(b) of the Bombay Rent Act because consequent upon the order of the Court made on 25th November, 1969 rent has not been deposited regularly during the pendency of the suit.
8. Now taking up the contention whether the plaintiff was in her own right entitled to recover the rent prior to November 1969 and, therefore, filed a suit for possession. It has been pointed out that in the notice given by the respondent landlady she claimed to be the exclusive owner of the property. At the same time she had stated that she is the power of attorney holder of her son Manganlal. Further, there is an ambiguous and equivocal statement in the notice itself that the defendant was the tenant of Manganlal. Her statement in the witness box that she had recovered rent from the defendant in April and May 1967 was falsified by the receipts issued by Manganlal himself. It has, therefore, been amply established that Manganlal was the landlord who was recovering rent. The admission of the defendant in the witness box that the factory and the house was joint property of Manganlal and his mother, the plaintiff cannot be availed of by the plaintiff herself when throughout the rent has always been recovered by Manganlal. What was the internal arrangement by which the present plaintiff got the suit property in her exclusive ownership is unknown even today. Whether it was a family arrangement, whether it was a partition between members of the Hindu joint family or what is not known because the plaintiff has scrupulously held back the information with regard to this transaction. As a matter of fact, in her cross examination the plaintiff had gone to the extent of saying that she had construed the property in 1966-67.
9. Now, according to the plaintiff, when she became the owner of the property in November 1968 she had issued notice to all the tenants but had not taken any signatures. She does not go in her evidence even as far as to say positively that this notice was served on the defendant. She does not say that she had herself given the notice. She does not disclose as to who gave the notice to the defendant, and it is, therefore, difficult to see how a case of attornment can be said to be proved, apart from the fact that such a case of attornment is not even pleaded in the plaint. If the plaintiff claimed exclusive title enabling her to sue for possession consequent upon the partition between herself and her son Manganlal and acknowledgement of this partition was to be imputed to the defendant, then the plaintiff was bound to specifically state these facts in the plaint. Strictly speaking, evidence of attornment would be wholly irrelevant and inadmissible because the plaintiff's case in the plaint is not that the defendant had become liable to pay rent to the plaintiff because she had become the exclusive owner of the property in November 1968 and that the defendant had attorned to her. It is difficult to see what was the occasion for making a statement in the notice that the defendant was the tenant of Manganlal. Manganlal himself has not been examined, and I fail to see what material there was in the face of the very ambiguous evidence of the plaintiff herself for assuming that she was the joint owner of the property. Undoubtedly the defendant has said that the factory and the house belonged to Manganlal and the plaintiff, but that is not the plaintiff's case. The plaintiff claims exclusive title. Her title during the time before the partition is not even disclosed in the plaint. It is obvious, therefore, that the plaintiff has not come forthwith a very clear case which would enable her to claim a decree for possession against the defendant on the ground of arrears of rent. A tenant cannot be penalised on the vague plea that he was informed that the plaintiff had become the landlord and that he should thereafter pay rent to the new landlord. This is, therefore, a case in which it has not been established at all that the defendant had attorned to the plaintiff, irrespective of the nature of her right earlier, because, admittedly the rent was being recovered by Manganlal prior to the plaintiff's exclusive title. This was, therefore, not a case which fell under section 12(3)(a) of the Bombay Rent Act.
10. Now coming to the contention that the tenant should be denied protection under section 12(3)(b) of the Bombay Rent Act, the learned Counsel for the plaintiff has referred to the decision of a Division Bench of this Court, of which I was a member (as I then was), in Anant Purushottam Athavle v. Damodar Dattatraya Bedekar and other, : AIR1980Bom257 . In that decision it has been held that the mere absence of the word 'regularly' in Explanation I to section 12 after section 12(4) of the Bombay Rent Act could not be construed as giving a liberty to the tenant to withhold rent and still claim the benefit of the bar under section 12(1) of the footing that he must be treated as being ready and willing to pay rent. It has been held in that case that the First Explanation in section 12 evidence a clear intention on the part of the legislature that if a tenant wants to prevent a decree for possession being passed against him on the ground of arrears of rent in a case which does not fell within section 12(3)(a), he has either to go on depositing in Court regularly the standard rent or permitted increase, or where the dispute is with reference to standard rent, he has to go on depositing the amount as ordered by the Court. The contention of Mr. Devnani is that after the tenant was ordered on 25th November, 1969 to deposit Rs. 64.75 p. every month he has committed defaults and he must, therefore, be denied the benefit of section 12(3)(b) of the Bombay Rent Act. It was pointed out that on 24th November, 1970 the tenant was in arrears of Rs. 194.25, which means that for three month he did not deposit rent. By order of the same day the learned Judge of the Court of Small Causes condoned the delay and the amount was directed to be accepted on 25th November, 1970. The explanation of the tenant that he was out of Bombay was accepted. The learned Counsel has been drawn my attention to an affidavit filed by the landlady dated 26th July, 1971 by which it was alleged that the tenant was in arrears of rent for eight months, amounting to Rs. 518/-, and therefore, the defence should be struck off and the suit should be placed for expediting hearing. This notice, however, was discharged and the tenant was permitted to deposit the amount without prejudice to the rights and contentions of the parties. It does not appear that at any later stage of the litigation or at the time when the judgment was delivered the question as to whether this amount was properly accepted or not and whether the delay was properly condoned or not was not adjudged. It would not be proper now at this stage to go into the merits of the explanation which is given in the affidavit dated 28th August, 1971 by the defendant. In any case it will be reasonable to presume that at the time when the judgment was delivered this amount was taken into account for determining the arrears of rent which the defendant was liable to pay after hearing the parties. This is not, therefore, a case in which it can be said that the tenant should be denied the protection under section 12(3)(b) of the Bombay Rent Act. The ratio of Anant's case does not, therefore, apply in the case. It is not as if there is no power in the Court to condone delay in making deposits which are contemplated by the Explanation to section 12.
11. Having heard both learned Counsel at considerable length, I am satisfied that the decree for eviction passed by the Appeal Bench was wholly uncalled for. The decree for eviction passed against the petitioner is, therefore, set aside. The petition is allowed with costs.