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Ayodhyabai Shrivallabha Lahoti (Sau.) Vs. Sumanchand Rupchand Phulpagar (Shah) by Heirs - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 156 of 1983
Judge
Reported in1983(2)BomCR368
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 12(2), 12(3) and 13(1); Constitution of India - Article 227
AppellantAyodhyabai Shrivallabha Lahoti (Sau.)
RespondentSumanchand Rupchand Phulpagar (Shah) by Heirs
Appellant AdvocateB.B. Panse and ;V.N. Kaulgekar, Advs.
Respondent AdvocateA.C. Agarwal and ;Anita A. Agarwal, Advs.
Excerpt:
.....its conclusion - unless it is established that defendant-tenant had acquired vacant possession of property suitable for residence section 13 (1) (i) cannot come into operation - eviction suit liable to be dismissed. - - the trial judge also found that the plaintiff has failed to prove that the suit premises were reasonably and bona fide required by her or members of her family. a finding was also recorded that the plaintiff failed to prove that the defendant was guilty of any conduct which amounted to nuisance or annoyance. it is a well settled rule of interpretation that the court is entitled and indeed bound, when construing any provision of the statute, to consider other provision of the act which throw light on the intention of legislature, and which may serve to show that the..........12(2) the tenant paid entire amount of rent. it is also not disputed that after filing of the suit the tenant has deposited in court the future rent. however, according to shri panse the said deposit is not regular. it is also not disputed that the intervention of the court was not sought for regular payment of rent nor any order was passed by the court in that behalf. he also contended that the learned judge of the appellate court committed an error in coming to the conclusion that the defendant had not acquired vacant possession of suitable of suitable residence. according to the learned counsel the said finding is wholly perverse.3. on the other hand it is contended by shri agarwal the learned counsel appearing for respondent-tenant that the present that the present case is not.....
Judgment:

C.S. Dharmadhikari, J.

1. The petitioner landlady is the owner of the building bearing House No. 138 /B, Narayan Peth, Pune. The deceased Sumanchand was the tenant of two rooms on the first floor of this building and the rent payable was Rs. 37.02 paise. The plaintiff-landlady filed a suit against original defendant-tenant on 15th January, 1974 on the ground that the defendant was in arrears of rent for more than six months and had neglected to make payment thereof within one month after the receipt of the notice under section 12(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Rent Act). Thus it was the case of the plaintiff that she was entitled to a decree under section 12(3)(a) of the Rent Act. She also sought eviction of the tenant on the ground that she reasonable and bona fide required the suit premises for the occupation for her family members. Thus she claimed possession of the premises under section 13(1)(g) of the Rent Act. She had also contended that she is entitled to a decree under section 13(1)(c) on the ground of nuisance and annoyance. The defendant denied all the allegations and contended that he had paid all the arrears within a period of one month after the receipt of the notice. It was contended by him that he had paid more than what was due. He also denied the allegations made on other counts. The trial Court dismissed the suit, and therefore, the landlady filed an appeal. At the appellate stage by an amendment the fourth ground came to be added i.e. that the tenant has acquired the vacant possession of a suitable residence, and therefore, she is also entitled to a decree under section 13(1)(i) of the Rent Act. This amendment application was allowed and the matter was remanded back to the trial Court. The defendant-tenant denied the allegation that he has acquired vacant possession of an alternate suitable residence. After remand also the parties adduced evidence in support of their rival contentions. After appreciating all the evidence on record the learned Judge of the Small Causes Court, Pune came to the conclusion that the defendant was not a defaulter and therefore, the plaintiff was not entitled to a decree under section 12(3)(a) of the Act. The trial Judge also found that the plaintiff has failed to prove that the suit premises were reasonably and bona fide required by her or members of her family. A finding was also recorded that the plaintiff failed to prove that the defendant was guilty of any conduct which amounted to nuisance or annoyance. However, the trial Court came to the conclusion that the plaintiff has proved that the defendant has after the enforcement of Rent Act has acquired suitable premises for his residence, and therefore, the plaintiff was entitled to a decree on that count. Being aggrieved by the said judgment and decree the defendant-tenant filed an appeal before the District Court. It appears that at the appellate stage out of the four grounds on which possession was claimed, the ground of reasonable and bona fide requirement of suit premises for her own use or for the use of her family members was not passed. However, the plaintiff challenged the adverse findings recorded by the trial Court on the grounds of default of payment of arrears of rent and nuisance or annoyance. Apart from raising these additional contentions the plaintiff also supported the trial Court's finding that the defendant had acquired the vacant possession of the suitable residence, after coming into force of operation of the Rent Act. The Appeal Court after appreciating all the evidence on record negative these contentions and allowed the appeal filed by the tenant. Against this appellate judgment and decree the present writ petition is filed by the plaintiff-landlady under Article 227 of the Constitution of India.

2. Shri Panse the learned Counsel appearing for the petitioner-landlady contended before me that even assuming that the tenant had paid the arrears of rent within one month after the receipt of notice under section 12(2) of the Rent Act still after filing of the suit the defendant has not regularly deposited the amount of rent, and therefore, in any case the plaintiff was entitled to a decree under section 12(3)(b) of the Rent Act. It is not disputed by Shri Panse that within one month of the receipt of notice under section 12(2) the tenant paid entire amount of rent. It is also not disputed that after filing of the suit the tenant has deposited in Court the future rent. However, according to Shri Panse the said deposit is not regular. It is also not disputed that the intervention of the Court was not sought for regular payment of rent nor any order was passed by the Court in that behalf. He also contended that the learned Judge of the Appellate Court committed an error in coming to the conclusion that the defendant had not acquired vacant possession of suitable of suitable residence. According to the learned Counsel the said finding is wholly perverse.

3. On the other hand it is contended by Shri Agarwal the learned Counsel appearing for respondent-tenant that the present that the present case is not covered by section 12(3)(b) of the Rent Act at all, since after the receipt of the notice under section 12(2) of the Act, the tenant had paid all the arrears of rent within a period of one month. Once it is established that after the receipt of the notice the defendant had paid arrears of rent within one month then the plaintiff could not have filed any suit against the defendant since the case of action for filing such a suit did not survive. So far as the ground of acquisition of vacant possession of suitable residence is concerned, it is contended by Shri Agarwal that after appreciating all the evidence on record the Appellate Court has rightly come to the conclusion that the defendant had not acquired vacant possession of any alternate suitable residence and this finding of fact is not open to challenge the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India.

4. So far as the first contention raised by Shri Panse i.e. in any case a decree should have been passed in favour of the plaintiff under section 12(3)(b) of the Act is Concerned, I find that there is no substance in this contention. Section 12 of the Act will have to be read as a whole and harmoniously. It is a well settled rule of interpretation that the Court is entitled and indeed bound, when construing any provision of the statute, to consider other provision of the Act which throw light on the intention of legislature, and which may serve to show that the particular provision ought not to be construed as if, it would be alone and apart from the rest of the Act. The statute must be read as a whole and every provision in the statute must be construed with reference to the context and other clauses in the statute, so as, as far as possible to make a consistent enactment of the whole statute. Obviously, therefore, section 12(3)(b) must be construed as to harmonise with other sub-section which must be read together so as to form part of a connected whole. Section 12(1) lays down in a negative form that the landlord shall not be entitled to the recovery of any premises so long as the tenant pays, or is ready and willing to pay, the amount of standard rent or permissible increases if any, and observes and performs other conditions of the tenancy, in so far as they are consistent with the provisions of the Rent Act. Then comes sub-section (2) of section 12 which lays down that no suit for recovery of possession shall be instituted by landlord against a tenant on the ground of non-payment of standard rent or permitted increases unless a notice of demand is served. Then comes section 12(3)(a) which enables a landlord to get a decree of eviction if the tenant is in arrears of rent for a period of six months or more and neglects to make the payment thereof until the expiration of the period of one month after the notice referred to in section 12(2) is received. Section 12(3)(b) then lays down that no decree for eviction shall be passed in any 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 in Court regularly such rent or permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court. Section 12(2) prohibits the landlord from instituting any suit against the tenant on the ground of non-payment of rent unless a notice of demand is served. Under section 12(3)(a) the landlord is not entitled to any decree if the tenant pays the arrears of rent within a period of one month after the receipt of the notice issued under section 12(2) of the Rent Act. Therefore, it is quite clear from the bare reading of these provisions that as soon as the tenant complies with the notice and makes the payment of arrears within a period of one month after the receipt of the notice under sub-section (2) of section 12, the cause of action for filing the suit under section 12(3)(a) read with section 12(2) comes to an end. In that case the plaintiff-landlord is not entitled to file any suit against the defendant-tenant on the ground that he had neglected to make payment of arrears of rent within the period of one month after the receipt of demand notice under section 12(2) of the Act as the cause of action no longer survives. Section 12(3)(b) opens with the words ''in any other case'', and then lays down that no decree for eviction shall be passed in any such suit, if the tenant satisfies the conditions laid down by the said sub-section. The use of the words 'in any other case' and 'in any such suit' are indicative of legislative intent. This clearly shows that a decree could be passed under section 12(3)(b) in a legally instituted suit based on a proper cause of action. If the suit is instituted even without a semblance of cause of action, then at a later stage recourse cannot be taken to the provisions of section 12(3)(b) of the Act. The provision of section 12(3)(b) cannot be used by the landlord as a lever for the regular payment of rent, or getting a decree on the ground of irregular payment, without instituting proper suit, based on a legally permissible cause of action. If no rent is due on the date of the suit then section 12(3)(b) cannot be brought into operation obliquely. Further, if the landlord chooses to take action against the tenant on the ground that he is in arrears of rent for more than six months and then issues a notice under section 12(2) of the Act, then his case is covered by section 12(3)(a) alone and he is entitled to a decree if the tenant neglects to make payment within a period of one month. As already observed if the tenant makes the payment and clears all the arrears, then the landlord is not entitled to file any suit on that count. In the present case it is an admitted position that within one month from the date of receipt of notice of demand the entire amount of rent was paid. Even without any direction or order of the Court the tenant deposited all the arrears of rent in the Court voluntarily. This clearly shows that tenant was always ready and willing to pay rent. To such a case the law laid down by the Supreme Court in : AIR1980SC954 Mranalini B. Shah and another v. Bapalal Mohanlal Shah, or : [1980]3SCR1015 Jamnadas Dharmadas v. J. Joseph Ferrei and another, cannot apply because in that case the Supreme Court was concerned with a case which squarely fell under section 12(3)(a) of the Act. The view, I am inclined, to take seems to have been taken by Vaidya, J., in 76 Bom L R 35 Marutrao Bhaurao Shelke v. Akbaralli Noorbhai Bohori.

5. I am inclined to take this view for one more reason. I am dealing with a Rent Control Legislation which is a beneficial piece of legislation. As observed by the Supreme Court in : [1977]2SCR464 Md. Shafi v. VIIth Addl. Dist. and Sessions Judge, Allahabad and another, if two interpretations are possible then one in favour of the tenant should be preferred, since the legislation is intended to protect the tenant against the unreasonable eviction. It must be construed strictly against the landlord so as to cut as little as possible into the protection afforded to the tenant. If the language is susceptible of two interpretations we should prefer that which enlarges the protection of the tenant rather than that which restricts it. Similar view is expressed by the Supreme Court in : [1980]2SCR141 Mani Subrat Jain v. Rajaram Vohra, where it is observed that :

'It is too platitudinous to preach and too entrenched to shake, the proposition that Rent Control Legislation in a country of terrible accommodation shortage is a beneficial measure whose construction must be liberal enough to fulfil the statutory purpose and not frustrate it. So construed, the benefit of interpretative doubt belongs to the potential evictee unless the language is plain and provides for eviction. That intendment must, by interpretation, be effectuated. This is the essence of rent control jurisprudence.''

Therefore, if the landlord comes to the Court with a case which squarely falls under section 12(2) read with section 12(3)(a) and it is found that he could not have instituted the suit under the said provisions since the tenant had already paid all the arrears of rent, within one month of receipt of notice and nothing was due, then at the fag end of the trial he cannot be permitted to take recourse to the provisions of section 12(3)(b) of the Rent Act. If a suit is liable to be dismissed on the short ground that there was no cause of action for filling such a suit then at the fag end of the trial he cannot take recourse to section 12(3)(b) for fishing out a cause of action for getting a decree in a suit which was not properly instituted. In this view of the matter it is not possible to accept the first contention of Shri Panse. If the amount paid by the tenant within one month after the receipt of the notice under section 12(2) is taken into consideration then on the date of the filing of the suit the defendant was not in arrears of any amount. Thus in the present case the suit survived qua other grounds only which are covered by section 13 of the Act. Section 12(3)(b) cannot be used by the landlord for getting a decree in a case instituted under section 13 of the Act. If the contention of Shri Panse is accepted then it practically amounts to passing a decree under section 12(3)(b) of the Act in a suit instituted on the grounds enumerated in section 13 alone. Therefore, it not possible for me to accept the first contention of Shri Panse.

6. So far as the second contention of Shri Panse, based on section 13(1)(i) i.e. that the tenant has acquired vacant possession of suitable residence, is concerned, the Appeal Court has recorded a finding of fact in negative, after appreciating all the evidence on record. While dealing with the question in para 14 of the judgment the learned Judge of the Appellate Court has made a reference to the various properties, which according to the plaintiff were available to the defendant for his residence. The Appeal Court found that the property at Sr. No. 3 flat No. 32 in Garden View Housing Society was purchased by the defendant's daughter-in-law Pushpa for her own use out of the moneys, given to her by her father, and therefore, the learned Judge found that the acquisition of the flat by Pushpa cannot be termed as an acquisition by defendant. So far as the properties at Serial No. 6 are concerned the learned Judge found that the defendant had no concern with the said properties. The property at Serial No. 4 was a tin shed and property at Serial No. 2 was merely an open plot on which nothing was constructed. The property at Serial No. 5 is a room admeasuring 12' x 8' belonging to the trust i.e. Balaji Mandir Trust and which was being used as godown. The property at Serial No. 1 is a shed like a godown which was purchased even prior to the coming into force of the Rent Act. Therefore, Shri Panse has rightly restricted his arguments to the last property at Serial No. 7. It is the case of the plaintiff that this property was purchased by original defendant and his brother Kesharchand in the year 1950. According to defendant it was the property belonging to the partnership firm and after its dissolution it was allotted to the share of his brother Kesharchand and he had no concern with it. The Appeal Court observed that since the transfer in favour of Kesharchand is made by an unregistered document it will have to be ignored. This finding is challenged by Shri Agarwal and it is contended by him that it was not at all necessary that the allotment of the property, belonging to the partnership firm in favour of a partner should have been made by a registered document. In support of this contention he has placed reliance upon the decisions of the Supreme Court in : [1966]3SCR400 Addanki Narayanappa and another v. Bhaskara Krishnappa by his heirs and : [1967]63ITR292(SC) The Commissioner of Income Tax, West Bengal, Calcutta v. Jaggilal Kamalapat. However it is not necessary to deal with the contention any further since assuming that the property was acquired by defendant jointly with his brother Kesharchand still on the basis of the evidence on record the appeal Court rightly came to the conclusion that the whole of the property is occupied by Kesharchand the brother of the defendant tenant. Admittedly there is no partition of the property. On the basis of the evidence on record the appeal Court has come to the conclusion that the said property is in exclusive possession of the said Kesharchand and defendant-tenant had not occupied any portion of it. According to the learned Judge there is no evidence on record about the occupation of the property by the defendant or members of his family. It is also not shown that any portion of the said property is either available or could reasonably be used by the tenant or members of his family. In these circumstances the appeal Court was right in coming to the conclusion that the tenant had not acquired vacant possession of any other property. Unless it was shown or established that the defendant-tenant had acquired vacant possession of property which is suitable for residence, section 13(1)(i) cannot come into operation. In any case after appreciating all the evidence on record the learned Judge of the appeal Court has come to the conclusion that this property was also not available to the defendant-tenant for his occupation and this is a pure finding of fact based on appreciation of evidence. It is by now well settled that this Court while exercising its writ jurisdiction under Article 227 of the Constitution of India cannot convert itself into Court of appeal for appreciation of the whole evidence and then to come to a different conclusion. See Babhutmal Raichand Osawal v. Laxmi R. Tarte and another A.I.R. 1976 S.C. 1297, Trimbak Gangadhar Telang and another v. Ramchandra Ganesh Bhide and others, : AIR1977SC1222 and Mrs. Labhakuwar Bhagwani Shaha and others v. Janardhin Mahadeo Kalan and another, : AIR1983SC535 .

7. In the result, therefore, there is no substance in this writ petition. Rule is discharged. However, in the circumstances of the case there will be no order as to costs.


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