1. The respondent, who is the landlord, sued the petitioner, the tenant, for eviction under the provisions of the Bombay Rents, Hotel and Lodging House Bates Control Act of 1947 (hereinafter referred to as the Act) on several grounds, one of which is non-payment of rent. The trial court rejected all the contentions of the respondent and dismissed the suit .
2. The respondent appealed to the District Court of North Kanara against the dismissal of his suit under Section 29 of the Act. At the hearing of the ap-peal the petitioner, though served with notice, did not appear. The counsel for the plaintiff-appellant pressed the claim for possession only on one ground, viz. non-payment of rent, and that was the only point considered and determined on appeal.
2. The appellate authority held that the tenant was in arrears and taking the view that the plaintiff was entitled to the benefit of Section 12(3)(a) of the Act ordered eviction. The tenant, against whom this order has been made, has filed this Civil Revision Petition before this Court because that is the only remedy available to him in view of the provisions of Sub-section (2) of Section 29, according to which no further appeal shall lie against any decision in appeal under Sub-section (1) of the same section. The revision is, therefore, under the provisions of Section 115 of the Code of Civil Procedure.
3. The arguments in the revision petition before me centre round the applicability of the provisions of Section 12 of the Act to the proved facts in the case. It will, therefore, he useful to set out the relevant provisions of the Section itself before proceeding to discuss the arguments. The first three sub-section of Section 12, which are of material importance, are as follows :--
'12. (1) A 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 the standard rent and 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 this Act.
(2) No suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in Section 106 of the Transfer of Property Act, 1882.
(3) (a) 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 may pass a decree for eviction, in any such suit for recovery of possession.
(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 in 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.'
4. It will be noticed that provided other conditions of the lease are duly observed and performed by the tenant, he can never be evicted so long as he continues to pay the rent, and further that even when there are arrears, the landlord will be entitled to ask for eviction only if the conditions specified in the section are fulfilled, notwithstanding that the contract of tenancy may five him a right to evict on conditions different from or less onerous than those set out in the section.
In the first place a notice demanding the arrears has to be served on the tenant and one month must expire after service of notice before the landlord can file a suit for recovery of possession. Secondly when the arrears amount to less than 6 months' rent, the tenant can successfully avoid a de-decree for eviction being passed by paying or tendering into court the arrears on the first day of hearing of the suit or within such other date as the court may fix and by continuing so to pay or tender subsequent rent regularly until the suit is finally decided.
The tenant, however, loses this benefit if the case fails under Clause (a) of Sub-section (3), that is to say, if the arrears amount to 6 months rent or more, which the tenant has 'neglected to pay in spite of the notice of demand for a period of one month after service of notice, the landlord would be entitled to A decree for recovery of possession and the tenant will not be entitled to get rid of the decree or avoid passing of such a decree by offering to pay the arrears.
It has been argued that even under Clause (a) of Sub-section (3) the court would have a discretion whether or not to pass a decree and that if the court is so minded, it can relieve the tenant of the necessity of delivering up possession by putting him on terms, such as payment of rent etc., on the lines of the equitable jurisdiction of courts to relieve against forfeiture for non-payment of rent. This argument is based entirely upon the concluding words of the clause, which read :
'the court may pass a decree for eviction.'
I am unable to accept this argument. In spite of the fact that the word used is 'may', if regard is had for the general setting of the section itself, there can be no doubt that the word 'may' has the force of 'must'. It must be borne in mind that the section takes away the ordinary contractual right of the landlord to evict the tenant according to his desire, subject no doubt to the conditions of his contract.
As against this, the section secures for him due payment of the rent by the tenant; although where arrears are not large the tenant is given some attitude and what may be described as the option or power of avoiding a decree for eviction being passed, against him by correcting himself even after a suit is filed by complying with the provisions of Clause (b) of Sub-section (3), the landlord is relieved of the corresponding burden of this terant's bench where the arrears amount to more than six months rent and the case falls under Clause (a) of Sub-section (3).
With a view to balance the benefits and burdens imposed by the Act on the parties to the lease, the statute prescribes an arbitrary limit beyond which a tenant is not permitted to take advantage of the special law in his favour restricting or abridging the normal rights of the landlord. Whatever discretion a Court may ordinarily have in the matter of relief against forfeiture for non-payment of rent under the ordinary law, it is obvious that Sub-section (3) of Section 12 of the Act is intended to regulate and control that discretion.
In fact that sub-section actually takes away the discretion because if the matter falls under Clause (b), the tenant can insist that a decree shall not be passed by the Court against him; likewise if the matter falls under Clause (a), the landlord can insist that the Court shall pass a decree for possession in his favour. It follows, therefore, the word 'may' in Clause (a) has the force of 'must'. This conclusion based on a reading of the section and accepted principles of interpretation is also supported by the judgment of Gajendra. gadkar J. reported in Kurban Hussen Sajauddin v. Rati Kant Nilkant, 59 Born LR 158, in which His Lordship has expressed the same view on an interpretation of this identical clause.
5. It now remains to examine the respective contentions of the parties regarding the actual arrears ofrent in this case. Although ordinarily this would be a question of fact, not open to interference in revision, I have heard the learned counsel on both sides at length on this point for the reason that the difference between them as to the exact length of the1 period for which the rents have been kept in arrears is narrow and even a very small difference in approach might tip the scales in favour of one or other party, and also because clear proof of the necessary factual basis for exercises of the power under Section 12 may justifiably be said to have a bearing on the question of the Court's jurisdiction itself.
6. The case put up in the plaint is that after taking into account all payments made by the tenant, the rent from the month of August 1954 has remained unpaid till the filing of the plaint on 8-6-1955, and that notice of demand as required by Sub-section (2) of Section 12 has also been served on the tenant, who has omitted to send any reply thereto. According to that notice, as on the date of the notice the petitioner was in arrears to the extent of the rent for six months.
The case for the petitioner is that taking the plaintiffs own averment that rent from the month of August 1954 alone is due, it would follow that rent up to 31-7-1954 had been paid and that since then he has made two payments, one of Rs. 12/- on 13-9-1954 and another of Rs. 16/- on 8-1-1955 reducing the arrears to barely 3 months rent, which will take the case out of Clause (a) of Sub-section (3) of Section 12 of the Act.
The trial Court accepted the petitioner's contention on the ground that while making the payment of 4 months rent on 8-1-1955, the tenant had specifically asked the landlord to appropriate it towards the rent of 4 months ending with December 1954 and that in the face of such a specific appropriation by the tenant, who is the debtor, the landlord, the creditor, had no right to appropriate it otherwise than in the manner indicated or required by the debtor.
The money order coupon in which this appropriation by the tenant is said to appear has not been produced, by the landlord. He has, however, produced a postcard written by him on receipt of the above remittance, which is Exhibit 40 in the case. In this postcard the landlord states that ho cannot accept the tenant's calculation resulting in rents up to end of December being paid off.
If this postcard correctly represents what the tenant had stated in the money order coupon, it would only mean that the text in the coupon would not be such a specific appropriation as is contemplated by Section 59 of the Contract Act, but only a statement of his view of the state of account between them. Before benefit under Section 59 of the Contract Act can be claimed, a specific appropriation as required by the Section must be proved.
The learned counsel for the petitioner-tenant, no doubt, states that the landlord has deliberately suppressed the coupon and I must draw the inference that if produced it would be against the contention of the landlord-respondent. Even if I do so, it would only be a presumption and not an irrebuttable conclusion.
If one reads the plaint, it becomes clear that the averment therein that the rents are in arrears from the month of August is no more than a result of a calculation by the plaintiff of the amount remaining due by the defendant-tenant, in arriving at which the plaintiff has given credit for all payments, including the payment in question made on 8-1-1955.
Hence the emphasis should be on the amount of arrears and not necessarily the period of arrears. In other words, the statement in the plaint that the rents are due as from the month of August 1954 ought not to be taken as an admission of dischargeof all rents up to 31st July 1954 leaving out of account the two payments of 13-9-1954 and 8-1-1955 This discussion removes the foundation for the view taken by the trial court.
If so, the whole question of the extent of arrears has to be gone into independently of the assumptions on which the first court has proceeded. That is what the learned appellate Judge has done and no grievance can be made regarding the manner in which he has analysed the payments in the light of the evidence on record. There is no reason, therefore, to interfere with the finding of fact recorded by the lower appellate court.
7. This is sufficient to dispose of the Revision Petition. But, the learned counsel for the petitioner has pressed another point before me, viz. that there is no valid notice terminating the tenancy as required by Section 106 of the Transfer of Property Act. The short answer to this contention in that Section 106 of the Transfer of Property Act implies in the contract of tenancy a term in the matter of length and nature of notice terminating the tenancy, if the contract is silent on the subject and there is no local law or usage bearing on the question.
It is, therefore, really a matter of contract which can ho availed of only when a suit or other proceeding is instituted in enforcement of the contract of lease. The rights and remedies of the parties under Section 12 of the Act are statutory rights and remedies and must prevail over the contract between the parties. The question is not whether any of the provisions of the Bombay Act abrogate any of the provisions of the Indian Transfer of Property Act, but whether a contract of lease can prevail as against the provisions of the statute.
The provision of Sub-section (2) of Section 12 that the notice of demand thereunder should be served in the manner provided in Section 108 of the Transfer of Property Act merely takes in the second paragraph of Section 106 of the Transfer of Property Act, which prescribes the manner of service, and cannot take in the first paragraph of that section, which determines the length and nature of notice.
In fact the obligation cast on the landlord by Sub-section (2) of Section 12 is much more onerous than the obligation cast on him by the first paragraph of Section 106 of the Transfer of Property Act'. In effect Sub-section (2) of Section 12 compulsorily imports into a contract of lease a condition much more onerous than the one imported by the first paragraph of Section 106 of the Transfer of Property Act and further whereas the latter does not prevail against a contract, the former undoubtedly does.
In this view, while there is no difficulty in holding that the Bombay Act does not purport to abrogate any of the provisions of the Transfer of Property Act, I am not prepared to accept the position that the notice of demand as required by Section 12(2) of the Bombay Act should conform not only to the provisions of that sub-section but also to the provisions of paragraph 1 of Section 106 of the Transfer of Property Act. To the extent the judgment reported in Keshavlal v. Bai Ajawali, AIR 1958 San. 119, re-lied upon by the learned counsel for the petitioner may be said to cast such an obligation on the landlord I am unable, with great respect, to agree with that judgment.
8. In the result the Civil Revision Petition is dismissed. I make no order as to costs.
9. The learned counsel for the petitioner requests that his client may he given time till end of October to vacate the premises in view of the rainy season now prevailing. I think, however, a period of 2 months would be sufficient for the petitioner toarrange other accommodation and would not at the same time be unfair to the respondent. I accordingly grant time to the petitioner till the end of August 1958 to vacate the premises.
10. Revision dismissed.