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Khimji Bhimji Majithia Vs. Taraben Lalji Soni - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 1035 of 1980
Judge
Reported inAIR1983Guj18; (1982)2GLR114
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 12, 12(1), 12(2), 13(1) and 29(2); Transfer of Property Act, 1882 - Sections 106; Delhi Rent Control Act, 1958 - Sections 14(1)
AppellantKhimji Bhimji Majithia
RespondentTaraben Lalji Soni
Appellant Advocate S.M. Shah, Adv.
Respondent Advocate J.S. Adhyaru, Adv. for; H.R. Lathigara, Adv.
Cases ReferredRam Sarup v. Sultan Singh
Excerpt:
.....specific demand of arrears of rent - under section 12 (2) notice must contain specific demand of rent - notice must be express and must convey giving of last opportunity to pay arrears - held, impugned notice did not comply requirements of section 12 (2). - - the notice is rounded up with the further warning that if the tenant failed to do so (that js, to deliver possession on the expiry of the month of tenancy as aforesaid), the landlord would be constrained to file a suit against him for recovery of possession and recovery of rent as per legal advice received by her. the landlord has in very emphatical language been told by sub-section (2) of section 12 that before he can proceed to institute a suit for eviction of the tenant on the ground of non-payment of rent, he shall extend..........context of the avowed purpose of the legislature, requires that the notice must contain a specific demand of rent. it must tell the tenant that this is the last opportunity afforded to the tenant to pay up the arrears. when the words of sub-section (2) of section 12 speak of the words 'demand in writing', it is inevitable to hold that that demand must be there expressly. it cannot do to say for a landlord that if the statement of arrears is given in the notice, the tenant by necessary implication is told of the provisions of section 12(1) and also to the provisions of section 12(2) of the rent act, and therefore tacitly called upon to pay arrears. the legislature, as we have stated above, was conscious of the comparatively more lack of knowledge on the part of the tenant and that is why.....
Judgment:

N.H. Bhatt, J.

1. This revision application under Section 29(2) of the Bombay Rent Act, ordinarily to be dealt with by a single Judge as per the High Court Appellate Side Rules is before us as the Division Bench, because the learned single Judge, A. N. Surti, J., felt that the question that was raised before him was of frequent occurrence and of vital importance. That question that was referred to us was whether a notice given by the landlord precedent to the filing of the suit for possession on the ground of non-payment of rent must or must not contain a specific demand of the arrears of rent.

2. When the matter was called out before us, Mr. Adhyaru, the learned counsel appearing with Mr. Lathipara, the advocate on record, raised a preliminary contention that in view of the judgment of the Supreme Court in the case of Maganlal Chhotabhai Desai v. Chandrakant Motilal, AIR 1969 SC 37, this question could not be raised for the first time before the High Court and Mr. Adhyaru urged that we should deal with the question of tenability of this contention first. Mr. S. M. Shah, the learned advocate appearing for the petitioner, on the other hand urged that as the learned single Judge had referred the matter to us, it would not be within our competence to go behind that question, whether the question was or was not properly agitable before the High Court, exercising the revisional jurisdiction under Section 29(2) of the Bombay Rent Act. As this question is also of vital importance and as it does not appear that the learned single Judge had dealt with this question, we leave this question open and proceed to decide (in) this reference only the pure question of law, as it is referred to us, and after deciding that abstract question of law, we would refer this revision application back to the learned single Judge, having jurisdiction to deal with the same.

3. In order to have the background of the reference to this Division Bench, we would refer to the notice, Ext. 25, on the record of this case. The notice issued on behalf of the landlady in the first paragraph informs the tenant that be had hired the premises from her at the rate of Rs. 100/- p. m. as rent, that he was in arrears of rent from 1-12-73 to 30-6-75 amounting to Rs. 1,900/-, that the tenant was liable to pay Rs. 253.50 by way of education cess for the period between 20-12-69 and 30-6-75 and thus the tenant owed to her in all Rs. 2153.50. The notice further proceeds to apprise the tenant of the fact that despite repeated demands, he had not paid that amount of rent and as the amount of rent had become due for more than six months, the landlord had become entitled to evict the tenant from the rented premises on the ground of non-payment of rent. In the second paragraph, she then gives notice to the tenant that he should handover her the possession of the rented premises on the expiry of the month of tenancy on 31-8-75 or at any time after 15 days of the receipt of the notice when the tenant considered his month of tenancy getting (to be ?) over. The notice is rounded up with the further warning that if the tenant failed to do so (that js, to deliver possession on the expiry of the month of tenancy as aforesaid), the landlord would be constrained to file a suit against him for recovery of possession and recovery of rent as per legal advice received by her.

Above is the substance of the notice, which we have carefully translated, with all the relevant statements contained ia that notice Ext. 25.

4. The question that is raised and is referred to us for decision is whether the notice of the above nature can be said to be a valid notice or not. Obviously the reference is to Section 12(2) of the Bombay Rent Act, which is reproduced below :--

'12. (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 of 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.'

There is no controversy before us, and in our opinion there can be none in that regard also, that the Bombay Rent Act is a piece of legislation enacted by the Legislature out of its jealousaess to protect the comparatively less informed and comparatively worse off class of the society, namely, those occupying the premises belonging to others on the basis of rent. This anxiety of the Legislature is written large on the text of the Bombay Rent Act and this has been the subject matter of various judicial pronouncements, including those of the Supreme Court. At the same time, in a society wedded to justice, a proper balance is to be struck between conflicting interests. That is why elaborate provisions contained in Section 12 are enacted. Section 12(1) of the Bombay Rent Act in very categorical terms declares the legislative policy that as long as the tenant pays or is ready and willing to pay the amount of the standard rent and permitted increases, if any, and as long as the tenant observes and performs the other conditions of tenancy, the landlord shall not be entitled to recover possession of any premises from the tenant. In other words, the Legislature puts a sort of an umbrella above the heads of all tenants, provided they do not become remiss in their corresponding duties, the duties being to go on paying rent and to go on abiding by the terms and conditions of the tenancy. If these two conditions are fulfilled by the tenant, the landlord, notwithstanding any contract or condition to the contrary, is not entitled to get possession, subject of course in special situations referred to in Section 13(1) of the Rent Act. The Legislature then in Section 12(2) thereafter deals With the first of the two contemplate obligations to be fulfilled by the tenant. As already stated by us, the first condition to earn protection against eviction is the payment of or readiness and willingness to pay, the amount of standard rent and permitted increases. The Legislature, however, wanted to grant the tenant a further protection. Cases are not uncommon that a tenant in such a situation might not be able to pay rent and more often than not. the causes may be beyond his immediate repairs. Being conscious of this situation, the Legislature, therefore, afforded one additional opportunity to the tenant and this protection is afforded by casting an additional burden on the landlord. Even if the tenant is in arrears of rent, say for 2-3 years or even 10 years and under Section 12(1) it can be said that the tenant did not pay or was not ready and willing to pay those arrears stretched over the period of 2-3 years or more, the Legislature wanted that before that protection granted by Section 12(1) is lost by the tenant, he should have one eleventh hour opportunity to retrieve the unhappy situation. The landlord, therefore, is fastened with one additional obligation. The landlord has in very emphatical language been told by Sub-section (2) of Section 12 that before he can proceed to institute a suit for eviction of the tenant on the ground of non-payment of rent, he shall extend an opportunity to the tenant to make good the lapse or lapses committed by him till then. This special obligation is cast on the landlord in the negative text and it is one of the well-known canons of construction that when the Legislature expresses its intent in a negative tone, disabling one of the patties, that direction is mandatory in character. When the Legislature says that the suit for recovery of possession on the ground of nonpayment of rent shall not be instituted by the landlord unless requirement of that Sub-section (2) of Section 12 is complied with, it is clear that the provisions of this Sub-section (2) are mandatory. The purpose behind employing this mandatory language is not far to seek. As said by us above, the Legislature being conscious of the comparative lack of information and comparative law economic level of the tenant as compared to the proverbial higher economic and intellectual level of the landlords, has very categorically provided that unless that obligation is met with and discharged by the landlord, his suit for possession on the ground of non-payment of rent shall be incompetent. P. N. Bhagwati, J. of this Court, as he then was, in the celebrated case of Panchal Mohanlal Ishwardas v. Maheshwari Mills Ltd., (1962) 3 Guj LR 574 has observed as follows :--

'Sub-section (2) of Section 12 requires that before a suit for recovery of possession can be instituted by the landlord against the tenant on the ground of non-payment of the standard rent or permitted increases, a notice in writing of the demand of the standard rent and permitted increases should be served on the tenant..... The notice contemplated by Sub-section (2) of Section 12 must be a notice in writing and it must demand the standard rent or permitted increases from tenant So long as the notice satisfies these two requirements, it would be a valid and proper notice under Sub-section (2) of Section 12.....'

Conversely stated, it can be said that if the notice does not satisfy both the requirements, it shall not be a valid notice, because on the validity or otherwise of the notice depends the tenability or otherwise of the eviction proceedings. At page 602 of the aforesaid report, his Lordships has further observed as follows :--

'The sole object of giving notice under Sub-section (2) of Section 12 is to afford an opportunity (obviously an eleventh hour opportunity) to the tenant to make good the default in payment of the standard rent or permitted increases so that the tenant can save the tenancy from the consequences of default by paying up the arrears of standard rent and permitted increases. This object would certainly be carried out if the notice given by the landlord to the tenant contains the demand of the standard rent and permitted increases.....'

5. In our opinion, therefore, the language of Sub-section (2) of Section 12 in the context in which it has been placed and in the context of the avowed purpose of the legislature, requires that the notice must contain a specific demand of rent. It must tell the tenant that this is the last opportunity afforded to the tenant to pay up the arrears. When the words of Sub-section (2) of Section 12 speak of the words 'demand in writing', it is inevitable to hold that that demand must be there expressly. It cannot do to say for a landlord that if the statement of arrears is given in the notice, the tenant by necessary implication is told of the provisions of Section 12(1) and also to the provisions of Section 12(2) of the Rent Act, and therefore tacitly called upon to pay arrears. The Legislature, as we have stated above, was conscious of the comparatively more lack of knowledge on the part of the tenant and that is why the Legislature provided expressly that the notice in writing must demand of the tenant the arrears of rent. If there is only a bald statement of the amount of arrears of rent, an unwary tenant is likely to be misled into the belief that as he has been in arrears, say of six months or even of an year or two, his prospects are hopelessly and rudely marred and he has nothing to say himself against eviction. The Legislature wanted, therefore, that the tenant should know that the Legislature has extended special kindness unto him and this kindness of the Legislature is expressed through the obligation which the Legislature has imposed upon the landlord. It is for this purpose that the landlord has been enjoined upon to call upon the tenant to pay up the arrears. Not only that, but after calling upon the tenant to pay up the arrears, the landlord is further asked to wait for ona month from the date of the receipt of the notice by the tenant. In other words, the landlord is expected to wait for the full one month in order to see that the tenant avails himself of that extended benefit or opportunity and makes good the default. If the default is made good within that month, the landlord cannot file the suit, even though the tenant was in arrears, say for three years or 30 years. We, therefore, take into account the Legislative anxiety and also the Scheme of the Act and in this light also, the term 'demand' is to be given its natural and ordinary meaning, which even otherwise would not have called for any other interpretation. It is the cardinal rule of interpretation that words should be given their normal and natural meaning. The word 'demand' ordinarily cannot mean demand by implication or demand to be understood by a tenant in full know of legal implications. Even if there is such a remote possibility of the word 'demand' to be construed in the said manner, the legislative background and the purpose of the legislature would take away whatever such remote possibility might be there. If the text of Sub-section (2) of Section 12 is in this way interpreted as suggested by mr. Adhyaru the very Legislative object would be severely frustrated. We, therefore, find that the text of Section 12(2) of the Bombay Rent Act admits of no other interpretation. It casts an unalterable duty on the landlord to serve the tenant with a notice of express demand of rent and if there is no forthwith demand in the notice, the notice, could be said to be bad or invalid for non-compliance with the mandatory requirements of Section 12(2) of the Act.

6. In this connection, Mr. Adhyaru, the learned counsel for the opponent, had invited our attention to the judgment of the Delhi High Court in the case of Ram Sarup v. Sultan Singh, (1977) 2 RCJ 552. In that case, Clause (a) of Sub-section (1) of Section 14 of the Delhi Rent Control Act, 1958 had come up for consideration before the learned single Judge of that Court. The said clause is borrowed by us from the said reported judgment as follows :--

'(a) that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the manner provided in Section 106 of the Transfer of Property Act, 1882.'

The learned Judge in that case has held that even if the notice does not expressly demand the payment of rent from the tenant, it would be a valid notice, if the demand is implied. In that case, the demand was taken as implied, because there was an earlier suit fop rent filed in the competent Court. In our view, what has been observed by the Delhi High Court is difficult to be accepted by us. In the context of the legislative policy and in the context of the mandatory language employed by the Legislature, it is difficult to say that there can be any tacit demand. The view of the Delhi High Court, even if justified, is to be kept confined to the facts of that case, because there was already a demand from the tenant by the landlord in the form of a specific suit for realising arrears of rent. The Scheme of the Bombay Rent Act, and particularly Section 12 of the Act, is so clear and emphatic that it would admit of no other interpretation, in our view.

7. We, therefore, hold that the notice tike Ex. 25 on the record of this case, cannot be said to be a notice complying with the requirements of Section 12(2) of the Bombay Rent Act. We express our view accordingly and direct the Office to place the matter before the learned single Judge for dealing with the matter finally as it deemed fit in accordance with law.


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