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Rambhai Jhenidas Panchal Vs. Lalitaben - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 579 of 1982
Judge
Reported inAIR1983Guj27; (1982)2GLR545
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 12, 12(1), 12(2) and 29(2) ; Transfer of Property Act, 1882 - Sections 106
AppellantRambhai Jhenidas Panchal
RespondentLalitaben
Appellant Advocate J.M. Panchal and; N.N. Prajapati, Advs.
Respondent Advocate B.J. Shelat, Adv.
DispositionRevision dismissed
Cases ReferredKhimji Bhimji Majithia v. Taraben Lalji Soni
Excerpt:
.....be served in manner provided in section 106 - land lord should mention last opportunity given to tenant in notice to validate it - notice considered to be bad as words that 'this is last opportunity' not mentioned - interim relief granted. - - 1. the petitioner is a tenant who has been unsuccessful in both the courts below (and ?) has come by way of this revision petition under section 29(2) of the bombay rents, hotel and lodging house rates control act, 1947 (hereinafter referred to as 'the act'). 2. opponent-landlady filed h. the landlord has, in very emphatical language, been told by sub-section (2) of section 12 of the bombay rent act 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..........afforded to the tenant to pay up the arrears.5. my attention has been drawn to exhibit 71, the suit notice given by the landlady to the petitioner-tenant. in this ex. 71 there is a specific averment:( editor: the vernacular matter printed hereunder has been omitted).this notice clearly directs the tenant to pay the standard rent and permitted increases due and demand is made for that rent and if the amount is not paid, then the landlady will take necessary steps for eviction, etc. it is not in dispute that the suit is filed after the expiry of the period of one month after receipt of the notice. the contention of mr. panchal, however, is that in this notice ft has not been specifically mentioned that this is the last opportunity given to the tenant to pay up the arrears, etc. thus,.....
Judgment:
ORDER

V.V. Bedarkar, J.

1. The petitioner is a tenant who has been unsuccessful in both the Courts below (and ?) has come by way of this revision petition under Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as 'the Act').

2. Opponent-landlady filed H.R.P. Suit No. 1749 of 1974 in the Court of Small Causes at Ahmedabad on various allegations against the petitioner to get a decree of eviction in her favour. Though she was non-suited on almost all the grounds, the suit was decreed in her favour on the ground of nonpayment of rent. Initially it was the case that the petitioner-tenant was given the premises on leave and licence basis and, therefore, there was no relationship of landlord and tenant, but ultimately it was conceded that the petitioner became the tenant and the proceedings went on under the Act. The suit premises were given to the petitioner under an agreement dated 10-3-1972 at the monthly rent of Rs. 90/- for a period of one year. The plaintiff-landlady came out with many grounds for eviction to which I have already referred to, but ultimately the dispute, so far as this revision petition is concerned, remains about the decree for eviction on the ground of non-payment of rent.

3. Mr. J.M. Panchal, learned Advocate for the petitioner, raised three-fold contentions. His first contention is that the petitioner is not liable to be evicted because the notice given for demanding the rent required to be issued under Section 12 of the Act is not legal and valid.

x x x x x

4. Now, taking the first ground, it is the submission of Mr. Panchal that under Section 12 of the Act, a landlord is not 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 standard rent and permitted increases, if any. This is the requirement of Section 12(1) of the Act. Sub-section (2) of Section 12 of the Act also provides that no suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of pro-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. It is, therefore, the submission of Mr. Panchal that if the tenant is ready

and willing to pay the amount of standard rent and permitted increases, then the landlord is not entitled to file a suit. If somehow or the other, the landlord considers that the amount of standard rent or permitted increases is not paid, then he must give a notice in writing of the demand of the standard rent and permitted increases. If he does not give such a notice, then he is not entitled to file a suit for eviction. Of course, Mr. Panchal fairly conceded that notice has been given by the landlady and it is Ex. 71 dated 16-1-1974. His submission is that this notice is not as required under Section 12(2) of the Act, meaning thereby, demanding the amount of standard rent or permitted increases due from the tenant and giving him last opportunity to make payment. This argument is advanced by Mr. Panchal on the strength of the decision of a Division Bench of this Court, consisting of N. H. Bhatt and I. C. Bhatt, JJ.) in Khimji Bhimji Majithia v. Taraben Lalji Soni, 1982 (2) 23 Guj LR J14 : AIR 1983 Guj 18). The Division Bench, by considering the provisions of Section 12(2) of the Act, specifically observed:

'The landlord has, in very emphatical language, been told by Sub-section (2) of Section 12 of the Bombay Rent Act 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 constructions that when the Legislature expresses its intent in a negative tone, disabling one of the parties, that direction is mandatory in character. When the legislature says that the suit for recovery of possession on the ground of non-payment 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. Therefore, 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.

Therefore, the language of Sub-section (2) of Section 12 of the Act 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 specific demand of rent. It must tell the tenant that this is the last opportunity afforded to the tenant to pay up the arrears.'

It is the submission of Mr. Panchal, therefore, that these two requirements are that first of all it must be a notice of specific demand, and secondly, it must mention that this is the last opportunity afforded to the tenant to pay up the arrears.

5. My attention has been drawn to Exhibit 71, the suit notice given by the landlady to the petitioner-tenant. In this Ex. 71 there is a specific averment:

( Editor: The vernacular matter printed hereunder has been omitted).

This notice clearly directs the tenant to pay the standard rent and permitted increases due and demand is made for that rent and if the amount is not paid, then the landlady will take necessary steps for eviction, etc. It is not in dispute that the suit is filed after the expiry of the period of one month after receipt of the notice. The contention of Mr. Panchal, however, is that in this notice ft has not been specifically mentioned that this is the last opportunity given to the tenant to pay up the arrears, etc. Thus, according to hurt, this notice is not legal.

6. This is really an ingenious argument advanced by Mr. Panchal, just trying to read something more from the aforesaid decision of the Division Bench of this Court. The judgment in fact does not state that it is necessary that in the notice the landlord must mention that this is the last chance given. What the judgment says is that there should be demand of standard rent and permitted increases due and without such demand it cannot be said to be a notice under Section 12(2) of the Act and nothing more. What the Court considered is that even though a tenant may be a contumacious defaulter who had not paid rent for three years or thirty years, still however, it is not open to the landlord to file a suit for eviction on the ground of non-payment of rent unless the landlord affords last opportunity to the tenant by giving him notice demanding the amount of standard rent and permitted increases due, and even then if the tenant does not pay that amount within a period of one month of the receipt of the notice, then and then only the landlord gets a right to file a suit for possession. If no such notice is given, meaning thereby, if no last opportunity to the tenant is given to make good the defaults committed by him, then the landlord cannot file a suit. The ratio of the judgment is to declare a law that even if the tenant may be a defaulter for a number of months or years, the landlord cannot file straightway the suit for eviction on the ground of non-payment of rent, but only after notice, as required under Section 12(2) of the Act, is given. It is not

the intention of the Division Bench of this Court to import something more than what has been enacted in Section 12(2) of the Act and require the landlord to state in specific words that this is the last opportunity given to the tenant. The ultimate intention of the Legislature is that the landlord should give last opportunity to the tenant to pay the arrears of rent and not that the last opportunity should be mentioned in so many words that this is the last opportunity given.

7. It should be noted that in case of Khimji Bhimji Majithia (AIR 1983 Guj 18) (supra) the matter went before the Division Bench of this Court because a reference was made whether a notice given by the landlord under Section 12(2) of the Act 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. This question was answered in the affirmative by the Division Bench observing that the notice must contain a specific demand of rent. When this requirement of specific demand of arrears of rent was considered by the Division Bench, it in terms considered that the legislature has provided for the last opportunity to be given to the tenant by such a notice, and not that such a last opportunity should be mentioned in so many words in the notice itself. Of count, in para. 5 the Division Bench observed:

'In our opinion, therefore, the language of Sub-section (2) of Section 12 in the contest 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.'

Mr. Panchal has laid stress on the further observations, which are as follows: '.. .. It must tell the tenant that this

is the last opportunity afforded to the tenant to pay up the arrears.'

The Division Bench further considered that when the words of Sub-section (2) of Section 12 of the Act speak of the words 'demand in writing', it is inevitable to hold that that demand must be there expressly. So, the stress is on the demand in writing of the amount of standard rent and permitted increases due and this demand is by way of last opportunity. But it can never be said that the intention of the Division Bench was to say that the notice must mention in so many words that this is the last opportunity afford-ed to the tenant to pay the arrears. Even if such words are not stated, it can well be said that if the tenant would not pay the amount of arrears, etc., the landlord would

file a suit for eviction and that action would definitely show that that was the opportunity given to the tenant. So, what the decision of the Division Bench of this Court requires is that for giving a valid notice under Section 12(2) of the Act, there should be a specific demand in writing of the amount of standard rent OF permitted increases, and that notice should be served upon the tenant in the manner provided in Section 106 of the Transfer of Property Act, and nothing more. It, therefore, does not require that the notice must mention also that this is the last opportunity given to the tenant, and if no such mention is made, the notice as required under Section 12(2) of the Act would not be legal and valid. It should be noted that the notice which was given in the case of Khimji Bhimji (AIR 1983 Guj 18) (supra) never demanded the amount of arrears. What the Division Bench considered is that the Legislature has expressed its special kindness through this provision and this kindness of the Legislature is expressed through the obligation which the Legislature has imposed upon the landlord, and 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 one month from the date of the receipt of the notice by the tenant. The Division Bench further observed that 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 thirty years. So, this was merely an opportunity to be given by the landlord to the tenant and not that it must be mentioned in the notice that that was the last opportunity. Under these circumstances, when the demand is made by the landlady in notice Ex. 71, it cannot be said that as specific words are not there that this was the last opportunity, the notice should be considered to be bad. So, on this count, I do not think that Mr. Panchal has any case,

8 to 15. x x x x x

16. Rule is discharged. Interim relief granted, is vacated.


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