Skip to content


Laxmikant Amritlal Upadhyay Vs. Drumangauri Jagdishchandra - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1974)15GLR518
AppellantLaxmikant Amritlal Upadhyay
RespondentDrumangauri Jagdishchandra
Cases ReferredDhansukhlal Chhaganhl v. Dalichand Virchand Shroff. These
Excerpt:
- - 333/67. the learned trial judge found that the case was covered by section 12(3)(a) of the bombay rents, hotel and lodging house rates control act, 1947 (hereinafter referred to as the 'rent act'). the trial court further found that the tenant was not entitled even to the protection contemplated by clause (b) of section 12(3) of the rent act as he failed to deposit in court the whole of the rent in arrears on the first day of the hearing of the suit. 9. it is on these facts that the lower court has found that the matter was covered by clause (a) of section 12(3) of the rent act and that since the tenant has failed to make the payment of rent in arrears for more than six months, within one month from the receipt of the eviction notice, he has rendered himself liable to be evicted......t.u. mehta, j.1. this revision application is preferred by the petitioner-defendant, who is the tenant and against whom the opponent-plaintiff, who is his landlord, has filed eviction suit in the court of civil judge, j.d. at surat, on the ground of non-payment of arrears of rent. the said suit was registered in the said court as civil suit no. 333/67. the learned trial judge found that the case was covered by section 12(3)(a) of the bombay rents, hotel and lodging house rates control act, 1947 (hereinafter referred to as the 'rent act'). the trial court further found that the tenant was not entitled even to the protection contemplated by clause (b) of section 12(3) of the rent act as he failed to deposit in court the whole of the rent in arrears on the first day of the hearing of the.....
Judgment:

T.U. Mehta, J.

1. This Revision Application is preferred by the petitioner-defendant, who is the tenant and against whom the opponent-plaintiff, who is his landlord, has filed eviction suit in the court of Civil Judge, J.D. at Surat, on the ground of non-payment of arrears of rent. The said suit was registered in the said court as Civil Suit No. 333/67. The learned trial Judge found that the case was covered by Section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the 'Rent Act'). The trial court further found that the tenant was not entitled even to the protection contemplated by Clause (b) of Section 12(3) of the Rent Act as he failed to deposit in Court the whole of the rent in arrears on the first day of the hearing of the suit. Against this, the tenant preferred an appeal in the District Court, Surat, where it was registered as Regular Civil Appeal No. 160/68. The learned appellate Judge confirmed the decree for eviction passed by the trial court on the ground that the case was covered by Clause (a) of Section 12(3) of the Rent Act and since the tenant is found to have neglected to make the payment of rent in arrears within one month from the receipt of the notice contemplated by Sub-section (2) of Section 12 he is liable to be evicted.

2. In order to properly appreciate the points involved in this revision application, it would be necessary to state some facts, which form the background of this litigation.

3. The suit premises are residential premises situated at Surat and the contractual rent, which was originally fixed between the parties for these premises was Rs. 30/- per month. The tenant fell in arrears from 1st September, 1964. Thereafter on 8th December, 1964 the tenant filed Misc. Application No. 869/64 for fixation of standard rent and during the pendency of that Misc. application, he deposited the total amount of Rs. 540/- between 31st January, 1965 and 18th November, 1966. On 18th December, 1966 this Misc. Application for fixing standard rent was compromised between the parties. According to this compromise, the standard rent of the premises was Rs. 23.50/- inclusive of municipal taxes but exclusive of education cess. The parties further agreed that this amount of Rs. 23.50 per month should be paid with effect from 8.12.64 but the rent due before that date should be paid at the rate of Rs. 30/- per month. The compromise further stipulated that 'the amount of Rs. 420/- which was deposited in court' could be withdrawn by the landlord and appropriated towards rent in arrears. Here it is an admitted position that the amount of Rs. 420/- was incorrectly stated in this compromise because, as a matter of fact, the amount of Rs. 540/- was actually deposited by the tenant in the said application. The compromise arrived at between the parties was recorded and the learned Judge, before whom the same was filed, made an endorsement on the compromise purshis as under:

Recorded and standard rent to be fixed accordingly.

Below the standard rent application itself, the court made the following endorsement:

Fixing standard rent at Rs. 23.50 with effect from 8-12-64. The rent as fixed, is reasonable and fair.

4. Thereafter on 9-1-67 the plaintiff-landlord gave the notice found at Ex 26 to the tenant demanding the amount of Rs. 280.70 as under:

Rs. 267.12 rent at the rate of Rs. 30/- from 1-9-64 to 7-12-64.

Rs. 412.10 rent at the rate of Rs. 23.50 per month from 8-12-64 to 31-12-66.

Rs. 21.25 education cess.

Rs. 700.37

less Rs. 420.00 as against the withdrawal of the deposit which was made in Misc.

Appln. 869/64.

Rs. 280.30 Balance.

Though this notice made the demand of the above arrears of rent, it did not terminate the tenancy. The tenant gave no reply to this notice.

5. Thereafter on 28-1-67 the landlord gave another notice to the tenant terminating the tenancy and demanding the possession of the leased premises on 28-2-67. Over and above this demand of Rs. 280.37 the landlord also demanded the rent of Rs. 23.50 for the month of February 1968 and thus made the total demand of Rs. 303.87.

6. The above notice was received by the tenant on 2nd February, 1967. On the next day i.e. on 3rd February, 1967 the tenant gave reply disputing the education cess on the ground that the same was not yet paid by the landlord and, therefore, till that payment was made by the landlord, his liability to pay the same did not arise. The tenant further pointed out that in Civil Misc. Appln. No. 869/64 in which the question of standard rent was involved, the total of deposited amount was Rs. 540/- and not Rs. 420/- and that, therefore, the landlord was at liberty to withdraw that amount with a view to appropriate the same towards the rent in arrears. According to the tenant, therefore, only the amount of Rs. 139.12 was due to the landlord as under:

Rs. 679.12 rent in arrears upto 31-12-66.

less Rs. 540.00 amount deposited in court.

Rs. 139.12 balance

To this amount, the tenant added Rs. 23.50 being the rent for the month of January, 1967 and sent the total amount of Rs. 162.62 to the landlord's advocate. The latter, however, refused to accept this amount saying that he had no instructions to receive the same. On this refusal the tenant sent this amount by money order to the landlord on 8-2-67. The landlord, however, refused to accept the money order when it was offered on 11-2-67.

7. On 15-2-67 the landlord wrote to the tenant that the balance of Rs. 120/ - which was lying in deposit in Civil Misc. Appln. No. 869/64 could not be withdrawn according to the terms of the compromise in view of the fact that the compromise, referred to the withdrawal only of the amount of Rs. 420/- and, therefore, it was for the tenant to withdraw the said balance. On the receipt of this reply the tenant sent the whole amount of Rs. 282.62 as demanded by the landlord by money order. This money order was however not accepted by the landlord when it was offered on 10-3-67. The record of the case does not reveal any date on which this money order was sent by the tenant but the lower court has made an inference that this must have been sent by the tenant on 7-3-67. The case of the tenant however is that' he sent this money order on 1-3-67. This particular controversy is relevant in view of the fact that the lower courts have found that the tenant has not made the payment of rent in arrears within one month from the date of the receipt of the suit notice by him.

8. The landlord eventually filed the present suit on 28-3-67. It is an admitted position that by 6-3-67 the tenant has deposited the total amount of Rs. 633.50 in court during the pendency of the suit.

9. It is on these facts that the lower court has found that the matter was covered by Clause (a) of Section 12(3) of the Rent Act and that since the tenant has failed to make the payment of rent in arrears for more than six months, within one month from the receipt of the eviction notice, he has rendered himself liable to be evicted.

10. Shri Vakil, who appeared on behalf of the petitioner-tenant contended that both the lower courts have erred in holding that Clause (a) of Section 12(3) of the Rent Act applies to the facts of the present case. According to Shri Vakil, Clause (a) of Section 12(3) applies only to cases where the tenant has 'neglected' to pay and the cases in which a monthly payment of rent is contemplated. According to Shri Vakil the facts that the tenant has made repeated efforts to pay up rent in arrears even before the suit was filed, and that he has deposited the total amount of Rs. 633.50 in court during the trial, are sufficient to show that there was no 'negligence' on his part within the meaning of Clause (a). He also pointed out that according to the terms of the compromise, which was recorded in Civil Misc. Appln. No. 869/64, the tenant was to pay the education cess over and above the monthly rent, and since this education cess formed part of 'Rent' and was to be paid yearly, Clause (a) has no application as held in Panchal Mohanlal Iswardas v. Maheshwari Mills Ltd. : (1962)3GLR574 .

11. As against this, Shri Mehta, who appeared on behalf of the opponent-landlord, contended that the tenant was required to be given two notices for the recovery of rent in areas, and even after his attention was drawn to the fact that balance of Rs. 120/- which was lying was deposit in Civil Misc. Appln. No. 869/ 64 could not be withdrawn as per the terms of the compromise he has not cared to make the payment of the arrears of rent within one month from the receipt of the notice for eviction, and, therefore, there is an obvious 'negligence' on his part within the meaning of Clause (a). He further contended that the tenant's liability to pay the education cess already existed under the provisions of the Rent Act even before the compromise was recorded in Civil Misc. No. 869/64 and therefore, it cannot be said that payment of education cess was part of the consideration for the contract of tenancy, and if that be so, it would be a mistake to hold that any portion of rent is payable 'yearly'. According to Shri Mehta, therefore, the decision given in Panchal Mohanlal's case has no application to the facts of this case and hence there is no bar to the application of Clause (a) of Section 12(3) of the Rent Act.

12. The first question is whether from the facts already stated above, it can be said that the tenant has 'neglected' to make the payment of rent within one month after the receipt of the suit notice. To recapitulate the facts, it should be mentioned here that the suit notice was received by the tenant on 2nd February, 1967. One month therefrom ended on 1st March, 1967. It is, therefore, an admitted position that if the landlord had received the rent in arrears by 1st of March, 1967, the tenant would have been completely protected from eviction. The tenant has, however, offered the full amount of rent in arrears as demanded by the landlord on 10th March, 1967, the date on which the money order for Rs. 282.62 was offered to the landlord and the same was refused. Therefore, if it is believed that the rent in arrears as demanded by the landlord was offered through money order on 10-3-67, it is clear that the tenant was late by 9 days. But while considering whether this amounted to 'neglect' within the meaning of Clause (a) of Section 12(3) of the Rent Act, we must take into consideration the event which have taken place before the receipt of the suit notice by the tenant on 2.2.66 and the date on which the above referred money order of Rs. 282.62 was despatched. These events are already narrated by me in the narration of facts given above. This narration shows that immediately after receiving the suit notice, the tenant offered the amount of Rs. 162.62 covering all the arrears of rent minus the deposit of Rs. 120/- lying in court to the landlord's advocate. The landlord's advocate however, refused to accept this amount on ground of want of instructions. Therefore immediately thereafter the tenant sent this amount by money order to the landlord. The landlord, however, refused to accept that amount and a few days after the refusal informed the tenant that under the terms of the compromise it would not be possible for him to withdraw the amount from the court. A few days thereafter the tenant is found to have despatched the whole amount in arrears as demanded by the plaintiff by money-order. This amount was for Rs. 282.62 and it included even the amount of Rs. 120/- which was lying deposited in court. If this money-order was despatched on 1st March, 1967 by the tenant as is claimed by him, it would not have been open to the landlord to contend that the tenant was negligent in making the required payment. Therefore, the pertinent question is whether any presumption of negligence can be made in view of the fact that the tenant has been late by a few days in despatching the money-order. The lower court has found that he must have despatched the money-order on 7.3.67. Therefore, according to that court, the delay was of 6 to 7 days. The question is whether this delay was intentional or was such as would induce the court to believe that it was negligent. Tue meaning of the word 'neglect' has been examined by this Court in Sarabhai Jesingbhai v. Babubhai 13 G.L.R. 870. Therein it is held that the term 'neglect' does not connote a mere omission to do a thing. The one test which the court has applied in that case to determine whether a particular omission amounts to 'neglect' within the meaning of Clause (a) of Section 12(3) of the Rent Act is to find out whether there was 'a design, refusal or willingness' on the part of the defendant to perform his duty to pay up the arrears. If this test is applied to the facts of the case under my consideration, it is difficult to conclude that there was any design, refusal or unwillingness on the part of the petitioner tenant to pay up the rent in arrears during the course of 7 days which intervened between 1st and 7th of March, 1967. In this case we find a tenant, who was under a bona fide belief that according to the terms of the compromise reached in standard rent application, the landlord was authorised to withdraw the whole of the deposited amount, and, therefore, he despatched the money-order for the payment of rent in arrears accordingly. However after he found that it was not possible for the landlord to withdraw the whole of the amount of Rs. 540/- on account of some mistake in stating that amount in the deed of compromise, has despatched the whole of the amount in arrears, which was offered to the landlord on 1st March, 1967. If there was a design, refusal or unwillingness to pay up the arrears nothing would have prevented him from not making this money-order of the whole amount demanded by the landlord in the month of March, 1967. In my opinion, therefore, this is not a case in which any 'neglect' can be attributed to the tenant within the meaning of Clause (a) of Section 12(3) of the Rent Act.

13. So far as the education cess is concerned, the deed o compromise arrived at between the parties in standard rent application and found at Ex. 25 makes it very clear that the figure of Rs. 23.50 as the rent per month was arrived at on consideration of the fact that the education cess was to be paid by the tenant. It follows, therefore, that if the education cess where to be borne by the landlord, the figure of standard rent fixed for residence could have been different. Therefore, the education cess was made by contract between the parties, a part and parcel of the consideration for the tenancy and if that is so, it should follow that a part of the rent was stipulated to be paid not monthly but yearly. Under these circumstances, I am of the opinion that the case is completely covered by the above referred decision of Mohanlal v. Maheshwari Mills Ltd.

14. Shri Mehta, however, relied upon the decision given by the Supreme Court in Chhotalal v. Kewalkhshna Mehta : [1971]3SCR855 and contended that in view of this decision, the decision of this Court in Mohanlal v. Maheshwari Mills Ltd. no more remains a good authority. In the Supreme Court case referred to above, the agreement of tenancy stipulated that the tenant should pay electric charges separately over and above the monthly rent fixed between the parties. The High Court held that electric charges, which were payable under the rent note, were part of the rent. The Supreme Court disagreed with this view holding that the electric charges were stipulated to be paid for the actual electric energy consumption by the tenant in each month and since the amount due for the consumption of electricity each month could be known at the end of that month while under the agreement the rent had to be paid every month in advance, it could not be said that the electric charges were payable as part of the rent itself. The facts of the Supreme Court decision were thus quite distinct because that decision is based on the finding that the payment of electric charge did not enter into the concept of rent, which was fixed between the parties. In this case what has happened is that the amount of standard rent, which was fixed, as a result of the compromise between the parties was influenced by the consideration that the tenant was obliged to pay education cess over and above the monthly rent so fixed. Under the circumstances, the education cess became the part of the rent to be paid by the tenant in consideration of the tenancy and since this part of the rent was not to be paid monthly, we find another reason why Clause (a) of Section 12(3) of the Rent Act has no application to the facts of this case.

15. Shri Mehta then contended that even if it is believed that Clause (a) of Section 12(3) of the Rent Act has no application to the facts of the present case, the tenant is liable to be evicted because he has not complied with the provisions contained in Clause (b) thereof. In answer to this contention Shri Vakil has tried to show that the case is governed by the general protection contemplated by Sub-section (1) of Section 12 and if that is so, it is not at all necessary to see whether the conditions contemplated by Clause (b) are satisfied. So far as the application of Sub-section (1) of Section 12 is concerned Shri Mehta contended on behalf of the landlord that this sub-section would apply only in cases of a tenant, who is not in default and not in cases of a tenant, who is found to be in arrears of rent. In support of his stand, Shri Mehta has principally relied upon the decisions given by the Supreme Court in Mrs. Manorama S. Masurekar v. Mrs. Dhanlaxmi G. Shah and Anr. (1966) 7 G.L.R. 1061 and Shah Dhansukhlal Chhaganlal v. Dalichand Virchand Shroff (1968) 9 G.L.R. 759.

16. Before, considering whether the Supreme Court decisions relied upon by Shri Mehta apply to the facts of the case, it would be necessary to consider the scheme of Section 12 of the Rent Act then to decide whether Sub-section (1) of that section is in any manner controlled by the provisions contained in Sub-section (3) thereof and if so, to what extent.

17. The Scheme of Section 12 contemplates the protection to the tenants at several stages. As pointed out by this Court in Shah Ambalal Chhotalal v. Shah Babatdas Dahyabhai (1962) 3 G.L.R. 625, the Legislature has created safeguards for the tenant available to him at three different stages, as under: (1) if he has been paying or is deemed to be ready and willing to pay the standard rent and permitted increases at the date of suit Sub-section (1) of Section 12 protects him, (2) even if he has in fact committed default, but pays up within the time prescribed by Sub-section (2) of Section 12, which would be before the institution of the suit, he would still be protected under Sub-section (1) of Section 12, and (3) even if he has not paid or has not been ready and willing to pay and has in fact committed default, except in cases falling under Sub-section (3)(a) of Section 12, he is still safeguarded by Sub-section (3)(b) of Section 12, if he makes payment on the first day of hearing or on or before such date fixed by the court.

18. These three safeguards are quite independent of each other and if the tenant is able to show that his case falls within any of these three safeguards, he would be entitled to the protection contemplated by the Rent Act.

19. Shri Mehta's contention was that so far as first safeguard is concerned, that would not be available to the tenant, who is found to be in arrears of rent, because, that safeguard stipulates that a tenant, who pays or is willing and ready to pay up the standard rent of the premises, should not be evicted, but once it is shown that a particular tenant has committed default in making the payment, the scope of Sub-section (1) is exhausted and the tenant, in order to obtain the protection of the Rent Act has to show that his case is covered by the protection contemplated either by Sub-section (2) or by Clause (b) of Sub-section (3).

20. I find that there is no justification for taking the view canvassed by Shri Mehta for the simple reason that on plain reading of the terms of Sub-section (1) of Section 12, we do not find anything which would limit its scope in the manner suggested by Shri Mehta. On a plain reading Sub-section (1) conveys that no landlord shall be entitled to the recovery of possession of any premises so long as the tenant, either pays or is ready and willing to pay the amount of standard rent. Therefore, even if a tenant has committed a default for some reason, he would none-the-less be entitled to the protection contemplated by Sub-section (1) if he succeeds in showing to the court that he is ready and willing to pay the rent in question, but has not been able to do so for some good reasons. For instance, a tenant who is in arrears of rent, say, for three months tries to make the payment thereof to his landlord, who refuses to accept the said payment on account of some bona fide dispute as regards the quantum of the amount offered. If such a landlord files a suit for eviction against this tenant on the ground that he has been in arrears of rent and if the court ultimately resolves the dispute as regards the quantum raised by the landlord in favour of the landlord, can it be said that on the date of the institution of the suit for eviction the tenant was not ready and willing to pay the amount of rent in arrears. 1 am of the opinion that the answer to this question should be in the negative, if the court finds that the dispute between the parties was genuine and the contentions raised by the tenant as regards the quantum of arrears of rent were bona fide. In such cases the court has to take into account the course of conduct exhibited by the parties just before the institution of the suit and to find out whether the dispute on account of which the rent came to be in arrears, was bona fide or not, and, if the court finds that subject to this bona fide dispute, the tenant has made all possible attempts to make the payment of rent in arrears, it cannot be said that the tenant has lost the protection contemplated by Sub-section (1) of Section 12. It is, of course, true that if the tenant is not found entitled to the protection contemplated by Sub-section (1), he can still have a recourse to the protection contemplated by Clause (b) of Sub-section (3) but a mere fact that recourse under Clause (b) was available to a tenant, would not disentitle him to claim the protection contemplated by Sub-section (1).

21. In this connection it should be noted that Clause (b) of Sub-section (3) does not in any manner operate as a proviso to Sub-section (1) of Section 12. The scheme of Section 12 nowhere shows that a tenant in default of the payment of rent can seek protection only under Clause (a) or under Clause (b) of Sub-section (3). There would be cases where a tenant would be entitled to protection not only under Clause (b) of Sub-section (3) but also under Sub-section (1) of Section 12. Under the circumstances, even if the court comes across a case in which the provisions of Clause (b) of Sub-section (3) are not complied with, the court has none-the-less to see whether the tenant can claim protection under Sub-section (1) of Section 12. In other words, Clause (b) of Sub-section (3) and Sub-section (1) of Section 12 are operating exclusively of each other and it would be open to a tenant to convince the court that he is entitled to protection under both or either of them.

22. This would not be so if the case falls under Clause (a) of Sub-section (3), because, of the decision given by the Supreme Court in Mrs. Manorama S. Masurekar v. Mrs. Dhanlaxmi G. Shah (supra). In this case the Supreme Court has held that the word 'may' which appears in Clause (a) carries with it the effect of 'shall' and, therefore, where the requirements of Clause (a) of Sub-section (3) are satisfied, the court is bound to pass a decree for eviction. This decision obviously refers only to those cases which are covered by Clause (a) of Sub-section (3) and the ratio of the decision lies in the fat that on construction of the word 'may' as meaning 'shall' the court has found that the Legislature has given a command that if a tenant fails to satisfy the requirements of Clause (a), he would not be at liberty to take recourse to the provisions of Sub-section (1) of Section 12 and say that though he cannot claim the protection under Clause (a) of Sub-section (3) he would, none-the-less, seek protection under Sub-section (1) of Section 12. This view of the Supreme Court is thus obviously confined to the cases which are covered by Clause (a) of Sub-section (3). In my opinion, therefore, this case is of no help to the landlord in 'obtaining a decree for execution against the petitioner-tenant.

23. So far as the other decision of the Supreme Court is concerned, the same is the one given by the Supreme Court in Shah Dhansukhlal Chhanganlal v. Dalichand Virchand Shroff (supra). That was a case which was governed by Clause (b) of Sub-section (3) and the point which was urged before the Supreme Court in that case was that the provisions of Sub-section (I) of Section 12 were applicable throughout the hearing of the suit and down to the date of its final hearing. It was, therefore, urged that if at that stage it was found that the defendant had paid up all the arrears due from him then he should not be ejected. This contention of the defendant was rejected by the Supreme Court by nuking the following observations:

The readiness and willingness to pay has therefore to be judged in the light of the facts of the case. Whereas here a suit is filed on the ground that the tenant was in arrears for a period of more than 6 months and although raising a dispute as to the standard rent or permitted increases recoverable under the Act, the tenant makes no application in terms of Section 11(3) he cannot claim the protection of Section 12(1) by merely offering to pay or even paying all arrears due from him when the court is about to pass a decree against him.

24. In this judgment the Supreme Court has further observed with regard to Sub-section (1) of Section 12 that it must be arrayed with the explanation and so arrayed it means that a tenant can only be considered 'to be ready and willing to pay' if, before the expiry of the period of one month after the notice referred to in Sub-section (2), he makes an application to the court under Sub-section (3) of Section 11 and thereafter pays or tenders the amount of rent or permitted increases specified by the court. This latter observations were relied upon by Shri Mehta in support of his contention that the tenant, who is found to be in arrears and whose case is covered by Clause (b) of Sub-section (3) cannot avail of the protection contemplated by Sub-section (1). In my opinion those observations should be read in light of the facts decided by the Supreme Court in Dhansukhlal Chhaganhl v. Dalichand Virchand Shroff. These facts show that the tenant was regularly in arrears even before the suit was instituted and had not cared to make deposits regularly even during the pendency of the suit. It was only when the suit was about to be disposed of that he made some payment which practically covered the rent in arrears. It was with reference to these facts that the Supreme Court observed that if such a tenant was really ready and willing to pay the rent in arrears, it was expected of him to move the court under Sub-section (3) of Section 11 for fixation of standard rent. This he had not done. Moreover be had also not cared to make the regular deposits of the rent in arrears during the pendency of the major portion of the suit.

25. Now in the instant case the facts are that after the receipt of the suit notice, the tenant sent the amount in arrears minus the deposit of Rs. 120/- lying in court to the landlord's advocate. However, the advocate refused to accept this amount and then he sent money-order of that amount directly to the landlord. But even this money order was refused and when it was brought to his notice that the balance of Rs. 120/- lying deposited in the standard rent application could not be withdrawn by the landlord, he despatched the whole of the amount including the amount of this deposit by money order. But unfortunately that money order was received late by the landlord by a few days. It is in the context of these facts that we have to decide whether such a tenant, who is found to have made every attempt to see that the arrears of rent are paid over to his landlord, can be said to have forfeited his right to be protected under Sub-section (1) of Section 12. I am of the opinion that looking to the facts of this case it is difficult to contend successfully that the petitioner-tenant has lost the protection contemplated by Sub-section (1) Section 12. In my opinion, he has proved his readiness and willingness to pay the rent in arrears. If this is so, the opponent-landlord should be non-suited only on the ground that the case is covered by the provision contemplated by Sub-section (1) of Section 12. In this view of the matter, it is not necessary to consider whether the provisions of Clause (b) of Sub-section (3) are satisfied or not.

In the result, I allow this revision application and set aside the decree of eviction passed by the lower courts. The rule is accordingly made Absolute with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //