B.K. Mehta, J.
1. Our learned brother Surti (sic) has referred both these matters to us at the instance of defendant-tenants. Since there is no referring order nor any precise question has been formulated by the learned Single Judge referring the matters to us, we have asked the learned Advocates appearing on behalf of the petitioners and the respondents that we may formulate a precise question in these two matters and. give our answer to that question and send both the matters back to the learned Single Judge for disposal on merits. The learned Advocates, appearing for the petitioners as well as the respondents in both these Revision Applications have fairly agreed to the course which we have suggested and, therefore, having regard to the contentions urged before the first Appellate Court, we formulate the following question arising in these references for our opinion:
Whether the suit notice is bad in law, inasmuch as the plaintiff-landlord has called upon the defendant-tenant to pay the amount of rent alleged to be in arrears within a period shorter than the period prescribed by Section 12(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 after the expiry of which the suit can be filed?
2. In Civil Revision Application No. 2 of 1977, the learned trial Judge had granted the decree for possession as prayed for. The appeal of the tenant was, however, allowed by the learned District Judge, inter alia, on the ground that the suit notice was bad in law, since it called upon the defendant-tenant to pay the amount of rent alleged to be in arrears within a period of four days. This order of the first Appellate court has been challenged on various grounds in this Revision Application.
3. Similarly, in Civil Revision Application No. 618 of 1977 the learned trial Judge dismissed the suit of the landlord for possession.'The flatter was taken in appeal before the District Court at Nadiad and the learned Assistant Judge, who heard the matter, allowed the appeal and held that the suit notice was legal and valid. It should be noted that the plaintiff-landlord in the suit out of which Civil Revision Application No. 618 of 1977 arises, called upon the defendant-tenant to pay the amount of rent alleged to be in arrears within a period of seven days. This order of the Appellate Court of Nadiad has been challenged in this revision application on various grounds.
4. It appears that in course of hearing of these civil revision applications, it was contended on behalf of the tenants that to hold the respective impugned notice as valid and good in law would virtually amount to fettering the right of the tenants for making the tender of the amount of rent said to be in arrears, since he would be labouring under misapprehension that his failure to pay the rent within the period stated in the notice would result in forfeiture of his right to tender the rent in arrears within one month so as to enjoy the protection of Section 12 of the Rent Act. It is in this context that the learned Single Judge felt that the question is of importance and, therefore, referred the entire matter to us. As stated by us earlier, since we find that besides the question which we have formulated, there are other objections to the impugned decree, we suggested the course of formulating a precise auestion so that there would be no prejudice to the rights of the petitioners challenge the impugned orders on other grounds.
5. In our opinion the question raised by us should be answered in the negative obviously for the following reasons: Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as 'the Bombay Rent Act') provides a bar on the ejectment of a tenant who pays or who is ready and willing to pay the standard rent and permitted increases. Sub-section (2) of Section 12 fetters the right of a landlord to file a suit recovery of possession against a tenant on the ground of non-payment of the standard rent or permitted increases until the expiration of one month next after the 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. Sub-section 3(a) and (b) protects a tenant against a decree for eviction, if he complies with the respective conditions prescribed under Clause (a) or (b) as the case may be. Under Clause (a) of Sub-section 3 of Section 12, in case where the rent is payable by month and there is no dispute regarding the amount of standard rent or permitted increases, and if the rent in arrears is for a period of six months or more and the tenant commits default in making payment thereof within the period of one month after the notice referred in Sub-section (2) of Section 12, the landlord is entitled to get a decree. Under Clause (b), in any other case than that referred to in Clause (a), a landlord will not be entitled to a decree for eviction if on the first day of hearing of the suit, or on or before such other day as the Court may fix, the tenant pays or tenders in the Court the rent in arrears and thereafter continues to pay or tender such rent till the suit is finally decided and also pays the costs of the suit. In other words this is the statutory protection which has been granted to tenant. It is difficult for us to agree with the learned Advocates for the tenants that Sub-section (2) or Sub-section (3) of Section 12 clearly implies that notice making demand of the rent in arrears must give time to the tenant of one month, and if a notice demanding the arrears of rent is for a shorter period, the notice will be held to be bad in law. This is really, in our opinion, an ingenious contention with which we cannot agree. The protection which a tenant enjoys under the statute is in pursuance of and subject to the conditions prescribed in the relevant Section itself. It does not depend on necessarily how the demand is made by a landlord. It the landlord chooses to make a demand of the rent in arrears within the stated period, which may be less than the period of 30 days or one month during which a tenant has been given a right under the statute to tender the rent, and to absolve himself of the consequences, which he has incurred by making default in tendering or paying the rent regularly, the demand of the landlord, in our opinion, would not affect prejudicially the right which a tenant has got under the statute.
6. An exactly similar question had arisen before P.D. Desai J in Civil Revision Application No. 979 of 1979 decided on June 28, 1978. Same contention as urged by the learned Advocates for the tenants before us Was raised and negatived by P.D. Desai J in the following terms:
Now, the ground on which the appellate Court found the notice to be invalid was that it called upon the opponent to pay the arrears of rent within a period of four days from the date of the receipt of the notice. The view of the appellate Court was that though Section 12(2) does not mention any specific period which has to be allowed to the tenant to make payment of arrears of rent demanded from him, on a true construction of the said provision read in the light of the other connected provisions it was implicit that the notice should specify that the tenant in arrears should pay or tender the rent in arrears within a period of one month after the service of the notice. If the notice called upon the tenant to pay the arrears of rent within a shorter period, the notice would not be in accordance with Section 12(2). This view of the appellate Court is apparently erroneous. The primary requirement of Section 12(2) is service upon the tenant of a notice in writing demanding the standard rent or permitted increases in the manner provided in Section 106 of the Transfer Property Act, 1882. The only other provision which is made in Section 12(2) is that no suit for recovery of possession on the ground of arrears of rent shall be instituted until the expiration of one month next after notice was served there under. There is, therefore a bar against institution of a suit for a period of one month next after the service of the notice. During this period, the tenant is at liberty to tender rent in arrears to the landlord and if he does so there will be no cause of action for the institution of the suit for recovery of possession on the ground of arrears of rent or even for the recovery of arrears of rent. From this provision, however, it is not possible to infer that any notice which prescribes a shorter period for payment of rent would be invalid. The tenant, even in a case where a shorter period is prescribed, will have a right to tender rent within a period of one month next after the service of the notice and, as earlier stated, if he does so he will not have to face a suit for, possession or for recovery of arrears of rent. This Court, in Civil Revision Application No. 901 of 1971 decided on September 20, 1976, has already taken this view. It would thus appear that the decision of the appellate Court dismissing the suit on the ground of invalidity of notice is not according to law.
7. We are in respectful agreement with this view and the reasoning of P.D. Desai, J.
The result is that the question formulated by us is answered in the negative and against the tenants. These matters shall now go back to the learned Single Judge for disposal on other grounds which may be surviving in these revision applications. Having regard to the facts and circumstances of this case, there should be no order as to costs.