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Allanur Rasulla Vs. Balchand Ramji - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1962)3GLR182
AppellantAllanur Rasulla
RespondentBalchand Ramji
Cases ReferredGulam Hussein v. Mahomed Umar
Excerpt:
- - it is therefore contended that the notice is bad. the court is therefore bound to pass a decree for eviction in any suit for the recover}' of possession if the requirements of sub-section 3(a) are satisfied; admittedly on the date of the suit the tenant was in arrears for a period of more than six months admittedly the rest of the requirements of sub-section (3) of section 12 of the are also satisfied. in sub-section (3)(a) four requirements must be satisfied and there is no reason to restrict the expression in any other case used in sub-section (3)(b) to the first two requirements only. this act shall not apply to any premises belonging to the government at a local authority or apply as against the government to any tenancy 01 other-like relationship created by a grant from the.....v.b. raju, j.1. the petitioner in this civil revision application was the original defendant. a decree for eviction was passed against him in respect of the suit premises on the ground that the opponent who had purchased the premises on 5-9-1956 had required them reasonably and bona fide for his occupation and also on the ground that the petitioner-tenant who was a monthly tenant was in arrears of rent for a period of six months or more and he had neglected to make payment thereof before the expiration of one month after notice referred to in section 12(2) of the bombay rents hotel and lodging house rates control act 1947 which will hereinafter be referred to as the act. the decree passed by the trial court was confirmed in appeal by the assistant judge for himatnagar at ahmedabad and.....
Judgment:

V.B. Raju, J.

1. The petitioner in this Civil Revision Application was the original defendant. A decree for eviction was passed against him in respect of the suit premises on the ground that the opponent who had purchased the premises on 5-9-1956 had required them reasonably and bona fide for his occupation and also on the ground that the petitioner-tenant who was a monthly tenant was in arrears of rent for a period of six months or more and he had neglected to make payment thereof before the expiration of one month after notice referred to in Section 12(2) of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 which will hereinafter be referred to as the Act. The decree passed by the trial Court was confirmed in appeal by the Assistant Judge for Himatnagar at Ahmedabad and hence this revision application.

2. The points contended by the learned Counsel for the petitioner will be dealt with seriatim. The first contention is that no notice had been given as required by Section 12(2) of the Act because a notice was sent by registered-post and was returned unserved. It is contended that in view of the rulings in Vaman v. Khaderao 37 Bombay L.R. 376 at p. 384 and Jugalkishore Jodhmal v. The Bombay Revenue Tribunal 60 Bom. L.R. 1075 at p. 1082 it cannot be treated as a valid notice. In my opinion this question even if it is a question of law as been dealt with by both the Courts below and they have found that the notice had been validly given and this finding even if it is wrong cannot be interfered with in revision.

3. It is next contended that in the notice which was given on 2-1-57 the tenant had been asked to vacate the premises on 10-1-57 and therefore the requisite period as stated in Section 106 of the Transfer of Property Act had not been given in the notice. It is therefore contended that the notice is bad. The Act is a special Act which over-rides in some respects the provisions of the Transfer of Property Act. Section 106 of the Transfer of Property Act is referred to in Section 12(2) of the Act only with regard to the manner of service of the notice and not with regard to the nature of the notice. The Act is a special Act and has provided for a particular manner of service of the notice. The notice referred to in Section 106 of the Transfer of Property Act is therefore not necessary. However the notice referred to in Sub-section (2) of Section 12 of the Act must be served in the manner referred to in Section 106 of the Transfer of Property Act namely in the manner stated in the second part of Section 106 of the T.P. Act which reads as follows:

Every notice under this section must be in writing signed by or on behalf of the person giving it and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party or to one of his family or servants at his residence or (if such tender or delivery is not practicable affixed to a conspicuous part of the properly.

4. This part of Section 106 of the Transfer of Property Act is referred to in Section 12(2) of the Act. It is not necessary that the requirements of the first part of Section 106 of the T.P. Act namely that a lease should be terminated by 15 days notice expiring with the end of a month of the tenancy need be complied with because the tenancy is a statutory tenancy and not a tenancy under the Transfer of Property Act.

5. The next contention is that in this case on the date of the notice the rent Was in arrears for 3 months and 23 days and not six months. It is therefore contended that an order for eviction should not have been passed under Section 12(3)(a). Section 12(3)(a) of the Act reads as follows:

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.

6. Sub-section (3)(a) of Section 12 of the Act refers to the circumstances when the Court may pass a decree for eviction in a suit for the recovery of possession. The word may in the sub-section has been interpreted as meaning must. The Court is therefore bound to pass a decree for eviction in any suit for the recover}' of possession if the requirements of Sub-section 3(a) are satisfied; namely: (I) The rent must be payable by the month; (2) there must be no dispute regarding the amount of standard rent or permitted increases; (3) such rent or permitted increases must be in arrears for a period of six months or More: and (4) the tenant must have neglected to make payment of such arrears until the expiration of the period of one month after notice referred to in Sub-section (2). Prima facie this sub-section appears to be capable of two interpretations but a careful study of the wording would show that the reference must be to the date of the decree and not to the date of notice because a tenant may be in arrears for six months on the date of the notice and if he neglects to pay the rent for a period of six months until the expiration of the period of one month after notice and if the suit is filed three months after the notice but if before the date of the suit the tenant pays rent for nine months according to the contention of the learned Counsel for the petitioner a decree for eviction will have to be passed against him merely because on the date of the notice he was in arrears for a period of six months and merely because he had neglected to make payment until the expiration of the period of one month after notice notwithstanding that on the date of the suit he was not in arrears at all. Although the language used in Sub-section (3)(a) is capable of both the interpretations in view of the illustration given by me above it would appear that the proper construction would be to hold that on the date of the decree the tenant must be in arrears of six months and he must be in arrears of six months rent even after the expiration of one month next after notice in writing of the demand of the standard rent under Sub-section (2) of Section 12 of the Act. The contention of the learned Counsel for the petitioner that on the date of the notice the arrears of rent must be for six months does not appear to be reasonable and is therefore rejected. Admittedly on the date of the suit the tenant was in arrears for a period of more than six months admittedly the rest of the requirements of Sub-section (3) of Section 12 of the are also satisfied. In this case therefore the Courts below were right in passing a decree for eviction under Section 12(3)a of the Act.

7. Assuming for a moment that there should be six months arrears of rent on the date of notice this is not such a case because on the date of the notice the rent in arrears was for the period of 2 months and 23 days. The case would therefore fall under Section 12(3)(b) because Sub-section (3)(b) of Section 12 applies to all cases other than those which fall under Section 12(3)(a) of the Act. If this case does not fall under Section 12(3)(a) by reason of the fact that on the date of the notice the rent was not in arrears for six months the case would tall within Sub-section (3)(b) of Section 12 of the Act. But it is contended that the expression in any other case referred to in Sub-section (3)(b) of Section 12 of the Act refers only to the cases where rent is not payable by the month or where there is a dispute regarding standard rent. The contention is that the expression in any other case refers only to the first two requirements of Sub-section (3)(a) of Section 12 of the Act. In Sub-section (3)(a) four requirements must be satisfied and there is no reason to restrict the expression in any other case used in Sub-section (3)(b) to the first two requirements only. If any of the requirements under Sub-section (3)(a) is not fulfilled then the case would fall under Sub-section (3)(b) of Section 12 of the Act. 1 therefore reject the contention that the case would not fall under Sub-section (3)(b) of Section 12 of the Act because the rent is admittedly payable monthly and also admittedly there is no dispute regarding the standard rent or permitted increases.

8. It is next contended that even if the case falls under Sub-section 3 of Section 12 of the Act under that sub-section there is a discretion whether or not to pass a decree for eviction even if the tenant does not pay or tender in Court the standard rent and permitted increases on the first day of hearing or on or before such other date as the Court may fix and reliance is placed on Kalidas Bhavan v. Bhagwandas 60 Bom. L.R. 1959 in favour of this view. In this case Chagla C.J. has observed as follows:

Whereas Sub-section (3)(a) casts an obligation upon the Court to pass a decree if the tenant fails to comply with the conditions laid down in that sub-section no such provision is made in Sub-section (3)(b). The Legislature does not call upon the Court to pass a decree for eviction if the tenant does not satisfy the conditions laid down in Sub-section (3)(b). All that the Legislature says is that if the tenant satisfies the conditions laid down the Court shall not pass a decree for eviction. The difference between the two position is clear. In the one case the Court has the discretion not to pass a decree for eviction. It may or may not pass a decree for eviction. It may take circumstances in a consideration and not pass a decree for eviction. In the other case no discretion is left in the Court. The Court cannot take any factor into consideration and pass a decree in favour of the landlord if the tenant has complied with the conditions laid down in Sub-section (3)(b). The other aspect which is apt to be overlooked is that the emphasis in Sub-Section (3)(b) is not payment on the first day of the hearing but what the legislature intended was that the arrears should be paid before judgment was deli vered in the suit.

9. The Bombay Hotel and Lodging House Rates Control Act 1947 is not complete Act relating to the law of tenancies. It is only an Act to amend and consolidate the law relating to the control of rents and repairs of certain premises of rates of hotels and lodging houses and of evictions. But it does not completely abrogate the law contained in the Transfer of Property Act relating to tenancies. The preamble is not correct when it says that the Act consolidates the law relating to evictions. As the preamble to the Bombay Rents Hotel Rates and Lodging House (Rates) Control Act 7 of 1944 that Act was to prevent in certain cases eviction from the accommodation supplied. In fact Sub-section (1) of Section 4 of the Act provides as under:

This Act shall not apply to any premises belonging to the Government at a local authority or apply as against the Government to any tenancy 01 other-like relationship created by a grant from the Government in respect of premises taken on lease or requisitioned by the Government: but it shall apply in respect of premises let to the Government or a local authority.

Sub-section (3) of Section 4 of the Act also provides as follows:

The State Government may also by order direct that all or any of the provisions of Part III shall not apply to such hostel or institution or such class of hostels or institutions subject to such terms and conditions, if any as may be specified in the order.

10. In such a case the general law of Transfer of Property and the general law relating to tenancies will apply. The Act has modified the law relating to rents and evictions in the manner stated in the Act. Although under the general law a landlord is entitled to evict his tenant in certain cases that right has been taken away in the circumstances and to the extent specified in Section 12 of the Act. The Act however does not completely amend the law relating to leases and tenancies as can be seen from the definition of tenant in Sub-section (11) of Section 5 of the Act. Even in respect of the premises to which the Act is applicable tenancies can be created even after the Act in the manner specified in the Transfer of Property Act. Therefore whether a landlord is entitled to evict his tenant is not to be decided merely by reading the provisions of Sections 12 and 13 of the Act. Section 12 of the Act therefore qualifies the general right of the landlord to recover possession from the tenant. In most of the cases which come to the Court the original lease may have been determined before the suit is filed. But the definition of tenant contained in Sub-section (11) of Section 5 of the Act includes any person remaining after the determination of the lease in possession with or without the assent of the landlord of the premises leased to such person or his predecessor who has derived title before the commencement of the Bombay Rents Hotel and Lodging House Rates Control (Amendment) Ordinance 1959 Although the lease may have determined Section 12 of the Act provides that under certain circumstances the landlord shall not be entitled to recover possession of the premises. Sub-section (1) of Section 12 of the Act provides that 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 the Act. Although this provisions is couched in the negative form it is tantamount to providing that where the tenant does not pay or is not ready or willing to pay the amount of standard rent and permitted increases if any and does not observe and perform any other conditions of the tenancy in so far as they are consistent with the provisions of the Act the landlord will be entitled to the recovery of possession as provided in the general law. Sub-section (1) of Section 12 is couched in a negative form because the landlords right to possession is to be found in the general law and the Act only qualifies or restricts that right to a limited extent in certain specified circumstances. The right is limited by Sub-sections (1), (2) and (3)(b) of Section 12 of the Act. Sub-section (3)(a) is a son of proviso to Sub-section (3)(b). Sub-section (2) provides that although a landlord may be entitled to the recovery of possession he would not be entitled to institute a suit on the ground of non-payment of standard rent of permitted increases 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. This restriction on the institution of a suit applies only where the suit is based on non-payment of standard rent or permitted increases. This restriction on the institution of the suit does not apply where the suit to recover possession is on the ground that the tenant had failed to perform the other conditions of tenancy.

11. The next Sub-section (3)(a) then enumerates certain circumstances in which a suit must be decreed. It is true that the word may has been used in Sub-section (3)(a) of Section 12 of the Act. But with great respect I agree with the view taken in Kurban Hussen v. Ratikant 59 Bom. Law Reporter 158 that the word may in Section 12(3)(a) means must. Then in Sub-section (3)(b) of Section 12 of the Act circumstances are enumerated in which a decree for eviction should not be passed. If the facts of a case falls under Section 12(3)(a) a decree for eviction should be passed. If the facts of the case fall under Section 12(3)(b) of the Act a decree for eviction should not be passed. If the provisions of Sub-sections (1) or (2) or (3)(b) of Section 12 of the Act do not help a tenant then a decree for eviction must be passed if the landlord is entitled under the general law to a decree for eviction. A landlords right to possession under the Transfer of Property Act can be kept in abeyance only by a specific provision in the Act. The Act as observed in the preamble to the Bombay Rents Hotel Rates and Lodging House (Rates) Control Act 7 of 1944 provided for preventing in certain cases eviction from the accommodation supplied. If it is held that even when the tenant is not entitled to the benefit of Sub-section (1)(2) and (3)(b) of Section 12 of the Act still there is a discretion left to the Court whether or not to pass A decree for eviction it would mean that in regard to the fundamental right of the landlord to get possession from the tenant when he is entitled to get it the matter is left to the sweet discretion of the Court without any principle to guide the Court how to exercise its discretion. A tenant who is liable to be evicted may claim the protection of Sub-sections (1)(2) and (3)(b) of Section 12 of the Act or Section 114 of the Transfer of Property Act. If that protection is not available to him by reason of the fact that the requirements of any of those sections are not satisfied then the initial liability to be evicted remains and a decree for eviction must be passed. The landlord is the owner of the premises and is entitled to evict any other person unless the latter establishes his right to possession. If the original tenancy had expired on the date of the suit the landlord is entitled to a decree for eviction against the tenant. If the original tenancy had not expired on the date of the suit then in view of Section 108(1) and 108(c) of the Transfer of Property Act the tenant is not entitled to be in possession of the property if he does not pay the rent reserved by the lease and is liable to be evicted. But a tenant who is liable to be evicted may seek the shelter of Sections 12(1) 12 12 of the Act and Section 114 of the Transfer of Property Act. If the landlord satisfies the requirements of Section 12(2) of the Act and the tenant has not satisfied the requirements of Sections 12(1) and 12(3)(b) of the Act and Section 114 of the Transfer of Property Act then he is not entitled to the protection contained in these sections and he is not entitled to continue to be in possession and in such cases the Court must decree ejectment. The Court has no option or discretion. It must decree ejectment. If apart from Section 12 of the Act the landlord is not entitled to possession, the tenant need not rely on section 12. If apart from Section 12 the landlord is entitled to possession the tenant can resist a decree for eviction being passed only if he is entitled to protection under Section 12 and in such a case the Court must pass a decree for possession unless the Court is prevented from passing such a decree by reason of the provisions in Sub-sections (1)(2) and (3)(b) of Section 12. In such a case the Court has no discretion and it must pass a decree for eviction if the landlord satisfies Sub-section (2) and the tenant has not satisfied the requirements of Sub-section (1) or Sub-section (3)(b) or the explanation to Section 12. The Court has a discretion only if Section 114 of the Transfer of Property Act is applicable, that section reads as follows:

Where a lease of immovable property has been determined for forfeiture for non-payment of rent and the lessor sues to eject the lessee if at the hearing of the suit the lessee pays or tenders to the lessor the rent in arrear together with interest thereon and his full costs of the suit or gives such security as the Court thinks sufficient for making such payment within fifteen days the Court may in lieu of making a decree for ejectment pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred.

12. With great respect therefore I differ from the view taken by Chagla C.J. in 60 Bom. Law Reporter 1359 and hold that no discretion is given by Section 12(3)(b) of the Act to refuse to pass a decree for eviction if the tenant is not entitled to the benefit of the provisions contained in Sub-section (1) or Sub-section (2) or Sub-section (3)(b) of Section 12 of the Act and if the tenant is liable to be evicted under the general law. If on the first day of hearing of the suit or on or before such other date as the Court may fix the tenant does not pay or tender in Court the standard rent and permitted increases then due or does not thereafter continue to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided the Court must pass a decree for eviction. Support for this view is found in the observations in Laxminarayan Nandkishore v. Keshavdev Narsaria 58 Bom. Law Reporter 1041 at p. 1045 where Shah J has observed as follows:

What Clause (b) of Sub-section (3) of Section 12 contemplates is the payment on the first day of the hearing of the suit of the standard rent and permitted increases or if the Court so orders on such future date as may be fixed by the Court. If on the date fixed for the first hearing the tenant does not pay the standard rent and the permitted increases he must apply to the Court to fix a date for making the payment. If he makes payment of the amount as ordered by the Court together with the costs of the suit and continues to pay or tender in Court regularly the standard rent and the permitted increases a presumption will arise that he is ready and willing to pay the standard rent and the permitted increases. If however the tenant does not pay the standard rent and the permitted increases on the date of the first hearing of the suit and goes to trial without making an application asking the Court to fix a date for payment of the standard rent and the permitted increases and does not continue to pay during the pendency of the suit the standard rent he cannot claim the benefit of Sub-section (3)(b) of Section 12.

13. To take any other view would mean that the Court can enlarge the concession or protection given by Sub-section (3)(b) of Section 12 of the Act. If in spite of the fact that the provisions of Section 12(3)(b) have not been satisfied the Court has discretion not to pass a decree for eviction then there is no point in the Legislature laying down the conditions mentioned in Sub-section (3)(b) of Section 12 of the Act.

14. It is conceded that in this case on the first date of hearing of the suit the arrears of rent has not been paid. It is also conceded that on that date no application had been made to the Court to fix a date for payment of the arrears. But it is contended that payment was made on a subsequent date namely 20-11-57. According to the learned Counsel for the opponent the first date of hearing was 22-7-57 and the rent in arrears was accepted in Court on 20-11-57. The learned Counsel for the petitioner concedes that he paid the arrears on 20-11-57. But according to him the acceptance of the amount of arrears by the Court on 20-11 -57 is tantamount to an order having been passed by the Court fixing the date as contemplated in Section 12(3)(b) of the Act and for this reliance is placed on Gulam Hussein v. Mahomed Umar 60 Bom. L.R. 972 wherein His Lordship Chagla C.J. observed as follows:

The two conditions laid down by Section 12(3)(b) of the Bombay Rants Hotel and Lodging House Rates Control Act 1947 are that the arrears of rent and costs must be paid by the tenant on the first day of hearing of the suit on or before such other date as the Court may fix. The section does not lay down that the Court must fix such other date on the first day of the hearing. There is no restriction on the power of the Court to fix such other date at any time before the decree is passed. Therefore where a tenant makes an application to the Court permitting him to pay the arrears of rent before the hearing is completed the Court is competent to exercise its discretion in favour of the tenant.

15. Sub-section (3)(b) of Section 12 of the Act clearly uses the expression on or before such other date as the Court may fix. Payment must be made on or before such other date as the Court may fix. The Legislalature has contemplated that a Court should fix a date and that on or before such date payment must be made so as to get the benefit of Sub-section (3)(b) of Section 12 of the Act. In other words if payment is not made on the first date of hearing the Court must fix the date before payment is made. Moreover it is clear from the wording of Sub-section (3)(b) that that date must be fixed by the Court on the first date of hearing of the suit because if the tenant does not pay the arrears on the first date of hearing the landlord may come up and tell the Court that the tenant not having paid the arrears on the first date of hearing and the Court not having fixed some other date for payment the conditions for securing the benefit under Sub-section (3)(b) arc not satisfied and therefore a decree for eviction should be passed on the first date of hearing of the suit itself and in such a case the Court would be bound to puss a decree for eviction on the first date of hearing of the suit itself Thai is why the wording of Sub-section (3)(b) clearly means that either the arrears must be paid on the first date of hearing of the suit or an application must be made on that date to fix another date for payment and the Court may fix another date on the first date of hearing of the suit itself. This contention of the learned Counsel for the petitioner is therefore rejected.

It is next contended that as regards the claim that the premises are required by the landlord for his occupation apart from the hare word of the plaintiff there is no other evidence. But in revision this Court will not interfere on the ground that in support of a finding of fact of the Courts below there is nothing beyond the bare word of the plaint

It is next contended that there is no finding of the Court under Clause (g) of Sub-section (1) of Section 13 of the Act that the premises are reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held. Sub-section (2) of Section 13 provides as follows:

No decree for eviction shall be passed on the ground specified in Clause (g) of Sub-section (1) if the Court is satisfied that having regard to all the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenant greater hardship would be caused by passing the decree than by refusing to pass it.

Where the Court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises the Court shall pass the decrees in respect or such part only.

16. It is contended that it was the duty of the Court to frame an issue on the point although the point was not taken up in the written statement. I cannot accept this contention because Sub-section (2) of Section 13 of the Act lays down that no decree for eviction shall be passed on the ground specified in Clause (g) of Sub-section (1) if the Court is satisfied that greater hardship should be caused by passing a decree than by refusing to pass it. It is only when the Court is satisfied that it should refuse to pass a decree for eviction. If the party concerned does not take proper steps to satisfy the Court it cannot be said that the Court is satisfied. The burden is on the party concerned to satisfy the Court that greater hardship will be caused to the tenant by passing a decree for eviction than by refusing to pass it. This contention is therefore rejected. It is lastly contended that this Court should grant some time to the petitioner to vacate the premises. But this request is opposed by the learned Counsel for the opponent on the ground that the opponent had given a notice to the petitioner in 1957 and that the tenant (petitioner) is still in arrears of 12 months rent in respect of the premises. For these reasons the request is rejected.

The revision application is dismissed with costs


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