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Udyomal Nathumal and anr. Vs. Premchand Trikamdas Baswanl - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1980)21GLR869
AppellantUdyomal Nathumal and anr.
RespondentPremchand Trikamdas Baswanl
Cases ReferredGanpat Ladha v. Shashikani Vishnu
Excerpt:
.....an eviction decree should be passed against the petitioner-tenant under section 12(3)(a) of the bombay rents, hotel and lodging house rates control act, 1947 hereinafter referred to as 'the bombay rent act'). it may be also mentioned at this very stage, that it is regrettable that both the the subordinate courts overlooked and did not consider in its true perspective one of the important ingredients of section 12(3)(a) of the bombay rent act. it is well settled by now that unless the tenant neglects to make payment of rent as provided in section 12(3)(a) of the bombay rent act, no eviction decree can ever be passed under the provision of the said section. the tenant also states in the said notice reply, that he was not keeping good health and that his business was ruined. he further..........an eviction decree should be passed against the petitioner-tenant under section 12(3)(a) of the bombay rents, hotel and lodging house rates control act, 1947 hereinafter referred to as 'the bombay rent act'). it may be also mentioned at this very stage, that it is regrettable that both the the subordinate courts overlooked and did not consider in its true perspective one of the important ingredients of section 12(3)(a) of the bombay rent act. it is well settled by now that unless the tenant neglects to make payment of rent as provided in section 12(3)(a) of the bombay rent act, no eviction decree can ever be passed under the provision of the said section. section 12(3)(a) of the bombay rent act is in the following terms:when the rent is payable by the month and there is no dispute.....
Judgment:

A.N. Surti, J.

1. The present revision application is directed by the original tenant who was aggrieved by the impugned decree of eviction passed by the learned District Judge, Panchmahals at Godhra, in Regular Civil Appeal No. 76 of 1977 and which had arisen out of Civil Suit No. 179 of 1976 of the Court of the learned Joint Civil Judge, (J.D.) Godhra.

2. It may be stated at this stage that the learned District Judge as well as the learned trial Judge took (he view that this was a case where an eviction decree should be passed against the petitioner-tenant under Section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 hereinafter referred to as 'the Bombay Rent Act'). It may be also mentioned at this very stage, that it is regrettable that both the the subordinate courts overlooked and did not consider in its true perspective one of the important ingredients of Section 12(3)(a) of the Bombay Rent Act. It is well settled by now that unless the tenant neglects to make payment of rent as provided in Section 12(3)(a) of the Bombay Rent Act, no eviction decree can ever be passed under the provision of the said section. Section 12(3)(a) of the Bombay Rent Act is in the following terms:

When the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such a 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.

In light of the provisions of Section 12(3)(a) of the Bombay Rent Act, I may set out in the judgment a few relevant facts for the disposal of the present revision application.

The tenant was occupying the suit premises at Godhra on a monthly rent of 20/-. The tenent had to pay Rs 3/-per month as electric charges and Rs. 2/- as water charges. It was alleged that the tenant could not pay the rent of the suit premises from October 1, 1974 to November 30, 1976. The tenant was occupying the suit permises for a period of about 12 years.

3. The landlord terminated the tenancy in regard to the suit premises on December 6,1975, and the tenant received the same on December 8,1975. The tenant, on receipt of the aforesaid notice, replied to the landlord on December 31, 1975 vide Ex. 18, and even in the said notice reply the tenant, in terms stated, that he would pay the full amount of arrears of rent by sending money orders from time to time. The tenant also states in the said notice reply, that he was not keeping good health and that his business was ruined. He further states, that on account of his personal sickness, the business was ruined and on account of the said reasons, it was not possible for him to pay the full amount of rent. The tenant also States that in the said notice reply that the arrears of rent to the tune of Rs. 350/- is fairly a big sum, and hence, he assured the landlord, that he would pay the amount regularly by sending money order. Even in the said notice reply the tenant states that he sent the money order of Rs. 50/- and that the said sum of Rs. 50/- should be credited in his accounts. But what is more, important to note is, that even after the receipt of the suit notice, the tenant also states that on his getting a lump sum from his employer, he would send the said amount of arrears of rent by money order. He further states, that he is a poor man, and that a request was also made to the landlord not to file the suit. He also states, that he would send, at the end of every month, a sum of Rs. 50/-to the landlord, and that in that manner, he would pay up all the arrears of rent.

4. It may be noticed at this stage, that the tenant sent two money orders to the landlord, one of Rs. 5- on December 6, 1975 and second money order on February 12, 1976. Suffice it to say, that he loyally executed the assurance given by him to the landlord in the notice reply sent by him to the landlord, but the landlord obstinately did not accept the money orders sent to him by the tenant. The landlord, thereafter, filed a suit on May 4, 1976 for getting the possession of the suit premises and for recovering the total amount of arrears of rent which comes to Rs. 882-99ps. Suffice it to say, that in substance, the landlord's case was, that this is a case where all the four conditions contemplated under Section 12(3)(a) of the Bombay Rent Act were duly satisfied, and that the court should pass an eviction decree under Section 12(3)(a) of the Bombay Rent Act.

5. The suit was resisted by the tenant by his written statement, Ex. 12. In substance, his defence was that he was a tenant in regard to the suit premises for a period of 12 years, and that he paid regularly the rent to the landlord till September, 1974. He also mentioned in the written Statement that owing to his weak financial condition, he could not pay to the landlord the arrears of rent, and hence, he took the plaintiff-lan-lord even to the place of his employer (the tenant's employer), and when the landlord knew about the said condition of the tenant through the employer of the tenant, even the landlord consoled the tenant, and told the tenant that he should take more money from the employer, and in that manner, the tenant should pay to him all the arrears of rent. He further states in his written statement, that it was unfortunate that as agreed by his employer with his landlord, he did not get the additional amount. He also states that he did send the aforesaid two money orders, but the landlord did not accept the same. Under the circumstances, the tenant states in his written statement that the plaintiffs suit should be dismissed with costs.

6. On the pleadings of the parties, the following issues were raised.

(1) Does the defendants prove that they remitted Rs. 50/- by money order to the plaintiff within one month of service of suit notice on 8-11 -1975 on them If yes, whether the defendants prove that the plaintiff was bound to accept the part of the rent demanded in notice? If yes, whether the plaintiff refused to accept it illegally?

(2) Whether the plaintiff is entitled to decree of eviction as prayed for?

(3) What is found due and recovery?

(4) What order and decree?

7. The learned trial Judge came to the conclusion, that in the instant case, the plaintiff's suit should be decreed having regard to Section 12(3)(a) of the Bombay Rent Act, and ultimately, passed a decree for eviction in favour of the plaintiff-landlords.

8. The appeal was preferred by the tenant in the Court of the learned District Judge of Panchmahals at Godhra, being Regular Civil Appeal No. 76 of 1977 but, the learned District Judge also dismissed the appeal filed by the tenants.

9. From the judgment of the learned District Judge, it is clear that it was strenuously urged before the learned District Judge, that in the facts and circumstances of the case, there was no negligence on the part of the tenant to pay arrears of rent as provided in Section 12(3)(a) of the Bombay Rent Act. In this behalf, the submission of the tenant's advocate may be noted.

Therefore, the provisions of Section 12(3)(a) of the Bombay Rent Control Act would come into operation. Still, however, whether in these circumstances, the defendants can be said to have neglected to pay the arrears of rent. Now, the learned advocate for the defendants has submitted that defendant No. 1 is not keeping well and his business is not run in full swing and, therefore, he could not pay the entire arrears of rent within a period of one month from the receipt of the suit notice. Now, I think the submission made by the learned advocate en behalf of the defendant is fallacious inasmuch as if there is a dispute with regard to the standard rent and that was raised within one month from the receipt of the suit notice or that if the defendants had preferred an application within one month from receipt of the notice for fixation of the standard rent of the suit permises or that if they had remitted the rent within one month from the receipt of the suit notice then and then the defendants can be said to have not neglected to pay the arrears of rent. But in the present case, the defendants have sent two money orders on two different dates, one of which was for Rs. 50/- and the other was for Rs. 100/- which was not covering the entire amount of arrears of rent and, therefore, the defendants can be said to have neglected to pay the entire arrears of rent and, therefore, the defendants are not entitled to the protection of the Rent Control Act.

10. The learned District Judge, ultimately dismissed the appeal filed by the defendant-tenant. Under these circumstances, the revision application as filed in this Court.

11. On behalf of the tenant, it was strongly urged by Mr. V.J. Desai, the learned advocate for the petitioner-tenants, that in the instant case, there was no negligence on the part of the tenant to make payment of the arrears of rent as urged by the landlord. Mr. Desai, in this behalf, strongly relied on the following facts.

(1) That the notice terminating the tenancy of the tenant was given by the landlord on December 8, 1975 vide Ex. 18. Mr. Desai also urged that even on the date on which the notice reply was given by the petitioners-tenant, the tenant did send money order of Rs. 50/-but the landlord did not accept the same. He also urged before me, that as mentioned in the notice reply, Ex. 18, the tenant also sent a further sum of Rs. 100/- on February 14, 1976, but the landlord did not accept both the money orders.

(2) Mr. Desai further urged, that in the instant case, the tenant had the topmost anxiety to pay to the landlord the arrears of rent. In the submission of Mr. Desai what could the tenant do? The tenant was sick and because of his sickness the whole business was ruined. The tenant was occupying the premises for 12 years, and his specific case in the written statement is, that he was regularly paying the rent for 12 years upto September, 1974 and when such a tenant was a victim of calamities, the tenant took the landlord to his employer (i.e. to say the tenant's employer) and even the landlord was also satisfied that the tenant was under justifiable circumstances in pursuance to which the tenant could not make the full payment towards the arrears of rent.

12. In the context of the aforesaid facts and circumstances, the submission of Mr. Desai before (sic) was, that this is not a case of a negligent 'tenant who never desired to make payment to the landlord, but this is a case of a vigilent tenant who wanted to make payment to the landlord even under the circumstances beyond the tenant's control, and of which the tenant was an unfortunate victim.

13. Having made the aforesaid submissions, Mr. Desai strongly urged before me, that on a plain reading of section 12 (3) (a) of the Bombay Rent Act, this is not a case of a negligent tenant who should be evicted, but this is a case of a vigilent tenant, and that no decree should have been passed by the subordinate courts.

14. There is lot of substance and force in the submissions made by Mr. Desai. In the facts and circumstances of the case, it is impossible for me to take the view that there was any negligence on the part of the tenant to make payment to the landlord in regard to the arrears of rent. It is regrettable that when the subordinate courts passed eviction decrees against the tenants, the subordinate courts do not concentrate carefully and consider the true meaning and import of the words 'neglects to make payment thereof appearing in Section 12(3)(a) of the Bombay Rent Act. The said words are to be construed in the light of the ordinary conditions in which an average citizen in the State lives. By use of the said words, the Legislature clearly intended, that unless the tenant is having that peculiar mental state of negligence viz. not to pay to the landlord, on account of negligence, then and then, an eviction decree should be passed against the tenants. If the legislative intent was to the contrary, the statutory language used' in Section 12(3)(a) would have been strikingly different. The words in Section 12(3)(a) would have been 'fails to make payment thereof. This is a case where the tenant was regularly paying the rent for a period of 12 years. This is a case, where after the receipt of the suit notice, when the tenant was called upon only to pay Rs. 550/- by way of arrears of rent, the tenant sent two money orders, one of Rs. 50/- within a period of one month after the receipt of the suit notice, and when the first money order was not accepted by the landlord, the tenant even sent the second money order of Rs. 100/-covering the rent of four months even in the month of February, 1976, but the landlord obstinately and unjustifiably did not accept the same. Can this conduct on the part of the tenant be stigmatised as the conduct of a negligent tenant? But the tenant's vigilence for seeing that the payment was made to the landlord did not come to an end there. The tenant actually took the landlord to his employer, and even the employer of the tenant gave an assurance to the landlord in regard to the payment of arrears of rent. How can this further conduct of the tenant be over looked? Had the subordinate courts taken into consideration this vigilent conduct op the part of the tenant, I am sure, they would not have passed the eviction decree under Section 12(3)(a) of the Bombay Rent Act against the tenant.

15. In view of what has been stated above, in substance, Mr. Desai's submission was, that this is a case where no eviction decree can at all be passed under Section 12(3)(a) of the Bombay Rent Act. I may once again emphasise the fact, that before passing an eviction decree under Section 12(3)(a) the subordinate courts should always be at pains to see whether there is any negligence on the part of the tenants to make payments to the landlord, and if this ingredient is not established by the landlord, no decree can at all be passed under Section 12(3)(a) of the Bombay Rent Act.

16. But Mr. Desai also strongly urged before me, that in course of the hearing of the suit, when evidence was recorded by the learned trial Judge, even the landlord stated in his evidence on July 26, 1977 that if that tenant made the payment of arrears of rent, he was prepared to accept the defendant as his tenant. It may be noticed that this evidence was given by the landlord on July 26, 1977 and within a period of one month thereafter, that is to say August 3, 1977 the tenant deposited in court a sum of Rs. 725/-which amount covers up the amount of rent due and payable by the tenant to the landlord. Mr. Desai also states, that thereafter, every month the tenant had deposited in court the full amount of rent during the pendency of the appeal and also the revision application in this Court. Under the circumstances, Mr. Desai's submission was, that this is not a case where an eviction decree can at all be passed either under Section 12(3)(a) or Section 12(3)(b) of the said Act.

17. I am in entire agreement with the submissions made by Mr. Desai. For the reasons slated above, it is impossible for me to take the view that a decree of eviction can be passed under Section 12(3)(a) of the Bombay Rent Act, and to take such a view, in my opinion, would amount to the flagrant violation of Section 12(3)(a) of the Bombay Rent Act. I am also convinced beyond any doubt, that under Section 12(3)(b) of the Bombay Rent Act, no eviction decree can be passed, because this is a case where within a period of only 23 or 25 days, the tenant deposited the full amount of rent, and even during the pendency of the appeal in the District Court and also during the pendency of this revision application, the tenant did deposit the full amount of rent in court. Under the circumstances, it is difficult for me even to conceive, that an eviction decree should be passed against the tenant under Section 12(3)(b) of the Bombay Rent Act.

18. But Mr. M.I. Patel, the learned advocate for the landlord strongly urged before me, that in the instant case, the aforesaid circumstances do constitute negligence on the part of the tenant, and hence, I should not interfere with the impugned decree passed by the lower appellate Court. In any event, Mr. Patel urged that this is a case, where the tenant did not deposit in the trial court on the first date of hearing of the suit, the arrears of rent, and hence, I should pass an eviction decree in any event under Section 12(3)(b) of the Bombay Rent Act. In support of his submission, Mr. Patel invited my attention to the reported decision in Premjibhai Vithaldas v. Ganeshbhai 18 G.L.R. 790. He read out before me the meaning of phrase 'readiness and willingness to pay rent' in para 14 of the said judgment. It is observed as follows:

The readiness and willingness of the tenant to pay could be found only if he had complied with the provisions of the Act. The Act does not cover the case of a person who is unable to pay owing to want of means but is otherwise 'ready and willing'. Such a case is no doubt a hard one, but, unfortunately, it does not enable courts to make a special law for such hard cases which fall outside the statutory protection.

19. Mr. Patel also invited my attention to the reported decision of the Supreme Court in Ganpat Ladha v. Shashikani Vishnu 19 G.L.R. 502, and urged before me that if conditions of Section 12(3)(a) of the Bombay Rent Act are satisfied, it is obligatory on the court to pass a decree of eviction. With respect, I am in entire agreement with the said proposition, but, the question for consideration in the present case is, whether the condition as to 'Negligence' is satisfied in the present case or not. As stated earlier, in the facts and circumstances of the case, it is not possible for me to take the view that the tenant neglected to pay to the landlord arrears of rent as provided in Section 12(3)(a) of the Bombay Rent Act.

20. Incidentally, I may say that Mr. Desai invited my attention to the decision of the Supreme Court in Civil Appeal No. 2926 of 1979 decided on October 12,1979 wherein it is observed 'that there should be further mental element, a negative stance of the tenant, that is to say that he is not ready and willing to pay. This negative fact has to be made good by the landlord. So far as we are able to see from the facts, the tenant was ready and willing to pay the arrears of rent, but he made a miscalculation on the assumption that the standard rent was Rs. 13/-and not Rs. 22/- per mensem.'

21. Having carefully taken into consideration the submissions of Mr. Patel and the aforesaid unreported decision cited at the Bar, I am convinced beyond any doubt, this is not a case where the tenant was negligent or that there was any neglect to pay on the part of the tenant for making payment of the arrears of rent as provided under Section 12(3)(a) of the Bombay Rent Act.

22. It is true, that in the instant case, the tenants did not pay or deposit in court the entire arrears of rent on the first date of the hearing of the suit, but in course of the suit, the landlord when his evidence was being recorded, in terms stated, that he was willing to keep the petitioner as the tenant if he made the full payment in regard to the arrears of rent. After the evidence of the landlord recorded, the learned trial Judge gave the judgment only within a couple of days that is to say on 28th July, 1977. On August 23, 1977 an appeal was filed in the District Court by the tenant, and that on that everyday, the tenant deposited in court the entire amount due and payable by the tenant to the landlord. Under the circumstances, it is not possible for me to take the view that even a decree should be passed against the tenant under Section 12(3)(b) of the Bombay Rent Act. Under Section 12(3)(b) of the Bombay Rent Act, no doubt it is true that a tenant is statutorily liable to deposit the entire amount of rent on the first date of hearing, but, if there is deliberate and wilful act on the part of the landlord to exonerate the tenant from his said statutory liability, can it be said that the landlord is still entitled to have a decree under Section 12(3)(b) of the Bombay Rent Act? There was deliberate and wiful condonation on the part of the landlord in regard to the delay or laches made by the tenant for not depositing the amount of rent on the first date of hearing of the suit, and particularly when the landlord says, for the first time on July 26, 1977 that let the tenant pay the full amount of rent, and he would accept the tenant as a lawful tenant, then I am sure, even if there is default on the part of the tenant in not depositing the arrears of rent on the first date of the hearing of the suit, the tenant must be statutorily protected, and that there cannot be any viction decree against the tenant even under Section 12(3)(b) of the Bombay Rent Act. This is a case where within one month the tenant deposited the full amount of rent after the aforesaid offer which came from the landlord, and if that be so, there cannot be any eviction decree against the tenant. It may be also noted at this stage, that during the pendency of the appeal in the District Court and the pendency of the revision application in this Court, the tenant regularly deposited the full amount of rent in the court, and that fact was not controverted by Mr. Patel.

No other submission was made by Mr. Patel in cource of the hearing of the application.

23. In the result, this revision application succeeds. The decree of eviction 'passed against the tenant is set aside. The original suit filed by the landlord succeeds only to the extent of costs of the trial court. The landlord is not entitled to costs of the appeal as well as of this Court. The landlord is directed to pay to the tenant the costs of the appeal as well as this revision application. Rule is made absolute to the aforesaid extent.

24. After the aforesaid part of the judgment was dictated, Mr. V.J. Desai, the Heamed advocate for the petitioner, having consulted his client, made a statement at the Bar, that hereafter, that is to say from April 1, 1980 the tenant will pay to the landlord a sum of Rs: 27/- per month as rent instead of Rs. 20/- per month. He also made a further statement at the Bar, that the tenant shall be paying also for the electric consumption and the water charges separately.

In the result, the revision application is allowed, and the luleis made absolute to the aforesaid extent.


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