JAYWANT S KULKARNI Vs. MINOCHAR DOSABHAI SHROFF

JUDGEMENT

(1.) This is an appeal by the tenant. It arises out of an order of eviction passed by the Civil Judge, Thane and confirmed by the learned Assistant Judge of Thane on or about 24th July, 1976. The High Court of Bombay on or about 3rd November, 1981 dismissed an application under Article 227 of the Constitution challenging the said decision. Civil Suit No. 176 of 1974 was filed by the respondentlandlord against the appellants for possession of the building called Jamshed Villa at Thane. The ground floor of the building consists of one hall, two bed rooms, two side rooms and a kitchen. The said premises was let out to one Shri S. H. Kulkarni the deceased father of the appellants some years ago by the respondent on the rent of Rs. 50/- per month. The former owner, it is stated, terminated the tenancy of the appellants on 20th June, 1976, and the deceased Shri Kulkarni continued to occupy it as a statutory tenant. On the sale of the suit property the tenancy of Shri S. H. Kulkarni was duly attorned to the present plaintiff, Shri S. H. Kulkarni then expired. On 11th January, 1973 the respondents served the notice upon the appellants requiring them to vacate suit premises on various grounds. By the said notice the respondent also called upon the appellants to pay the arrears of rent for the period from 1st September, 1971 to 31st December, 1972 at the rate of Rs. 50/- per month. The total arrears came to Rs. 800/-. Indubitably, the amount claimed in this notice was not paid by the appellants to the respondent. The appellants replied to the notice. In that reply, several contentions were urged. It may be mentioned that the suit was filed on various grounds, namely, that the appellants have created a nuisance and they are irregular in paying the rent and further it was stated that the respondent required the suit premises reasonably and bona fide for his personal use and occupation. The learned trial Judge after framing the issues, on all issues held in favour of the tenant except the issue of the arrears of rent. The learned Trial Judge held that the appellants had failed and neglected to pay the arrears of rent within the statutory period in spite of the notice under Section 12(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter. called 'the Act'). The Trial Court, however, on the question whether the appellants have raised a substantial plea that the rent is excessive, did not go into this aspect in view of the decision of this Court in Harbanslal Jagmohandas v. Prabhudas Shivial, (1976) 3 SCR 628. Accordingly, the trial Judge decreed the suit on the ground that the appellants are in arrears of rent. There was an appeal from the said decision of the Trial Judge to the learned Assistant Judge, Thane. The Learned Assistant Judge affirmed the order of the learned Trial Judge but reiterated that the tenant could claim protection from the operation of Section 12(3)(a) of the Act, only if the tenant had made an application within one month from the service of the notice under Section 12(2) of the Act terminating the tenancy wherein a dispute was raised regarding the standard rent. It is common ground that the appellants in this case did not make any application within one month from the service of the notice under Section 12(2) of the Act terminating the tenancy wherein a dispute was raised regarding the standard rent. The learned Assistant Judges, therefore, confirmed the order for eviction. The appellants moved to the Bombay High court. The Bombay High Court by the judgment under appeal on 3rd November, 1981 dismissed this application holding that neglect on the part of the appellants in making payment as mentioned in S. 12(3)(a) of the Act has to be decided on the facts of each case. The High Court reiterated that after considering all the facts and circumstances both the Courts below have rightly come to the conclusion that there was neglect on the part of the appellants within the meaning of S. 12(3)(a) of the Act, meriting a decree for eviction.

(2.) Shri Bhasme appearing for the appellants contended before us that the High Court was wrong and did not properly consider the conduct of the respondent in not giving receipts. Before we consider this contention, it may be appropriate to refer to the provisions of S. 12 of the Act. It provides that the 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. Sub-section (2) of S. 12 also stipulates that no suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in S. 106 of the Transfer of Property Act, 1882. Sub-sec. (3)(a) and (b) of S. 12 of the Act are important and set out hereunder:

(3.) This question, as to how a payment to be made under Section 12(3)(a) and (b), has been considered by this Court in Harbanslal Jagmohandas (supra). There, both the appeals raised a common question as to whether a tenant in order to resist passing of a decree of eviction under the provisions contained in Section 12(3)(a) of the Act must dispute the standard rent within one month from the date of receipt of the notice from the landlord terminating the tenancy on the ground of arrears of rent or whether a tenant can raise such a dispute in the written statement. There was difference of opinion between Bombay and Gujarat High Courts. The Gujarat High Court took the view that the dispute as to standard rent had to be raised within one month from the service of the notice on the tenant. The Bombay High Court had taken a contrary view and held that the tenant could raise a dispute as to standard rent in his written statement in answer to the suit and in such a case the provisions of Section 12(3)(a) of the Act would apply. In the Gujarat case, the High Court found that the tenant did not raise the dispute within one month of the service of the notice terminating the tenancy, inter alia, on the ground of arrears of rent for more than 6 months. In the Bombay appeal the dispute was not raised within one month from the date of the receipt of the notice. It was, however, raised in the written statement. Under Section 11 of the Act, the Court had power to determine standard rent when there was a dispute between the landlord and tenant regarding the amount of standard rent. It was held by this Court that under Section 12 of the Act the landlord is not entitled to recover possession of the premises so long as the tenant pays or is ready and willing to pay the amount of standard rent and permitted increases. Section 12(2) provides that no suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non-payment of the standard rent until the expiration of one month next after notice in writing of the payment of the standard rent. This Court held that the view of the Bombay High Court was erroneous and the view of the Gujarat High Court was correct. Sub-section (3)(a) of Section 12 categorically provided that where the rent was payable by the month and there was no dispute regarding the amount of standard rent or permitted increases, if such rent or increases were in arrears for a period of six months or more and the tenant neglected to make payment thereof until the expiration of the period of one month after notice referred to in subsection (2), the Court shall pass a decree for eviction in any such suit for recovery of possession. In the instant case, as has been found by the Court, the rent is payable month by month. There is no dispute regarding the amount of standard rent or permitted increases. Such rent or increases are in arrears for a period of six months or more. The tenant had neglected to make payment until the expiration of the period of one month after notice referred to in sub-section (2). The Court was bound to pass a decree for eviction in any such suit for recovery of possession. In terms of the decision of this Court in Harbanslal Jagmohandas (supra), the eviction order had to follow by operation of law.