JAGMOHAN RATILAL SHETH Vs. JAYANTILAL LAXMISHANKER

JUDGEMENT

(1.) One of the questions raised in this revisional application is quite interesting and it relates to the effect of tendering a few months rent to the landlord by a tenant who is admittedly on the date of the tender in arrears for a period greater than the period covered by the amount tendered when this tender is made before issuance of a notice under sec. 12(2) of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (hereafter referred to as the Act).

(2.) Admittedly the petitioner was the tenant of the rented premises at a monthly rent of Rs. 50/and the premises were let out possibly according to the Indian calendar month. The rent note in this case came to be executed on June 1 1964 It was made for a period of two months only. However there was holding over by the tenant under the rent note. It cannot be challenged now that this tenant was in arrears from September 1 1967 It appears that the parties regulated the month of rent with reference to Gregorian calendar. The amount of rent in arrears came to Rs. 350/on April 26 1968 Thus it was rent in arrears for seven months. On that day the tenant sent a money order for Rs. 200/which would be sufficient to cover four months rent only. He mentioned in the money order that the rent sent was to cover four months from November 1 1967 This money order was refused by the landlord; and it is this act of the tenant in sending the money order of rent for a lesser period than seven months and the refusal of the landlord to accept the same which has given rise to the question referred to in the beginning of this judgment. After this refusal of the money order the rent for the month of April would also accrue due. The landlord gave a notice on May 13 1968 to the tenant terminating the tenancy with effect from June 30 1968 coupled with a demand for payment of rent in arrears upto that date. This notice was received by the tenant on May 14 1968 Thereafter on May 20 1968 the tenant sent Rs. 300/only which would not ex facie be sufficient compliance with the provisions of sec. 12(3)(a) of the Act if we ignore the previous money order of April 26 1968 as of no effect. However on June 18 1968 the tenant sent by money order an amount of Rs. 450/which would cover full amount of rent due as on June 1 1968 i.e. the amount of seven months rent from September 1 1967 to May 31 1968 But this was admittedly done after the expiry of one month after receipt of the notice. Therefore the tenant can save himself only if the tender of amount of four months rent on April 26 1968 is effective in the eyes of law to reduce the arrears from seven months to three months. If it is effective it is obvious that on the date of the notice i.e. on May 13 1968 the tenant was not in arrears for six months and therefore sec. 12(3)(b) of the Act would apply. And admittedly before filing of the suit full amount in arrears was sent on June 18 1968 as stated earlier and therefore there would be no cause of action for the landlord to file a suit for eviction. This would be so if sec. 12(3)(b) is applied. The suit for eviction was filed on December 9 1968 Possession was claimed inter alia on the ground of non payment of rent; and the learned trial Judge came to the conclusion that the tender of rent of Rs. 450/one month after the service of the notice would not be helpful to the tenant. Subsequent to that tender of Rs. 450/it appears that two other tenders of Rs. 150/and Rs. 100/were also made. These tenders were accepted by the landlord in the months of September November 1968 respectively. But according to the learned trial Judge the acceptance of these later tenders also will have no effect on the landlords right to recovery of possession. In this view of the matter the learned trial Judge gave a decree for eviction in favour of the landlord. The tenant went in appeal to the District Court at Rajkot; and the learned Assistant Judge Rajkot at Gondal dismissed the appeal with costs observing that the case in question is covered by sec. 12(3)(a) of the Act. Hence the tenant has come in revision to this court.

(3.) Four contentions were advanced by Mr. Shah appearing for the petitioner-tenant in this case; and they are :-