VISHWAMBHAR HEMANDAS Vs. NARENDRA JETHALAL GAJJAR

JUDGEMENT

(1.) This Revision Application is filed against the concurrent judgments and decrees of eviction on the ground of non-payment of rent under sec. 12(3) (a) of the Bombay Rent Act. The lower courts have tome to the conclusion that under sec. 12(3)(b) the petitioner-tenant has deposited all the rent on the first date of hearing and also continued to regularly deposit the rent during pendency of the suit as well as during the pendency of the appeal. For coming to the conclusion that the rent is payable by monthly he has held that the tenant was not required to pay taxes. However this finding is dearly contrary to the plaintiffs own evidence. The learned appellate Judge has observed in para 11 of his judgment that the plaintiff does say on oath that rent of Rs. 19.50 is inclusive of taxes. In view of this admission and finding that the amount of Rs. 19.50 inclusive taxes the conclusion of the lower court that rent is payable by month is clearly un- tenable. The taxes are payable by year and merely because the tenant pays it along with the rent every month it does net mean that the element of tax is payable by month. Since the rent is admittedly inclusive of taxes it cannot be said that the rent is payable by month. It the rent is not payable by month as is now found sec. 12(3)(a) cannot apply and the lower courts have clearly gone wrong in passing the decree for possession under sec. 12(3)(a) Therefore that decree is required to be quashed and set aside. Under sec. 12(3)(b) there is full compliance and therefore there is no question of passing any decree for pos- session under sec. 12(3)(a) or sec. 12(3)(b). Hence the suit for possession on the ground of arrears of rent is required to be dismissed.

(2.) It was also contended by the petitioner that he had always been ready and willing to pay the rent and therefore under sec. 12(1) the landlord was not entitled to sue for possession on the ground of arrears of rent. However it is not necessary to decide this question because otherwise also the landlord fails in the present suit.

(3.) In the result the Revision Application succeeds and the rule is made absolute by quashing and setting aside the judgment of the lower courts and by dismissing the suit of the respondent plentiful. There will be no order as to costs throughout. (KMV) Application allowed.