VALIMOHMAD KAMALBHAI Vs. PRAJAPATI MOTILAL VIRABHAI

JUDGEMENT

(1.) Could a tenant be said to be protected by the provisions of Bombay Rent Act who is unable to pay arrears of rent owing to want of means, but is otherwise ready and willing, is the sole, but a significant question which has come up for consideration and adjudication in this revision at the instance of an unsuccessful tenant by invoking the provisions of Sec. 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bombay Rent Act). Respondent No. 1 is the original plaintiff who instituted a regular civil suit No. 207 of 1975 against the petitioner and respondent No. 2 and one other defendant. The suit was filed for possession of the suit premises on the ground of non-payment of rent by the petitioner tenant. The suit was decreed for possession on the ground of non-payment of rent under Sec. 12(3)(a) of the Bombay Rent Act, by the trial Court, on 28th February, 1979. The tenant carried the matter in appeal before the District Court by filing Regular Civil Appeal No. 55 of 1979. The appeal was partially allowed. The District Court, however, was pleased to confirm the decree for possession of the demise premises. Hence this revision.

(2.) The contention is raised on behalf of the petitioner that the petitioner tenant could not pay the arrears of rent as he was detained under the Maintenance of Internal Security Act (MISA) during the relevant period. It was, therefore, submitted that the tenant could not be said to be negligent. In other words, it is propounded that in the circumstances, he could be said to be ready and willing to pay rent.

(3.) The aforesaid submission may appear to be captivating, but not convincing. In the circumstances of the case and considering the purport and philosophy of the provisions of Sec. 12 of the Bombay Rent Act, the expression "ready and willing to pay" employed in Sec. 12 undoubtedly signifies that the tenant must be in a position to pay the arrears of rent when demanded by the landlord by notice under Sec. 12(2) of the Bombay Rent Act. The readiness and willingness of the tenant to pay rent could be found only if he had complied with the provisions of the Act. There cannot be any doubt that the Bombay Rent Act does not cover the case of a person who is unable to pay the rent owing to want of means, but is otherwise ready and willing to pay rent. In fact, the words "tenant neglecting to pay arrears" do not mean that the tenant must have made a wilful default. What is required to be considered is the readiness and willingness of the tenant to pay the rent. That could be found only if he has complied with the material conditions of the provisions of Sec. 12(3)(a) or Sec. 12(3)(b) as the case may be. Section 12, as such, does not admit inability to pay an excuse from the rigours of eviction. Such a case is no doubt a hard one. But unfortunately, it does not empower the Court to make a special law for such hard cases which undoubtedly fall outside the statutory protection. This view is also fully reinforced by the ratio of the decision of the Apex Court in Premjibhai Vithaldas v. Ganeshbhai, (1977) XVIII of GLR 790(SC).