HIRACHAND SONU BHAVSAR Vs. MAHADEO WAMAN UPASANI

JUDGEMENT

(1.) THIS is a revision application filed by the original defendants against whom a decree for possession was passed by the trial Court and the same has been confirmed in appeal. It is the case of the petitioners that the premises in suit were let out to the father of the petitioners some fifteen years before the suit and after the death of the father, petitioners had been paying rent to the opponent -landlord. On July 3, 1956, the landlord served petitioner No. 1 with a notice terminating the tenancy and asking for possession on the ground that the petitioners were in arrears of payment of rent from October 1, 1955, to June 30, 1956. There is no dispute that the rent of the premises is Rs. 12 per month and the notice demanded payment of Rs. 108 in respect of arrears of 9 months' rent. Immediately on receipt of this notice, on the very next day, i.e., July 4, 1956, the petitioners appear to have paid an amount of Rs. 24, and on August 1, 1956, another amount of Rs. 24 was paid. On October 9, 1956, the landlord filed the present suit for possession, out of which this revision application arises. In the suit, defendant No. 3 filed his written statement. In the plaint, the allegation made by the plaintiff was that defendant No. 1 was a monthly tenant, but defendant No. 3 denied this and stated that defendant No. 1 was not a monthly tenant and asserted that defendants' father was a yearly tenant. He further stated that whenever plaintiff was in need he used to demand rent and defendants used to pay the rent at any time. It was further contended that the notice to quit was invalid as defendants were treated as monthly tenants. It may be mentioned that there is no dispute that before the institution of the suit, an amount of Rs. 48 came to be paid on behalf of defendants, as already indicated, viz., an amount of Rs. 24 on July 4, 1956, and a further amount of Rs. 24 on August 1, 1956. It seems that on October 18, 1956, a money order was sent by the defendants for Rs. 72, but that was refused by the landlord apparently on the ground that the suit had been already instituted. That is why on October 27, 1956, defendants deposited an amount of Rs. 72 in Court. It is the case of the defendants that as these amounts had been deposited and as plaintiff has accepted the two earlier payments, he could not sue on the strength of the notice given by him. It was further urged that defendants were willing to pay the entire rent and plaintiff should not be given possession. On these pleadings, several issues were raised. The trial Court held that the tenancy was a monthly tenancy and not an annual tenancy and that the notice to quit was valid. It was held that plaintiffs had not waived the notice by acceptance of rent. It was also found that defendants had not proved that they were ready and willing to pay rent and costs of the suit. On these findings, the trial Court came to the conclusion that plaintiff was entitled to possession as sought by him, and, accordingly, a decree for possession was passed in favour of the plaintiff. Against this decision, defendants went in appeal and in the lower appellate Court two contentions appear to have been taken. The first contention was that the notice to quit was not a valid notice, since it was not served on all the defendants but given to defendant No. 1 only. This contention had not been taken in the written statement and the learned appellate Judge came to the conclusion that defendant No. 1 alone paid rent and was a tenant and, therefore, the contention about the validity of service of the notice was not sound. The second contention raised was that defendants were not monthly tenants but yearly tenants. That contention was also negatived. The lower appellate Court held that the tenancy was a monthly tenancy and the rent was payable by month. There does not appear to have been any dispute raised in the lower appellate Court about defendants being in arrears of rent for more than six months on the date of the suit and, therefore, the lower appellate Court held that defendants' case fell within Section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Bates Control Act, 1947 (which will hereafter be referred to as the Act) and the decree passed by the trial Court for possession was, therefore, upheld. It is against this decision that the present revision application has been filed.

(2.) SEVERAL contentions have been raised before me by Mr. L. P. Pendse, learned advocate appearing on behalf of the defendants in this revision application. But before I deal with the principal contention raised by Mr. Pendse, I will first of all deal with the contention raised by him about the legality of the notice. Mr. Pendse contends, in the first instance, that the finding of the Courts below that it was a monthly tenancy was not a correct finding because though it has been admitted that a rent -note was executed by defendants about ten years before the suit, that rent -note has not been produced by plaintiff. On this point, Mr. Pendse has relied on the cross -examination of plaintiff himself. It is no doubt true that according to plaintiff's admission a rent -note was executed by the defendants in his favour, but he stated that it was a monthly tenancy though he conceded that he had not produced the rent -note. There is nothing on the record to show that before plaintiff was examined, defendants had called upon plaintiff to produce the rent -note. The rent -receipts do not justify the contention of the defendants that they were in possession under an annual tenancy. Both the Courts have held on the evidence and the counterfoils of the receipts produced by plaintiff that the rent was accepted on the basis of monthly tenancy. On this ground, plaintiff's evidence that the suit tenancy was a monthly tenancy was accepted by the two lower Courts and there is no reason whatever why I should differ from that finding of fact.

(3.) THAT brings me to the principal contention of Mr. Pendse, viz., that this is not a case which is governed by Section 12(3)(a) of the Act. Mr. Pendse alternatively contends that even if it is a case under Section 12(3)(a) of a default of six months or more in payment of rent, it would yet be open to the Court to grant relief to the petitioners because as soon as notice was received by them, an amount of Rs. 24 was paid on July 4, 1956, a further amount of Rs. 24 was paid on August 1, 1956, and Rs. 72 were deposited in Court within a few days after the institution of the suit, since plaintiff had refused the money order previously sent to him a few days after the suit, and even during the pendency of the suit payments have been made by the defendants from time to time; so that there are no arrears due from the petitioners to the opponent. Now, the scheme of Section 12 of the Act is that a landlord will not be allowed recovery of possession of any premises so long as the tenant pays and is ready and willing to pay the amount of standard rent and the permitted increases and observes and performs the other conditions of the tenancy in so far as they are consistent with the provisions of the Act. This is what is provided under Section 12(1) of the Act. Section 12(2) provides that a suit by a landlord for recovery of possession cannot be instituted 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 Section 106 of the Transfer of Property Act, 1882. So that, even if the tenant has committed default in paying standard rent or permitted increases, as a condition of instituting the suit, a notice of demand has to he served on the tenant as provided in Section 106 of the Transfer of Property Act. On the finding now recorded, there cannot be any dispute that such a notice was given to the defendants in the present case. Under Sub -section (5) (a) of Section 12 of the Act, where the rent is payable by the month and there is 110 dispute regarding the amount of standard rent or permitted increases, if such 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. Mr. Pendse contends that even though a Division Bench of this Court has taken the view that the word 'may' in this section has to be given the sense of 'shall' or 'must', it would yet be open to the Court to exercise its discretion even under Section 12(3)(a) of the Act. In Kurban Hussen v. Ratikant (1956) 59 Bom. L.R. 158 this Court has held that the word 'may' in Section 12(3)(a) of the Act is used in its compulsory, obligatory sense and means 'shall' or 'must' and, therefore, the Court is bound to pass a decree for eviction as soon as it is satisfied that the requirements of Section 12(3)(a) of the Act are satisfied. Mr. Pendse has faintly argued that some of the English cases on the question of interpretation of the word 'may' in statutes do not appear to have been brought to the notice of the learned Judges deciding that ease, and in this connection he drew my attention to the case, In re Baker; Nichols v. Baker (1890) 44 Ch. D. 262, and the observations of Cotton L.J. in that case at p. 270 to the following effect: - I think that great misconception, is caused by saying that in some cases 'may' means 'must'. It never can mean 'must', so long as the English language retains Its meaning; but it gives a power, and then it may be a question in what case, where a Judge has a power given him by the word 'may', it becomes his duty to exercise it. In my view, the mere fact that the observations in this case may not have been brought to the notice of the Division Bench which decided the case of Kurban Hussen v. Ratikant does not make the Division Bench ruling the less binding upon me.