NARHAR DAMODAR WANI Vs. NARMADABAI T NAVE

JUDGEMENT

(1.) This petition has been referred to the Division Bench by the learned Single Judge (Masodkar, J.), who in his referring order dated November 17, 1983, found that there is a conflict between two judgments of the two learned Single Judges of this Court and his own judgement in Writ Petition No. 1437 of 1979 decided on September 8, 1983 (Waman Deoram Sonawane V/s. Shri Ganesh Mandir, 1984 BLR 40 . In Waman Sonawane's case, Waman was a tenant and a decree for eviction was passed against him under the provisions of Sec. 12(3)(a) and (b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (herein after referred to as "the Bombay Rent Act"). The decree for eviction was passed on default of payment of the education cess and it was contended on behalf of the tenant that such a decree could not have been made under Sec. 12(3)(a) of the Bombay Rent Act. The contention on behalf of the tenant was that the total amount due for the period July 1, 1963 to January 1971 was Rs, 3.185.00 and this amount was paid (1) by paying Rs. 2,860.00 to the Municipal Council towards the taxes and (2) by sending Rs. 325.00 by money order. Thus, according to the tenant, there was no default with regard to payment of rent and no cause of action, therefore, survived to the landlord to file a suit and obtain a decree. Reliance was placed on the decision of Dharmadhikari, J. in Ayodhyabai V/s. Sumanchand (1983) Writ Petition No. 156 of 1983 decided, July 1, 1983 by Dharmadhikari J. (Unrep.) and on the decision of Pratap, J. in Shamrao V/s. Chaturbai, 1981 BLR 9.

(2.) On behalf of the landlord: the respondent, reliance was placed on the decision of the Supreme Court in Mranalini Shah V/s. B.M. Shah - the effect of which, according to the learned Counsel for the landlord, was not considered in the two decisions referred to above. The learned Judge found that right from July 1, 1963 to January 21, 1971 rent was in arrears and the tenant was in default and rent was not paid every month but in two lump sums referred to above. It was also found that the tenant paid rent for four months and three months respectively and the education cess for the period from October 1, 1962 to September 30, 1967 worked out to Rs. 42.00 and for the further period from October 1967 to December 1970 it worked out to Rs. 32-25 making a total of Rs. 75-25. It was found that the education cess was covered by the term "permitted increases" and the amount of education cess was not deposited inspite of the notice in the Court when the suit was filed nor did the tenant continue to deposit even the stipulated rent every month during the pendency of the suit or during the pendency of the appeal in the appeal court. Taking the view that in such a case Sec. 12(3)(a) of the Bombay Rent Act was not attracted, the learned Judge took the view that the tenant had not complied with the condition required for the protection of Sec. 12(3)(b) which must also lead to the conclusion that he was a defaulter in the matter of payment of rent and that he was not ready and willing to discharge his liability. The learned Judge further held that the cause of action for the rent suit is one that arises upon the issuance of notice terminating the tenancy as contemplated by Sub-section (2) of Section 12 of the Act and once the notice is given a suit can be filed. It was pointed out that in such a suit how the relief of eviction can be granted is provided for by Sub-section (3) of Sec. 12 of the Act and even when a decree for eviction cannot be made under Sec. 12(3)(a) of the Act, a decree for eviction can be made if the tenant fails to protect himself by complying with the conditions available in Clause (b) of Sec. 12(3). Thus, it was held that the lower appellate Court was right in making a decree for eviction.

(3.) In Shamrao's case Pratap, J. took the view on the facts in that case that much prior to the notice under Sec. 12(2) of the Act and even before the receipt of that notice the tenant had himself deposited in judicial proceedings between the parties the entire amount of rent which covered not only the entire period of arrears but also period subsequent thereto and thus the tenant had paid the entire amount long before the receipt of the notice and he was entitled to be protected in his possession of the suit premises. In Ayodhyabai's case Dharmadhikari, J. took the view that when within one month after the receipt of demand notice under Sec. 12(2) of the Act, the entire amount of rent is paid by the tenant, the tenant must be held to be always ready and willing to pay the rent and the suit of the landlord for possession is liable to be dismissed on the short ground that there was no cause of action for filing the suit and it was not open to the landlord at the end of the trial to take recourse to Sec. 12(3)(b) of the Act "for fishing out a cause of action for getting a decree in a suit which was not properly instituted". The effect of the decision in Ayodhyabai's case, therefore, is that where consequent upon a notice under Sec. 12(2) of the Act the tenant either pays or deposits the entire amount demanded in the Court, no cause of action survives to the landlord for filing a suit for eviction and in such a case, there is no question of considering whether the landlord is entitled to possession on the ground that the tenant has not complied with the provisions of Sec. 12(3)(b) of the Bombay Rent Act. A similar view has been taken by one of us (Jahagirdar, J.) in Raniyabai Gavli V/s. Sonabai Udgirkar (1981) Spl. C.A. No. 3179 of 1978, decided, December 8, 1981 by Jahagirdar J. (Unrep.) decided on December 8, 1981. On facts it was found in that case that the tenant had complied with the requisition contained in the notice sent under Sec. 12(2) of the Bombay Rent Act and, therefore, a suit could not have been filed for possession of the premises on the ground of non-payment of rent. It was held that there was no cause of action for the suit filed in that case. Reliance was placed on the earlier decision of Vaidya, J. in Marutrao Bhaurao V/s. Akbaralli, 1972 BLR 35. In that case Vaidya, J. held on the facts of that case that if the tenant was ready and willing to pay the rent as required by Sec. 12(1) of the Bombay Rent Act, the landlords were not entitled to possession under Sec. 12(3)(a) of the Act and that merely because the payment was made by cheque, the Court could not assume that the tenant was not ready and willing to pay rent to the landlords.