NAHAR 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 17th November, 1983, found that there is a conflict between two judgments of the two learned Single Judges of this Court and his own judgments in Writ Petition No. 1437 of 1979 decided on 8th September, 1983 (Waman Deoram Sonawne v. Shri Ganesh Mandir). In Waman Sonawne's case Waman was a tenant and a decree for eviction was passed against him under the provisions of Section 12(3)(a) and (b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the Bombay Rent Act"). The decree for eviction was passed in default of payment of the education cess and it was contended on behalf of the tenant that such a decree could not have been under Section 12(3)(a) of the Bombay Rent Act. The contention on behalf of the tenant was that the total amount due for the period Ist July, 1963 to Jan. 1971 was Rs. 3,185 and this amount was paid (1) by paying Rs. 2,860 to the Municipal Council towards the taxes and (2) by sending Rs. 325 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. Sumapchand, W.P. No. 156 of 1983, decided on 1.7.1983. and on the decision of Pratap J. in Shamrao v. Chaturbai, 1982 Mah. L.J. 347.

(2.) ON behalf of the landlord, the respondent, reliance was placed on the decision of the Supreme Court in Mranalini Shah v. B.W. Shah, AIR 1980 SC 954, 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 Ist July, 1963 to 31st January, 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 Ist October, 1962 to 30th September, 1967 worked out to Rs. 42 and for further the 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 cass Section 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 Section 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 Section 12 of the Act and even when a decree for eviction cannot be made under Section 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 Section 12(3). Thus, it was held that the lower appellate Court was right in making a decree for eviction.

(3.) IT is necessary at this stage to refer to the facts of the present case. The concurrent findings of both the Courts below which have not been disputed before us, and rightly so, are that when a notice under Section 12(2) of the Bombay Rent Act demanding arrears of rent from March 1972 upto May 1973 was sent on 15th June, 1973 and was received by the tenant on 21st June, 1973, the tenant had sent the entire amount of Rs. 75 by money Order on 17th July, 1973 which was refused by the landlord. The landlord filed the suit on Ist September, 1973 claiming possession under Section 12(3)(a) of the Bombay Rent Act. The trial Court found that though the plaintiff had refused to accept the entire amount of rent the defendant-tenant had thereafter not paid the rent regularly, and on the first date of hearing he asked for permission to pay the tent due from 31st October, 1974 but that amount of Rs. 305 came to be deposited only on 8th June, 1976. It was found that thereafter also the tenant did not pay rent regularly and, therefore, according to the learned trial Judge the tenant was not entitled to protection under Section 12(3)(b) of the Bombay Rent Act. In appeal, the lower appellate Court held that the tenant had never been regular in payment of rent after the filing of the suit and he was, therefore, not entitled to protection under Section 12(3)(b) of the Bombay Rent Act. The decree for possession was therefore, confirmed.