Mohan Laxman
Hede Vs. Noor Mohamed Adam Shaikh [1988] INSC 94 (7 April 1988)
Kania,
M.H. Kania, M.H. Pathak, R.S. (Cj) Ojha, N.D.
(J)
CITATION:
1988 AIR 1111 1988 SCR (3) 461 1988 SCC (2) 481 JT 1988 (2) 56 1988 SCALE
(1)656
CITATOR
INFO : D 1988 SC1817 (5)
ACT:
Bombay
Rents, Hotel and Lodging House Rates Control Act, 1947-Section 12(3)(b)-'Regularity'
in payment- Significance of-Exact or mathematical punctuality not required.
HEAD NOTE:
%
Appellant took the tenancy of the premises in question on an agreed monthly
rent of Rs.22 + Rs.2.20 per month on account of Education Cess. Respondent
purchased the house on December
3, 1976. Appellant was
in arrears of rent from 1.6.1976 to 30.11.76. In response to the notice issued
by the Respondent, appellant sent a money order to Respondent treating him as
the Muktyar or agent of the previous landlord. The respondent refused the money
order. Thereafter the appellant filed an application in the trial court for
fixing the standard rent of the premises under the provisions of the Bombay
Rents, Hotel and Lodging House Rates Control Act, 1947.
The
Respondent filed a suit claiming arrears of rent and possession of the suit
premises on the ground of non- payment of arrears of rent and bona fide
requirement under section 12(3) and section 13(1) of the Act. Trial Court
passed an order fixing the interim rent of Rs.20 and directed the appellant to
pay all arrears of rent and future rent accordingly. Appellant deposited the
arrears and thereafter made payment not monthly but at some irregular
intervals.
The
Trial Court held that the respondent had failed to prove that he was in bona
fide need of the suit premises, but passed a decree for eviction on the ground
that the Appellant had committed default in payment of rent as contemplated
under section 12(3)(b) of the Act. On appeal these findings were confirmed by
the Additional District Judge. The Appellant filed a Writ Petition in the High
Court, which was dismissed. In the appeal by special leave, it was contended on
behalf of the appellant that payments of rents were made with substantial
regularity and that no decree for eviction could be passed against the
Appellant.
The
contention of the Respondent was that there was irregularity in the deposit of
the rent and that the appellant was liable to be evicted on the ground of
default in payment of rent.
462
Disposing of the appeal this Court, ^
HELD:
1. Section 12(3)(a) of the Act will not be applicable since there was dispute
regarding the amount of standard rent. Section 12(3)(b) is applicable, which
makes it clear that no decree for eviction can be passed in a suit for recovery
of possession on the ground of non-payment of standard rent or permitted
increases instituted by the landlord against the tenant, if on the first day of
the hearing of the suit or on or before such a date, as the court may fix, the
tenant pays or deposits in court the standard rent and permitted increases then
due and thereafter continues to pay or deposits in court regularly such rent
and permitted increases till the suit is finally decided and also pays the
costs of the suit as directed by the court. [466E-F]
2. As
ordered by the Trial Court, the monthly rent should have been deposited on the
fifth day of each succeeding month. There were a few defaults committed by the Appellant
varying from 2 to 3 days into a maximum of 23
days. On the other hand, rent for most of the months had been deposited in
advance. In the circumstances of the case the Appellant had been depositing the
rent with reasonable punctuality and can be regarded as having deposited the
rent 'regularly' as contemplated in Section 12(3)(b) and it is incorrect to say
that exact or mathematical punctuality was required in the deposit of rent by a
tenant to take advantage of the provisions of Section 12(3)(b). [467G-H;
468A-C] (Mranalini B Shah and another v. Bapalal Mohanlal Shah, [1980] 4 S.C.C.
251, followed.
[The
decree for eviction was set aside and the court directed that the suit filed by
the Respondent shall stand dismissed.]
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 1449 of 1987.
From
the Judgment and Order dated 25.2.1987 of the Bombay High Court in W.P. No.
6028 of 1986.
V.M. Tarkunde
and S.C. Birla for the Appellant.
V.B.
Joshi and Janardan for the Respondent.
The
Judgment of the Court was delivered by 463 KANIA, J. This is an Appeal by a
tenant against a decree for eviction passed against him at the instance of the
Respondent who is the landlord. The Appeal has been preferred pursuant to
Special Leave granted by this Court under Article 136 of the Constitution.
In
view of the short controversy before us, the relevant facts can be very briefly
stated.
The
Appellant took the tenancy of the premises in question, namely, shop in a house
bearing CTS No. 168, Bhavant Peth, Satara City in Maharashtra on an agreed rent of Rs.22 per month. Apart from the rent,
a sum of Rs.2.20 per month was payable on account of Education Cess. The
Respondent purchased the said house on December 3, 1976 and on the next day the previous
owner of the said house informed the Appellant that the property was sold to
the Respondent and the tenancy was attorned and further stated that the
Appellant was in arrears of rent from 1.6.1976 to 30.11.1976. On January 11, 1977, the Appellant received a notice from
the Respondent dated January
10, 1977 demanding the
arrears of rent from the Appellant. On January 17, 1977, the Appellant sent a money order
to the Respondent for the arrears of rent but the money order stated that the
payment was being made to the Respondent as the Muktyar or agent of the
previous landlord. This money order was refused by the Respondent. On February
14/15, 1977, the Appellant filed a standard rent application in the Trial Court
for fixing the standard rent of the premises under the provisions of the Bombay
Rents, Hotel and Lodging House Rates Control Act, 1947 which we shall refer to
hereinafter as "the Bombay Rent Act". The Respondent filed a suit,
being Regular Civil Suit No. 123 of 1977, in the Court of Civil Judge Junior
Division, Satara claiming arrears of rent and possession of the suit premises
on the ground of non-payment of arrears of rent and bona fide requirement as
contemplated under Section 12(3) and Section 13(1) respectively of the Bombay
Rent Act.
The
issues in the said suit were framed by the Trial Court on September 12, 1978, and that is accepted as the first
day of hearing of the suit. Although the Appellant made applications on 24-12-1977, 15-1-1980, 9-12-1980 and 27-1-1981 for
fixation of interim rent, the Trial Court passed an order only on January 27, 1981 fixing the interim rent at Rs.20
per month and gave directions to the Appellant to pay all the arrears of rent
on or before February
10, 1981. The
Appellant deposited all the arrears of rent at the rate fixed by the Court for
the period from 1-6-1976 to 31-1-1981 in the Trial Court on January 29, 1981, that is, within two days from the
date of order fixing the rent. The Appellant thereafter deposited the rent in
the Trial Court as set out in the following manner:
464
____________________________________________________________ 'C'No. Receipt
Date Amount Particulars No.
____________________________________________________________
1269 1094 29-1-81 1158.60 June 1976 to Feb'1981 1416 1208 25-2-81 20.00 March,
1981 13 12 2-4-81 60.00 April, May, June, 1981 409 366 8-7-81 60.00 July,Aug.,
Sept', 1981 849 755 5-10-81 60.00 October, November Dec., 1981 1322 1166
11-1-82 60.00 January, February, March, 1982 54 51 8-4-82 60.00 April, May,
June,1982 682 630 10-8-82 60.00 July,August Sept, 1982 1153 1055 1-11-82 60.00
October, November, Dec., 1982 1728 1596 7-2-83 40.00 January, February, 1983
107 100 12-4-83 60.00 March,April May 1983 528 484 14-7-83 40.00 June,July,
1983 998 910 28-9-83 40.00 August, Sept., 1983 1213 1203 7-11-83 40.00 October,
Nov.1983, 1689 1603 11-1-84 20.00 December, 1983 1635 1551 5-1-84 20.00
January, 1984 2079 1952 15-3-84 100.00 February to June,1984 354 316 26-6-84
120.00 July to Dec,1984 434 256 18-12-84 240.00 January to Dec', 1985 456 290
17-12-85 240.00 January to Dec', 1986 The Trial Court held that the Respondent
had failed to prove that he was in bona fide need of the suit premises but
passed a decree for 465 eviction on the ground that the Appellant had committed
default in payment of rent as contemplated under section 12(3)(b) of the Bombay
Rent Act. On an appeal by the Appellant, these findings were confirmed by the
Additional District Judge, Satare and the appeal was dismissed. Being
aggrieved, the Appellant filed a writ petition, being Writ Petition No. 6028 of
1986, in the High Court of Bombay. This writ petition was dismissed by a
learned Single Judge of the High Court by a short order taking the view that
the Appellant was in arrears and had committed default in payment of rent and
there was no reason for the High Court to interfere with the decisions of the
courts below. The present Appeal is directed against this decision.
It was
submitted by Mr. Tarkunde, learned counsel for the Appellant that the Appellant
had deposited well within time the entire arrears of rent on the basis of the
interim rent fixed by the Trial Court and had thereafter deposited the amount
of accruing rent in court with substantial regularity and in view of this, no
decree for eviction could be passed against the Appellant under the provisions
of Section 12(3)(b) of the Bombay Rent Act read with the other provisions
contained in Section 12. It was, on the other hand, contended by Mr. Joshi,
learned counsel for the Respondent, that there was irregularity in the deposit
of the interim rent after the initial deposit of arrears was made by the
Appellant, and he was not entitled to the protection of the Bombay Rent Act and
was liable to be evicted on the ground of default in payment of the rent. In
order to appreciate these arguments, we have to consider the relevant
provisions of Section 12 of the Bombay Rent Act.
The
material portion of Section 12 runs as follows:
"12.
(1) A landlord shall not be entitled to the recovery of possession of any
premises so long as the tenant pays, or is ready and willing to pay, the amount
of the standard rent and permitted increases, if any and observes and performs
the other conditions of the tenancy, in so far as they are consistent with the
provisions of this Act.
(2) No
suit for recovery of possession shall be instituted by a landlord against
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.
466 (3)(a)
Where the rent is payable by the month and there is no 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 shall pass a decree for eviction in
any such suit for recovery of possession.
(b) In
any other case no decree for eviction shall be passed in any such suit if, on
the first day of hearing of the suit or on or before such other date as the
Court may fix, the tenant pays or tenders in Court the standard rent and
permitted increases then due and thereafter continues to pay or tender in Court
regularly such rent and permitted increases till the suit is finally decided
and also pays costs of the suit as directed by the Court.
x x x x
x x" The provision of Section 12(1) has already been set out. In the
present case, the provisions of clause (a) of sub-section (3) of Section 12
have no application as there was a dispute regarding the amount of standard
rent. Hence the provisions which we have to consider are those contained in
clause (b) of sub-section (3) of Section 12 of the Bombay Rent Act. This clause
read in the context makes it clear that no decree for eviction can be passed in
a suit for recovery of possession on the ground of non-payment of standard rent
or permitted increases instituted by the landlord against the tenant, if on the
first day of the hearing of the suit or on or before such a date, as the court
may fix, the tenant pays or deposits in court the standard rent and permitted
increases then due and thereafter continues to pay or deposits in court
regularly such rent and permitted increases till the suit is finally decided
and also pays the costs of the suit as directed by the court.
In the
present case, both sides accepted the position that the Appellant had deposited
in Court the entire arrears of rent on the basis of interim rent fixed well
within time as directed by the court. It is common ground that until the
application of standard rent made by the tenant is finally decided, the interim
rent fixed by the court must be regarded as the standard rent. The only
question, therefore, is whether it can be said that the Appellant, after the
first deposit, of the arrears of rent, continued to deposit in court the rent
and the permit- 467 ted increases "regularly" till the suit was
finally decided as contemplated under Section 12(3)(b) of the Act. In Mranalini
B. Shah and another v. Bapalal Mohanlal Shah, [1980] 4 S.C.C. 251 a Division
Bench of this Court was called upon to consider the very provisions of Section
12(3)(b) of the Bombay Rent Act which fall for consideration in the present
case before us. In dealing with these provisions, Sarkaria, J., speaking for
the Court stated as follows:
"The
above enunciation, clarifies beyond doubt that the provisions of clause (b) of
Section 12(3) are mandatory, and must be strictly complied with by the tenant
during the pendency of the suit or appeal if the landlord's claim for eviction
on the ground of default in payment of rent is to be defeated. The word
'regularly' in clause (b) of Section 12(3) has a significance of its own. It
enjoins a payment or tender characterised by reasonable punctuality, that is to
say, one made at regular times or intervals. The regularity contemplated may
not be a punctuality, of clock- like precision and exactitude, but it must
reasonably conform with substantial proximity to the sequence of times or
intervals at which the rent falls due. Thus, where the rent is payable by the
month, the tenant must, if he wants to avail of the benefit of the latter part
of clause (b), tender or pay every month as it falls due, or at his discretion
in advance. If he persistently defaults during the pendency of the suit or
appeal in paying the rent, such as where he pays it at irregular intervals of 2
or 3 or 4 months-as is the case before us-the Court has no discretion to treat
what were manifestly irregular payments, as substantial compliance with the
mandate of this clause, irrespective of the fact that by the time the judgment
was pronounced all the arrears had been cleared by the tenant." If we
examine the chart of deposits made by the Appellant in the court set out
earlier, it shows that during the period 29-1-1981 to 17-12-85 the Appellant
has been depositing the rents in court for two or three months at a time. In
respect of some months, there are undoubtedly a few defaults in the sense that
the deposits have been made a few days later than directed. In this connection,
it must be noticed that Trial Court directed that in respect of accruing rent
after the order for deposit of arrears was passed, the monthly rent must be
deposited on the fifth day of each month which, it is undisputed, must mean the
fifth day of each succeeding month. On this basis there are 468 undoubtedly a
few defaults committed by the Appellant in the sense that in respect of the
first month to which the deposit relates, there is some delay amounting to from
two or three days upto a maximum of 23 days. But, on the other hand, the rent
for most of the months has been deposited in advance. In these circumstances,
applying the principle laid down in the aforesaid decision referred to, we are
of the view that the rent has been deposited by the Appellant with reasonable
punctuality and hence the Appellant/tenant can be regarded as having deposited
the rent 'regularly' as contemplated in clause (b) of subsection (3) of Section
12 of the Bombay Rent Act. We are of the view that the courts below were in
error in taking the view that exact or mathematical punctuality was required in
the deposit of rent by a tenant to take advantage of the provisions of Section
12(3)(b) of the Bombay Rent Act.
In
these circumstances, we set aside the decree for eviction passed by the courts
below and order that the suit filed by the Respondent shall stand dismissed.
So far
as the costs of this Appeal are concerned, however, that is a different
question. It has been pointed out to us by the learned counsel for the
Respondent that the Appellant has been persisting in his unjustified stand that
the Respondent was not his landlord in respect of the premises in question and
on that ground he opposed the withdrawal by the Respondent of the amount
deposited by the Appellant in the Trial Court. We agree that this stand was
unjustified. Mr. Tarkunde, however, made it clear that the Appellant
unconditionally accepts the title of the Respondent to the suit building and
also accepts that he is the landlord of the Appellant and that the Respondent
is entitled to recover the amount of rent from the Appellant.
If any
rent remains deposited by the Appellant in the Trial Court, the Respondent
shall be at liberty to withdraw the same forthwith.
In
these circumstances, we direct that the entire costs throughout shall be borne
and paid by the Appellant.
G.N.
Appeal disposed of.
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