Vs. Narendra Singh Virdi  INSC 386 (18 July 1994)
S. (J) Mohan, S. (J) Singh N.P. (J)
1995 AIR 448 1994 SCC (5) 261 JT 1994 (5) 454 1994 SCALE (3)246
Judgment of the Court was delivered by MOHAN, J.- The brief facts leading to
this appeal are as under.
appellant is the owner of a bungalow situated at Mundhva Road, Ghorpadi, Poona. On 10-
11- 1957, the first appellant and his wife Banoobai (since deceased) leased out
the said premises to Respondent I under a rent note on a monthly rent of Rs
first respondent fell into arrears of rent for the period commencing from 1-8-1963 to 31-3-1964. By
notice dated 22-4-1964, Appellant I and his wife terminated the tenancy of the
first respondent and demanded arrears of rent under Section 20(2) of the Bombay
Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to
as the Act').
the expiry of the period of notice, the appellant and his wife filed a Suit No.
2267/64 for possession of the premises under Section 12(3)(a) of the Act. The
respondent- tenant contested the suit. He also raised the question of standard
rent and claimed for fixation of standard rent.
learned trial Judge by his order dated 26-7-1965,fixed standard rent at Rs 130 per
month and decreed the suit. On appeal by the respondent, the same was allowed
by the learned District Judge by his order dated 16-4-1966.
Special Civil Application No. 46 of 1967 was preferred in the High Court. That
was dismissed on 6-10- 1970.
5. On 3-10-1966, the wife of the first appellant, Banoobai, died.
The first appellant in his capacity of co- owner as also the heir of his wife
together with her other heirs, served a notice dated 2-5-1967 calling upon the
first respondent to pay arrears of rent for the period commencing from 1- 11-
1966 to 30-4-1967 within a month. The first respondent did not pay the said 263
arrears. That necessitated the appellant to file the present suit for
possession and for recovery of arrears of rent. In the said suit, the legal
representatives of the deceased Banoobai were made pro forma defendants 2 to 5.
On 8-6-1967, they released all their rights,
title and interest in favour of Appellant 1.
Pending suit, an application for amendment was taken out raising the tone of
nuisance against the first respondent. The trial court decided both suits and
standard rent application by its order dated 29-9-1973 and held that the
standard rent of the premises was Rs 130 per month. The suit was decreed in favour
of the appellant under Section 12(3)(a) and (b) of the Act. The first
respondent preferred an appeal which was dismissed. Thereafter he preferred two
special civil applications one against the decree for possession and the other
against the standard rent application. The learned Single Judge of the High
Court heard both the matters together and dismissed the suits as not
maintainable. It is under these circumstances, the present civil appeal has
come before this Court.
V.M. Tarkunde, learned counsel for the appellant argues that first and foremost
the point of arrears of rent in the hands of transferee becomes a debt, is not
taken either in written statement filed by the respondents nor any issue was
framed. Such a point cannot be decided under Article 227.
first appellant is a co-owner and is entitled to give notice. Such a notice is
valid as laid down in Sri Ram Pasricha v. Jagannathl and Subhendu Prosad Roy Choudhury
v. Kamala Bala Roy Choudhury2. Even otherwise as collector of rent, he is
entitled to issue notice. The notice is not challenged on the ground that more
rent is demanded or rent of six months was not due.
Section 12(3)(a) of Rent Act operates on a different footing and applies only
in following case:
When the arrears of rent are more than 6 months;
Rent is payable by month of month;
Notice served on the tenant;
No dispute regarding standard rent.
other cases, Section 12(3)(b) is applicable. The cases covered there under are
for arrears of rent of less than six months.
opposition to this, learned counsel for the respondent Mr E.C. Agrawala argues
that the notice dated 2-5-1967 was, not valid. Firstly, on the
date of the said notice, the rent for six months had not become due for payment
within the meaning of Section 12(2) of the Act, therefore, Section 12(3)(a)
would not apply. Secondly, the rent claimed in the notice was at the monthly
rate of Rs 130 whereas before the date of issuance of notice, Small Cause Court in Miscellaneous Application No.
258/67 had fixed the interim rate of rent at the rate of Rs 87 per month. The
same having been deposited, 1 (1976) 4 SCC 184: (1977) 1 SCR 395 2 (1978) 2 SCC
89 264 there were no arrears. Thirdly, on 8-6-1967, the property was leased out in favour
of the appellant and the pro forma respondents had relinquished their share but
in the said relinquishment deed, no assignment much less a specific assignment
of rent was made in favour of the appellant. In the absence of such an assignment,
the appellant could not recover it as rent.
a defective notice, the suit could not be validly maintained as laid down in Chimanlal
v. Mishrilal. This judgment has been relied upon in a recent decision of this
Court reported in Chase Bright Steel Ltd. v. Shantaram Shankar Sawant4. Where
therefore, mere chose-in action is claimed under Section 109 of the Transfer of
Property Act, the transferee is not entitled to arrears of rent.
The appellant having failed in his case under Section 12(3)(a), cannot seek to
rely on Section 12(3)(b). Under Section 12(3)(a), there was a dispute about the
amount of rent. There were no arrears for six months outstanding and there is
no negligence on the part of the respondent-tenant in making the payment
thereof. The notice is bad on that account. The notice referred to under
Section 12(3)(b) is entirely different. Thus, no exception could be taken to
the impugned judgment.
now proceed to consider the respective submissions.
appreciate the arguments of Mr Tarkunde that the arrears of rent in the hands
of transferee becomes debt was not taken either in the written statement filed
by the respondent nor was any issue framed by the courts below.
under Article 227, such a point could not be raised. It is purely a question of
law arising on the admitted facts and hence under Article 227 such a point
could validly be raised. The cases cited in the judgment have no application.
In India Pipe Fitting Co. v. Fakruddin M.A. Baker5, it was held:.(SCC pp. 589-90,
paras 7-8) "It is possible that another court may be able to take a
different view of the matter by appreciating the evidence in a different
manner, if it determinedly chooses to do so.
with respect to the learned Judge (Vaidya, J.) that will not be justice
administered according to law to which courts are committed notwithstanding
dissertation, in season and out of season, about philosophies.
clearly of the opinion that there was no justification for interference in this
case with the conclusions of facts by the High Court under Article 227 of the
also unable to agree with the High Court that there was anything so grossly
wrong and unjust or shocking the court's 'conscience' that it was absolutely
necessary in the interest of justice for the High Court to step in under
Article 227 of the Constitution. Counsel for both sides took us through the reasonings
given by the High Court as well as by the courts below and we are unable to
hold that the High Court was at all correct in exercising its 3 (1985) 1 SCC
14: (1985) 2 SCR 39 4 (1994) 4 SCC 89: JT (1994) 2 SC 192 5 (1977) 4 SCC 587 :
(1978) 1 SCR 797 265 powers under Article 227 of the Constitution to interfere
with the decisions of the courts below. In our opinion, the High Court
arrogated to itself the powers of a court of appeal, which it did not possess
under the law, and has exceeded its jurisdiction under Article 227 of the
Constitution." So, as we have observed above, it is purely a question of
we come to the validity of the notice. That takes us to Section 12, the
material part is as under:
(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
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.
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."
For the institution of the suit, a valid notice is necessary. This Court had
occasion to deal with the aspects in Chimanlal v. Mishrilal3. This Court held
as under: (SCC p. 18, para 8) "The notice referred to in Section 12(1)(a)
must be a notice demanding the rental arrears in respect of accommodation
actually let to the tenant. It must be a notice
the arrears of rent in respect of the accommodation let to the tenant and
arrears of rent must be legally recoverable from the tenant. There can be no
admission by a tenant that arrears of rent are due unless they relate to the
accommodation let to him.
valid notice demanding arrears of rent relatable to the accommodation let to
the tenant from which he is sought to be evicted is a vital ingredient of the
conditions which govern the maintainability of the suit, for unless a valid
demand is made no complaint can be laid of non-compliance with it, and
consequently no suit for ejectment of the tenant in respect of the
accommodation will lie on that ground." 266
Therefore, we now proceed to consider whether the suit notice is a valid one.
The notice is dated 2-5-1967. On 8- 6-1967, a lease deed came to be executed in favour of the
appellant by the pro forma defendants. The suit came to be filed on 14-6-1967. The question is whether the notice conforms to
Section 12(3)(a). A notice claims rent at the rate of Rs 130. In fact, the rent
had been fixed as Rs 87 on 22-4-1967. The
rent fixed by the court had been duly deposited by the respondent covering all
the arrears. The rent claimed in the notice was Rs 800 (including Rs 20 as
the light of the above, the question would be whether notice is in conformity
with Section 12(3)(a). This section consists of the following:
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;
If the tenant neglects to make payment.
these conditions are satisfied, a decree for eviction could be passed.
this case, no doubt, the rent is payable by the month but there is a dispute as
to the amount of standard rent. As seen above, on 24-4-1967 (sic 22-4-1967) in
Miscellaneous Application No. 258/67, the Small Cause Court had fixed the
interim rent at the rate of Rs 87 as per order dated 24-4-1967 (sic 22-4-1967).
The same had been deposited by the tenant and therefore there were no arrears
That being so, it cannot be said that the tenant had neglected to pay the rent.
Then again as on the date of notice, there were no arrears of rent outstanding
for a period of six months or more. What is important to be noted is that the
lease deed was executed on 8-6-1967 in favour
of the appellant. In that lease deed, nowhere is any assignment of rent.
Section 109 of the Transfer of Property Act reads as under:
the lessor transfers the property leased, or any part thereof, or any part of
his interest therein, the transferee, in the absence of a contract to the
contrary, shall possess all the rights, and, if the lessee so elects, be
subject to all the liabilities of the lessor as to the property or part
transferred so long as he is the owner of it; but the lessor shall not, by
reason only of such transfer, cease to be subject to any of the liabilities
imposed upon him by the lease, unless the lessee elects to treat the transferee
as the person liable to him:
that the transferee is not entitled to arrears of rent due before the transfer,
and that, if the lessee, not having reason to believe that such transfer has
been made, pays rent to the lessor, the lessee shall not be liable to pay such
rent over again to the transferee." In view of the proviso, the
appellant-assignee is not entitled to rent before the assignment. The rent is
merely a debt. In this connection, it would be useful to quote para 7 of the
plaint filed by the appellant. It reads:
Defendants 2 to 5 have released all their rights, title and interest in the
suit bungalow in their capacity as her legal representatives of the deceased
Banoobai N. Engineer wife of the plaintiff on 8-6-1967 by a registered lease deed. It is therefore not necessary
to implied them as co- plaintiffs in the suit. They have however been joined as
pro forma defendants in this suit in order to avoid any objections on the part
of the defendants that the suit is bad for non-joinder of necessary
Therefore, whatever might have been due prior to deed of lease dated 8-6-1967,
could not constitute arrears of rent. It was mere actionable claim. That being
so, the notice does not satisfy the requirements of Section 12(3)(a), more so
in this case, as stated above, the arrears at the rate of Rs 87 had been
deposited. It is not open to the appellant to call upon Section 12(3)(b).
For the foregoing reasons, we hold that no exception could be taken to the
impugned judgment. The civil appeal is dismissed. However, there shall be no
order as to costs.