Laxmikant
Revchand Bhojwani & Anr Vs. Pratapsing. Mohansingh Pardeshi [1995] INSC 508
(18 September 1995)
Kuldip
Singh (J) Kuldip Singh (J) Ahmad Saghir S. (J) Kuldip Singh, J.
CITATION:
1995 SCC (6) 576 JT 1995 (7) 400 1995 SCALE (5)481
ACT:
HEAD NOTE:
Special
leave granted.
Shantabai,
predecessor in interest of the respondents herein, instituted a suit under the
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (the Act) for
possession of the suit premises against the appellants- tenants. The suit was
decreed by the trial court. The appellate court reversed the judgment of the
trial court and decreed the suit. The Aurangabad Bench of Bombay High Court set
aside the judgment of the appellate court and restored that of the trial court.
This appeal, by the tenants, is against the judgment of the High Court.
The
suit premises was rented to the appellants for residential purposes at a
monthly rent of Rs.70/-. The rent was, later on, increased to Rs.80/-. The
landlady served a notice dated July 28, 1972
terminating the appellants tenancy on the grounds of default in payment of rent
and bona fide requirement by her. It was mentioned in the notice that arrears
of rent from April 1,
1971 were due from the
tenants. As far as the bona fide requirement is concerned the trial court
rejected the case of the landlady. On the issue of arrears of rent the trial
court negatived the contention of the landlady that the tenants neglected to
pay the rent for more than six months. The trial court, however, held that the
case of the landlady was covered under Section 12(3)(b) of the Act and since
the tenants failed to comply with the said provisions they were liable to be
evicted. The appellate court came to the conclusion that the bona fide
requirement was not proved by the landlady. On the issue of arrears it was held
that the landlady, having failed to prove that the tenants neglected to pay
rent for more than six months, neither the provisions of Section 12(3)(a) nor
of Section 12(3)(b) of the Act were attracted and as such the appellate court
allowed the appeal and set aside the judgment of the trial court. During the pendency
of the appeal the original landlady died and her legal heirs were brought on
record.
The
judgment of the appellate court was challenged by the respondents by way of
petition under Article 227 of the Constitution of India. The High Court
converted itself into an appellate court and re appreciated all the issues
dealt with and decided by the two courts below. The High Court reversed the
findings of the appellate court and held that the appellants neglected to make
payment of the arrears of rent in terms of Section 12(3)(a) of the Act and as
such were liable to be evicted.
We may
at this stage notice the provisions of Section 12 of the Act which are
reproduced hereunder:- "Section 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 increase
due, until the expiration of one month next after notice in writing of the
demand of the standard rent or permitted increase has been served upon the
tenant in the manner provided in Section 106 of the Transfer of Property Act,
1882.
3)a)
Where the rent is payable by the month and there is no dispute regarding the
amount of standard rent or permitted increase, 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." As mentioned
above, the landlady served notice in terms of Section 12(2) of the Act on July 28, 1972. The notice was received by the
appellants on August 1,
1972. The appellants
sent a money order for Rs.400/- to the landlady on September 1, 1972. It is not disputed that the said amount covered the
arrears upto August 31,
1972. It is also on
record that another money order for Rs.500/- was sent by the appellants on October 4, 1972 which covered the arrears upto October 31, 1972. The landlady refused to accept
both the money orders.
As
mentioned above, the notice under Section 12(2) of the Act was received by the
appellants on August 1,
1972 and they sent the
first money order on September
1, 1972. The High
Court has rightly come to the conclusion that the money order, having been sent
on September 1, 1972, was within "the period of one
month after notice referred to in sub- Section 2". The High Court,
however, fell into patent error in reaching the conclusion that the actual
payment having not been received by the landlady within the said period there
was neglect on the part of the tenants to make payment. The sine qua non for
eviction of a tenant under Section 12(3)(a) is "the neglect to make
payment" and not the actual making of the "payment". When a
money order or a demand draft is sent to the landlord, during the specified
period, it cannot be said that the tenant has "neglected to make
payment". The expression "neglect" means "to fail to give
due care, attention, or time to. To fail through thought lessness or
carelessness. To ignore or disregard".
We are
of the view that in the facts of the present case it is not possible to hold
that the appellants neglected to make payment within the specified period after
the receipt of the notice.
Since
the total arrears mentioned in the notice dated July 28, 1972 were paid by the appellants and there was no neglect on
their part to make payment, neither the provisions of Section 12(3)(a) nor of
Section 12(3)(b) are attracted in this case. The High Court fell into patent
error in reversing the judgment of the appellate court.
Before
parting with this judgment we would like to say that the High Court was not
justified in extending its jurisdiction under Article 227 of the Constitution
of India in the present case. The Act is a special legislation governing
landlord-tenant relationship and disputes. The legislature has, in its wisdom,
not provided second appeal or revision to the High Court. The object is to give
finality to the decision of the appellate authority. The High Court under
Article 227 of the Constitution of India cannot assume unlimited prerogative to
correct all species of hardship or wrong decisions. It must be restricted to
cases of grave dereliction of duty and flagrant abuse of fundamental principles
of law or justice, where grave injustice would be done unless the High Court
interferes.
We
allow the appeal, set aside the judgment of the High Court and restore that of
the appellate court. No costs.
The
appellants are paying Rs.80/- per month as rent since 1980. It would be fair
and just to increase the rent reasonably. After hearing learned counsel we
direct the appellants to pay Rs.600/- as rent with effect from September 1, 1995.
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