MRS. MANORAMA S. MASUREKAR versus MRS. DHANLAXMI G. SHAH AND ANR.

MRS. MANORAMA S. MASUREKAR

MRS. DHANLAXMI G. SHAH AND ANR.

August 23, 1966

[K .. N. WANCHOO, J.C. SHAH AND R. S. BACHAWAT, JJ.)

Bombay Rents, Hotel and Lodging· House Rates Control Act (57 of 1947), s. 12(1) and (3)(a)-Scope of. ·

The tenant of flat was in arrears of reni for more thari six months. The landlord served notice on the tenant demanding the rent. The tenant did not pay it within one month of the notice, but tendered it . after the expiry of tho month. The landlord refused .to receive it and filed suit for eviction. under s. 12(3) (a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The tenant claimed the protection of s. 12 ( 1) of the Act on the ground that she was ready and willing to pay the rent before the institution of the suit.

HELD: Under s. 12(3) (a), the landlord is ·vested with the right to recover possession of the premises if the rent is in arrears for six months or more, the tenant neglects to pay it until after the expiry of one month after notice demanding the rent and other conditions of subps. (3) (a) are saitisfied. This right cannot be defeated by showing that the tenant was ready and willing to pay the rent after the default but be-fore tho institution of the suit. In case falling within sub.s. (3) (a), the tenant must be dealt with under its special provisions and he cannot claim any protection from eviction under the general provisions of sub-s. ( 1): and the coun was bound to pass decree for eviction. (137 E, FJ ·

Bhalya Punjalal Bhagwanddin v. Dave Bhagwat Prasad Prabhuprasad, [1963] 3 S.C.R. 312, followed.

Mohan/al v. Malieshwari Mills Ltd. (1962) 3 Guj. L.R. 574· and Ambala .v. Babaldas, (1962) 3 Guj. L.R. 625, overruled. ·

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 469 of 1966.

Appeal by special leave from the judgment and decree dated November 25, 1965 of the Bombay High Court in Civil Revision Application No. 1579of1962.

S. G. Patwardlzan and M. V. Goswami, for the appellant

S. T. [)esai and K. L. Hathi, for1 n~spondent No. I

The Judgment of the Court was delivered by

Bachawat, J. The question arising in this appeal by special leave is whether in case falling under sub-s.(3)(a) of s. 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Act No. 57 of 1947), tenant can claim p(otection from eviction by showing his readiness and willingness to pay the arrears of rent before the date of the institution of the suit. The appellant's husband was tenant of fiat. The rent was in arrears

for period of more than six months. On December 22, 1956, the landlord served notice 011 the tenant demanding the rent. The tenant neglected to pay the rent within one month of the notice. On January 11, 1957, he died. On February 4, 1957, the appellant sent the arrears of rent to the landlord by money order, but the landlord refused to accept the payment. On Fe-bruary 5, 1957, the landlord instituted the present suit for evic-tion of the appellant. The trial Court decreed the suit. The appellant filed revision application before the Bombay High Court, but this applicati0n was dismissed by the High Court.It is to be noticed that the rent was in arrears for period of more than six months. The tenant neglected to make pay-ment of the arrears of rent within one month of the service of the notice by the landlord under sub-s. (2) of s.12. The rent was payable by the month, and there was no dispute regarding the amount of the rent. The case was, therefore, precisely covered by sub-s. (3)(a) of s. 12. Nevertheless, the appellant submitted that as· she was ready and willing to pay the rent before the insti-tution of the suit, she could claim protectio11 under sub-s. (I) of s. 12. She submitted that the decided cases support this conten-tion. In Mohan/a/ v. Maheslnrari Mills Ltd.( [1]), P. 1\. Bhagwati, J. held that even in ease falling under sub-s. (3) (a), tenant could. by paying or showing his readiness and willing11ess to pay the arrears of rent before the institution of the suit, claim protec-tion from eviction under sub-s. (I). similar opinion was ex-pressed by Divisional Bench of the Gujarat High Court in Amba/al v. Rabaldas('). The judgment under appeal dissented from the view expressed by the Gujarat High Court. The Bombay High Court held, and, in our opinion, rightly, that in case fall-ing under sub-s. (3)(a), the tenant I could not claim protection from eviction by showing his readiness and willingness to pay the rent before the institution of the suit. Sub-section (I) of s. 12 imposc1 general restriction on the landlord's right to recover possession of the premises so Jong as the tenant pays or is ready and willing to pay the rent and ob-serves and performs the other conditions of the tenancy. Sub-section (2) of s. 12 imposes the further restriction that no suit for recovery of possession on the ground of non-payment of rent shall he instituted by the landlord until the expiration of one month after notice in writing demanding the rent. Sub-section (3)(a) provides for the consequences which will follow where the rent is payable by the month, there is no dispute regarding the amount of rent, the rent is in arrears for period of six months or more, and the tenant neglects to make payment within one month of the ~ervice of the notice under sub-s '(1). In such case, the te11ant

(1} (1962) 3 Gujaral Lav.· Reporter, 574 at pp. 618 lo 621.

(2) (1962) 3 Gujarat Law Reporter 6'.!:", 644.

cannot claim any protection under sub-s. (I), and the Court is bound to pass decree for eviction. At the material time, sub-s. (3) (a) of s. 12 read :

"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 period of six months or i;nore and the tenant. neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-s (2), the Court may pass decree for eviction in .any such suit for recovery of -possession."

The word "may" in this sub-section has the effect of "shall". - In Bhalya Punjalal Bhagwanddin v. Dave Bhagwatprasad Prabhu-prasad(1), this Court held that where the requirements of sub-s. (3)(a) were satisfied, the Court was bound to- pass decree for .eviction. The section has now been suitably amended, and the word "shall" has been substituted for the word "may" by-Maha-rashtra Act No. 14 of 1961_

If the conditions of sub-s. (3)(a) are satisfied, the tenant can-not claim any protection from--eviction under the Act. By ten· dering the arrears of rent after the expiry of one month from the service of the notice under sub-s. (2), he cannot claim the protec-tion under sub-s. (!). It is immaterial whether the tender was made before or after the institution of the suit. In case falling within sub-s. (3)(a), the tenant must be dealt with under the special provisions of sub-s. (3)(a), and he cannot claim any protec-tion from eviction under the general provisions of sub-s. (I).The landlord is vested with the right to recover possession of the premises if the rent is in arrears for period of six months . or more, "the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-s, (2)", and the other crnditions of sub-s. (3)(a) are satis-fied. This right cannot be defeated by showing that the tenant was ready and willing to pay the arrears of rent after the default, but before the institution of the suit. In effect, the appellant asks us to rewrite the section and to substitute in it the following condition : "the tenant neglects to make payment thereof until the date of the institution of the suit." It is not possible to re-write the section in the manner suggested by the appellant.

The appellant's case fell precisely within sub-s. (3)(a) and she could not obtain immunity from eviction by tendering the rent before the institution of the suit.

The appeal is dismissed with costs.

Appeal dismissed.