http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: ANSUYABEN KANTILAL BHATT

       Vs.

RESPONDENT: RASHIKLAL MANILAL SHAH & ANR.

DATE OF JUDGMENT:       09/04/1997

BENCH: K. RAMASWAMY, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This is  one of  the classic  instances  of  the  cases holding the  law that " delay defeats justice". The landlord filed a suit in 1966 for eviction of the tenant for personal occupation and today after 31 years, we are disposing of the matter at  the level  of this  court. It is not necessary to detail all  the circumstances  leading  to the filing of the petition. Suffice it to state that the landlord who was just to retire from private service having four unmarried grow-up daughters and one son aged 24 years had filed an application for eviction  of the  tenant under the Bombay Rents, Hotel & Lodging House  Rated  control  Act,  1947  (for  short,  the ’Act’). The  application was  filed on  two grounds, namely, one she  needs the  premises for personal occupation and the tenant also has committed default in the payment of the rent for more  than six  months. When  a notice was issued by the landlady- appellant  calling upon  the respondents to vacate the premised  on the  above grounds,  reply  came  with  the allegation is  not in  need in  arrears of the rents and the appellant is  not in need of the premise. Thus, necessitated the respondent to file the suit for eviction. In the written statement, a  defence was taken that the standard rent. As a consequence, the  rent payable  to the  respondent was less. Therefore, he  has not  committed default  in payment of the rent. Though an application under Section 11 for fixation of the standard  rent was  not filed, the determination in that behalf was  made at Rs. 101/- per month. The Rent controller allowed the  petition. But,  on appeal,  the District  Judge dismissed the  appeal holding  that the respondent needs the houses for  personal occupation  and also  the  default  was committed by  him. On  revision, the High court reversed the order. Thus, this appeal by special leave.      The High  court proceeded on two premises, namely, that the landlady  was not in need of the house since her husband has by then become too old and secondly it was held that the comparative hardship  to  the  tenant  was  not  taken  into consideration and,  therefore, the  premises  on  which  the appellate authority  proceeded is  wrong in  law.  The  High Court came  to the conclusion that under the contract, since the property  tax was required to be paid by the tenant, the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

contract of  monthly tenancy  as  well  as  the  payment  of properly tax  being a composite tenancy, there is no default in payment   of the rent. Shri M.C. Bhandare, learned senior counsel appearing  for the appellant, contends that the view taken by  the High  court is not correct in law. He contends that bona  fide recruitment requires to be considered at the time when  the need  arises and mere fact that he has become old at  the time  when the  petition came  up.,  it  is  not relevant ground. Through we find force in the contention, it need not  be now  decided due  to long  lapse of  time of 31 years. Now,  he is not in a position to set any business. At the time  when he  filed the application, admittedly, he was 54 years  of  age  by  now  he  is  87  years.  Under  these circumstances, the  need of  the landlady for her husband to set up the business cannot be said to be subsisting. At that time, they  had four  unmarried daughters, obviously, he had to set  up the  business but  now  they  have  already  been married and  need, therefore,  no  longer  subsists,  It  is further stated  that his  son who was 24 years of age is now going to  retire in  another four  and a  half years.  Under these circumstances, as and when he retires from service and if he  intends to  set up the business, it is always open to make  necessary  application.  On  such  suit  being  filed, necessarily  the  tenant  requires  to  give  place  to  the landlord to  occupy the  premises. The Rent Controller/civil court, therefore,  is directed  that on  filing the petition and satisfying  that there  is need  for  his  starting  the business, the order of eviction requires to be passed.      With regard  to the view taken by the High court on the default of the payment of rent, it is contended by Shri M.C. Bhandare that  the view  taken that the monthly tenancy gets converted into  yearly  tenancy  is  untenable.  Though  the tenancy is  a composite one, the monthly rent requires to be paid at  the end  of every succeeding month. If there is any written agreement within the stipulated time, the contracted monthly  tenancy  cannot  be,  by  judicial  interpretation, converted into yearly tenancy. On that premise, it cannot be held that  he has  not committed default in payment of rent, but we  need not  decide it on the view we have taken. Since the standard  rent has  already been  fixed by the court and deposited by  the tenant, the default does not subsist.  The concept of wilful default does not apply to the action under this Act.  Therefore, if  there is any default in payment of the rent  and if  the amount so paid gets adjusted after the determination  of  the  standard  rent,    necessarily,  the default originally  existing ceases  to operate.  Suffice it to state  that when  standard rent was fixed as Rs.101/- per month,  it  is  unrealistic  as  of  date.  Therefore,    we requested Mr.  P.H. Parekh,  learned counsel  practising  in this court  to obtain  the prevailing  rentals in  the  Bank street in  Baroda.  He was good enough to contact the people there and he has furnished the information that there is two tier system,  one legal  and one  extra-legal prevailing  in that area. We cannot hive legitimacy to the illegal practice prevailing in  that area  but the  legal rentals payable are how as  on date  range between  Rs.4,000/- to Rs.6,000/- per month to a tenancy of 250 sq.fts. Under these circumstances, we think  that the  rentals may  be spread over which may be acceptable to  both the  parties. Thus,   the appeal in this court came  to be  filed in  December 1976,   the  rent from January 1,  1977 to  December  31,  1980  shall  be  paid  @ Rs.2,000/- per month.  Rent from January 1, 1981 to December 31,   1991 shall  be paid  @ Rs.2,500/-  per month  and from January 1,  1992 till  date of  vacating the  premise @  Rs. 3,500/- per  month.   The  amount shall be paid accordingly.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

All the  arrears shall  be  paid  in  ten  bi-monthly  equal instalments as  on date starting from May 1, 1997.  The rent from April  1, 1997  shall be  paid on or before the 10th of every succeeding  months @  Rs.3,500/-  per  month.  If  the respondent commits  default, he shall be liable to ejectment even  before   filing  of   the  application   for  personal occupation.     The appeal is accordingly disposed of.