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PETITIONER: JAYWANT S. KULKARNI & ORS.

       Vs.

RESPONDENT: MINOCHAR DOSABHAI SHROFF & ORS.

DATE OF JUDGMENT09/08/1988

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) PATHAK, R.S. (CJ) SHARMA, L.M. (J)

CITATION:  1988 AIR 1817            1988 SCR  Supl. (2) 296  1988 SCC  (4) 108        JT 1988 (3)   360  1988 SCALE  (2)384

ACT:     Bombay Rents, Hotel and Lodging House Rates Control Act, 1947:  S.  12-Tenant in arrears of rent for  six  months  or more-Failure  to  pay within one month  from  notice-Dispute regarding standard rent not raised-Eviction--Held valid.

HEADNOTE:     Section  12(2) of the Bombay Rents, Hotel  and  Lodging House  Rates  Control Act, 1947 bars suits for  recovery  of possession  against the tenant on the ground of  non-payment of the standard rent until the expiration of one month  next after  notice  in  writing. Section  12(3)(a)  provides  for passing  of  a decree for eviction of the tenant who  is  in arrears  for  a period of six months and  neglects  to  make payment  until the expiration of the notice period  provided there  is  no dispute regarding the standard  rent.  Section 12(3)(b) interdicts passing of the decree if the tenant pays or  renders  in the court the standard  rent  and  permitted increases then due.     The appellants were served with a notice under s.  12(2) of the Act terminating the tenancy and calling upon them  to pay  arrears  of  rent  from 1st  September,  1971  to  31st December,  1972.  They did not pay the  amount  claimed.  No dispute  was raised regarding the standard rent.  The  trial court  and the appellate court came to the  conclusion  that there  was neglect on the part of the appellants within  the meaning  of  s. 12(3)(a) of the Act meriting, a  decree  for eviction. The High Court dismissed the appeal.     In the appeal by special leave, it was contended for the appellants that the landlord was not granting receipts, that he  was  not  demanding rent but compensation  for  use  and occupation,  that  the  landlord was acting  mala  fide  and preventing  the tenant from performing his obligation,  that this was not a case of bona_fide need and that the  landlord was affluent and the tenant was poor.     Dismissing the appeal,                                                   PG NO 296                                                   PG NO 297     HELD:  1.1 In view of the provisions of s. 12(3)(a)  and (b)  of  the  Act and in the background  of  the  facts  and

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circumstances of the case, the courts below were right.  The eviction order had to follow by operation of law. [301H-D]     1.2  Sub-section  3(a) of s. 12  categorically  provided that  where the rent was payable by the month and there  was no  dispute  regarding  the  amount  of  standard  rent   or permitted  increases,  if  such rent or  increases  were  in arrears  for a period of six months or more and  the  tenant neglected  to make payment thereof until the  expiration  of the  period of one month after notice referred to in  sub-s. (2), the court shall pass a decree for eviction in any  such suit for recovery of possession. [301B]     1.3  In the instant case, the rent was payable month  by month. There was no dispute regarding the amount of standard rent or permitted increases. Such rent or increases were  in arrears  for a period of six months or more. The tenant  had neglected to make payment until the expiration of the period of  one  month after notice referred to in sub-s.  (2).  The court  was bound to pass a decree for eviction in, any  such suit for recovery of possession. [301C]     Harbanslal  Jagmohandas  & Anr.  v.  Prabhudas  Shivlal, [1976] 3 SCR. 628 referred to.     Mohan  Laxman Hede v. Noormohamed Adam Shaikh, AIR  1988 SC. IIII distinguished.     2. The expression "court shall pass a decree" in  sub-s. 3(a), of s. 12 was substituted for the words "court may pass a  decree"  by  an  amendment  passed  in  1963,  making  it mandatory to pass the decree. When the legislature has  made its  intention clear in specific terms, there was  no  scope for appeal to the "spirit of the law" and not to the  strict letter of the law. [302C-D]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  258  of 1982.     From  the  Judgment  and Order dated  3.11.1981  of  the Bombay High Court in Spl. Civil Appln. No. 2598 of 1978.     S.B. Bhasme and V.N. Ganpule for the Appellants.                                                   PG NO 298     Dr. Y.S. Chitale. R.F. Nariman, B.H. Antia and Mrs. A.K. Verma for the Respondents.     The Judgment of the Court was delivered by     SABYASACHI MUKHARJI, J. This is an appeal by the tenant. It  arises out of an order of eviction passed by  the  Civil Judge, Thane and confirmed by the learned Assistant Judge of Thane on or about 24th July, 1976. The High Court of  Bombay on  or  about 3rd November, 1981  dismissed  an  application under  Article 227 of the Constitution challenging the  said decision.  Civil  Suit  No. 176 of 1974  was  filed  by  the respondent-landlord against the appellants for possession of the building called Jamshed Villa at Thane. The ground floor of  the  building consists of one hall, tow bed  rooms,  two side  rooms and a kitchen. The said premises was let out  to one Shri S.H. Kulkarni the deceased father of the appellants some  years ago by the respondent on the rent of Rs. 50  per month.  The  former  owner, it  is  stated,  terminated  the tenancy  of  the  appellants on 20th  June,  1976,  and  the deceased Shri Kulkarni continued to occupy it as a statutory tenant. On the sale of the suit property the tenancy of Shri S.H.  Kulkarni was duty attorned to the  present  plaintiff. Shri  S.H. Kulkarni then expired. On 11th January, 1973  the respondents served the notice upon the appellants  requiring them to vacate the suit premises on various grounds. By  the said  notice the respondent also called upon the  appellants

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to  pay  the  arrears  of  rent  for  the  period  from  1st September, 1971 to 31st December, 1972 at the rate of Rs. 50 per  month. The total arrears came to Rs. 800.  Indubitably, the  amount  claimed  in this notice was  not  paid  by  the appellants to the respondent. The appellants replied to  the notice.  In that reply, several contentions were  urged.  It may be mentioned that the suit was filed on various grounds, namely, that the appellants have created a nuisance and they are  irregular in paying the rent and further it was  stated that  the respondent required the suit  premises  reasonably and  bona  fide  for his personal use  and  occupation.  The learned trial Judge after framing the issues, on all  issues held in favour of the tenant except the issue of the arrears of  rent. The learned trial Judge held that  the  appellants had  failed and neglected to pay the arrears of rent  within the  statutory period in spite of the notice  under  Section 12(2)  of  the Bombay Rents, Hotel and Lodging  House  Rates Control Act, 1947 (hereinafter called ’the Act’). The  trial court, however, on the question whether the appellants  have raised  a substantial plea that the rent is  excessive,  did not  go  into this aspect in view of the  decision  of  this Court in Harbanslal Jagmohandas & Anr. v. Prabhudas Shivlal, [1976] 3. S.C.R. 628.                                                   PG NO 299     Accordingly.  the  trial Judge decreed the suit  on  the ground that the are in arrears of rent. There was an  appeal from  the said. decision of the trial Judge to  the  learned Assistant Judge, Thane. The learned Assistant Judge affirmed the order of the learned trial Judge but reiterated that the tenant could claim protection from the operation of  Section l2(3)(a)  of  the  Act,  only if  the  tenant  had  made  an application within one month from the service of the  notice under  Section  I,?(i)) of the Act terminating  the  tenancy wherein a dispute was raised regarding the standard rent. It is  common ground that the appellants in this case  did  not make  any application within one month from the  service  of the  notice under Section 12(2) of the Act  terminating  the tenancy wherein a dispute was raised regarding the  standard rent. The learned Assistant Judge, therefore, confirmed  the order  for  eviction. The appellants moved the  Bombay  High Court.  The  Bombay High Court by the judgment under  appeal on 3rd November,1981 dismissed that application holding that neglect  on the part of the appellants in making payment  as mentioned  in Section I2(3)(a) of the Act has to be  decided on  the facts of each case. The High Court  reiterated  that after  considering all the facts and circumstances both  the Courts  below had rightly come to the conclusion that  there was  on  the part of the appellants within  the  meaning  of Section l2(3)(a) of the Act, meriting a decree for eviction.     Shri  Bhasme  appearing  for  the  appellants  concluded before  us  the High Court was wrong and  did  not  properly consider  the  conduct  of  the  respondent  in  not  giving receipts.  Before  we consider this contention,  it  may  be appropriate to refer to the provisions of Section 12 of  the Act. It provides that the landlord shall not be entitled  to the  recovery of possession of any premises a, long  as  the tenant  days, or is ready and willing to pay, the amount  of the standard rent permitted increases, it any. and  observes and  performs the other  of the tenancy, in so far  as  they are  consistent  with  the of the Act.  Sub-section  (2)  of Section  12 of also stipulate that no suit for  recovery  of possession shall be instituted by a landlord a 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

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permitted   has  been served upon the tenant in  the  manner provided in 106 of the Transfer or Property Act, 1882.  Sub- section  (3)(a)  and  (b)  of Section  12  of  the  Act  are important and set our here under: "(3)(a) Where the rent is payable by the month and there is no  dispute  regarding  the  amount  of  standard  rent   or                                                   PG NO 300 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 u 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 regular l4’ such rent and  permitted increases  till  the suit is finally decided  and  also  pay costs of the suit as directed by the Court. "             .                                     (Emphasis supplied)     This  question.  as to how a payment to  be  made  under Section  12(3)(a) and (b), had been considered by this Court in  Harbanslal Jagmohandas and Anr.(supra). There, both  the appeal   raised a common question as to whether a tenant  in order to resist passing of a    decree of eviction under the provisions  contained  in Section 12 (3)(a)of the  Act  must dispute the standard rent within one month from the date  of receipt  of  the notice from the  landlord  terminating  the tenancy on the ground of arrears of rent or whether a tenant can raise such . dispute in the written statement. There was difference  of  opinion  between  Bombay  and  Gujarat  High Courts.  The  Gujarat  High Court  took,the  view  that  the dispute  as  to Standard rent had to be  raised  within  one month  from  the  service of the notice  on  the  tenant.The Bombay  High Court had taken a contrary view and  held  that the tenant could raise a dispute as to standard rent in  his written  statement in answer to the suit and in such a  case the provisions of Section 12 (3)(a) of the act would  apply. In  the Gujarat case, the High Court found that  the  tenant did not raise the dispute within one month of the service of the  notice  terminating  the tenancy. inter  alia,  on  the ground  of  arrears of rent for more than 6 months.  In  the Bombay appeal the dispute was not raised    within one month from the date of the receipt of the notice. It was, however. raised in the written statement. Under Section 11 of the the Court had power to determine standard rent when there was  a dispute between landlord and  tenant regarding the amount of standard rent. It was held by this Court that under  Section 12  of  the  Act the landlord is  not  untitled  to  recover possession of the premises so long as the tenant pays or  is                                                   PG NO 301 ready  and  willing to pay the amount of standard  rent  and permitted increases. Section 12(2) provides that no suit for recovery  of  possession shall be instituted by  a  landlord against  a  tenant  on  the ground  of  non-payment  of  the standard  rent until the expiration of one month next  after notice in writing of the payment of the standard rent.  This Court  held  that  the view of the  Bombay  High  Court  was erroneous  and  the  view of the  (Gujarat  High  Court  was correct.  Sub-section  3(a)  of  section  12   categorically provided  that where the rent was payable by the  month  and there  was no dispute regarding the amount of standard  rent or  permitted increases, if such rent or increases  were  in

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arrears  for a period of six months or more and  the  tenant neglected  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. In  the  instant case,  as has been found by the Court. the rent  is  payable month by month. There is no dispute regarding the amount  of standard rent or permitted increases. Such rent or  increase are  in  arrears  for a period of six months  or  more.  The tenant had neglected to make payment until the expiration of the  period of one  month after notice referred to  in  sub- section  (2).  The  Court was bound to  pass  a  decree  for eviction  in  any such suit for recovery  or  possession  In terms   of  the  decision  of  this  Court   in   Harbanslal Jagmohandas  supra),  the eviction order had  to  follow  by operation of law.     Shri  Bhasme,  however, submitted before  us  that  here there was no question of negligence in proper light  because he drew our attention to several letters whereby the  tenant to  pay  then rent of the landlord. ’The tenant’s  case  was that  the landlord Was not granting receipts.  The  landlord was not demanding ‘‘rent but was demanding.’ ‘‘compensation" for  use  and occupation. He drew our attention  to  several decision  and urged that the tenant was willing to  pay  the rent  provided  receipts were granted to  him.  Shri  Bhasme urged  that the landlord did not comply with the request  to give  written  receipts. He was punishable with  fine  which might  extend to one hundred rupee under sub-section (2)  of Section  26 of the Act. Shri Bhasme submitted that  in  this case.  the landlord was mala fide and  by his mala fide  act he was preventing the tenant from performing his obligation. He further urged that this was not a case of bona fide need. The landlord was. affluent and the tenant  was a poor. There was  a  great  shortage of accommodation.  In  view  of  the decision of this Court in Harbanslal jagmohandas and Anr. V. Prabhudas  Shivlal  (supra) and the provisions.  of  Section l2(3  (a)  and  (b)  and in  the  Court  below  were  right. circumstances  of  the case, we must hold  that  the  Courts below were right.                                                  PG NO 302     Our  attention was drawn to a decision of this Court  in Mohan  Laxman Hede v. Noormohamed Adam Shaikh,  A.I.R.  1988 S.C.  1111,  where  this  Court  reiterated  that  to   take advantage of protection from eviction under Section l2(3)(b) of  the  Act, it cannot be said that exact  or  mathematical punctuality was required in the deposit of rent by a tenant. The  tenant  had been depositing the rents in that  case  in Court for two or three months at a time. There the Court was concerned with the expression "regularly" as contemplated in clause  (b) of sub-section (3) of Section 12 of the Act.  It was  not  concerned with clause (a) of  sub-section  (3)  of Section  12  of  the  Act. It was  not  concerned  with  the question  of  total failure or neglect on the  part  of  the tenant  to  pay  the rent. It may  be  instructive  in  this connection to note that in sub-section (3)(a) of Sec. 12  of the  Act,  the expression "Court shall pass  a  decree"  was substituted  for the words "Court may pass a decree"  by  an amendment  passed in 1963, making it mandatory to  pass  the decree. When the Legislature had made its intention clear in specific terms, there was no scope for Shri Bhasme’s  appeal to  ‘the spirit of the law’ and not to the strict letter  of the law.     In  the aforesaid view of the matter, this appeal  fails and   is  accordingly  dismissed.  But  in  the  facts   and circumstances  of  the case. the parties will pay  and  bear

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their  own  costs.  Furthermore,  in  order  to  cause  less hardship in the situation, we direct that the appellant will have  six  months time to vacate the premises  in  question, provided they file an undertaking within six weeks from this date to this Court that they will deliver vacant  possession of  the  premises to the landlord after the  expiry  of  six months from this date and to go on paving rent  compensation until  possession is given and not to induct or let  anybody in the premises in question. in the usual terms.     P.S.S                           Appeal dismissed.