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PETITIONER: RASHIK LAL AND OTHERS

       Vs.

RESPONDENT: SHAH GOKULDAS & ANR.

DATE OF JUDGMENT02/02/1989

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) PANDIAN, S.R. (J)

CITATION:  1989 AIR  920            1989 SCR  (1) 439  1989 SCC  (1) 542        JT 1989 (1)   207  1989 SCALE  (1)245

ACT:     C.P. and Berar Letting of Houses and Rent Control Order, 1949:  Clause 13(3)(ii)--Rent--Non payment  of--When  ground for  eviction  ’Habitually in arrears with  the  rent’---The condition  requisite-Landlord accepting belated payments  of monthly rent without any objection--Whether entitled to seek eviction of tenant on ground of default in payment of rent.

HEADNOTE:     The landlord filed a petition for eviction of his tenant on the ground of wilful default in payment of rent and  bona fide requirement under sub-clauses (ii) & (vi)  respectively of Clause 13(3) of the C.P. and Berar letting of Houses  and Rent Control Order, 1949. The landlord alleged that the rent was payable on the expiry of each month, and pleaded that as the tenant paid the rent in lump-sums representing the  rent of several months together, he had committed wilful  default and was liable for eviction. The tenant contested the  peti- tion and pleaded that the accumulated rents were accepted by the landlord without any objection, and consequently he  had no occasion to assume that the landlord was aggrieved by the manner  in  which the rents were paid.  The  tenant  further asserted that the rent was payable at his convenience.     The  Rent  Controller dismissed the application  of  the landlord  both  on the ground of bona fide  requirement  and wilful default. The Appellate Authority--the Resident Deputy Collector  confirmed  the order of the  Rent  Controller  in appeal.     The landlord thereafter approached the High Court  under Article  227 of the Constitution. The High Court while  con- firming  the order of the Rent Controller in so far  as  the ground  of bona fide necessity was concerned, held that  the tenant was a habitual defaulter in payment of rent, and  was therefore, liable for eviction.     The tenants-appellants in CA No. 1953 of 1980 challenged the order of their eviction, while the landlord-appellant in CA No. 1954 of 440 1980 challenged the order rejecting his eviction application on the ground that he failed to prove his case of bona  fide requirement.

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   Allowing  Civil Appeal No. 1953 of 1980, and  dismissing Civil Appeal No. 1954 of 1980 the Court,     HELD:  1.  The relevant provisions of the  Rent  Control Order require a tenant to be "habitually in arrears with the rent" as a condition for the grant of the permission by  the authority  to  the  landlord to determine  the  lease.  This condition  in the Rent Control Order is different  from  the condition in several other statutes where mere nonpayment of rent for a particular period, has been provided as  adequate ground for eviction of the tenant. [443C]     2. The crucial test to determine whether the tenant  was a  ’habitual  defaulter’ is the conduct of the  landlord  in receiving  the  rent offered belatedly. If he  receives  the same  under a protest and warns the tenant to be regular  in payment  in the future, he cannot be assumed to have  agreed to  a modified agreement in this regard. But if he,  without any  objection  and  without letting  the  tenant  know  his thought  process, continues to receive rent at intervals  of several months, he cannot be allowed to spring a surprise on the  tenant by suddenly starting a proceeding for  eviction. [443G-H]     In the instant case, there was no objection  whatsoever, raised  on behalf of the landlord against the  delayed  pay- ments. The High Court, therefore was not right in  reversing the concurrent finding of the two courts below. The judgment is  set aside, and that of the Resident Deputy Collector  is restored. [444B]     S.P.  Deshmukh v. Shah Nihal Chand Waghajibai  Gujarati, [1977] 3 SCC 515, followed.     Pandurang   Tukaram  Rajkondawar v.   Salaram  Madhaorao Chavan, [1985] Mh. L.J. 169; Shishir Hari Mahajan v. Sanara- siobai  Rodmal  Sharma and Anr.,  [1982] MH.  L.J.  908  and Nathuji  Narayanrao Udapure v. Narendra Vasanjibhai  Thakkar and Anr., [1981] MH. L.J. 446, referred to.     3.  Both  the Rent Controller and  the  Resident  Deputy Collector  have on a careful consideration of all the  rele- vant  circumstances  held that the landlord  has  failed  to prove  his  case of bona fide requirement.  The  High  Court while confirming the finding has again considered the 441 materials on the record. No acceptable ground for  interfer- ing  with  the concurrent findings of the three  Courts  has been  shown. Civil Appeal No. 1954 of 1980 has therefore  to be dismissed. [441H; 442A-B]

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal No.  19531954 of 1980.     From  the  Judgment  and Order dated  23.1.1980  of  the Bombay High Court in S.C.A. No. 240 of 1974. N.M. Ghatate for the Appellants. B. Kanta Rao for the Respondents. The Judgment of the Court was delivered by     SHARMA, J. These appeals arise out of a proceeding under the C.P. and Berar Letting of Houses and Rent Control Order, 1949  (hereinafter  referred to as the Rent  Control  Order) initiated  by Shah Gokuldas, appellant in C.A. No.  1954  of 1980  (respondent  in the other appeal)  for  permission  to determine the lease of Bhagwanji, the original tenant. After the  death  of Bhagwanji during the pendency  of  the  case, Rashiklal  and  others, the appellants in C.A. No.  1953  of 1980 were substituted as his legal representatives.     2.  The  landlord’s prayer was based on  alleged  wilful

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default  in payment of rent and bona fide requirement  under sub-clauses  (ii) and (vi) respectively of Clause  13(3)  of the  Rent Control Order. The allegations were denied by  the tenant  and the Rent Controller dismissed  the  application. The  landlord’s  appeal was also rejected by  the  appellate authority,  the  Resident  Deputy  Collector.  The  landlord thereafter  approached  the High Court which  confirmed  the impugned orders so far as the ground of bona fide  necessity was concerned, but allowed the application under Article 227 of  the Constitution of India holding that the tenant was  a habitual defaulter in payment of rent and, therefore, liable to  eviction. The appellants in C.A. No. 1953 of  1980  have challenged the order of their eviction and the landlord Shah Gokuldas  has  appealed against the finding  of  the  courts below negativing his case of bona fide requirement.     3.  So far as C.A. No. 1954 of 1980 is  concerned,  both the  Rent Controller and the Resident Deputy Collector  have on a careful consideration of all the relevant circumstances held that the landlord- 442 applicant has failed to prove his case of bona fide require- ment. The High Court while confirming the finding has  again considered the materials on the record. The learned  counsel for the landlord has not been able to point out any  accept- able ground for interfering with the concurrent findings  of the  three courts and C.A. No. 1954 of 1980  is,  therefore, dismissed.     4.  So  far as the other appeal is concerned,  the  High Court  has  disagreed with the view of the  Rent  Controller which  was  affirmed  by the appellate court.  It  has  been contended  on behalf of the appellants Rashiklal and  others that having regard to the conduct of the parties in  payment and  receipt of rent of several months at a time, it  should be held that there was an implied agreement between them  to do so and the landlord is now not entitled to insist on  the rent  to  be paid every month. Reliance was  placed  on  the decision of this Court in S.P. Deshmukh v. Shah Nihal  Chand Waghajibai Gujarati, [1977] 3 S.C.C. 515.     5.  The  case  of the landlord has been  that  rent  was payable on the expiry of each month, and since this was  not done the tenant was liable to eviction. The landlord filed a schedule  in the trial court showing the intervals at  which rents  had  been paid by the tenant during the period  of  2 years  immediately  preceding the filing of  the  case.  The schedule indicates that the rent was paid, according to  the alleged  stipulation, only for a brief period, and the  rent for the rest of the period was paid in lump-sums  represent- ing  the  rent of several months  together.  Admittedly  the accumulated rents were accepted by the landlord without  any objection  at any point of time and the tenant had no  occa- sion to assume that the landlord was aggrieved by the manner in  which rents were being paid. The question arises  as  to whether  in these circumstances the High Court was  entitled to reverse the concurrent finding of the two courts below.     6.  The tenant denied in express terms  and  arrangement pleaded by the landlord as mentioned above and asserted that rent  was  payable at his convenience. Mr.  Kanta  Rao,  the learned counsel for the landlord contended that a plea about an  alleged agreement to pay rent at the convenience of  the tenant has to be rejected as untenable in law. According  to the  learned  counsel an inference of implied  agreement  is possible  by the conduct of the parties only if it is  shown that the rent was being paid and accepted on a fixed  inter- val, as for example, if it could be shown that the rent  was always paid after every 3 months (or for that matter every 2

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months or every 4 months) then a clear-cut 443 pattern  emerges on the basis of which an implied  agreement can be assumed to have come in existence. No such  inference is  permissible  from mere irregular  and  erratic  payment. Reliance  was placed on the decisions of  Pandurang  Tukaram Rajkondawar v. Balaram Madhaorao  Chavan,  [1985] Mh.   L.J. 109;  Shishir Hari Mahajan v. Banarasibai Rodmal Sharma  and another, [1982] Mh. L.J. 908 and Nathuji Narayanrao  Udapure v. Narendra Vasanjibhai Thakkar and another, [1981] Mh. L.J. 446.     7.  The  relevant provisions of the Rent  Control  Order require a tenant to be "habitually in arrears with the rent" as  a condition for the grant of the permission by  the  au- thority  to the landlord to determine the lease. It is  sig- nificant  to note that the condition mentioned in  the  Rent Control  Order  is different from the condition  in  several other statutes where mere non-payment of rent for a particu- lar  period, has been provided as adequate ground for  evic- tion  of the tenant. The question whether the tenant  was  a "habitual defaulter" arose before the Supreme Court in  S.P. Deshmukh’s case (supra) and was answered in the negative  in the following words:               "Normally, a monthly tenant is under an  obli-               gation  to  pay rent from month to  month  but               this  obligation is subject to a  contract  to               the contrary. Such a contract need not be  re-               flected in a formal document and can be spread               out  from the conduct of the  parties,  spread               over  a fairly long period of time.  The  evi-               dence  in the case, which was believed by  the               two  tribunals of fact, shows that the  tenant               has been paying rent at an interval of 3 or  4               months, which the landlord has been  willingly               accepting and always without even so much as a               murmer." 8. We do not see any reason for holding that unless the rent was  -paid  and accepted at a fixed period of  interval,  no such  implied agreement can be inferred. In the  S.P.  Desh- mukh’s  case (supra) the rent had been paid at  the  varying interval  of 3 or 4 months. The crucial test appears  to  be the  conduct of the landlord in receiving the  rent  offered belatedly. If he receives the same under a protest and warns the tenant to be regular in payment in the future, he cannot be  assumed to have agreed to a modified agreement  in  this regard. But if he, without any objection and without letting the  tenant know his thought process, continues  to  receive rent at intervals of several months, he cannot be allowed to spring  a  surprise  on the tenant by  suddenly  starting  a proceeding  for  eviction. Having lulled the tenant  in  the belief that things 444 were  all fight, the landlord was under a duty to serve  him with  a  notice demanding regular payment, if he  wished  to insist upon it. In the case before us there was no objection whatsoever,  raised  on behalf of the landlord  against  the delayed  payments. We, therefore, hold that the  High  Court was not fight in reversing the concurrent finding of the two courts  below.  Accordingly  the impugned  judgment  is  set aside, that of Resident Deputy Collector is restored and the appeal  is  allowed with costs throughout.  Before  closing, however, we would like to observe that in view of the  atti- tude of the parties disclosed in the present case the appel- lant should hereafter pay the rent regularly in the succeed- ing  month failing which he may be liable to be  adjudged  a

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habitual defaulter. N.V.K.                      C.A. No. 1953/80 allowed and                             C.A. No. 1954/80 dismissed. 445