14 August 1964
Supreme Court


Case number: Appeal (civil) 293 of 1963






DATE OF JUDGMENT: 14/08/1964


CITATION:  1967 AIR  405            1964 SCR  (4) 324

ACT: Landlord and Tenant-Tenant in arrears of rent for about  two years-Notice  served by the landlord-A few days  later.  the Act amended-suit filed by the landlord for  eviction-Pending the  hearing of suit all arrears paid by tenant-Whether  the tenant  can  be evicted an the ground of  arrears  of  rent- Bombay  Remts, Hotel .and Lodging House Rates  Control  Act, 1947 (Bom. 57 of 1947) s. 12.

HEADNOTE: The appellant was a tenant of the respondents occupying  one ,room  of a building belonging to them.  She was in  arrears of  rent,.  The respondents served a notice on her  claiming to recover arrears of rent for a period of two years and two months.   A  few days after the service of this  notice  the Bombay  Rents,  Hotel and Lodging House Rates  Control  Act, 1947,  which governs this case was amended. The  respondents thereafter filed a suit for the eviction of the appellant on the  ground  that they required the premises for  bona  fide personal  use  and on the ground that the appellant  was  in arrears  of  rent  for more than 6  months.   The  suit  was resisted by the appellant on several grounds but pending the hearing  of  the suit and before the decree was  passed  she deposited the entire rent due from her. The   trial  Judge  upheld  both  the  contentions  of   the respondent  and decreed the eviction of the  appellant.   On appeal  the District Judge rejected the contention  of  bona fide  personal use put forward by the respondent  but  found that the appellant was in arrears of rent and dismissed  the appeal.  The revision filed by the present 325 appellant  failed; the present appeal is by way  of  special leave granted by this Court. It  was  contended  on  behalf of  the  appellant  that  the provisions  of s. 12(1) and (2) were mandatory and  that  in construing  s. 12(3) (a) it must be borne in mind  that  the object  of  the statute and particularly s. 12 was  to  give protection  to  the  tenant It was  further  contended  that before s. 12(3)(a) was amended it was open to the tenant  to pay the arrears at any time during the pendency of the  suit or  even  during the pendency of the appeal.   In  order  to avoid  hardship to the tenant s. 12(3)(a) should be read  as



requiring  the  landlord to issue a fresh notice  after  the amended section came into force.  It was also urged that  s. 12(3)(a) suggests that the neglect or failure of the  tenant to  make  the payment of arrears must be subsequent  to  the date on which the amendment came into force.  Lastly it  was argued that the right given to the tenant to deposit arrears was  a vested right and therefore s. 12(3)(a) should not  be construed in such a way as to take away this vested right. Held  :  (i) S. 12(3)(a) refers to a notice  served  by  the landlord  as  required  by  s. 12(2) and  in  s.  12(2)  the legislature  has  made no amendment when it  amended  sub-s. (3).  The notice served by the appellant in the present case satisfies  the requirements of s. 12(2).  If the notice  has been served as required by s. 12(2) and the tenant is  shown to have neglected to comply with the notice until the expiry of  one  month  thereafter  s. 12(2)  is  satisfied  and  s. 12(3)(a) comes into operation. (ii)S. 12(3)(a) does not confer any right or vested right on tenant  and even if such a right is conferred it  would  not alter  the  plain effect of the words of s.  12(3)(a).   The plain meaning of s. 12( 3)(a) is that if a notice is  served on  the tenant and he hap, not made the payment as  required within the time specified in s. 12(3)(a) the court is  bound to pass a decree of eviction against the tenant. The appeal is dismissed. Dayaram  Kashiram  Shimpi  v.  Bansilal  Ragkunath  Marwari, (1952)  55 Bom.  L.R. 30, Laxminarayan Nandkishore  Shravagi v.  Keshardev Baijnath Narsaria, (1956) 58 Bom.   L.R.  1041 and Kurban Hussen Sajauddin v. Ratikant Nilkant, A.I.R. 1959 Bom. 401.,

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 293 of 1963. Appeal  by special leave from the judgment and  order  dated December  17,  1962  of  the Gujarat  High  Court  in  Civil Revision Application No. 175 of 1960. G.   B.  Pai,  0. C. Mathur, 1. B. Dadachanji  and  Ravinder Narain,for the appellant. M.   S. K. Sastri and M. S. Narasimhan, for respondents Nos. 1 -and 2. 326 August 14, 1963.  The Judgment of the Court was delivered by GAJENDRAGADKAR  J.-This  appeal by special  leave  raises  a short  question  about  the construction and  effect  of  s. 12(3)(a) of the Bombay Rents, Hotel and Lodging House  Rates Control Act, 1947, (No. 57 of 1947) (hereinafter called ’the Act’).   The  appellant  has been tenant of one  room  in  a residential building known as Lalbang situated in Badekhan’s Chakla  in the City of Surat since October 18, 1935.   Under the rent note, she is required to pay a monthly rent of  Rs. 18.  On October 12, 1949, respondents 1 and 2 purchased  the said  property.  It appears that on November 21, 1950,  they served a notice on the appellant to vacate the premises  let out  to  her on the ground that she was in arrears  of  rent from  July 1, 1950.  On receiving the said notice,  the  ap- pellant  paid  a  part  of the rent,  but  again  fell  into arrears,  and so, the respondents served a second notice  on her,  on February 7, 1951, claiming arrears from October  1, 1950.   The appellant did not vacate the premises,  nor  did she  pay all the arrears due from her.  A third  notice  was accordingly  served on her on March 27. 1953, in  which  the respondents claimed to recover arrears from January 1, 1951, that is to say, arrears for two years and two months.  A few



days  after this notice was served, s. 12(3) of the Act  was amended  by the Bombay Amending Act No. 61 of 1953, and  the amendment  came  into force on the 31st  March,  1954.   The respondents   then  filed  the  present  suit  against   the appellant  on  April  12, 1954, in which they  asked  for  a decree for eviction against the appellant on the ground that they wanted the premises let out to the appellant bona  fide for  their  personal  use, and that  the  appellant  was  in arrears for more than six months.  This suit was resisted by the  appellant on several grounds.  Pending the  hearing  of the suit, the appellant paid by installments in all Rs.  470 before the date of the decree, so that at the date when  the decree was passed, no arrears were due from her. The  learned trial judge upheld both the pleas made  by  the respondents  and  passed a decree for eviction  against  the appellant.  He held that the respondents reasonably and bona fide  required the property for their personal use and  that the appellant was in arrears of rent for more than 327 six months.  This decree was challenged by the appellant  by an appeal preferred before the District Court at Surat.  The learned District judge held that the respondents had  failed to  prove that they needed the premises reasonably and  bona fide for their personal use, but he accepted their case that the  appellant  was  in arrears of rent for  more  than  six months  and that the suit fell within the scope of s.  12(3) (a) of the Act.  That is how the decree passed by the  trial Court  was  confirmed in appeal.  The appellant  then  chal- lenged  the  correctness  of this  decree  by  a  revisional petition filed before the Gujarat High Court.  This petition ultimately failed and the decree passed against her was con- firmed.  It is against this decision that the appellant  has come  to  this Court: and on her behalf.  Mr. Pai  has  con- tended that the High Court was in error in holding that  the requirements  of s. 12(3) (a) as amended justified the  pas- sing of the decree against the appellant. It appears that section 12 of the Act has been amended  from time to time.  Before the Amending Act No. 61/1953 came into force, the said section read thus:               "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 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 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               permitted  increases has been served upon  the               tenant  in the manner provided in section  106               of the Transfer of Property Act, 1882.               (3)No  decree for eviction shall be passed  in               any  suit if, at the hearing of the suit,  the               tenant  pays or tenders in Court the  standard               rent or permitted increases then due  together               with the costs of the suit." The explanation to this section dealt with cases where there was a dispute between the landlord and the tenant in  regard to the amount of the standard rent.  With that explanation 328



we are not concerned in the present appeal. It appears that the Bombay High Court interpreted the  words "at  the hearing of the suit" in s. 12(3) as  including  the hearing of the appeal arising from the suit, and so, it  was held that under s. 12(3) of the Act, an appeal Court  cannot confirm  a decree for eviction if before the passing of  the order  in  appeal, the tenant pays or tenders in  Court  the standard rent or permitted increases then due together  with the costs of the suit and also appeal, vide Dayaram Kashiram Shimpi v. Bansilal Raghunath Marwari(1).  After s. 12(3) was amended  by the Amending Act 61 of 1953, the words  "at  the hearing of the suit" were construed by the Bombay High Court to  mean  that  the application which the  tenant  ran  make offering  to deposit the arrears due from him must  be  made before the Court of first instance and cannot be reserved to be   made  in  the  Court  of  appeal,   vide   Laxminarayan Nandkishore Shravagi v. Keshardev Baijnath Narsaria(2). There is one more decision of the Bombay High Court to which reference must be made before dealing with the points raised for  our decision in the present appeal.  In  Kurban  Hussen Sajuddin  v. Ratikant Nilkant and Anr.(3), it was held  that the word "may" used in s. 12(3) (a) as amended really  meant "must"  and that in cases where the conditions of  the  said provision were satisfied, the Court had to pass a decree for the recovery of possession in favour of the landlord.  It is in the light of these decisions that we have to consider the contention  of  the  appellant that under s.  12(3)  (a)  as amended,  it was not open to the Court to pass a decree  for ejectment against her in the present proceedings. On  behalf of the appellant Mr. Pai has emphasised the  fact that  the  provisions  of s. 12, sub-ss.  (1)  and  (2)  are mandatory  and  there  can be no  doubt  that  they  imposed ,severe  restrictions  on the landlord’s right  to  sue  the tenant  in  ejectment.   He,  therefore,  contends  that  in construing the effect of s. 12(3) (a), we must bear in  mind the  fact  that  the legislature  has  enacted  the  present statute and particularly the provisions of s. 12 with a view to  protect  -the  interests  of  the  tenant.   He  further contends that it (1)  (1952) 55 Bom.  L.R. 30. (2) (1956) 58 Bom.  L.R. 1041. A.I.R. 1959 Bom. 401. 329 cannot be disputed that before s. 12 (3)(a) was amended,  it was open to the tenant to pay the arrears at any time during the pendency of the suit, or even during the pendency of the appeal,  and so, when the tenant failed or neglected  to-pay the  arrears  due from her immediately after  receiving  the notice  of demand from, the landlord, it is easy to  imagine that  she knew that her failure to pay the arrears  of  rent immediately  on receiving the notice would not lead  to  her eviction  and that she would have the option to deposit  the amount as required by s. 12(3) either in the trial Court  or in the Court of Appeal.  That being so, he suggests that  in order to avoid hardship to the tenant, s. 12(3)(a) should be read is requiring the landlord to issue a fresh notice after the  amended section came into force.  The notice  given  by the  landlord  prior to the date of the  amendment  did  not convey  to  the  tenant the knowledge that  her  failure  to comply with it would necessarily lead to her ejectment,  and so,  the  relevant  provisions of  this  beneficent  statute should  be construed in a liberal way.  That, in  substance, is the first contention raised by Mr. Pai before us We  are  unable to accept this argument.  What  S.  12(3)(a) requires is that in cases where there is no dispute  between the landlord and the tenant regarding the amount of standard



rent or permitted increases, if the landlord is able to show that the tenant is in arrears for a period of six months  or more  and  the said arrears continued in spite of  the  fact that  a notice was served on him before the  institution  of the suit and no payment was made within a month  thereafter, the  landlord  is  entitled to get a  decree  for  ejectment against the tenant.  It is true, that s. 12(3)(a) refers  to a notice, but in terms, it refers to a notice served by  the landlord  as  required  by s. 12(2), and  in  s.  12(2)  the legislature  has  made  no amendment when  it  amended  sub- section  (3).  If we turn to s. 12(2),. it would be  noticed that the notice given by the respondents to the appellant in the present case satisfies the requirements of the said sub- section.  The respondents told the appellant by their notice that  arrears were due from her, and there is no doubt  that the  arrears  were not paid up by the  appellant  until  the expiration of one month next after the notice in writing was served on her in that behalf  22 - 2 SC India/64 330 Section  12(2) never required the landlord to state  to  the tenant  what  the consequences would be if the  tenant  neg- lected  to  pay  the arrears demanded from  him/her  by  the notice.  Therefore, if the notice served by the  respondents on  the appellant prior to the institution of  the  -present suit  is in order and it is shown that the arrears have  not been paid as required, then s. 12(2) has been complied with. and it is on that footing that the case between the  parties has to be tried under s. 12(3)(a). Mr. Pai then contends that s. 12(3)(a) seems to suggest that the neglect or failure of the tenant to make the payment  of arrears must be subsequent to the date on which the Amending Act came into force.  He relies on the fact that s. 12(3)(a) refers  to  the  case where the  tenant  "neglects  to  make payment’  of  the  rent.   The section  does  not  say  "has neglected  to make payment", says Mr. Pai.  In our  opinion, there is no substance in this argument.  The use of the word "neglect"  in the present tense has to be construed  in  the light  of  the  fact that the clause refers  to  the  tenant neglecting to make payment of the rent until the  expiration of  one  month next after receipt of the  notice’  and  that clearly  would  have  made  the  .use  of  the  past   tense inappropriate.   The position, therefore, is that if  notice has  been served as required by s. 12(2) and the  tenant  is shown to have neglected to comply with the notice until  the expiration of one month thereafter, s.  12(2)  is  satisfied and s. 12(3) (a) comes into operation. Mr.  Pai also argued that the right given to the tenant  :to pay  the  arrears at the hearing of the suit  was  a  vested right, and so, in construing s. 12(3)(a) we should not adopt the  construction which would defeat that vested right.   It is not easy to accept the contention that the provisions  of s.  12(3)(a) really confer any vested right as such  on  the tenant.  What s. 12(3)(a) provided was that a decree  ,shall not  be passed in favour of the landlord in case the  tenant pays  or tenders in Court the standard rent at the  ,hearing of  the suit.  This provision cannot prima facie be said  to confer any right or vested right on the tenant.  But even if the  tenant had a vested right to pay the money in court  at the   hearing  of  the  suit,  we  do  not  see   how   that consideration  can alter the plain effect of the words  used in s. 12(3)(a).  The suit was filed after the amended 331 section  came into force, and clearly the amended  provision applies to the suit and governs the decision of the  dispute



between the parties.  If that is so, the plain meaning of s. 12(3) (a) is that if a notice is served on the tenant and he has  not  made  the  payment as  required  within  the  time specified  in  s. 12 (3) (a), the Court is bound to  pass  a decree  for eviction against the tenant.  That is  the  view taken  by the Gujarat High Court and we are  satisfied  that that  view  clearly  gives effect to the  provisions  of  s. 12(3)(a) as amended in 1953.  We must accordingly hold  that there is no substance in the appeal.  The appeal, therefore, fails and is dismissed with costs. Appeal dismissed