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PETITIONER: VITHAL VASUDEO KULKARNI & ORS.

       Vs.

RESPONDENT: MARUTI RAMA NAGANE & ORS.

DATE OF JUDGMENT: 14/09/1967

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. SHAH, J.C. SIKRI, S.M.

CITATION:  1968 AIR  461            1968 SCR  (1) 541

ACT: Bombay  Tenancy  &  Agricultural Lands Act 67  of  1948,  s. 25(2)--Whether  entitles landlord to decree for eviction  of tenant for nonpayment of rent on due date even when  arrears are  paid by tenants and accepted by landlord-Acceptance  of arrears whether constitutes waiver of termination of tenancy by landlord.

HEADNOTE: Respondent no. 1 was the tenant of the appellants in respect of certain land.  The rent was payable by the 20th of  March every year.  In respect of the years 1951-52, 1952-53, 1953- 54  and 1954-55 the rent was paid by the respondent and  was accepted by the appellants though it was not paid on the due dates.   The appellants filed an application under s. 29  of the Bombay Tenancy & Agricultural Lands Act, 1948 before the Mamlatdar for eviction and possession on the ground that  as the  rent had not been paid for the aforesaid years  by  the due date,, they were entitled to an order of ejectment under s.  25(2)  of the Act as it stood before  its  amendment  in 1956.    The  Mamlatdar  dismissed  the  application.    The District Deputy Collector and the Appellate Tribunal  upheld the  order of the Mamlatdar.  The appellants then  filed  an application  under Art, 227 of the  Constitution  before-the High Court challenging the Tribunal’s order.  The High Court dismissed  the  application  observing that  as  it  was  an admitted  position  that the landlord had received  all  the rent due by the tenant and there were no arrears due by  him at the date of the said application, there was no ground for interfering with the Tribunal’s order.  By special leave the appellants came to this Court. HELD:The  High  Court’s refusal to interfere  with  the Tribunal’s order was justified. Under  sub-s. (1) of s. 25 if the tenant has failed  to  pay rent  and  the  tenancy is terminated on  that  ground,  the Mamlatdar  has the power to direct the tenant to pay up  the arrears  and  on payment of such arrears by the  tenant  the Mamlatdar  has to pass an order directing that  the  tenancy had not been terminated.  Sub-section (1) thus  pre-supposes that there are arrears at the date of the application  which the Mamlatdar can direct the tenant to pay and that on  such

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arrears   being   paid   the   Mamlatdar   has   to    order notwithstanding  the  termination  of  the  tenancy  by  the landlord  that such tenancy had not been terminated  and  no order  of eviction can be passed against such tenant.   Sub- section (2) on the other hand deals with a case where  there is  persistent  default by the tenant.for  three  years  and provides  that  to such a case the  provisions  of  sub-s(1) would  not  apply.The Mamlatdar in such a case has  not  the power to order payment of arrears as he would do under  sub- s.(1)  and  on such payment to direct as he would  do  under subs.(1)the  tenancy  should be treated as not  having  been terminated.sub-section  (2) therefore pre-supposes (i)  that the tenant has made defaults or ore than two years and  (ii) that  the  tenant  was  in  arrears  at  the  date  Of   the application which arrears in this case the Mamlatdar  cannot order   the   tenant  to  Pay.   Sub-section   (2)   is   in contradistinction to sub-s. (1), that is to say, whereas  in the case of less than three defaults the Mamlatdar can  call upon  the  tenant to pay the arrears and can on  payment  of such  arrears direct that the tenancy was not terminated  he cannot do so under sub-s. (2), where 542 there are more than two defaults and direct that the tenancy had not been terminated. [544A-E] The  ’legislature could never have intended that even  where the tenant has paid up all the arrears and the landlord  has accepted  them  he would still have the right to  evict  the tenant,  through his reason for terminating the tenancy  and his  cause  of  action  for  an  action  for  eviction  have disappeared  by  his acceptance of the arrears due  to  him. The  Act  does not rule out the payment by  the  tenant  and acceptance by the landlord of arrears of rent before a  suit for  eviction  is  instituted resulting  in  waiver  by  the landlord of the termination of tenancy by him. [544F-H] Raja Ram Mahadev Paranjipe & Ors. v. Aba Maruti Mali &  Ors. [1962] Supp. 1 S.C.R. 739, distinguished.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 31 of 1965. Appeal  by special leave from the judgment and  order  dated October  16, 1962 of the Bombay High Court in Special  Civil Application No. 65 of 1962. S.   S. Shukla, for the appellants. O.   P. Malhotra and P. C. Bhartari, for respondent No. 1. The Judgment of the Court was delivered by Shelat, J. The appellants are the landlords and respondent I the  tenant  in respect of Survey Nos. 15.17/2,  1500/2  and 1500/4  situate in village Nangalwedha,  District  Sholapur. Under  the tenancy the agreed rent was Rs. 95 per year.   As the  tenant made default in paying the rent  the  appellants served him with a notice terminating the tenancy.  On  March 12,  1957 they filed an application under section 29 of  the Bombay  Tenancy  and Agricultural Lands Act  LXVII  of  1948 before  the  Mamlatdar for eviction and  possession  on  the ground  that  the tenant had failed to pay rent on  the  due dates, that is, March the 20th of each of the years  1951-52 to 1954-55 and that therefore they were entitled to an order of  ejectment  under  section 25(2) of  the  Act.   The  Act applicable  to  the said application is Act  LXVII  of  1948 before  its amendment in 1956, The position as  regards  the rent was that for the year 1951-52 the landlords had filed a suit  for recovery of the rent and the tenant had  paid  Rs. 142  after his appeal against the decree passed against  him

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was  disposed  of on June 8, 1956.  The amount  of  Rs.  142 comprised  of Rs. 95 for 1951-52 and Rs. 47/8/-  being  half the rent for 1952-53.For the year 1952-53 half of the amount of rent due from him     was  paid in April 1956.   For  the year 1953-54 the landlords filed an assistance suit and  the tenant  paid the rent on May 5, 1955.  For the year  1954-55 the tenant paid and the landlord received the rent on  April 12,   1955.    The  Mamlatdar  dismissed   the   appellants’ application  on the ground, that the tenant having  paid  up the  rent due by him and there being no arrears at the  date of  the institution of the application the appellants  were, not entitled to an- order of ejectment.  In the appeal filed by the appellants 543 before  the  District  Deputy Collector, it  was  held  that though  the,  tenant had failed to pay the rent on  the  due date,  the- appellants. having admittedly accepted  all  the rents   due  to  them  before  the,  institution  of   their application  the  defaulter were not wilful and  the  Deputy Collector   had  therefore  the  discretion  not  to   order eviction.   The  appellants took the matter to  the  Revenue Tribunal.   The  Tribunal dismissed the appeal on  the  same ground.   Having failed before the Revenue  Authorities  the appellants  filed  a Special Civil Application in  the  High Court  under  Art. 227 of the Constitution  challenging  the correctness  of  the  Tribunal’s  order.   The  High   Court dismissed  the  application  observing that  as  it  was  an admitted  position that the landlords had received  all  the rent due by the tenant and there were no arrears due by  him at the date of the said application. there was no ground for interfering  with  the  Tribunal’s  order.   The  appellants obtained  special  leave from this Court  against  the  High Court’s  order  and.  that is how this appeal  has  come  up before us. Counsel for the appellants contended that the High Court was in error in refusing to set aside the Tribunal’s order, that under  s.  25(2)  of  the Act once  the  tenant  made  three defaults  in payment of rent on the due dates, the  landlord became entitled to terminate the tenancy and to an order  of eviction against him, that there would be no question of the defaults  being wilful or otherwise, that the mere  fact  of the  tenant having failed to pay rent on the due  dates  was sufficient and there was no room for any principle of equity relieving  the  tenant  against  forfeiture.   According  to Counsel.   section  25(2)  is  mandatory  and  the   revenue authorities  were  bound to order eviction even  though  the tenant had paid up the rent and the landlord had accepted it before  the filing of the application.  In support of  these contentions he relied strongly on the decision of this Court in  Raja Ram Mahadev Paranjipe & Ors. v. Aba Maruti  Mali  & Ors.(1). The  question  raised  by Counsel mainly  depends  upon  the construction and true meaning of section 25 of the Act.   By its  sub-section  (1) the section provides  that  where  any tenancy  held by a tenant is terminated for  non-payment  of rent  and  the landlord files any proceeding  to  eject  the tenant, the Mamlatdar has to call upon the tenant to  tender to  the landlord the rent in arrears together with the  cost of the proceeding within 15 days from the date of the  order and  if the tenant complies with such order,  the  Mamlatdar shall pass an order directing that the tenancy had not  been terminated  and thereupon the tenant shall hold the land  as if  the  tenancy had not been terminated.   Sub-section  (2) provides  that sub-section (1) shall not apply to  a  tenant whose  tenancy is terminated for non-payment of rent  if  he

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has failed for any three years to pay rent within the period specified in s. 14.  It is clear that under sub-section  (1) if the tenant (1) [1962] Supp. 1 S.C.R. 739. 544 has  failed  to pay rent and the tenancy is  terminated  ’on that  ,ground,  the Mamlatdar has the power  to  direct  the tenant to pay  up the arrears and on payment of such arrears by the tenantthe Mamlatdar has to pass an order  directing that the tenancy had not been  terminated.  Sub-section  (1) thus pre-supposes that thereare arrears at the date of the application which the Mamlatdar direct the tenant to pay and that  on  such  arrears being the  Mamlatdar  has  to  order notwithstanding the termination ofthe   tenancy   by    the landlord  that such tenancy had not been terminated  and  no order  of eviction can be passed against such tenant.   Sub- section (2) on the other hand, deals with a case where there is  persistent  default by the tenant for  three  years  and provides  that to such a case the provisions of  sub-section (1)  would not apply.  The Mamlatdar in such a case has  not the  power to order payment of arrears as he would do  under sub-section (1) and on payment of such arrears to direct  as he would do under sub-section (1) that the tenancy shall  be treated  as  not having been  terminated.   Sub-section  (2) therefore  also  pre-supposes (i) that the tenant  has  made defaults  for more than two years and (ii) that  the  tenant was in arrears at the date of the application which  arrears in  this case the Mamlatdar cannot order the tenant  to  pay up.  Sub-section (2) is in contra-distinction of sub-section (1),  that  is to say, where.as in the case of less  than  3 defaults  the Mamlatdar can call upon the tenant to pay  the arrears  and can on payment of such arrears direct that  the tenancy  was  not  terminated, he cannot do  so  under  sub- section  (2)  where  there are more than  two  defaults  and direct  that the tenancy had not been terminated.   If  this was  not the correct construction of sub-section (2) and  if the  appellants’ construction were to be accepted  it  would lead to a very astonishing result, viz., that even where the tenant  has  paid up all the arrears and  the  landlord  has accepted  them, he would still have the right to  evict  the tenant,  though his reason for terminating the  tenancy  and his  cause  of  action  for  an  action  for  eviction  have disappeared  by  his acceptance of the arrears due  to  him. The  legislature  could never have intended  such  a  result which also would be contrary to all principles governing the relationship between landlords and tenants.  The legislature on  the  contrary has been careful to provide  expressly  by section  30 of the Act that except as otherwise provided  in s.  6(3) and s. 27(1) (with which we are not  concerned)  no other  provision contained in the Act shall be construed  to limit  or  abridge the rights or privileges  of  any  tenant under  any  usage  or law for the time  being  in  force  or arising  out  of any contract, grant, decree or order  of  a court  or otherwise howsoever.  The Act therefore  does  not rule  out  the payment by the tenant and acceptance  by  the landlord  of arrears of rent before a suit for  eviction  is instituted  resulting  in  waiver by  the  landlord  of  the termination of tenancy by him. In Raja Ram Mahadev Pranjype’s Case(1) this Court, no doubt, held that on default in payment of rest for three years a (1) [1962] Supp. 1 S.C.R. 739. 545 statutory  right  accrued to a landlord under  s.  25(2)  to terminate the tenancy and to obtain possession, that the Act contained   no   provision  for  granting   relief   against

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forfeiture  in  such  a  case and  that  no  relief  against forfeiture  could  be  granted to the  tenant  on  equitable grounds,  such  relief  being allowable  only  in  cases  of contractual rights and not in cases of statutory rights.  It also  held  that  relief under s. 114  of  the  Transfer  of Property Act also would not be available as that section was inconsistent  with  the  provisions  of  the  Act  and  was, therefore,  inapplicable by reason of section 3 of  the  Act and  that the Act merely empowered the Mamlatdlar  to  grant relief where the tenant was not in arrears for more than two years.  It will, however, be noticed that this Court did not hold  that even where there are no arrears at the  date  of, the  application for ejectment and the landlord,  has  prior thereto received and; accepted, the arrears which  entitled, him to terminate the tenancy, he would stiff have the  right to obtain eviction against such a tenant.  A careful perusal of  that decision shows that it rested ’on the footing  that the  tenant had committed defaults for more than  two  years and   there  were  arrears  of  rent  when  the   landlord’s application for eviction was filed The observation that  the Act empowered the Mamlatdar to grant relief where the tenant was  not  in  arrears for more than  2  years  clearly  pre- supposes  that if the tenant were to be in arrears for  more than  2  years sub-section (2) took away the  power  of  the Mamlatdar to give relief which he can give under sub-section (1) viz., to call upon the tenant to pay, the arrears and on such  payment  to  direct  that the  tenancy  had  not  been terminated.   It  is  this power which  is  denied  to;  the Mamlatdar  by  sub-section  (2),  if  the  conditions  there contemplated  exist,  that is, the tenant is in  arrears  of rent  for  more  than  two  years  or  the  date  when   the application for ejectment is filed.  In this view, the  High Court’s  refusal to interfere with the Tribunal’s order  was justified. The appeal fails and is dismissed with costs. G.C. Appeal dismissed. 546