Bombay High Court
Mohamad Yusufkhan Gulzarkhan vs Mogalbeg Durbeg Since Decd. As Per L. Rs. on 30 August, 1993
Equivalent citations: 1994(1)BOMCR503
JUDGMENT M.F. Saldanha, J.
1. Section 12(3)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter for the sake of brevity referred to as "the Rent Act") has been the subject-matter of several judicial decisions, but there will always be yet another angle that is canvassed before the Court and which will require elucidation. The question that has arisen in this case is as to whether a decree in eviction would still follow if in spite of defaults committed during the pendency of the proceedings under section 12(3)(b) of the Rent Act the arrears are deposited from time to time, the time gaps between such deposits being relatively wide, but the entire quantum of arrears having been cleared prior to the date of the judgment. In substance, what is contended is that the tender of the arrears regardless of how and when it is done will have the effect of purging the acts of default that entitled the landlord to a decree. The support to this contention stems from the fact that since a Court has power to condone delays as far as money defaults are concerned, where a Court accepts or permits the acceptance of the rent, that is in arrears or that has not been deposited regardless of the fact that the time-factor has been overstepped, that it must be held that the lapse in question has also been condoned. The argument proceeds on the footing that such condonation extinguishes the cause of action and, therefore, disentitles the landlord to a decree in eviction. The legal effects of accepting such a position in law, in the first instance, and the consequences of upholding such a condonation have been debated in this petition. The facts giving rise to the controversy are enumerated below.
2. The petitioner before this Court is the original plaintiff who filed Regular Civil Suit No. 159 of 1976 on 28-6-1976 in the Court of the learned Civil Judge, Junior Division, Nandurbar, for eviction from the suit premises of the original defendant who died during the pendency of the suit and is represented by his legal heirs. The claim was based on two grounds, firstly, under section 12 of the Rent Act on the ground that the tenant was in arrears since 1-3-1974, and secondly, under section 13(1)(g) of the Rent Act on the ground of bona fide requirement. As far as the second ground, namely, the bona fide requirement is concerned, the trial Court itself negatived the same, principally, on the ground that the plaintiff is residing at Surat and was working there and we are, therefore, not concerned with that ground. However, as far as the arrears were concerned, the trial Court took a serious note of two factors, the first of them being that even though an interim order had been passed in the standard rent application filed by the tenant directing him to pay the rent of the suit premises at the rate of Rs. 10/- per month and not Rs. 20/- as was demanded by the plaintiff that the entire arrears for three years were not deposited and that subsequently as the record of the Court indicates, the default had continued virtually from month to month, the longest gap being of a period of 31/2 years. The learned trial Judge, and very correctly to my mind, on the record of this case, concluded that the defaults had been regular, persistent and gross and that in these circumstances it would be fallacious to even argue that it had been demonstrated that the tenant is ready and willing to pay the rent in respect of the premises. The spirit of section 12(3)(b) of the Rent Act essentially extends to testing finally whether the tenant is serious about paying the rent which is not only a moral but a legal obligation and provides that where there is default in complying with this obligation that a decree shall follow. The ingredients of the section were considered by the learned trial Judge and he held that since the defaults were regular, manifold and persistent that a decree was liable to follow. It is material to point out that the learned trial Judge had fixed standard rent in respect of the premises at Rs. 20/- per month and had directed, by virtue of the decree that was passed against the tenant, that the arrears at that rate must also be paid until the date of handing over of the possession.
3. The tenant carried the matter in appeal. The learned Appellate Judge took cognizance of one factor, namely, that some sporadic payments were made from time to time and, more importantly, that all these payments were tendered in Court and were accepted by the Court. The learned Appellate Judge read into this factor two consequences, the first being that according to him by implication the time for payment was extended automatically. I need to record here that there was at no time any application made for extension of time nor was the same granted on a single occasion and it was virtually through error that the office of the trial Court kept on accepting the payments and it was, therefore, a complete misreading of the record. The learned Appellate Judge also held on the same set of facts that the acceptance of the total amount of arrears regardless of when they were paid, as long as the entire quantum had been cleared prior to the final decision of the proceedings would constitute condonation. By condonation obviously what the learned trial Judge had in mind was not only condonation of delay but, more importantly, condonation of the breach that in law would give rise to the passing of the decree under section 12(2) of the Rent Act. As far as this last aspect of the matter is concerned, it needs to be recorded that the learned trial Judge has overlooked the all important aspect of the case, namely, that out of the two parties before the Court even if on ground of poverty, difficulty, etc., some sympathy lay with the tenant that one could not do violence to the law by permitting emotional factors to override legal considerations. This is because the premises belong to the landlord and the right of restoration accrues to him on the tenant having committed certain defaults. These rights cannot be extinguished or affected merely because the tenant at some late point of time attempts to make amends. The scheme of section 12(2)(b) of the Rent Act envisages that the time-frame will have to be adhered to and that rent will have to be paid at the quantum prescribed from time to time. If a default is committed at this point of the proceedings, there is virtually no escape as has been laid down in several decisions which I shall draw attention to. To my mind, this is very necessary because there are limits beyond which the protection afforded to the tenant under the provisions of the Rent Act cannot be carried to a rigiculous extent. Where a tenant has already been in arrears and, under normal circumstances, a cause of action has arisen which would end in a decree of eviction against him, the law gives him a final opportunity of paying up within one month of the date of service of the notice and the only escape in these circumstances is if the contention is raised that the rent is excessive or if a dispute were to be carried to Court and for the arrears to be deposited at the rate which the Court so decides, be it the same or a lower rate. What needs to be emphasised is that the injury to the landlord cannot be aggravated beyond reasonable limits because he is already the aggrieved party when he has approached the Court on the ground of default due to arrears. At this stage, therefore, the law has tightened up the position and prescribed that a further default will be fatal. We are, therefore, concerned with the subsequent stage when all the protective indulgence of the law has already been exhausted and where, therefore, there is little scope for any further laxity or indulgence. It is this last aspect of the matter that requires to be highlighted.
4. I need to summarize that the learned Appellate Judge in this case has proceeded on the footing that the default, even though established, gets obliterated if the entire arrears have, in fact, been cleared prior to the conclusion of the judicial proceedings. Shri Agrawal, who appears on behalf of the petitioner, has contended before me that this position, though the subject-matter of some judicial decisions, is no longer good law. Towards this end, he has drawn my attention to certain decisions of this Court as also of the Supreme Court which I shall briefly recount for purposes of culling out the correct approach that is required to be adopted by courts in cases of the present type. The first of these decisions is in the case of Ganpat v. Sashikant, . In this case, the Supreme Court in terms held that if there is a statutory default or neglect on the part of the tenant whatever may be its cause that the landlord acquires a right under section 12(3)(a) of the Rent Act to get a decree for eviction. Analysing the provisions of section 12(3)(b) of the Rent Act, the Supreme Court observed very clearly that if the conditions imposed on the tenant are not fulfilled that there is no protection left and that a decree would have to follow. The Supreme Court in terms overruled the decision of this Court in the case of Shantabai v. Ganpat, , and approved of the decision of the Gujarat High Court in the case of Ratilal v. Ranchhodbhai, .
5. Next, Shri Agrawal placed reliance on another decision of the Supreme Court in the case of Mranalini B. Shah v. B.M. Shah, , wherein, in substance, the Supreme Court observed that while construing section 12(3)(b) of the Rent Act, the Court would have to enforce the payment of rent and permitted increases regularly during the pendency of the suit or appeal. The term "regularly" was held to be mandatory and not directory and the Court further laid down that in the case of a monthly tenancy, the judicial forum has no discretion to treat payment made at irregular intervals as sufficient compliance.
6. Shri Agrawal also placed reliance on another decision of the Supreme Court in the case of Jamnadas v. J.J. Farrel, , wherein once again the Supreme Court, while interpreting section 12(3)(b) of the Rent Act, observed that when the tenant does not fulfill the conditions as required under section 12(3)(b) of the Rent Act, he cannot claim the protection under that section. The conditions specified therein will have to be strictly observed by the tenant if he wants to avail himself of the benefits provided under that section. The Court also held that persistent defaults of the tenants on various occasions would exclude any relief being granted under section 12(3)(b) of the Rent Act.
7. Shri Agrawal then relied on a Division Bench decision of this Court, which is directly on the point, in the case of Anant v. Damodar, . While considering the effect of the failure on the part of a tenant to deposit rent as ordered by the Court, the Court held that in the event of default of the essential conditions required under section 12(3)(b) of the Rent Act, the tenant was not entitled to the benefits prescribed by that section.
8. Shri Agrawal also drew my attention to another Division Bench decision of this Court in the case of Jaypal Bandu v. Basavali Gurulingappa, . The Division Bench of this Court had occasion to interpret section 12(3)(b) of the Rent Act and it was held that the condition with regard to the payment of rent regularly requires that the tenant who seeks the benefit thereof must strictly comply with that condition. What is important is that the Division Bench in terms laid down that the Court has no discretion to grant a relief to a tenant on the basis of substantial compliance. The earlier decision of this Court in the case of Kalidas Bhavan v. Bhagvandas, 60 Bom.L.R. 1359, was held not to be good law in view of the decisions of the Supreme Court in the case of Dhansukhlal v. Dalichand, , and in the case of Ganpat v. Sashikant, . The Court also overruled the earlier decision of this Court in the case of Gulabchand v. Noorbag,
9. Lastly, Shri Agrawal drew my attention to a decision of the Supreme Court in the case of M.L. Hede v. Noormohamed Adam Shaikh, . This is a decision that has been relied on by both learned Counsel appearing before me. The Supreme Court had occasion in that case to give its verdict on a virtually borderline set of facts. It had been demonstrated that the tenant in question has been depositing the rent as required of him, but that there were some small delays which varied from two days to a maximum of 23 days in respect of these defaults. The Court was considering a technical argument that the rule of strict compliance required that even if there was a default of a single day that the Court ought not to afford the benefit of section 12(3)(b) of the Rent Act to the tenant. Kania, J., (as he then was) on behalf of the Court, observed that while interpreting section 12(3)(b) of the Rent Act, the Court will not adopt a ruthless or unreasonable approach in so far as there was substantial compliance and if for valid ground the actual date of deposit varied by a short period of time that it would not be construed by the Court as a default. Learned Counsel appearing on behalf of the respondent-tenant Shri Shah placed very heavy reliance on this judgment because according to him the principle enunciated is that in sum and substance the arrears should be paid up and that the Court will not point a gun at the tenant's head virtually shooting him down merely on the ground of some delay. Shri Shah submitted that in the present instance, the learned Appellate Judge has relied on the observations of the Supreme Court in the case of Shyamcharan v. Dharamdas, , wherein the Supreme Court had observed that if the Court has the discretion not to strike out the defence of a tenant committing default in payment or deposit that the Court also has the discretion to extend the time for payment or deposit. It was more or less the same principle that was enunciated by Jahagirdar, J., in the decision of this Court in the case of Mohanlal v. Khimraj, 1978 Mh.L.J. 611. In that case, Jahagirdar, J., (as he than was) had observed that this Court which has the power to fix the schedule of payment and, consequently, it is open to the Court to extend the date of payment and to condone the delay. Shri Shah has placed heavy reliance on these two decisions and sought to contend that the learned Appellate Judge was perfectly justified in holding that since the arrears had been accepted, though late on several occasions, which had been totally cleared before the final proceedings that it amounted to condonation of delay or, in other words, alteration of the original payment schedule and, consequently, that it could not be construed as a breach giving rise to the harsh consequences of an eviction decree.
10. To my mind, the submissions canvassed by Shri Shah which, are based virtually on the reasoning of the appeal Court, are fallacious There is no dispute with regard to the principle laid down by the Supreme Court in Shyamcharan's, case referred to supra, but that decision is distinguishable because in the present instance there was no application for variation of the time-schedule or extension of the period of time or, for that matter, for condonation of delay. In the absence of these, the decision in question would not apply. As far as the decision in Mohanlal's, case is concerned, I need to point out that this decision was considered in the later judgment of this Court and, therefore, it is no longer a good law. Apart from this fact, it is necessary for me to record that the Court was basically concerned with the alteration of the time-schedule, which is not the case on the facts before me.
11. Shri Shah placed heavy reliance on a decision of this Court in the case of Indravan v. Ambaben, . This was a case in which the tenant had deposited the arrears in Court, but there was some delay in doing so and the trial Court, on application, condoned the delay. This Court held that the delay having been condoned, it was no longer actionable. I have already observed that where we are concerned with a direction to deposit the arrears that has emanated out of an order of the trial Court that in a given instance and for valid ground, the trial Court would certainly have the power to alter the time-schedule by extending the time or, for that matter, by condoning the delay. There can be no two opinions about the fact that if for valid reasons, the Court takes the decision to alter the original order that it can never be construed as having constituted an act of breach. In the present instance, there was a specific order for deposit of rent from month to month. Quite apart from the gross defaults which had taken place earlier and which had provided the cause of action, it has been demonstrated to me, which fact is undisputed, that right through the litigation the defaults have continued so much so that on one occasion no deposit had been made for as many as 31/2 years. The facts of this case are gross. I do appreciate that a decree in eviction is a harsh consequence, but one cannot lose sight of the fact that the law very clearly entails a counter obligation on the part of the tenant to comply with the conditions of tenancy, the first and most basic one being that the tenant must be ready and willing to pay the rent from month to month. When the arrears have exceeded six months and the same have not been paid in spite of notice, it is virtually the end of the road and, as indicated by me earlier, the tenant is given a final opportunity if there is a dispute in respect of the quantum, to pay the amount prescribed by the Court from month to month and thereby establish the readiness and willingness to pay by not keeping any amount in arrears. Where the facts demonstrate that there is a further breach, it is now well-settled law that the Court is left with no option and would not be justified in refusing a decree.
12. This being the position in law, the decision of the appeal Court before me setting aside the decree passed against the respondent is clearly erroneous and is liable to be set aside. The writ petition accordingly succeeds. The judgment and order of the appeal Court is set aside and the decree passed by the trial Court is restored. In the facts of the present case, there shall be no order as to costs.
13. Shri Shah on behalf of the respondents requested that reasonable time be granted to the respondents to vacate. He stated that they are four persons and that it would be extremely difficult to find alternate accommodation. This request is granted on the condition that the respondents, namely, the legal heirs of the original tenant and all those persons who are in occupation of the suit permises file a written unconditional undertaking in the trial Court within a period of four weeks from to-day that they will vacate and hand over the possession to the original plaintiff or his legal heirs on or before 31-12-1994. In the event of this undertaking being filed, the decree shall not be executed until 31-12-1994. It is clearified that under no circumstances whatsoever will extension of even a single day be given. The reason why a sufficiently long time has been permitted by me is so that the respondents have full notice of the fact that they have to vacate from the premises. They shall, however, be liable to clear up the arrears upto the date of vacating. The existing arrears, if any, shall be cleared before 31-10-1993 and the rent from month to month shall be deposited in the trial Court before the 10th day of each month. Any default in the deposit of the rent amount shall entitle the petitioner to execute the decree. If the rent is regularly deposited and the respondents do not hand over possession by 31-12-1994, the trial Court shall forthwith execute the decree without any further orders from this Court. The rule is made absolute. The petition is allowed. The interim orders vacated.