Gujarat High Court
Gulamnabi Gulam Akbar vs Haji Ismail Isakji Patel on 28 March, 1995
Equivalent citations: (1995)2GLR1093
JUDGMENT S.D. Dave, J.
1. This is a revision petition by the petitioner-appellant-defendant-tenant.
2. The plaintiff-landlord had instituted Regular Civil Suit No. 387 of 1976 in the Court of the learned Civil Judge (J.D.), Ankleshwar, against the petitioner-tenant for obtaining a decree of eviction on the ground of the non-payment of rent for a period of six months. The case put up by the plaintiff-landlord was that the suit premises, namely, a shop and the room situated at Ankleshwar were leased to the defendant-tenant at the monthly rent of Rs. 45/-. According to the plaintiff-landlord, previously also, two suits were instituted against the defendant-tenant for the recovery of possession, inter alia, on the ground of the non-payment of the rent, but both the proceedings were compounded and the defendant-tenant had continued in the premises as the tenant. According to the plaintiff-landlord, the necessary notice under Section 12(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as 'The Act') was duly served upon the defendant-tenant, but he has not paid or tendered the rent which was found to be due. It is on this basis that the plaintiff-landlord had prayed for a decree of eviction along with the rent which was due and mesne profit. This case of the plaintiff-landlord came to be challenged by the defendant-tenant by filing W.S. at Exh. 13. The defendant-tenant has admitted that the suit premises have been taken on lease by him at the rent of Rs. 45/- per month. According to him, he had already tendered an amount of Rs. 300/- by Money Order, but that the said tender of the amount due was not accepted by the plaintiff-landlord and there was a refusal on his part to accept the rent. It has been further contended by the defendant-tenant that the suit premises were worn out and in dilapidated condition and that they required substantial reparation. It is broadly on these grounds that the defendant-tenant has prayed for the dismissal of the suit of the plaintiff-landlord against him. From the above said pleadings of the parties, the learned trial Judge had framed issues at Exh. 14 and upon the appreciation of the evidence on record, has reached the conclusion that the case was falling within the purview of Section 12(3)(a) of the Act and that the Court was bound to award a decree of eviction in favour of the plaintiff-landlord. This view has been culminated in the judgment dated May 3,1980. The said judgment and the consequent decree were challenged before the District Court, Bharuch, of course, unsuccessfully, by filing Regular Civil Appeal No. 98 of 1980 which came to be dismissed by the learned District Judge, Bharuch vide judgment dated January 12, 1980. Thus, the decree against the petitioner-tenant for eviction under Section 12(3)(a) of the Act came to be upheld and confirmed. Hence, the tenant is before me in the present Civil Revision Application.
3. It is not in dispute that the notice under Section 12(2) of the Act dated July 19, 1976 was served upon the defendant-tenant on July 21, 1976. It is also not disputed that the defendant-tenant had not sent the amount demanded within a period of one month from the date of the receipt of the notice. He has, of course, sent the rent by Money Order as late as September 10, 1976. Moreover, the contention raised by the defendant-tenant in the W.S. as indicated above, admits two important aspects of the case of the plaintiff-landlord; firstly, that the rent was Rs. 45/- per month and that the said rent was to be tendered per month according to the English Calendar. Thus, from the averments in the W.S. itself it is borne out that the tenancy was a monthly tenancy and that the rent was payable by month. As demonstrated above, the tender qua the amount asked for by the statutory notice under Section 12(2) of the Act was not made within the statutory period of one month. In the same way, no dispute regarding the standard rent ever came to be raised. Thus, the Courts below have proceeded on a right basis, saying that there has been a monthly tenancy and that the rent was payable by month and that the defendant-tenant was in arrears of rent for a period of more than six months and that the above said amount was not tendered within the statutory period and that there was no dispute regarding the standard rent. The conclusion of this view, of course, is that the case would be governed under Section 12(3)(a) of the Act.
4. A comparative recent decision of the Supreme Court in the case of Jaywant S. Kulkarni v. Minochar Dosabhai Shroff and reiterates the principle adopted by a catena of previous decisions that, where the rent is payable by the month and there is no dispute regarding the amount of the standard rent or permitted increases, and if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make the payment thereof until the expiration of the period of the one month after the notice referred to Sub-section (2) of Section 12 of the Act, the Court shall pass a decree for eviction in the suit. Thus, it is clear that, if the case falls within the purview of Section 12(3)(a) of the Act, the Court has to pass a decree of eviction. It is, indeed, true that the Gujarat Act uses the word 'may' in Section 12(3)(a) of the Act, while the Maharashtra Act uses the word 'shall' instead of the said word 'may'. Any how, in Bhaiya Punjalal Bhagwanddin v. Dave Bhagwatprasad P. it has been said that the word 'may' in sub-section has the meaning of 'shall'. This position has been reiterated by the Supreme Court in the case of Ms. Manorama Section Masurekar v. Mrs. Dhanlaxmi G. Shah .
5. Thus, it is settled that if the above said conditions are fulfilled, there should be decree of eviction under Section 12(3)(a) of the Act. Looking to this settled legal position, it appears that the Courts below were perfectly justified in coming to the conclusion, firstly, that the provisions contained in Section 12(3)(a) of the Act are attracted and that a decree was a must.
6. Learned Counsel Mr. V.J. Desai appearing on behalf of petitioner raises a two-fold contention before me. His first contention pertains to the question of the legality and the validity of the statutory notice given by the plaintiff-landlord to the defendant-tenant. This notice dated July 19, 1976 available at Exh. 24 has been read with utmost care by the learned Counsel with a view to show that the same is not in consonance with the statutory requirement and therefore, the same cannot be said to be a valid and legal notice. With a view to elaborate this broad contention, the learned Counsel urges that the notice does not say anything regarding the amount which was claimed by the said notice and that even the time-lag for which the arrears have been claimed is not made clear. The learned Counsel further urges that the rent which had not become due has also been asked for in the notice. According to the learned Counsel, these are the factual infirmities and they shall render the notice illegal and invalid and bad in law on which a suit for eviction of the defendant-tenant on the ground of arrears of rent could not have been successfully instituted. Firstly, the reliance has been placed by learned Counsel Mr. Desai on a decision of this Court in Bapulal Kalidas and Ors. v. Bai Kashiben (1977) XVIII GLR 77. While interpreting the provisions contained under Section 12(2) of the Act, it has been said that the notice, demanding the arrears, must comply with the requirements of law and that the demand must be precise and if the requirements are not complied with, such notice would be rendered invalid. It has been said with great precision in this decision that the demand of the standard rent and permitted increases in a notice under Section 12(2) of the Act must be a precise demand, that is to say, one that sets out with certainty what according to the landlord is due by the tenant on that account. It has been said that, in other words, the demand must be for a sum specified or it must be made in such manner that the amount actually claimed becomes definitely ascertainable by reference to some other intrinsic evidence in the notice itself. When the notice under consideration at Exh. 24 is scrutinised, it is evidently clear that it says that the defendant-tenant has paid the rent upto December 31, 1975 but, thereafter the tenant is in arrears. The notice is dated July 19, 1976. In these factual circumstances, the tenant was bound to know that, according to the plaintiff-landlord, he was in arrears of rent from 1st January 1976. He would, without any difficulty whatsoever, would be able to understand and appreciate that the plaintiff-landlord is demanding the rent for a period of six months commencing from 1st January 1976. Therefore, though the amount has not been specified in the notice, the test laid down by the learned single Judge in the case of Bapulal Kalidas (supra) is satisfied because the amount claimed becomes ascertainable by reference to the intrinsic particulars in the notice itself, namely, the date from which the rent of the premises was in arrears. The other contention being canvassed by the learned Counsel is that the notice is bad because the rent which had not become due has also been demanded by the notice. Factually, this contention does not appear to be having any substance. It is true that the tenancy has been terminated with effect from August 31, 1976. The defendant-tenant has been called upon to hand over actual physical vacant possession of the premises on or after the above said date. It is also stated that he should do so along with the payment of the rent which has become due. But these averments in the notice cannot be equated with a claim of the rent which had not become due. Therefore, the contention raised by the learned Counsel as indicated above is factually not correct. It is true that the rent which would accrue due, subsequent to the date of the demand notice cannot be an arrear. This position has been well settled by the decision of this Court in Jayantilal Kalabhai Mehta v. Ratilal Gulabdas Mehta (1977) XVIII GLR 374. This principle, any how, has no application to the instant case as the contention coming from the learned Counsel cannot be accepted on the facts stated in the notice. Because of this reason, the first contention coming from learned Counsel Mr. Desai that the notice is not a legal and valid one, cannot be accepted.
7. The learned Counsel urges that the terminology employed in Section 12(3)(a) of the Act pre-supposes the neglect on the part of the tenant to make the payment of the amount demanded until the expiration of the period of one month after the notice referred to in Sub-section (2) of Section 12 of the Act. It is indeed, true that the verbalism used is 'that the tenant neglects to make the payment thereof. Placing heavy reliance upon this language used in this relevant provision, the learned Counsel urges that unless and until the state of mind which would reflect the neglect on the part of the tenant is established, the decree of eviction under Section 12(3)(a) of the Act could not be passed. Reliance has been placed upon a decision of this Court in Udyomal Nathumal and Anr. v. Premchand Trikamdas Baswani (1980) XXI GLR 869. After the narration of the tale-telling circumstances alleged, the tenant falling sick and suffering loss in his business and after the notice, the tenant offering to pay the arrears of rent by instalments and the employer of the tenant giving an assurance on behalf of the tenant, it has been said that the Legislature clearly intended that, unless the tenant is having that particular mental state of negligence, that is, not to pay to the landlord on account of negligence, the eviction decree should not be passed against the tenant. Learned Counsel Mr. Desai urges that this decision rendered by the learned single Judge of this Court, way back in the year 1980, calls for the establishment of a peculiar mental state of negligence on the part of the defaulting tenant. It is also the contention coming from the learned Counsel that the said decision of this Court has been based upon an unreported decision of the Supreme Court, as it is clear from paragraph 20 of this decision. Mr. Desai is right in his submission that such a view has been taken by this Court and probably the reliance has been placed upon some unreported decision render by the Supreme Court on October 12, 1979. But all the above said decisions which speak of a must for passing the decree under Section 12(3)(a) of the Act, show that if the requirements are established, the Court shall have to pass a decree. The concept of 'that peculiar mental state of negligence' or of 'a negative stance on the part of the tenant' has not been recognised by those decisions. Naturally, therefore, when such a concept has not been recognised by the catena of decisions in this respect, and the contention coming from learned Counsel Mr. Desai in this repect, cannot be accepted.
8. So far as the factual aspect in this respect is concerned, the case appears to be more weak. The learned Counsel urges for the establishment of the absence of the concept of negligence, the fact that the defendant-tenant had said in the W.S. that the premises are in a worn out and dilapidated condition and they required substantial repairs. It is also true that even before the filing of the suit, the defendant-tenant had given the notice on more than one occasion, calling upon the plaintiff-landlord to carry out the repairs in the premises. But as rightly pointed by learned Counsel Mr. Sanjanwalla for the respondent, Section 22 of the Act makes it obligatory upon the landlord to keep the premises in good repairs. But at the same time, this very provisions say that if the landlord neglects to make any repairs which he is bound to make under Sub-section (1) within a reasonable time after the notice is served upon him, such tenant may make such repairs and deduct the expenses of such repairs from the rent or otherwise recover the same from the landlord. The proviso annexed to this sub-clause puts a limit regarding the amount so to be deducted or recoverable in a particular year. Therefore, if the case of the defendant-tenant was that the landlord had failed to carry out the repairs which he was required to carry out under Section 23 Sub-clause (1) of the Act, he himself could have done so and could have asked for the deduction of the amount from the rent subject to the limit provided in the proviso. But, merely by saying, that the premises required substantial repairs in the W.S. or even in the notice prior to the filing of the suit would not be able to take out the case from within the purview of Section 12(3)(a) of the Act. This fact also would not establish the absence of the concept of negligence or a negative stance on the part of the tenant.
9. As the last contention, learned Counsel Mr. Desai urges that, admittedly, an amount of Rs. 300/- was sent by Money Order after the statutory period of one month and this aspect also read with the repair aspect of the premises should be taken as not to show the negligence on the part of the defendant-tenant. This contention also requires to be rejected on the same analogy that the aforesaid decisions of the Supreme Court do say that, if the tender is not made within a period of one month from the date of the receipt of the notice, the case would be governed by Section 12(3)(a) and the decree of eviction shall have to be passed.
10. Therefore, the contentions being raised by learned Counsel Mr. Desai fail and therefore, the petition also fails. The same is hereby accordingly dismissed with cost. The judgment and decree rendered by the Courts below are hereby upheld and confirmed.
Learned Counsel Mr. Desai, at this juncture, pleads that the tenant should be/granted time upto 31st July 1995 so as to enable him to have an appropriate remedy before the appropriate Court. The request being utmost genuine, is granted.