Gujarat High Court
Monghiba Lakhaji vs Hira Kunvar Mulji on 6 April, 2005
Author: M.S. Shah
Bench: M.S. Shah, D.H. Waghela
JUDGMENT M.S. Shah, J.
1. At the instance of a learned Single Judge of this Court, the following question of law arising from the provisions of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as "the Rent Act") has been referred for our opinion:-
"In a case for possession of the rented premises where the landlord fails to satisfy all the conditions mentioned in Section 12(3)(a) of the Rent Act, should the Court examine whether the tenant is entitled to protection under Section 12(3)(b) of the Rent Act. In a case where tenant is not found to be entitled to such protection, should the Court pass decree for possession?"
2. Since we are called upon only to consider the above question and not to decide the revision application itself, it is not necessary to set out all the facts in detail. Suffice it to state that -
2.1 The respondent herein (hereinafter referred to as "the plaintiff" or "the landlord") filed Regular Civil Suit No. 235 of 1973 for recovering possession of the suit premises and also for recovering arrears of rent from the present petitioner (hereinafter referred to as "the defendant" or "the tenant") on the ground that the defendant was in arrears of rent at the rate of Rs. 16/- p.m. for the period from 1.6.1971 to 28.2.1973 and that despite service of notice on the defendant (service by refusal) the defendant did not pay the arrears of rent. The plaintiff also prayed for mesne profits at the rate of Rs. 16/-p.m.. The defendant contested the suit and raised a dispute about standard rent, and pleaded that the money order of Rs. 300/- sent by the defendant was not accepted by the plaintiff. Hence, the defendant was not in arrears of rent. The defendant prayed for fixation of standard rent.
2.2 The learned trial Judge decreed the suit by judgment and decree dated 18.2.1977 after giving the following findings:-
(i) Rent is payable by month.
(ii) the standard rent of the suit premises was already fixed in the earlier proceedings between the parties at Rs. 16/-p.m. The dispute as to the standard rent was not raised within one month from the date of receipt of the notice;
(iii) the defendant is in arrears of rent for more than six months on the date of expiry of one month from the date of receipt of notice.
(iv) The amount of Rs. 300/- was sent by the defendant to the plaintiff by money order after expiry of the period of one month from the date of service of the notice and, therefore, the defendant was not ready and willing to pay the arrears of rent and the plaintiff was justified in refusing to accept the said money order.
The learned trial Judge accordingly held that the conditions of Section 12(3)(a) were satisfied and the plaintiff is entitled to recover the possession of the suit premises and also to recover the arrears to the tune of Rs. 368.40;
2.3 Aggrieved by the above judgment, the defendant preferred Regular Civil Appeal No. 32 of 1977, which came to be dismissed by the learned Assistant Judge, Jamnagar by judgment and decree dated 29.1.1980 after confirming all the findings of the trial Court except on the question whether rent is payable by month.
As per the terms of the lease deed, the defendant has to pay the education cess and other municipal taxes which are payable every year and not every month. Hence, it cannot be said that the rent is payable by month and, therefore, the defendant cannot be evicted under the provisions of Section 12(3)(a) of the Act, but the defendant did not deposit full rent due on the first date of hearing of the suit nor did she deposit the rent regularly every month in the trial Court but the defendant was more or less regular in depositing the rent during pendency of the appeal. The defendant, therefore, lost the protection under section 12(3)(b) of the Rent Act.
2.4 Aggrieved by the aforesaid judgment and decree, the petitioner-defendant-tenant filed the present revision application.
3. At the hearing of the revision application before the learned Single Judge, the learned counsel for the petitioner -tenant raised three contentions. We are, however, concerned with only the third contention set out as under:-
"In a case where the eviction is sought under Section 12(3)(a) of the Act, the Court cannot proceed further to examine whether the case falls within the purview of Section 12(3)(b) of the Rent Act or to pass a decree for possession under the said Section 12(3)(b) of the Act."
The above contention came to be raised on behalf of the petitioner in view of the fact that although the trial Court passed the decree of eviction under Section 12(3)(a) of the Act, the lower Appellate Court, after holding that the case did not fall under Section 12(3)(a), examined the case and held that the defendant did not avail of the protection under Section 12(3)(b) by regularly depositing the rent during pendency of the suit before the trial Court. The learned Single Judge expressed her view that the trial Court had rightly held that the case fell under Section 12(3)(a) of the Act because the standard rent of Rs. 16/-p.m. was inclusive of municipal tax and education cess and, therefore, the rent was payable by month. The learned Single Judge also held that in any view of the matter, the defendant having omitted to pay/tender rent regularly pending trial has forfeited right to protection under Section 12(3)(b) of the Rent Act. The learned Single Judge did not agree with the view taken by some learned Single Judges of this Court to the effect that where the conditions stipulated in Section 12(3)(a) are not fulfilled, the Court cannot then examine whether the decree of eviction may be passed under Section 12(3)(b) of the Act which view was taken on the basis of certain observations made by the Hon'ble Supreme Court in NM Engineer and ors. v. Narendra Singh Virdi and Anr., AIR 1995 SC 448. Hence, this reference.
4. Before referring to the aforesaid decisions, it is necessary to consider the relevant statutory provisions.
The Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the Act" or "the Rent Act" or "the Bombay Rent Act") was enacted to amend and consolidate the law relating to the control of rents and repairs of certain premises, of rates of hotels and lodging houses and of evictions. Section 5 contains several definitions including the definition of "standard rent". Section 6 provides for application of the Act to premises let for various purposes, such as residence, education, business etc.. Section 7 prohibits claiming or receiving any amount on account of rent for any premises covered by the Act or any increase above the standard rent. Section 9 provides for increase in rent on account of improvement etc. in the premises. Section 10 provides for increase in rent on account of payment of tax to a local authority. Section 11(1) provides that the Court may fix standard rent and permitted increases in certain cases.
Section 12, which is material for the purposes of the present controversy, reads as under:-
"(1) A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increase, 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.
(1A) ... ... ... ... ...
(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)(a) Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-section (2), the Court may pass a decree for eviction in any such suit for recovery of possession.
(b) In any other case, no decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter, -
(i) continues to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided; and
(ii) pays costs of the suit as directed by the Court.
4. Pending the disposal of any such suit, the Court may out of any amount paid or tendered by the tenant pay to the landlord such amount towards payment of rent or permitted increases due to him as the Court thinks fit.
Explanation. - In any case where there is a dispute as to the amount of standard rent or permitted increases recoverable under this Act the tenant shall be deemed to be ready and willing to pay such amount if, before the expiry of the period of one month after notice referred to in sub-section (2), he makes an application to the Court under sub-section (3) of section 11 and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court."
[Note:- The provisions of subsection (3)(b) set out hereinabove are after amendment made by Gujarat Act No. 7 of 1985 deleting the word "regularly". However, for the purposes of deciding the present reference, the above amendment is not required to be discussed.] Sub-sections (2), (3) and (4) of Section 11 read as under:-
"(2) If there is any dispute between the landlord and the tenant regarding the amount of permitted increase, the Court may determine such amount.
(3) If any application for fixing the standard rent or for determining the permitted increase is made by a tenant who has received a notice from his landlord under sub-section (2) of Section 12, the Court shall make an order directing the tenant to deposit in Court forthwith, and thereafter monthly or periodically, such amount of rent or permitted increases as the Court considers to be reasonably due to the landlord pending the final decision of the application, and a copy of such order shall be served upon the landlord. Out of the amount so deposited, the Court may make order for the payment of such reasonable sum to the landlord towards payment of rent or increase due to him, as it thinks fit. If the tenant fails to deposit such amount, his application shall be dismissed.
(4) Where at any stage of a suit for recovery of rent, whether with or without a claim for possession of the premises, the Court is satisfied that the tenant is withholding the rent on the ground that the rent is excessive and standard rent should be fixed, the Court shall, and in any other case if it appears to the Court that it is just and proper to make such an order the Court may, make an order directing the tenant to deposit in Court forthwith such amount of rent as the Court considered to be reasonable due to the landlord. The Court may further make an order directing the tenant to deposit in Court, monthly or periodically, such amount as it considers proper as interim standard rent during the pendency of the suit. The Court may also direct that if the tenant fails to comply with any such order within such time as may be allowed by it, he shall not be entitled to appear in or defend the suit except with leave of the Court which leave may be granted subject to such terms and conditions as the Court may specify."
Section 13 provides that notwithstanding anything contained in this Act but subject to the provisions of Section 15, a landlord shall be entitled to recover possession of any premises if the Court is satisfied that the case falls under any of the clauses (a) to (l) which enumerate various grounds for eviction, such as erection of permanent structure on the premises, subletting, acquisition of suitable alternative premises, reasonable and bonafide requirement of the landlord etc..
5. On an analysis of the aforesaid statutory provisions, the following propositions emerge :-
(i) A landlord shall not be entitled to recover possession of any premises on the ground of nonpayment of rent/permitted increase (hereinafter referred to as "rent" or "standard rent" and shall include permitted increases) so long as the tenant pays, or is ready and willing to pay, the amount of standard rent. The tenant's readiness and willingness to pay rent is to be determined not with reference to the date of decree, but on the anvil of the provisions of Sections 12 and 11 of the Act.
(ii) Sub-section (2) of Section 12 provides for a condition precedent that no suit for recovery of possession on the ground of non-payment of the standard rent due shall be instituted by a landlord against the tenant, until the expiry of one month after service of written notice of the demand of the standard rent which notice is required to be served in the manner provided in Section 106 of the TP Act, 1882.
The object of this provision for giving one month's notice is twofold - the first is to give the tenant an opportunity to pay/tender the standard rent which has become due and which would enable the tenant to earn protection granted by sub-section (1) of Section 12, and secondly in case the tenant has any dispute about standard rent, to give the tenant an opportunity to raise such a dispute. The tenant may raise such a dispute, within one month from the date of service of the notice, either by filing an application before the Rent Court under Section 11(3) of the Act (Explanation to Section 12) or in his reply to the notice (vide Full Bench decision in Ramniklal Dwarkadas v. Mohanlal, 18 GLR 32).
(iii) The first question, therefore, to be asked to ascertain whether the tenant is ready and willing to pay the standard rent is whether the tenant has paid or tendered standard rent within the aforesaid period of one month from the date of service of notice under Section 12(2).
(iv) If the tenant pays or tenders the amount of standard rent/permitted increases within the aforesaid statutory period of one month, the embargo placed by Section 12(1) comes into operation and the landlord shall not be entitled to recover possession of the premises on the ground of non-payment of rent. In other words, the suit on the ground of non-payment of rent will not be maintainable if the amounts due are paid/tendered within one month from the date of service of notice for such payment.
(v) It is only if the tenant does not pay or tender the amount of arrears of standard rent and permitted increases within the aforesaid statutory period of one month that the landlord's suit for recovery of possession on the ground of nonpayment of the standard rent or permitted increases due will be maintainable. In such a suit how is the Court to exercise its power and whether or not the Court shall pass a decree for eviction are questions to be decided by applying the provisions of sub-section (3) of Section 12. A conjoint reading of all the sub-sections of Section 12 of the Act makes it clear that the question of the Court passing the decree for eviction on the ground of non-payment of rent/permitted increases would arise if and only if the tenant does not pay or tender the amount of arrears of standard rent and permitted increases within the period of one month from the date of expiry of service of notice on the tenant as provided in Section 12(2) of the Act.
What is ordinarily considered as the fourth condition in Section 12(3)(a), namely, where the tenant has neglected to make payment of such arrears within the period of one month from the date of service of the notice is not a condition exclusive to the operation of clause (a) of sub-section (3) of Section 12 but that is the condition upon the fulfillment of which the Court proceeds to entertain the suit for eviction on the ground of non-payment of rent and permitted increases.
(vi) THEREAFTER (i.e. after the Court finds that the tenant did not pay or tender the standard rent/ permitted increases within the stipulated period of one month) where the Court finds that the following cumulative conditions are satisfied:-
- where the rent is payable by month;
- where there is no dispute regarding the amount of standard rent or permitted increases;
- where such rent or permitted increases are in arrears for a period of six months or more;
then the Court has to pass a decree of eviction. That is what Section 12(3)(a) provides.
["may" is to be read as "shall" - as held in Mrs. Manorama v. Mrs. Dhanlaxmi, 7 GLR 1061] In short, if all the cumulative conditions stipulated in Section 12(3)(a) are fulfilled, the liability of the tenant to be evicted gets crystallized upon expiry of one month from the date of service of notice, which is a serious consequence.
(vii) But if ANY of the THREE conditions stipulated in Section 12(3)(a) is not fulfilled, the tenant gets locus penitentiae, if he -
(1) pays the arrears of rent on the first day of hearing of the suit or on or before such other dates as the Court may fix and;
(2) thereafter continues to pay or tender in Court the standard rent and permitted increases till the suit is finally decided as may be directed by the Court - which would be directions under sub-sections (3) and/or (4) of Section 11; and (3) also pays costs of the suit as directed by the Court.
If the tenant makes payments as aforesaid, the tenant gets protection under Section 12(3)(b), otherwise, the Court will pass a decree for eviction on the ground of non-payment of standard rent and permitted increases.
6. These propositions make answer to the question under consideration self evident. But before proceeding further, let us consider the following situations:-
Where in a given case the Court finds that the rent is not payable by month, but the other conditions are fulfilled, meaning thereby, there is no dispute as to the standard rent and the tenant is in arrears of rent for a period of six months or more, the Court will have to consider the case as going out of Section 12(3)(a) and, therefore, falling in the residuary clause being clause (b) of subsection (3) of Section 12. Similarly, if the dispute as to the standard rent is raised within one month from the date of service of notice, the Court will have to consider the case under clause (b) of subsection (3) of Section 12 even if the rent is payable by month and the tenant is in arrears of rent for a period of six months or more.
7. The contention raised on behalf of the petitioner-tenant giving rise to the present reference is based on the premise that the Act provides for two separate and mutually exclusive grounds of eviction - one under clause (a) of subsection (3) of Section 12 and the other under clause (b) of subsection (3) of Section 12. Apart from the fact that subsection (2) of Section 12 itself indicates that the ground for eviction in such cases is the ground of "nonpayment of standard rent or permitted increases due", the aforesaid analysis destroys that premise. Secondly, if the submission made on behalf of the petitioner were to be accepted and the case of a tenant in arrears for a period of six months or more is treated as exclusively governed by clause (a) of sub-section (3) of Section 12 and the case of a tenant in arrears for a period of less than six months is treated as governed exclusively by clause (b) of subsection (3) of Section 12, no decree for eviction could ever be passed in a case where the tenant is in arrears of rent for a period of six months or more, but the rent is not payable by month or the dispute regarding the amount of standard rent or permitted increases is raised within one month from the date of service of notice. Hence, in view of the aforesaid analysis of the provisions of subsections (1), (2) and (3) of Section 12, it is clear that Section 12 as a whole contains an integrated scheme providing for eviction of a tenant from rented premises on the ground of "nonpayment of the standard rent or permitted increases due" and the provisions of clause (a) and (b) of subsection (3) of Section 12 are not to be read in isolation so as to be considered as providing two separate and mutually exclusive grounds of eviction, but they are to be considered as alternative facets of the ground of eviction for "nonpayment of the standard rent or permitted increases due".
8. In a nutshell, the protection granted to the tenant against eviction is conditional, inter alia, upon the tenant paying or being ready and willing to pay the rent as per the provisions of Sections 12 and 11 of the Rent Act. No suit for recovery of possession on the ground of "non-payment of standard rent or permitted increases due" can be filed without the landlord serving on the tenant a notice in writing of the demand of the standard rent/ permitted increases in the manner provided in Section 106 of the TP Act, 1882 and without waiting for a period of one month from the date of service of such notice on the tenant. If the tenant pays or tenders the amount of arrears of standard rent/ permitted increases within the aforesaid period, no suit for eviction would be maintainable on the ground of nonpayment of rent and the Court would not have the jurisdiction to pass a decree of eviction either under Section 12(3)(a) or 12(3)(b). But if the tenant fails to pay or tender the amount of arrears of standard rent or permitted increases within the aforesaid period, the landlord's suit for eviction would be maintainable.
Where, apart from the failure on the part of the tenant to pay/ tender the standard rent/ permitted increases within the aforesaid statutory period, all the other conditions stipulated in Section 12(3)(a) are also satisfied, the Court shall pass a decree of eviction on the ground of non-payment of rent. All the conditions stipulated in Section 12(3)(a) are provided as cumulative conditions.
If any of those conditions is not satisfied then the tenant gets an opportunity to avail of the protection by depositing the amount of arrears on the first date of hearing of the suit or on or before such other date as the Court may fix and thereafter by continuing to pay or tendering in Court such rent and permitted increases till the suit is finally decided, as directed by the Court, and the tenant also pays the costs of the suit as directed by the Court. If the Court finds that the tenant has failed to avail of the protection under Section 12(3)(b) of the Act, then the Court would pass the decree of eviction on the ground of non-payment of standard rent/permitted increases.
9. Mr Shah, learned counsel for the petitioner has, however, heavily relied on the decision of the Apex Court in NM Engineer v. Narendra Singh Virdi, AIR 1995 SC 448 and particularly what are submitted as "principles" laid down by the Apex Court in paragraphs 8, 9, 12 and 23 of the said judgment, which read as under:-
"8. Section 12(3)(a) of Rent Act operates on a different footing and applies only in following case:-
(i) When the arrears of rent are more than 6 months;
(ii) Rent is payable by month;
(iii) Notice served on the tenant;
(iv) No dispute regarding standard rent.
9. In other cases, Sec. 12(3)(b) is applicable. The cases covered thereunder are for arrears of rent of less than six months.
12. The appellant having failed in his case under Section 12(3)(a), cannot seek to rely on Sec. 12(3)(b). ...
23. ... the notice does not satisfy the requirements of S. 12(3)(a), more so in this case, as stated above, the arrears at the rate of Rs. 87/- had been deposited. It is not open to the appellant to call upon S. 12(3)(b)."
Mr Shah has also vehemently submitted that in a catena of decisions, a number of learned Single Judges of this Court have held that in the aforesaid decision the Apex Court has held that if a case does not fall under Section 12(3)(a) of the Act then the Court cannot turn to Section 12(3)(b) of the Act.
10. Before considering the aforesaid decision of the Apex Court it is necessary to consider the following caveat sounded by the Apex Court:-
"It is not proper to regard a word, a clause or a sentence occurring in a judgment of the Supreme Court, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment."
[vide Madhav Rao Jiwaji Rao Scindia Bahadur v. Union of India, AIR 1971 SC 530 (578)] Again in CIT v. Sun Engineering Works (P) Ltd., AIR 1993 SC 43, the Apex Court cautioned:-
"It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration and treat it to be the complete 'law' declared by this court. The judgment must be read as a whole and the observations from the judgment have to be considered in light of the questions which were before this Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the courts must carefully try to ascertain the true principle laid down by the decision of this court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings."
In Amar Nath Om Prakash v. State of Punjab, AIR 1985 SC 218, the Apex Court repeated the offquoted words that observations in a judgment are not to be read as Euclid's theorems nor as provisions of the statute. Judges interpret the words of statutes, their words are not to be interpreted as statutes.
The same principles have been recently reiterated in Haryana Financial Corporation v. Jagdamba Oil Mills, (2002) 3 SCC 496.
11. In NM Engineer (supra), the standard rent of the premises in question was fixed as interim rent at the rate of Rs. 87/-p.m. by virtue of the order dated 24.4.1967 passed by the Small Causes Court in another pending proceeding. The landlord in that case gave notice dated 2.5.1967 calling upon the tenant to pay arrears of rent at the rate of Rs. 130/-p.m. for a period of six months i.e. from 1.11.1966 to 30.4.1967. The tenant had deposited the arrears at the rate of Rs. 87/-p.m. in the Small Causes Court even before 2.5.1967. The Apex Court, therefore, specifically held in paragraphs 20, 21 and 23 of the judgment that since the tenant had deposited the arrears at the rate of Rs. 87/-p.m. (which was the interim standard rent fixed by the Small Causes Court in another pending proceeding) there were no arrears and it cannot be said that the tenant had neglected to pay the rent. Even as on the date of notice there were no arrears outstanding for a period of six months or more. It was in the background of the aforesaid factual scenario that the Apex Court observed in paras 12 and 23 of the judgment that the appellant having failed in his case under Section 12(3)(a) cannot seek to rely on Section 12(3)(b) because the tenant had deposited the amount of interim standard rent (as fixed by the Small Causes Court in another proceeding) and, therefore, there were no arrears outstanding even on the date of the said notice. In the context of those facts, and on our analysis also, it is obvious that neither the provisions of Section 12(3)(a) nor the provisions of Section 12(3)(b) were attracted in the case before the Apex Court, because the tenant was not in arrears of rent on the date of expiry of the period of one month from the date of service of notice on the tenant calling upon him to pay the arrears of rent. The learned Single Judge, therefore, rightly distinguished the decision in NM Engineer (supra).
12. As regards the observations in para 9 of the judgment of the Apex Court, it is true that if the said paragraph is read in isolation and out of context, an impression may be created that Section 12(3)(b) would not apply if the arrears of rent are for more than six months. However, as already indicated earlier, a decision of the Court is to be read in the context of the facts giving rise to the controversy for decision in that case and the judgment of a Court is not to be read as a statute or Euclid's theorem. As already discussed earlier, even if the tenant is in arrears of rent for more than six months, but if there is a dispute as to the standard rent raised within the statutory period or if the rent is not payable by month, such a case would definitely fall under Section 12(3)(b), even though the arrears of rent are for a period of six months or more. All that can be laid down as a proposition of law is that a case would not fall under Section 12(3)(a) if the arrears are for less than six months.
13. It is true that in a number of decisions of this Court some learned Single Judges have interpreted the aforesaid observations of the Apex Court in paragraphs 8, 9, 12 and 23 in NM Engineer's case (supra) as laying down the proposition that if a case does not fall under Section 12(3)(a) of the Rent Act, the Court cannot then examine whether the decree of eviction can be passed under Section 12(3)(b) of the Act. For instance, in Kasambhai Ismailbhai v. BK Patel, 1998 (2) GLH 606, the learned Single Judge of this Court accepted the contention that if the Court finds that Section 12(3)(a) is applicable, a decree of eviction can be passed, but if the finding of the Court is that Section 12(3)(a) does not apply, the Court has to dismiss the suit and the Court cannot decree the suit by taking shelter behind Section 12(3)(b) of the Act. The said learned Single Judge specifically observed as under:-
"8. The Apex Court in N.M. Engineer's case (supra) has laid down in Para 12 that the appellant having failed in his case under Section 12(3)(a) cannot seek to rely on Section 12(3)(b) of the Act. It further laid down that Section 12(3)(b) is entirely different."
Similarly, in Narbheram Ambalal v. JD Kharva, 1998 (2) GLH 550, the same learned Single Judge observed that if the decree for eviction cannot be passed under Section 12(3)(a), the same cannot be passed under Section 12(3)(b) inasmuch as the cases covered under Section 12(3)(b) are different from the cases covered under Section 12(3)(a) of the Act.
Since those decisions have placed the aforesaid interpretation on the observations of the Apex Court without appreciating the factual setting in which those observations are made and without undertaking any analysis of the scheme of the provisions of Section 12 of the Act, we do not think it necessary to deal with each of those cases individually, though we may enumerate them as under:
Date of Decision
(i) CRA No. 868 of 1981 24.1.1995
(ii) Somjibhai Popatbhai Kharwa Lohana v. Liladhar Ravjibhai (CRA No. 1023 of 1981) 30.3.1995
(iii) Heirs of Jivraj Khimji v. Narandas Udhavdas (CRA No. 830 of 1986) 31.7.2000
(iv) Narbharam Ambalal v. JD Kharve, 1998 (2) GLH 550 1.9.1998
(v) Kasambhai Ismailbhai v. RK Patel, 1998 (2) GLH 606 23.6.1998
(vi) AP Patil v. Vasantlal Modi, 1998 (2) GLH 571 27.7.1998
(vii) Govindji Ramji v. Tapulal Nathalal Dasani, 2001 (2) GLH 260 1.9.2000
14. We may now deal with the last submission of Mr Shah that even if the aforesaid decisions of the learned Single Judges may not be treated to have laid down the correct law, this Court should not disturb that view because the doctrine of Stare Decisis should be applied. Strong reliance has been placed on the decisions of the Apex Court in Ranbir Singh v. Kartar Singh, AIR 2003 SC 1858 and in Milkfood Ltd. v. GMC Ice cream (P) Ltd., 2004 (4) SCALE 291 in support of the submission that the view which has been holding for a long time should not be disturbed only because another view is possible. Reliance is also placed on the following observations in Raj Narain Pandey v. Sant Prasad Tewari, AIR 1973 SC 291 which are quoted in Ranbir Singh (supra) in the matter of interpretation of local statutes:-
"In the matter of the interpretation of a local statute, the view taken by the High Court over a number of years should normally be adhered to and not disturbed. A different view would not only introduce an element of uncertainty and confusion, it would also have the effect of unsettling transactions which might have been entered into on the faith of those decisions. The doctrine of stare decisis can by aptly invoked in such a situation. As observed by Lord Evershed M.R. in the case of Brownse Haven Properties v. Poole Corporation [1958 Ch 574 (CA)], there is well established authority for the view that a decision of long standing on the basis of which many persons will in the course of time have arranged their affairs should not lightly be disturbed by a superior Court not strictly bound itself by the decision."
15. In our view, overruling the view taken by the learned Single Judges between 1995 and 2000 will not introduce any element of uncertainty and confusion. The Bombay Rent Act is in force since 1947 and it is not the case of the petitioner that the view canvassed on behalf of the petitioner was being applied prior to the aforesaid decisions of the learned Single Judges. Apart from the fact that the view taken by some of the learned Single Judges of the Court in the aforesaid decisions unsettles the view which was prevailing in the State between 1947 and 1995, there is no question of any transactions having been entered into on the faith of decisions of the learned Single Judges. If a tenant fails or neglects to pay or tender the arrears of standard rent/ permitted increased within the statutory period, the landlord's suit for eviction is required to be considered on the basis of application of the provisions of sub-sections (1), (2) and (3) of Section 12. As already indicated earlier, Section 12 provides for only one ground of eviction and that is "non-payment of standard rent and permitted increases". There is no question of any person, much less many persons, having arranged his/their affairs on the basis of the view that if the provisions of Section 12(3)(a) are not attracted the Court cannot consider the provisions of Section 12(3)(b) of the Act. In our view, therefore, the doctrine of stare decisis cannot be invoked in the instant case.
It goes without saying that the principles of law being laid down in this judgment are to apply to pending proceedings - pending at any stage, but are not to apply to cases where judgments have become final long back.
16. Accordingly, we hold that the view taken by some of the learned Single Judges of this Court in the decisions quoted in para 13 of this judgment [that once the Court examines the case under Section 12(3)(a) and finds that the conditions of Section 12(3)(a) are not fulfilled, the Courts cannot examine the case under Section 12(3)(b)] is no longer good law and the said decisions, in so far as they take the said view, are hereby overruled.
17. In view of the above discussion, our answer to the question posed by the learned Single Judge is as under:-
In so far as the landlord's right to claim eviction of the tenant from the rented premises on the ground of arrears of rent and permitted increases is concerned, the Rent Act does not provide for two different grounds of eviction as such, but provides for eviction on the ground of "non-payment of standard rent or permitted increases due". Failure to pay/tender the standard rent and permitted increases within the statutory period of one month from the date of service of notice under Section 12(2) of the Act is a condition precedent for maintainability of a suit for eviction on the ground of "nonpayment of standard rent or permitted increases due". The provisions of Section 12(3)(a) and 12(3)(b) do not provide for two mutually exclusive grounds of eviction. The conditions specified in Section 12(3)(a) are cumulative. In a case for possession of the rented premises where any of the conditions mentioned in Section 12(3)(a) of the Rent Act is not satisfied, the Court has to examine whether the tenant is entitled to any protection under Section 12(3)(b) of the Rent Act. Where the tenant is not found entitled to such protection, the Court may pass a decree for possession.
This answer is based on the analysis of the provisions of the Bombay Rent Act as applicable to Gujarat - as discussed in paragraphs 5 to 7 hereinabove, which discussion is summarized in paragraph 8 of this judgment.
18. The Civil Revision Application will now be placed before the learned Single Judge for decision in accordance with law.