Bombay High Court
Vasudeo Gopal Dhamankar vs Vithal Mathur Shet And Ors. on 7 March, 1989
Equivalent citations: (1989)91BOMLR879
JUDGMENT V.S. Kotwal, J.
1. The suit premises bearing City Survey No. 2611 are located at Mahad in Raigad District. The Western half portion of this building is in occupation of the present petitioner in the capacity as the monthly tenant the rental being Rs. 30/- per month and which was leased out for running a book shop. The first respondent-plaintiff felt that the petitioner tenant has been in rental arrears for more than six months commencing from 1st of October, 1973. He also was of the opinion that the petitioner had committed act of waste and has not maintained the property as the prudent person would do and thus has violated the prescription under Clause (a) of Section 108 of the Transfer of Property Act. This was mainly on the ground that it was alleged that the petitioner-tenant had removed certain material such as planks, window-panes, etc. The landlord also claimed that there has been non-user of the suit premises by the petitioner without any reasonable cause for the purpose for which those were leased out for a continuous period of six months. It is on account of these three items in a composite form that the first respondent issued notice to the petitioner on 26th of March, 1974 which is at Exh. 46 terminating the petitioner's tenancy as from 31st of March, 1974 and claiming possession on all these three counts. It is an admitted position that the rent that could have been claimed in that notice commenced from 1st of October, 1973 and thus on the date of the notice the petitioner was in rental arrears for five months and not for six months though presumably the landlord had claimed rent under that notice for a period of six months which would be to the tune of Rs. 180/-. It is further an admitted position that hardly within few days after the notice and certainly within the period of one month and to be precise it is on 31st of March, 1974 that the petitioner transmitted an amount of Rs. 180/- by money order in favour of the respondent-landlord which further admittedly was refused. Inspite of that the petitioner ultimately filed Regular Civil Suit No. 17 of 1975 in the Court of the Civil Judge, Junior Division at Mahad in which he claimed possession on three counts, the first under Section 12(3)(a) of the Rent Act alleging, that the petitioner has been in rental arrears for more than six months which he did not pay within the stipulated period of one month nor any application for standard rent was filed within the stipulated period. The second ground was under Section 13(1)(a) of the Rent Act alleging that some acts of waste have been committed by the petitioner since certain material was removed from the building, and third count was under Section 13(1)(k) of the Rent Act alleging the non-user of the premises for more than six months for the purpose for which those were leased out without any reasonable cause.
2. The suit was resisted by the petitioner on all counts. As regards the claim for rental arrears it was strenuously contended that in fact the petitioner has not been in arrears at all and alternatively even assuming otherwise he was certainly not in arrears for more than six months as contemplated by Section 12 of the Rent Act and therefore in effect the petitioner has always been ready and willing to pay rent and as such the suit under Section 12(3)(a) is not sustainable. The allegations on other two counts where possession is sought for under Sections 13(1)(a) and 13(1)(k) are also stoutly denied.
3. On the pleadings the necessary issues were framed where after the parties led the requisite evidence. The Trial Court negatived the two grounds under Sections 13(1)(a) and 13(1)(k) on evidence and on merits holding that there was no act of waste nor was there any non-user of the premises for six months. Thus those two issues were decided in favour of the petitioner while regarding the other count under Section 12(3)(a) the Trial Court decided that issue also in favour of the petitioner on two counts, first, that admittedly even as per the notice the tenant has not been in rental arrears for more than six months because on simple calculations the rent that was due was only for five months and secondly even that amount comprising of six months tuning to Rs. 180/-was transmitted by the petitioner through the money order hardly within three days after the issuance of the notice and thus certainly within one month. It is on these two counts that the issue under Section 12(3)(a) was also decided against the landlord. The net result was that the respondent's suit came to be dismissed.
4. The first respondent then preferred Civil Appeal No. 43 of 1977 in the District Court at Alibag which was ultimately disposed of by the learned Assistant Judge on 23rd of January, 1980. On the Appellate forum the ground under Section 13(1)(k) was not pressed on behalf of the landlord. The Appellate Court held on merits that the ground under Section 13(1)(a) was not established with the result that the two counts namely 13 (1)(a) and 13(1)(k) were decided against the landlord which was in tune with the finding recorded by the Trial Court. As regards the issue under Section 12(3)(a) the Lower Appellate Court endorsed all the findings as also the reasoning assigned by the Trial Court and thereby holding that the tenant was not in arrears for more than six months at all and secondly even that amount was remitted within the stipulated period of one month and therefore a finding was recorded that in reality no cause of action accrued in favour of the landlord so as to ask for possession under Section 12(3)(a). The chapter apparently would have been closed at that point of time by confirming the decree passed by the lower Appellate Court in dismissing the landlord's suit. However, the lower Court undertook further exercise under which it considered the impact of the provisions of Section 12(3)(b) of the Rent Act and on facts found that there have been Irregular deposits towards the rent made by the tenant in the Trial Court as also in the Appellate Court and there fore according to that Court the provisions of Section 12(3)(b) are attracted with the resultant consequence that though the suit was dismissed under Section 12(3)(a) a decree for possession came to be passed under Section 12(3)(b) by the Lower Appellate Court which however was not done by the Trial Court. It is thus in the third round of litigation that the petitioner-tenant was obliged to move this Court under Article 227 of the Constitution of India.
5. It is worth noting at the threshold itself that the finding on other issues and dismissal of the landlord's suit on the ground under Sections 12(3)(a), 13(1)(k) has not been challenged by the landlord on this forum. There is a concurrent finding of fact in that behalf and even apart from that the evidence fully justified that finding on all the three counts. The allegations of the act of waste and the allegations of non user or change of user are rightly negatived on merits. As regards Section 12(3)(a) it has been equally rightly held that the tenant was not in arrears for more than six months at all and as such there was no question of the landlord being required to file suit for eviction and a further finding was also recorded that the full amount of Rs. 180/ which would cover the entire period of six months though the rent for the sixth month was still not due was remitted by the petitioner hardly within three or four days after the receipt of the notice. As stated, even this finding is not challenged by the landlord. Incidentally it is quite interesting to note that the notice Exh. 46 issued by the landlord is as vague as possible and can hardly satisfy the requirement of Section 12. What is of utmost interest is that the amount that could be due from the tenant and which was sought to be demanded by the landlord is blissfully missing from that notice even inferentially. Even the reference to the educational case is equally vague and even that amount is not quoted anywhere. Under the circumstances, the validity of the notice on this ground itself was highly debateable. However, assuming it to be otherwise still as stated a correct finding has already been reached by the two Courts below that the provisions of Section 12(3)(a) are not attracted at all. The dismissal of the landlord's suit on all these three counts, therefore, was fully justified.
6. The difficulty however has arisen because of the decree for possession having been recorded by the Lower Appellate Court under Section 12(3)(b) which was not pleaded much less argued in the Trial Court. Smt. Ujwala Joshi, the learned Counsel for the petitioner-tenant, has raised a substantial question at the threshold itself as according to her it is not necessary to go in search and to find out as to how the payments were made by depositing rental arrears in the Court after filing of the suit because no cause of action could have accrued in favour of the landlord even to ask for possession on any count mainly because the tenant was not in arrears for more than six months and secondly because the tenant had remitted the entire amount within four days after the receipt of the notice which would take him back to the initial position under which he was enjoying the capacity as the tenant who was always ready and willing to pay the amount of rent. The argument, therefore, further proceeds that if this was the position then there was no occasion much less any cause of action for the landlord even to file the suit for possession on any count which will include a suit not only under Section 12(3)(a) but also under Section 12(3)(b) because entitlement to file the suit at the threshold is a requirement which would be common to both these provisions and consequently if the landlord was not entitled to ask for possession and once it is established that the tenant was ready and willing to pay the rent then there was no question of demanding possession because there has been no violation of the stipulation under Section 12(2). Even on factual aspect the learned Counsel submitted that it is not correct to say that there has been erratic or irregular payment while depositing the amount in the Court.
7. Shri S.R. Kamat, the learned Counsel who appears on behalf of the respondents, has strenuously contested the validity of all these submissions canvassed by Smt. Joshi on merits and for that purpose he has taken me through both the judgments. However, inspite of best of his endeavours in that behalf the validity of the arguments advanced by Smt. Joshi will have to be upheld for obvious reasons, especially when those are fully covered by the ratio of the Division Bench of this Court.
8. To re-capitulate the factual structure which is essential to appreciate the ratio of the Division Bench judgment. It is to be stated that the notice is issued on 26th March, 1974 presumably claiming rental arrears from 1st of October, 1973. Obligation to pay rent devolved on the tenant after the completion of each month and therefore when the notice was issued and received by the tenant the rental arrears were not to the tune of six months but were only for five months. Further even in such a matter the tenant within four days after the receipt of the notice remitted the entire rent not only for five months but covering a period of six months which by then was not due and thus there was payment in excess. Even otherwise the entire demand under the notice was satisfied within four days after the receipt of the notice. On these facts there is no dispute and there is a concurrent finding by the two Courts below which has not been challenged on behalf of the landlord. It Is under these circumstances that a question has been rightly posed by Smt. Joshi, the learned Counsel, that if no cause of action accrues under Section 12(a) of the Rent Act then such an infirmity and deficiency must cover the case not only under Section 12(3)(a) but also under Section 12(3)(b). This question posed by the learned Counsel has been squarely answered by the Division Bench of this Court in Narhar Damodar Want v. Narmadabai T. Nave 1984 Mah. L.J. 313 where an identical situation arose and identical argument was advanced. That matter was referred to the Division Bench by the learned Single Judge who was of the opinion that there is a conflict in different school of though in that behalf since some different views are taken in some matters by the learned Single Judges of this Court and in order to resolve this conflict that the matter was referred to the Division Bench. It is not necessary to re-state all the reasons assigned by the said Division Bench since the said decision is binding on this Court and secondly with respect I fully agree with the reasons assigned therein and thirdly that situation becomes apparent on this plain reading of various clauses of Section 12 of the Rent Act. Only a few observations from that decision would highlight the thrust of the controversy and the premise on which the said controversy has been resolved. The question that was posed for consideration and ultimately answered by the Division Bench was to the effect as to whether in a case where the tenant has already remitted the entire amount due as demanded in the notice and thus complied with the prescription under that notice or alternatively where the amount is sent within that stipulated period of one month but the same has been refused by the landlord then whether in such a case it can be said that the cause of action of asking for any relief for eviction at all survives and therefore whether the landlord under the circumstances would be entitled even to file a suit for eviction. As stated the under-current of this question is based on the factual aspect that the tenant was in arrears for more than six months but he remitted the entire amount within one month after the service of the notice. In the instant case there is an additional factor in favour of the tenant inasmuch as he was not in arrears of rent for more than six months at all. Any way, there is a common factor that in both the cases the rent as demanded in the notice was entirely remitted within stipulated period of one month. The Division Bench then proceeded to construe the provisions of Section 12 of the Rent Act and in the analysis observed that Section 12(2) of the Bombay Rent Act creates a positive bar in respect of a suit for recovery of possession and it expressly provides that no suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non-payment of 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. Sub-section (3)(a) provides that if the tenant is in arrears of rent for a period of six months or more and the tenant neglects to make payment thereof within a period of one month after the service of notice then a decree for eviction is to follow. It is then observed that Sub-clause (b) of Sub-section (3) of Section 12 applies to a case which does not fall under Clause (a). The Division Bench then considered the impact of Clause (1) of Section 12 which provides that 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 increases and observes the terms of tenancy. Consequently, therefore, the scheme of Sub-sections (1), (2) and (3) of Section 12 contemplates that if the tenant is ready and willing to pay the amount of standard rent and permitted increases, the landlord is not entitled to recovery of possession. The necessity to issue a notice when possession is claimed under Section 12(3)(a) is well accepted because the tenant incur the liability only in case of default of non-compliance of the demand in the notice within one month after the receipt of notice. It thus follows as has been observed by the Division Bench that if the tenant pays the amount of rental arrears within the prescribed period as demanded by the notice under Section 12(2) then the landlord is not entitled to file the suit for possession on the ground of arrears of rent for which he has given notice. In such a case even Sub-section (1) will come into operation because if the tenant pays the amount then the tenant is bound to be styled as a person who is ready and willing to pay the standard rent and permitted increases and therefore if the main clause of Section 12 is satisfied then it disentitles the landlord about the basic requirement of filing a suit for possession. The Division Bench then considered the impact of this provision also on the ground of Section 12(3)(b) and observed that in a case where the tenant has paid or is deemed in law to have paid the amount as demanded in the notice then not only the provisions of Section 12(3)(a) are not attracted but even the provisions of Section 12(3)(b) are also not attracted because the premise in both the case is the same namely that even for Section 12(3)(b) its applicability will depend only if the landlord is entitled in law to claim possession. Obviously, therefore, if by compliance of the demand in the notice the landlord becomes disabled from filing a suit for recovery of possession then there is no question of attracting the provisions of Section 12(3)(b) because the common factor for both these cases is the landlord to claim possession which entitlement is wiped out the moment the demand in the notice is complied with by the tenant. It is also indicated in the further part of the judgment by the Division Bench that really speaking when the tenant pays the said entire amount as demanded in the notice then the said notice itself becomes ineffective and therefore the suit based on such a notice becomes non-maintainable and consequently in case the landlord wants to claim possession on the ground of" arrears of rent for the period other than the one mentioned in the notice, then he would be obliged to give a fresh notice because the arrears for non-payment of which the possession was claimed are not the arrears in respect of which the earlier notice was given. This is because the service notice under Section 12(2) is a condition precedent for the claim of possession on the ground of arrears of rent and in such a case the compliance of the notice would ipso facto bring on the surface the applicability of the provisions of Section 12(2). With respect not only this decision is binding on this Court but it is full consonance with the provisions and the scheme of the Rent Act with which with respect I fully agree.
9. The effect, therefore, would be that at the threshold there is an embargo on the landlord to ask for possession so long as the tenant is willing to pay the rent and permitted increases. That embargo would be lifted only if the tenant gets himself disqualified from saying that he is ready and willing to pay the said amount. Consequently, therefore, when a notice for rental arrears is issued under Section 12(2) then the statutory period of one month can be utilised by the tenant to come out of the rigour of that provision and to evade eviction for which purpose he is obliged to comply with the demand in the notice within the stipulated period of one month. If he does that then two-fold consequences follow, first is that the tenant is placed back on the original position of his always being ready and willing to pay rent and permitted increased and the second consequence being a corollary that the landlord gets a disability to ask for possession because of the readiness and willingness of the tenant. Consequently the third result also must follow namely that in such a case the landlord forfeits his right to file a suit for possession because no cause of action accrues, in his favour. The other inescapable corollary is that such a situation would embrace not only the case under Section 12(3)(a) but also under Section 12(3)(b) because the undercurrent and the common platform for both these provisions is the same namely there has been no entitlement in favour of the landlord and there has been no cause of action for the landlord to seek possession from the tenant. The net result, therefore, would be that in such a case even a suit under Section 12(3)(b) would not be maintainable. That is precisely what the section itself spells out and that is equally precisely what the Division Bench with respect has held.
10. Applying this ration to the facts of the instant case the result becomes inescapable because as stated in the first instance the tenant was not in rental arrears for six months or more and therefore the very first condition as the basic foundation was blissfully non-existent and secondly even in respect of such infirm demand the tenant has remitted the entire amount within the stipulated period of one month after the service of notice. In view of these two features which co-exist in this case the tenant cannot be said to be a person who is not ready and willing to pay the rent and permitted increases and secondly no cause of action accrues on this count as also on the count that the demand in the notice has been fully fulfilled. Consequently, therefore, in the instant case the landlord had no occasion much less any entitlement in law or any cause of action to seek possession much less to file a suit for possession against the tenant. If that be so, then not only rigour of Section 12(3)(a) would be wiped out but even the applicability of Section 12(3)(b) also would be wiped out. In other words, not only no decree can be passed under Section 12(3)(a) but equally no decree could be passed under Section 12(3)(b) of the Rent Act. This finding on the facts of the instant case, therefore, is in tune with the said ratio of the Division Bench and also of the relevant provisions of Section 12 of the Rent Act.
11. Unfortunately the Lower Appellate Court has missed this point even though it had recorded a clear finding that the tenant was not in arrears for six months or more and in addition the tenant had complied with the demand in the notice within the stipulated period of one month. That Court was unnecessarily influenced by the so-called irregular or erratic deposits made by the tenant after the filing of the suit. Such a case was not made by the landlord even in the Trial Court nor any issue was framed nor the parties were called upon to meet that case and it was considered for the first time on the Appellate forum by the Lower Appellate Court. Obviously, therefore, on facts also no opportunity was given to the tenant to meet that case. Even otherwise on factual aspect it cannot be said that there have been grossly erratic payments made by the tenant in the Court. Looked at from any angle, therefore, the decree recorded by the Lower Appellate Court is wholly unsustainable and the mistake will have to be rectified notwithstanding the limitations of this proceeding under Article 227 of the Constitution of India essentially because there is an apparent error on the face of the record. The decree, therefore, is wholly unsustainable.
12. Rule made absolute.
13. The decree recorded by the District Court in Civil Appeal No. 43 of 1977 decreeing the first respondent-plaintiffs suit for possession is set aside and is replaced by the decree recorded by the Trial Court of dismissing the suit with the result that the suit filed by the first respondent-landlord stands dismissed on all counts.
14. There would, however, be no order as to costs.