The view expressed by Division Bench in the matter
Chandiram Ahuja (supra) lays down correct preposition and we are
in agreement with the view expressed by the Division Bench in
aforesaid matter. The view expressed by Division Bench in the
matter of Narhar Wani (supra) does not lay down correct law and
we disagree with the view expressed therein.
To infer that once the tenant pays the amount recorded in
the notice or tenders the same, the landlord has no right to
institute a suit for recovery of possession for nonpayment of those
arrears or continue with such proceeding for eviction and no
decree for possession can be asked for, is not within contemplation
of provisions of section 15 of the Act. The provision does not
interfere with the right of the landlord to initiate proceeding for
eviction, however, subsection (2) of section 15 prescribes
precondition for presentation of suit, that is to say that no suit can
be initiated without issuing a notice within contemplation of said
subsection (2) of section 15 and tenant's entitlement to claim relief
against forfeiture shall be subject to fulfilment of conditions
stipulated under subsection (1) and (3) of section 15 of the Rent
Act.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 76 OF 2010
Babulal s/o Fakirchand Agrawal Vs Suresh s/o Kedarnath Malpani
CORAM : R.M. BORDE,
RAVINDRA V. GHUGE &
SANGITRAO S. PATIL, JJJ
PRONOUNCED ON : 12th June, 2017.
Citation: 2017(4) MHLJ 406 (FB),2017(4) ALLMR 356(FB)
1. The issue referred for consideration of the Full Bench is
recorded below :
If the tenant complies the notice
issued by the landlord demanding arrears
of rent and pays the entire amount as
demanded within the time stipulated
under section 15(2) of the Maharashtra
Rent Control Act, then whether the
landlord can still file a suit for eviction on
the ground of arrears of rent and whether
the eviction can be ordered by invoking
provisions of section 15(3) of the
Maharashtra Rent Control Act ?
2. The learned Single Judge of this Court noticing conflict of
views on the issue by the two different Division Benches of this
Court in the matter of Narhar Damodar Wani Vs. Narmadabai
T. Nave, 1984 Mh.L.J. 313 and Chandiram Dariyanumal Ahuja
Vs. Akola Zilla Shram Wahtuk Sahakari Sanstha, Akola,
2013(1) All MR 177 has framed the question for consideration
and, the papers were directed to be placed before the Honourable
the Chief Justice in accordance with Rule 7 Chapter I of the
Bombay High Court Appellate Side Rules, 1960. The Honourable
the Chief Justice has directed placement of the matter before us for
consideration, and decision on the issue.
3. The facts in the nutshell giving rise to the dispute can be
stated briefly thus :
Respondents landlords have presented suit for eviction
against the tenant on the grounds that the premises are required
by the landlords reasonably and bonafide for their own use and
occupation, the tenant is using the suit shop for the purpose other
than for which it was leased and has also committed default in
payment of rent of the suit premises. Trial Court negatived the
plea of the landlords based on the ground of bonafide requirement
and change of user however, decreed the suit on the ground that
tenant has committed default in payment of rent. Appeal
presented by tenant to the District Court has been dismissed and
the decree of eviction against tenant on the ground of default in
payment of rent has been confirmed.
4. During the course of hearing of the matter, it was submitted
on behalf of the tenant that on receipt of notice dated 01.08.2006
from the landlords, reply was tendered vide exh. 21 and the tenant
not only remitted the cheque of the amount demanded by
landlords but also paid rent upto the date of reply to the notice.
According to tenant, in view of provisions of section 15(2) of the
Maharashtra Rent Control Act, the plaintiffs landlords do not
have any cause of action to file a suit for eviction on the ground of
recovery of rent. According to tenant, the cause of action to file the
suit for eviction on the ground of arrears of rent ceases to exist the
moment the tenant tenders rent as demanded by landlords within
90 days of receipt of notice. According to tenant, admittedly, the
rent as demanded has been deposited and as such no decree could
have been passed on the ground of default in payment of rent.
Reliance is placed on the judgment of the Division Bench in the
matter of Narhar Vs. Narmadabai (Supra) to contend that cause of
action ceases to exist for proceeding against the tenant in
pursuance of the notice of demand. According to the tenant,
section 15(3) of the Maharashtra Rent Control Act also would not
be applicable as the provisions of section 15(2) themselves are not
attracted. The landlords were disabled from filing suit for recovery
of possession on the ground of default in payment of rent in view of
provisions of section 15(2) of the Act and, as a consequence
thereof, no question arises as regards applicability of provisions of
section 15(3) of the Maharashtra Rent Control Act.
5. In order to rebut the contentions, it has been contended on
behalf of the landlords that the judgment of Division Bench of this
Court in the matter of Chandiram Ahuja Vs. Akola Zilla Shram
Wahtuk Sahakari Sanstha (supra) holds the field and, even
assuming that there is compliance of section 15(2) of the
Maharashtra Rent Control Act, section 15(3) can be pressed in
service independently. It is contended that subsections (1), (2)
and (3) of section 15 are independent provisions and full effect has
to be given to all the three subsections of section 15 of the
Maharashtra Rent Control Act. It is contended on behalf of the
landlords that since the tenant has failed to pay the rent regularly
during the pendency of the suit, provisions of section 15(3) of the
Maharashtra Rent Control Act are required to be invoked and the
decree of eviction that has been passed shall have to be confirmed.
6. It would be advantageous to refer to section 12 of the
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947
(hereinafter referred to as "The Bombay Act"). The aforesaid
provisions which are similar to the provisions of section 15 of the
Maharashtra Rent Control Act were matter of interpretation in the
cases of Narhar Vs. Narmadabai and Chandiram Ahuja Vs. Akola
Zilla Shram Wahtuk Sahakari Sanstha (Supra).
12. (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 increases, if any, and observes
and performs the other conditions of the
tenancy, insofar as they are consistent with
the provisions of this Act.
(2) No suit for recovery of possession shall
be instituted by a landlord against a tenant on
the ground of nonpayment of the standard
rent or permitted increases due, until the
expiration of the 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 subsection (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 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 continues to pay or tender in Court
regularly such rent and permitted increases till
the suit is finally decided and also pays costs
of the suit as directed by the Court.
(4). Pending the disposal of any such suit,
the Courts 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 subsection (2), he makes an application
to the Court under subsection (3) of section
11 and thereafter pays or tenders the amount
of rent or permitted increases specified in the
order made by the Court."
Section 12 of the Bombay Rent Act has undergone
amendment and subsection (3) has been substituted which reads
thus :
(3) No decree for eviction shall be passed
by the Court in any suit for recovery of
possession on the ground of arrears of
standard rent and permitted increases 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 together with simple interest on the
amount of arrears of such standard rent and
permitted increases at the rate of nine per
cent per annum; and thereafter continues to
pay or tenders in Court regularly such
standard rent and permitted increases till the
suit is finally decided and also pays cost of the
suit as directed by the Court.
Provided that, the relief provided under
this subsection shall not be available to a
tenant to whom relief against forfeiture was
given in any two suits previously instituted by
the landlord against such tenant.
The amendment is incorporated by Amendment Act No. 18 of
1987. Amended subsection (3) of Bombay Rent Act is pari materia
to subsection (3) of Section 15 of the Maharashtra Rent Control
Act. Section 15 of the Maharashtra Rent Control Act contained in
Chapter III relating to relief against forfeiture is as extracted below :
CHAPTER III
RELIEF AGAINST FORFEITURE :
15.(1) No ejectment ordinarily to be made if
tenant pays or is ready and willing to pay
standard rent and permitted increases (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 standard rent and permitted
increases, if any, and observes and performs
the other conditions of the tenancy, insofar as
they are consistent with the provisions of this
Act.
(2) No suit for recovery of possession shall
be instituted by a landlord against the tenant
on the ground of nonpayment of the standard
rent or permitted increases due, until the
expiration of ninety days 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) No decree for eviction shall be passed by
the Court in any suit for recovery of
possession on the ground of arrears of
standard rent and permitted increases if,
within a period of ninety days from the date of
service of the summons of the suit, the tenant
pays or tenders in Court the standard rent
and permitted increases then due together
with simple interest on the amount of arrears
at fifteen per cent per annum; and thereafter
continues to pay or tenders in Court regularly
such standard rent and permitted increases
till the suit is finally decided and also pays
cost of the suit as directed by the Court.
(4) Pending the disposal of any suit, the
Court may, out of any amount paid or
tendered by the tenant, pay to the landlord
such amount towards the payment of rent or
permitted increases due to him as the Court
thinks fit.
7. The decision in Narhar's case is in pursuance of the
reference by the learned Single Judge (Masodkar, J) in Writ Petition
No. 1437 of 1979 decided on 8th September 1983 (Waman Deoram
Sonawane V. Shri Ganesh Mandir ) noticing conflict between the
two judgments of two learned Single Judges of this Court and, the
argument was put forth on behalf of respondents to the contrary
placing reliance on the judgment in the matter of Mranalini Shah
Vs. B.W. Shah, AIR 1980 SC 954. In Waman's case, decree for
eviction was passed on the ground of default in payment of
education cess and it was contended therein that such a decree
could not have been passed under section 12(3)(a) of the Bombay
Rent Act. According to Waman, the amount due was paid and
there was no default with regard to payment of rent and as such,
no cause of action survives in the landlord to file a suit and obtain
a decree. Reliance was placed on the judgment of learned Single
Judge in the matter of Ayudhyabai Shrivallabha Lahoti Vs.
Sumanchand Rupchand Phulpagar (Shah), 1983(2) Bom.C.R.
368 and decision in the matter of Shamrao Abaji Jadhav Vs.
Chaturbai Sidheshwra Javeri, 1982 Mh.L.J. 347. On the
contrary, it has been contended by the landlords placing reliance
on the judgment in the matter of Mranalini (Supra) that even when
a decree of eviction cannot be made under section 12(3)(a) of the
Act, a decree for eviction can be made if the tenant fails to protect
himself by complying with the conditions available in clause (b) of
section 12(3). On behalf of the landlords, attention of the Division
Bench was invited to judgments of the Supreme Court in the
matter Shah Dhansukhlal Chhaganlal Vs. Dalichand
Virchand Shroff, AIR 1968 SC 1109, Harbanslal
Jagmohandas Vs. Prabhudas Shivlal, AIR 1976 SC 2005 and
Ganpat Ladha Vs. Shashikan Vishnu Shinde, 1978 Mh.l.J.
550 and, it was contended that these decisions settle the law so far
as section 12(3)(b) of the Bombay Rent Act was concerned and, it is
for the tenant to satisfy all the conditions apart from the obligation
of tendering in Court all the arrears due on the first day of hearing
of the suit or on or before such date as the Court may fix and pay
regularly such rental liability till the suit is finally decided and
there is no extinction of the cause of action by reason of payment
of existing arrears. In the view of the learned Single Judge to avoid
a decree, once a notice is given, the tenant has to fulfil the
conditions laid down by section 12(3)(b) of the Bombay Rent Act.
The relevant observations of the Division Bench in paragraphs 7 to
12 are recorded as below :
7. 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 nonpayment
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 in
the manner provided in section 106 of the
Transfer of Property Act, 1882. Subsection (3)
(a) undoubtedly 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 notice referred to in subsection (2),
the Court has to pass a decree for eviction in
any such suit for recovery of possession. It is
well established that clause (b) of subsection
(3) of section 12 applies to a case which does
not fall under clause (a). Attention must also
be invited to the provisions of subsection (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, if any, and observes and
performs the other conditions of the tenancy,
in so far as they are consistent with the
provisions of the Bombay Rent Act. The
scheme of subsections (1), (2) and (3) of
section 12, therefore, is that if a tenant is
ready and willing to pay the amount of
standard rent and permitted increases, a
landlord is not entitled to recovery of
possession. The tenant has been given one
month's time during which be must pay the
rent which is demanded by a notice under
section 12(2) and if he does not pay that rent
or the amount due, then the consequences
specified in clauses (a) and (b) follow
depending upon which clause is attracted to
the facts of a given case. One thing which is,
however, clear on the face of section 12 and
its provisions is that if the tenant pays the
arrears demanded by the notice under section
12(2), then the landlord is not entitled to file a
suit for possession on the ground of arrears
in respect of which he has to give or has given
a notice under section 12(2). In such a case,
the provisions of subsection (1) will also
come into operation because if the tenant
pays the amount required to be paid by the
notice under section 12(2), then the tenant is
a person who is ready and willing to pay the
standard rent and the permitted increases, as
the case may be, and the landlord is disabled
from filing a suit for recovery of possession.
In a case where the tenant has paid or must
in law be deemed to have paid the amount
demanded by the notice under section 12(2),
not only are the provisions of section 12(3)(a)
not attracted, but there is no occasion to call
in aid the provisions of section 12(3)(b),
because even the provisions of section 12(3)
(b) will be attracted only if there is a claim for
recovery of possession. If by the compliance
with the requirements of the notice under
section 12(2) the landlord is disabled from
filing a suit for recovery of possession, there
is no question of the provisions of section
12(3)(b) being attracted at all.
8. In the referring judgment reference has
been made to the three Supreme Court
decisions which, in our view, and with
respect, were not relevant for the decision of
the question which arises before us. In
Dhansukhlal's case (supra), the facts show
that the tenant was in arrears of rent on the
date on which the landlord filed the suit
because the tenant had not made payment
even though he had received the notice under
section 12(2) of the Bombay Rent Act. The
notice in that case was dated 18th April 1955
demanding the arrears of rent and, as the
Supreme Court observed, "No reply was sent
thereto nor was any payment made to the
plaintiff." The suit for ejectment in that case
was filed on 15th March 1956 on the ground
that the defendant was in arrears of rent and
permitted increases and was, therefore, not
entitled to the protection of the Bombay Rent
Act. The judgment of the Supreme Court
shows that in that case, the applicability of
section 12(3)(b) was not canvassed and the
High Court had found that there being
default on the part of the defendant, the
operation of section 12(3)(b) of the Bombay
Rent Act was attracted. Even before the
Supreme Court the material question raised
was whether applying section 12(3)(b) there
was no default on the part of the defendant
which would render him liable to eviction. It
was while dealing with this contention that
the Supreme Court held that to be within the
protection of section 12(3)(b), the tenant must
not only pay all the arrears due from him on
the first day of hearing of the suit, but he
must thereafter continue to pay and tender in
Court regularly the rent and the permitted
increases till the suit is finally decided.
Dhansukhlal's case was, therefore, a case
which dealt only with the provisions of
section 12(3)(b) on the admitted position that
no payment was made in pursuance of the
notice under section 12(2).
9. Harbanslal's case (Supra) dealt with the
limited question as to what should be done in
order to avoid the operation of section 12(3)(a)
and it was held that in order to avoid the
operation of section 12(3)(a) of the Bombay
Rent Act, the dispute in regard to the
standard rent or permitted increases must be
raised at the latest before the expiry of one
month from the date of service of notice
under section 12(2) of the Act and it was not
enough to raise the dispute for the first time
in the written statement. In Harbanslal's
case, the notice dated 14th November 1966
was issued terminating the tenancy on the
ground that the tenant had paid rent only up
to August 1964. This notice was received by
the tenant on the 6th December 1966 and the
suit was filed on 2nd February 1967. In the
other connected appeal decided by the same
judgment, the notice terminating the tenancy
was dated 5th April 1963 and the suit was
filed on 11th September 1963. The arrears
were alleged to be for the period from 15th
March 1960 to 15th March 1963 for a period
of more than six months. The arrears were
not paid within a period of one month from
the date of the notice but were paid only on
23rd December 1964, that is, long after the
suit was filed.
10. Mranalini's case was once again a case
which was decided with reference to the
provisions of section 12(3)(b) of the Bombay
Rent Act and the question as to whether the
arrears of rent having been paid within the
period of one month from the date of service
of notice under section 12(2), a suit for
eviction could not be filed did not arise.
11. The learned Judge in the present case
has taken the view that "once a notice under
section 12(2) of the Bombay Rent Act is given
terminating the tenancy on the ground of
nonpayment of rent, the landlord is entitled
to file a suit and maintain it and in case the
conditions of section 12(3)(a) are satisfied, he
is entitled to a decree under section 12(3)(b)
of the Act, if the tenant has not availed of the
protection afforded by that provision" and
that once the notice is issued, "what reliefs
can be given are provided for by section 12(3)
(a) and section 12(3)(b) of the Act". These
observations in our view, overlook the fact
that it is implicit in the provisions of section
12(2) that if within a period of one month
specified in section 12(2) the tenant pays the
entire amount of rent demanded by the
notice, then the landlord does not have a
right to file a suit for recovery of possession.
Further, once there is no cause of action for a
suit for recovery of possession, the question
as to whether the tenant claims the
protection of section 12(3)(b) cannot also
arise.
12. It has to be pointed out that when the
tenant pays the entire amount demanded by
the notice under section 12(2), the notice
becomes ineffective and in case the landlord
wants to claim possession on the ground of
arrears of rent for the period other than that
in respect of which the notice has been given,
the provisions of section 12(2) will once again
come into operation and the landlord will
have to serve a fresh notice because the
arrears for nonpayment of which possession
is now claimed are not arrears in respect of
which a notice contemplated by section 12(2)
had been earlier given. Service of a notice
under section 12(2) is a condition precedent
to a claim for possession on the ground of
arrears of rent and such a claim cannot be
made unless a period of one month is allowed
to expire from the date of service of the
notice. We are, therefore, unable to agree
with the view of the learned Judge that there
is no expiration of cause of action by reason
of existing arrears demanded by the notice
under section 12(2).
As has been concluded by the Division Bench in the matter
of Narhar Vs. Narmadabai (Supra), once the tenant pays the entire
amount demanded by the landlord by notice issued under section
12(2), the notice becomes ineffective and, in case, the landlord
wants to claim possession on the ground of arrears of rent for the
period other than the period covered under the notice, it is
obligatory for him to issue a notice once again in view of mandate
of section 12(2) and claim arrears. Service of notice demanding
rent for a specified period required under section 12(2) is a
condition precedent for presentation of suit and landlord cannot be
permitted to deviate from the mandatory requirement and claim
eviction taking recourse of section 12(3)(b) of the Bombay Rent Act.
8. The aforesaid view of the Division Bench in the matter of
Narhar Vs. Narmadabai appears to be in conflict with the view
expressed by the another Division Bench in the matter of
Chandiram Ahuja Vs. Akola Zilla Shram Wahtuk Sahakari Sanstha
(supra). It does appear that although the attention of the court
while dealing with the matter of Chandiram was invited to the
decision in the matter of Dhansukhlal (supra), however, the
attention of the Court was not invited to the judgment in the
matter of Narhar Vs. Narmadabai. The issue before the Division
Bench in Chandiram's case is concerning interpretation of section
15 of the Maharashtra Rent Control Act. As has been recorded
above, the provisions contained in the repelled Bombay Rent Act
and the Maharashtra Rent Control Act are identical and the
decisions rendered interpreting the provisions of section 12 of the
Bombay Rent Act are relevant for consideration. It must be noticed
that if the tenant is desirous of claiming protection under section
15(1) of the Maharashtra Rent Control Act, he must demonstrate
his readiness and willingness to pay the rent i.e. the quantum of
rent which forms the subject matter of landlord's grievance. While
interpreting words "readiness and willingness to pay" one has to be
mindful of the provisions of section 15(3) which mandates the
tenant to pay or tender in Court regularly such standard rent or
permitted increases till the suit is finally decided and also pay cost
of the suit as directed by the Court.
9. After taking survey of various judgments, the Division Bench
has observed in paragraph no. 18 of the Chandiram's case as
under :
18. The entire Scheme of Chapter III
relief against forfeiture, as provided under
the provisions of section 15, indicates that a
tenant can perform his obligation and then
claim protection in the form of relief against
forfeiture as forfeiture occurs in accordance
with general law governing lease under the
Transfer of Property Act. The provision
protects the tenant from the forfeiture when
the tenant is paying rent or has proved his
readiness and willingness to pay it. Section
15(3) added further obligation upon the
tenant to pay entire arrears till date with
interest and costs, as may be ordered by the
Court. If tenant is continuing to pay rent
due during the pendency of the suit
instituted against him on the ground of nonpayment
of standard rent and permitted
increases, then such tenant is entitled to
claim relief against forfeiture of tenancy. To
put it otherwise, when tenant does not pay
rent as agreed or pays rent only when legal
notice is served upon him or Court
summons is issued against him, the
landlord is not helpless because subsection
(1) of section 15 enables the landlord to
insist upon the tenant to pay rent and
perform the conditions of tenancy. The
tenant who disobeys legal provisions under
section 15(1) of the Act can be evicted
independently, though such tenant may not
necessarily be in arrears of rent on the date
of institution of the suit. A tenant who is
prompted or induced to pay only after
service of legal notice or after service of
Court summons cannot be viewed as a
tenant who either pays or is ready and
wiling to pay standard rent and permitted
increases. Section 15 of the Maharashtra
Rent Act has extended protection to a tenant
after the landlord seeks to exercise his right
to forfeit the tenancy in accordance with the
provisions of general law. A tenant, in order
to claim relief against forfeiture of tenancy,
gets a period of 90 days after service of presuit
statutory demand notice by the
landlord calling upon the tenant to pay
entire arrears of standard rent and
permitted increases payable to the landlord.
Thereafter when suit is filed, the tenant gets
additional opportunity to pay entire arrears
of rent and permitted increases demanded
after the suit summons is served upon him.
Such a tenant has a period of 90 days from
the date of service of suit summons to pay
or tender the arrears of rent with simple
interest thereupon @ 15% p.a. During
pendency of the suit, the protection is
available as above to the tenant to claim
relief against forfeiture of tenancy provided
that the tenant shall continue to be regular
in payment of standard rent and permitted
increases payable during the pendency of
the suit as also costs of the suit as directed
by the Court. The Court cannot be oblivious
of landlords who may have to survive only
on rental income. Habitual irregular
payment of rent and permitted increases by
the tenant will prejudice and jeopardize very
survival of such landlords who survive on
rental income only. Therefore, such a tenant
who may be habitually irregular in payment
of standard rent and permitted increases
can invite eviction in view of section 15(1) of
the Maharashtra Rent Act when the Court
considers the case of such a tenant who
commits breach of conditions of tenancy as
also remains habitual in rental arrears. In
such exceptional case, provisions of section
15(1) are applicable and procedural
compliances under section 15(2) and 15(3)
will not apply.
10. In the matter of Sitaram Maruti Nagpure and Fakirchand
Purushottam Dhase, 2008(3) Mh.L.J. 610, issue was referred for
consideration of Division Bench in view of two conflicting decisions
of the Single Judge concerning interpretation of section 12(3)(a) of
the Bombay Rent Act. The basic issue raised is with regard to the
readiness and willingness of tenant to pay rent and whether the
rent should be paid only after notice of termination under section
12(3)(a) of the Bombay Rent Act or whether the tenant can show
readiness and willingness even prior to termination of tenancy
under section 15(3)(a) of the Act. In the judgment delivered in the
matter of Suka Ishram Chaudhari Vs. Ranchhoddas
Manakchand Shet Gujarathi, 1972 Mh.L.J. 477, the learned
Single Judge (Bhole J.) has interpreted readiness and willingness
of tenant in tendering rent and if the tenants were to send rent by
money order and if the money order was refused by the landlord
then landlord cannot turn round and contend that the tenant was
in arrears of rent for a period of six months or more. In another
judgment in the matter of Abdul Gani Dinalli Momin Vs.
Mohamed Yusuf Mohamed Isak, 1978 BLR 646, the learned
Single Judge (Jahagirdar, J.) disagreed with the view of Justice
Bhole and recorded his observations that a tenant cannot be said
to be ready and willing to pay the rent within meaning of section
12(1) unless he complies with the other requirements mentioned in
section 12 and, in particular, unless he has paid or tendered the
amount in arrears within one month after expiry of notice referred
to under subsection (2). Subsection (1) of section 12 forms a part
of the entire scheme relating to the payment of rent by the tenant
to the landlord and subsection (1) could not be read in isolation in
so far at least it relates to the payment of the standard rent. In the
light of the observations of the Supreme Court, in both, S.D.
Chhaganlal Vs. D.V. Shroff and in Harbanslal Vs. Prabhudas and
Fusanacht Vs. W.E. Works, where SD. Chhaganlal's case has been
referred to and reaffirmed, it cannot be said that the ratio in the
judgment in Suka Ishram's case represents the correct law.
The Division Bench, while dealing with the conflict, has
approved the view taken by Justice Bhole to be correct one.
11. Reference is also made to a judgment in the matter of
Ayodhyabai Shrivallabha Lahoti Vs. Sumanchand Rupchand
Phulpagar, 1983(2) Bom.C.R. 368. In paragraph no. 5 of the
judgment, relying upon the decision of the Supreme Court in the
matter of Md. Shafi Vs. VIIth Additional Dist. and Sessions
Judge, Allahabad and another, AIR 1977 SC 836, it is observed
by the learned Single Judge that if two interpretations are possible
then the one in favour of tenant should be preferred since the
legislation is intended to protect the tenant against the
unreasonable eviction. In the reported matter, the tenant paid all
the arrears of rent within one month of receipt of notice and
nothing was due. As such it is observed by the learned Single
Judge that at the fag end of trial, he (landlord), cannot be
permitted to take recourse of provisions of section 12(3)(b) of the
Act. It is further observed that if the suit is liable to be dismissed
on the ground that there was no cause of action for filing such
suit, then at the fag end of the trial, he (landlord) cannot take
recourse of section 12(3)(b) for fishing out the cause of action for
getting decree in a suit which was not properly instituted.
12. The preamble of the Maharashtra Rent Control Act 1999
declares that the Act is enacted to unify, consolidate and amend
the law relating to the control of rent and repairs of certain
premises and of eviction and for encouraging the construction of
new houses by assuring a fair return on the investment by
landlords and to provide for the matters connected with the
purposes aforesaid. In paragraph no.3 of the Statement of
Objects and Reasons it is recorded that the Central Government
announced the national Housing Policy which recommends inter
alia to carry out suitable amendments to the existing rent control
laws for creating enabling involvement in housing activity and for
guaranteeing access to shelter for the poor. It is recorded that the
existing rent control legislation has resulted in freeze of rent, very
low return in investment and difficulty in resuming possession and
has adversely affected investment in rental housing and cause
deterioration of rental housing stock. A number of expert bodies
such as Economic Administration Reforms Commission and the
National Commission on Urbanization have recommended reforms
of the rent legislation in a way that balances the interest of both
the landlord and tenants and also stimulates further construction.
On reading the preamble of the act as well as statement of objects
and reasons, it is clear that the Act is enacted to maintain the
balance between the the interest of both the landlords and tenants
and to take measures to stimulates growth in housing sector. The
Act is not aimed at putting hurdles in the rights of the landlord to
resume possession inspite of violation of the terms and conditions
of the tenancy by the tenant.
13. While dealing with the provisions of the Bombay Rent Act in
the matter of Ganpat Ladha Vs. Sashikant Vishnu Shinde,
1978 Mh.L.J. 550, the Apex Court has observed that "Bombay
Rents, Hotel and Lodging House Rates Control Act interferes with
the landlord's right to property and freedom to contract only for
limited purpose of protecting tenants from misuse of landlord's
power to evict them in these days of scarcity of accommodation by
asserting his superior rights in property or trying to exploit his
position by extracting too high rents from helpless tenants. The
object was not to deprive the landlord altogether of his rights to
property which have also to be respected. Another object was to
make possible eviction of tenants who fail to carry out their
obligation to pay rent despite opportunities provided by law in that
behalf. " It is, thus, clear that the rent control legislation does put
an embargo only to the limited extent on the right of landlord to
seek eviction of tenant. The right to sue for possession in respect
of the property belonging to the landlord is inherent however, it is
made subject to certain limitations by the rent control legislation.
Chapter III of the Maharashtra Rent Control Act, more particularly,
section 15 provides for relief against forfeiture to the tenant. It is
provided that ejectment of tenant ordinarily shall not be made if
the tenant pays or is ready and willing to pay standard rent and
permitted increases. The protection extended to the tenant is so
long as he complies with the terms of the tenancy in respect of
payment and pays the rent and is ready and willing to pay
standard rent and permitted increases. The phrase "tenant pays"
shall have to be read in harmony with his "readiness and
willingness" to pay standard rent and permitted increases.
Protection afforded to the tenant is to such a tenant who observes
the terms of the tenancy and pays the rent regularly. Readiness
and willingness to pay standard rent and permitted increases is a
state referable to the conduct of a tenant who is regular in payment
of rent.
14. In the matter of Mistry Premjibhai Vithldas Vs.
Ganeshbhai Kshavji, AIR 1977 Supreme Court 1707, it is
observed by the Supreme Court in paragraph no. 14 thus :
14. The readiness and the
willingness of the tenant to pay could be
found only if he had complied with the
provisions of the Act. The Act does not
cover the case of a person who is unable to
pay owing to want of means but is
otherwise "ready and willing". Such a case
is no doubt a hard one, but, unfortunately,
it does not enable Courts to make a
special law for such hard cases which fall
outside the statutory protection.
15. In the matter of Vora Abbasbhai Alimanhomed Vs. Haji
Gulamnabi Haji Safibhai, AIR 1964 SC 1341, it is observed in
paragraph no. 16 that section 12(1) does not affect the jurisdiction
of the court to entertain and decide the suit for ejectment against
the tenant. It merely confers protection upon the tenant if certain
conditions are fulfilled and clauses (2)(3)(a) and (3)(b) and the
Explanation deal with certain specific cases in which readiness
and willingness to pay standard rent, may either be presumed or
regarded as proved.
16. It is, thus, clear that the tenant who "pays" or "is ready and
willing to pay" is only required to be protected on recording
findings in that regard. Subsection (1) of section 15 of the
Maharashtra Rent Control Act provides that the landlord shall not
be entitled to recovery of possession of any premises so long as
tenant pays or is ready and willing to pay the amount of standard
rent and permitted increases if any, and observes and performs the
other conditions of tenancy in so far as they are consistent with
the provisions of the Act. Protection is extended to the tenant who
pays or is ready and willing to pay the amount of standard rent
and permitted increases. The latter part of the subsection also
mandates the tenant to observe and perform other conditions of
tenancy in so far as they are consistent with the provisions of the
Act. The term "tenant pays or is ready and willing to pay" read
with observance and performance of other conditions of tenancy
would surely include observance of the terms of the tenancy and,
one of the terms of tenancy which is consistent with the provisions
of the Act is regularity in payment of rent. A tenant who is
irregular in payment of rent and pays the amount only under the
threat of action of eviction or only after issuance of notice for
recovery of rent cannot be considered to have complied with the
mandate of subsection (1) in respect of payment of rent and
readiness and willingness on the part of the tenant so as to claim
relief against forfeiture cannot be presumed. The only limitation
that has been put on the entitlement of the landlord to avail of the
remedies for enforcing his right to recover possession is to be found
in subsection (2) of section 15. Subsection (2) of section 15
mandates that no suit for recovery of possession shall be instituted
by the landlord against a tenant on the ground of nonpayment of
the standard rent or permitted increases due, until expiration of 90
days next after notice in writing for payment of 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. A suit by the landlord is thus not entertainable on the
ground of recovery of possession for nonpayment of the standard
rent or permitted increases without transmitting a notice to the
tenant 90 days before institution of such suit, in the manner as
provided in section 106 of the Transfer of Property Act, 1882. Subsection
(3) of section 15 provides that the Court shall not pass a
decree of eviction on the ground of arrears of standard rent and
permitted increases if within a period of 90 days from the date of
service of summons of the suit, the tenant pays or tenders in the
Court standard rent and permitted increases then due together
with simple interest on the amount of arrears at the rate of 15%
per annum and thereafter continues to pay or tenders in Court
regularly such standard rent and permitted increases till the suit
is finally decided and also pays cost of the suit as directed by the
Court. It is, thus, clear that if the tenant pays the amount
demanded within the time stipulated and further continues to pay
the amount of standard rent and permitted increase during the
pendency of the proceeding regularly, the tenant is not liable to be
evicted and no decree shall be passed. There is no whisper in the
provisions of section 15 putting an embargo on the entitlement of
the landlord to file a suit for eviction against a tenant except
subject to compliance of the preconditions specified in subsection
(2) of section 15 of the Maharashtra Rent Control Act.
17. On consideration of provisions of section 15 of the
Maharashtra Rent Control Act which provide for relief against
forfeiture to the tenant, it is clear that the tenant has been
extended protection from eviction so long as he performs his
obligation in respect of payment of rent as well as observance and
performance of other conditions of the tenancy. The provisions,
thus, protect the tenant who is paying rent or has established his
readiness and willingness to pay. Further protection is also
provided in subsection (3) of section 15 if the tenant pays entire
arrears of rent on receipt of notice within contemplation of subsection
(2) of section 15 before the period prescribed under subsection
(2) together with interest and cost as may be ordered by the
Court and continues to pay rent and the permitted increases
regularly until the decision in the suit. If the tenant does not pay
rent regularly and offers to pay only after issuance of notice within
contemplation of subsection (2) of section 15 and does not observe
the other terms and conditions which include regular payment of
rent, the landlord is not disabled from proceeding against such
tenant. In nutshell, to derive that if tenant offers or pays the
amount recorded in the notice issued in pursuance to subsection
(2) of section 15, together with permitted increases, the landlord is
disabled from proceeding against the tenant is not within
contemplation of section 15 of the Act. The right to seek remedy
and claim possession of the premises owned by the landlord is
inherent in him however, initiation of such proceedings is subject
to fulfilment of certain preconditions such as issuance of notice in
accordance with section 106 of the Transfer of Property Act as
provided under section 15(2). It is, thus, clear that the tenant who
disobeys the provisions of section 15(1) can be evicted
independently though such tenant may not necessarily pay any
arrears of rent on the date of institution of the suit. Subsection
(3) of section 15 shall have to be construed independently and if
the tenant does not observe the mandate of subsection (3) in
respect of payment of amount of rent and permitted increases
regularly till disposal of the proceedings before the Court, is also
liable to be evicted.
18. In the matter of Shah Dhansukhlal Chhaganlal Vs.
Dalichand Virchand Shroff, AIR 1968 Supreme Court 1109, a
decree was passed against a tenant since he failed to comply with
section 12(3)(b) of the Bombay Rent Act. The appeal preferred by
the tenant was dismissed. Before the High Court, the only
contention that was raised was whether the tenant had or had not
complied with the requirements of section 12(3)(b) of the Bombay
Rent Act. It was found that there was no such compliance. The
issue that was raised before the Supreme Court was as to whether
the provisions of section 12(1) of the Act was applicable throughout
the hearing of the suit and down to the date of final hearing and, if
at that stage, it was found that the tenant had paid all the arrears
due from him, whether he could be ejected. While dealing with
the matter, the Supreme Court has observed in paragraph no. 14
of the judgment that to be within protection of provisions of section
12(3)(b) the tenant must not only pay all the arrears due from him
on the first day of hearing of the suit, but he must thereafter
continue to pay or tender in court regularly the rent and the
permitted increases till the suit is finally decided.
19. In the matter of Mranalini B. Shah Vs. Bapalal Mohanlal
Shah (supra) the question as regards interpretation of section 12(3)
(b) of the Bombay Rent Act was a matter of consideration. The
question that was formulated reads thus :
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 continues
to pay or tender in Court regularly such rent
and permitted increases till the suit is finally
decided and also pays costs of the suit as
directed by the Court.
While dealing with the issue, the Supreme Court has
observed in paragraphs 11 and 12 of the judgment thus :
11. We have perused the recent
Judgment of this Court in Ganpat Ladha V.
Sashikant Vishnu Shinde. In our opinion, the
point raised by the appellants, before us is
fully covered by that Judgment. The following
obervations of Beg, C.J., who spoke for the
Court are apposite :
... We think that the problem
of interpretation and application of
Section 12(3)(b) need not trouble
us after the decision of this Court i
Shah Dhansukhlal Chagganlal's
case MANU/SC/0166/1968 :
[1968]3SC 346 followed by the
more recent decision in harbanslal
Jagmohandas v. Prabhudas
Shivlal, MANU/SC/048/1976 :
[1976] 3 SC 628, which completely
cover the case before us.
It is clear to us that the Act interferes
with the landlord's right to property and
freedom of contract only for the limited
purpose of protecting tenant from misuse of
the landlord's power to evict them, in these
days of scarcity of accommodation, by
asserting his superior rights in property or
trying to exploit his position by extracting too
high rents from helpless tenants. The object
was not to deprive the landlord altogether of
his rights in property which have also to be
respected. Another object was to make
possible eviction of tenants who fail to carry
out their obligation to pay rent to the landlord
despite opportunities given by 'law in that
behalf But where the conditions of Section
12(3)(a) are not satisfied, there is a further
opportunity given to the tenant to protect
himself against eviction. He can comply with
the conditions set out in those conditions, he
cannot claim the protection of Section 12(3)(b)
and in that event, there being no other
protection available to him, a decree for
eviction would have to go against him. it is
difficult to see how by any judicial valour
discretion exercisable in favour of the tenant
can be found in Section 12(3)(b), even where
the conditions laid down by it are satisfied, to
be strictly confined within the limits,
prescribed for their operation. We think that
Chagla, C.J. was doing nothing less than
legislating in Kalidas Bhavan's case 1958 Bom
LR 1359, in converting the provisions of
Section 12(3)(b) into a sort of discretionary
jurisdiction of the Court to relieve tenants
from hardship. The decisions of this Court
referred to above, in any case, make the
position quit clear that section 12(3)(b) does
not create any discretionary jurisdiction in the
court. It provides protection to the tenant on
certain conditions and these conditions have
to be strictly observed by the tenant who seeks
the benefit of the Section. If the statutory
provisions do not go far enough to relieve the
hardship of the tenant the remedy lies with
the legislature. It is not in the hands of Court.
12. The above enunciation, clarifies beyond
doubt that the provisions of Clause (b) of
Section 12(3) are mandatory, and must be
strictly complied with by the tenant during the
pendency of the suit or appeal if the landlord's
claim for eviction on the ground of default in
payment of rent is to be defeated. The word
"regularly" in Clause (b) of Section 12(3) has a
significance of its own. it enjoins a payment
or tender characterised by reasonable
punctuality, that is to say, one made at regular
times or intervals. The regularity
contemplated may not be a punctuality, of
clocklike precision and exactitude, but it must
reasonably conform with substantial proximity
to the sequence of times or intervals at which
the rent falls due. Thus, where the rent is
payable by the month, the tenant, must , if he
wants to avail of the benefit of the latter part
of Clause (b), tender or pay it every month as
it falls due, or at his discretion in advance. If
he persistently defaults during the pendency
of the suit or appeal in paying the rent, such
as where he pays it at irregular intervals of 2
or 3 or 4 months as is the case before us, the
Court has no discretion to treat what were
manifestly irregular payments, as substantial
compliance with the mandate of this Clause
irrespective of the fact that by the time the
Judgment was pronounced all the arrears had
been cleared by the tenant.
20. On the analysis of the provisions of section 15 as well as
various judgments, it must be concluded that the provisions of
subsections (1), (2) and (3) of section 15 shall be read
independently. In order to claim relief against forfeiture, the tenant
must satisfy all the conditions in respect of payment of rent or
tender in Court all the arrears then due on the first day of hearing
of the suit or within contemplation of provisions of law and to
deposit the rental liability regularly in the Court till the suit is
finally decided and there is no extinction of the cause of action by
reason of payment of existing arrears by the tenant. It is, thus,
clear that in order to avoid decree, once the notice is issued within
contemplation of subsection (2) of section 15 of the Maharashtra
Rent Control Act by the landlord, the tenant shall have to fulfil the
conditions laid down under subsection (3) of section 15 of the
Maharashtra Rent Control Act and there is no escape therefrom.
21. It would be inappropriate to infer something which is not
specifically recorded in the provision and to read the restrictions
on the entitlement of the landlord to present proceeding for
eviction of a tenant on payment of the amount of rent or permitted
increases, if any, as demanded by the landlord under a notice
within contemplation of subsection (2) of section 15, without
considering the impact of subsection (3) of section 15. It would
amount to adding to the provision in place and making violation
and thereby putting unnecessary restrictions on the right of the
landlord. The principle that the Statute must be read as a whole is
equally applicable to different parts of the same section. The
section must be construed as a whole whether or not one part is a
saving clause. Similarly, " elementary rule of construction of
section is to be made of all the parts together" and that "it is not
permissible to omit any part of it; the whole section must be read
together". The words of Statute are first understood in their
natural, ordinary and popular sense and phrases and sentences
are constructed according to their grammatical meaning unless
there be something in the context, or in the object of the statute in
which they occur or in the circumstances in which they are used,
to show that they were used in special sense different from their
ordinary grammatical meaning.
22. For a modern statement of the rule one may refer to the
speech of Lord Simon of Glaisdale in a case where he said :
"Parliament is prima facie to be credited with meaning what is said
in an Act of parliament. The drafting of statutes, so important to a
people who hope to live under the rule of law, will never be
satisfactory unless courts seek whenever possible to apply 'the
golden rule' of construction, that is to read the statutory language,
grammatically and terminologically, in the ordinary and primary
sense which it bears in its context, without omission or addition.
Of course, Parliament is to be credited with good sense; so that
when such an approach produces injustice, absurdity,
contradiction or stultification of statutory objective the language
may be modified sufficiently to avoid such disadvantage, though no
further."
23. The Control of Rent and Eviction Acts which drastically limit
the grounds on which a tenant can be evicted are essentially to
benefit the tenants but they also to some extent protect the
landlords in the sense that they are so comprehensive that a
landlord can file a suit for eviction on the grounds mentioned in
the Act even though the tenancy has not been terminated in
accordance with the provisions of the Transfer of Property Act,
1882. (V. Dhanpal Chettiar Vs. Yesoda Ammal, 1979(4) SCC 214). A
provision enacting that a purchaser from a landlord cannot apply
for eviction on the ground of personal need before the expiry of
three years from the purchase and unless a notice of six months is
issued by him before or after expiry of three years period, was
construed to mean that no notice was necessary after the expiry of
three years or at any rate after expiry of three years and six
months from the purchase. (Anwar Hasan Khan Vs. Mohammad
Shafi, AIR 2001 SC 2984.) Provisions enacted to benefit the
landlords cannot be so construed as to benefit the tenants. (Arjun
Khaiamal Makhijani Vs. Jamnadas C. Tuliani (1989) 4 SCC 612).
As expressed by Lahoti J.: "The courts have to adopt a reasonable
and balanced approach while interpreting Rent Control Legislaions
starting with an assumption that an equal treatment has been
meted out to both the sections of the society. Inspite of the overall
balance tilting in favour of the tenants, while interpreting such of
the provisions as take care of the interest of the landlord the court
should not hesitate in leaning in favour of the landlords.
(Joginder Pal Vs. Naval Kishore Bahal, AIR 2002 SC 2256).
Indeed, it has been held that in enacting a Control and Eviction
Act the Legislature has also to take into account that its provisions
are not so unjust to the landlords that they offend Article 14 of the
Constitution in which event they will become unconstitutional.
(Malpe Vishwanath Acharya Vs. State of Maharashtra, AIR 1998
SC 602).
24. The view expressed by Division Bench in the matter
Chandiram Ahuja (supra) lays down correct preposition and we are
in agreement with the view expressed by the Division Bench in
aforesaid matter. The view expressed by Division Bench in the
matter of Narhar Wani (supra) does not lay down correct law and
we disagree with the view expressed therein.
25. To infer that once the tenant pays the amount recorded in
the notice or tenders the same, the landlord has no right to
institute a suit for recovery of possession for nonpayment of those
arrears or continue with such proceeding for eviction and no
decree for possession can be asked for, is not within contemplation
of provisions of section 15 of the Act. The provision does not
interfere with the right of the landlord to initiate proceeding for
eviction, however, subsection (2) of section 15 prescribes
precondition for presentation of suit, that is to say that no suit can
be initiated without issuing a notice within contemplation of said
subsection (2) of section 15 and tenant's entitlement to claim relief
against forfeiture shall be subject to fulfilment of conditions
stipulated under subsection (1) and (3) of section 15 of the Rent
Act.
26. The issue referred is answered accordingly.
27. The office is directed to place the Civil Revision Application
before appropriate court for disposal on merits.
(SANGITRAO S. PATIL) (RAVINDRA V. GHUGE) (R. M. BORDE)
Print Page
Chandiram Ahuja (supra) lays down correct preposition and we are
in agreement with the view expressed by the Division Bench in
aforesaid matter. The view expressed by Division Bench in the
matter of Narhar Wani (supra) does not lay down correct law and
we disagree with the view expressed therein.
To infer that once the tenant pays the amount recorded in
the notice or tenders the same, the landlord has no right to
institute a suit for recovery of possession for nonpayment of those
arrears or continue with such proceeding for eviction and no
decree for possession can be asked for, is not within contemplation
of provisions of section 15 of the Act. The provision does not
interfere with the right of the landlord to initiate proceeding for
eviction, however, subsection (2) of section 15 prescribes
precondition for presentation of suit, that is to say that no suit can
be initiated without issuing a notice within contemplation of said
subsection (2) of section 15 and tenant's entitlement to claim relief
against forfeiture shall be subject to fulfilment of conditions
stipulated under subsection (1) and (3) of section 15 of the Rent
Act.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 76 OF 2010
Babulal s/o Fakirchand Agrawal Vs Suresh s/o Kedarnath Malpani
CORAM : R.M. BORDE,
RAVINDRA V. GHUGE &
SANGITRAO S. PATIL, JJJ
PRONOUNCED ON : 12th June, 2017.
Citation: 2017(4) MHLJ 406 (FB),2017(4) ALLMR 356(FB)
1. The issue referred for consideration of the Full Bench is
recorded below :
If the tenant complies the notice
issued by the landlord demanding arrears
of rent and pays the entire amount as
demanded within the time stipulated
under section 15(2) of the Maharashtra
Rent Control Act, then whether the
landlord can still file a suit for eviction on
the ground of arrears of rent and whether
the eviction can be ordered by invoking
provisions of section 15(3) of the
Maharashtra Rent Control Act ?
2. The learned Single Judge of this Court noticing conflict of
views on the issue by the two different Division Benches of this
Court in the matter of Narhar Damodar Wani Vs. Narmadabai
T. Nave, 1984 Mh.L.J. 313 and Chandiram Dariyanumal Ahuja
Vs. Akola Zilla Shram Wahtuk Sahakari Sanstha, Akola,
2013(1) All MR 177 has framed the question for consideration
and, the papers were directed to be placed before the Honourable
the Chief Justice in accordance with Rule 7 Chapter I of the
Bombay High Court Appellate Side Rules, 1960. The Honourable
the Chief Justice has directed placement of the matter before us for
consideration, and decision on the issue.
3. The facts in the nutshell giving rise to the dispute can be
stated briefly thus :
Respondents landlords have presented suit for eviction
against the tenant on the grounds that the premises are required
by the landlords reasonably and bonafide for their own use and
occupation, the tenant is using the suit shop for the purpose other
than for which it was leased and has also committed default in
payment of rent of the suit premises. Trial Court negatived the
plea of the landlords based on the ground of bonafide requirement
and change of user however, decreed the suit on the ground that
tenant has committed default in payment of rent. Appeal
presented by tenant to the District Court has been dismissed and
the decree of eviction against tenant on the ground of default in
payment of rent has been confirmed.
4. During the course of hearing of the matter, it was submitted
on behalf of the tenant that on receipt of notice dated 01.08.2006
from the landlords, reply was tendered vide exh. 21 and the tenant
not only remitted the cheque of the amount demanded by
landlords but also paid rent upto the date of reply to the notice.
According to tenant, in view of provisions of section 15(2) of the
Maharashtra Rent Control Act, the plaintiffs landlords do not
have any cause of action to file a suit for eviction on the ground of
recovery of rent. According to tenant, the cause of action to file the
suit for eviction on the ground of arrears of rent ceases to exist the
moment the tenant tenders rent as demanded by landlords within
90 days of receipt of notice. According to tenant, admittedly, the
rent as demanded has been deposited and as such no decree could
have been passed on the ground of default in payment of rent.
Reliance is placed on the judgment of the Division Bench in the
matter of Narhar Vs. Narmadabai (Supra) to contend that cause of
action ceases to exist for proceeding against the tenant in
pursuance of the notice of demand. According to the tenant,
section 15(3) of the Maharashtra Rent Control Act also would not
be applicable as the provisions of section 15(2) themselves are not
attracted. The landlords were disabled from filing suit for recovery
of possession on the ground of default in payment of rent in view of
provisions of section 15(2) of the Act and, as a consequence
thereof, no question arises as regards applicability of provisions of
section 15(3) of the Maharashtra Rent Control Act.
5. In order to rebut the contentions, it has been contended on
behalf of the landlords that the judgment of Division Bench of this
Court in the matter of Chandiram Ahuja Vs. Akola Zilla Shram
Wahtuk Sahakari Sanstha (supra) holds the field and, even
assuming that there is compliance of section 15(2) of the
Maharashtra Rent Control Act, section 15(3) can be pressed in
service independently. It is contended that subsections (1), (2)
and (3) of section 15 are independent provisions and full effect has
to be given to all the three subsections of section 15 of the
Maharashtra Rent Control Act. It is contended on behalf of the
landlords that since the tenant has failed to pay the rent regularly
during the pendency of the suit, provisions of section 15(3) of the
Maharashtra Rent Control Act are required to be invoked and the
decree of eviction that has been passed shall have to be confirmed.
6. It would be advantageous to refer to section 12 of the
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947
(hereinafter referred to as "The Bombay Act"). The aforesaid
provisions which are similar to the provisions of section 15 of the
Maharashtra Rent Control Act were matter of interpretation in the
cases of Narhar Vs. Narmadabai and Chandiram Ahuja Vs. Akola
Zilla Shram Wahtuk Sahakari Sanstha (Supra).
12. (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 increases, if any, and observes
and performs the other conditions of the
tenancy, insofar as they are consistent with
the provisions of this Act.
(2) No suit for recovery of possession shall
be instituted by a landlord against a tenant on
the ground of nonpayment of the standard
rent or permitted increases due, until the
expiration of the 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 subsection (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 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 continues to pay or tender in Court
regularly such rent and permitted increases till
the suit is finally decided and also pays costs
of the suit as directed by the Court.
(4). Pending the disposal of any such suit,
the Courts 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 subsection (2), he makes an application
to the Court under subsection (3) of section
11 and thereafter pays or tenders the amount
of rent or permitted increases specified in the
order made by the Court."
Section 12 of the Bombay Rent Act has undergone
amendment and subsection (3) has been substituted which reads
thus :
(3) No decree for eviction shall be passed
by the Court in any suit for recovery of
possession on the ground of arrears of
standard rent and permitted increases 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 together with simple interest on the
amount of arrears of such standard rent and
permitted increases at the rate of nine per
cent per annum; and thereafter continues to
pay or tenders in Court regularly such
standard rent and permitted increases till the
suit is finally decided and also pays cost of the
suit as directed by the Court.
Provided that, the relief provided under
this subsection shall not be available to a
tenant to whom relief against forfeiture was
given in any two suits previously instituted by
the landlord against such tenant.
The amendment is incorporated by Amendment Act No. 18 of
1987. Amended subsection (3) of Bombay Rent Act is pari materia
to subsection (3) of Section 15 of the Maharashtra Rent Control
Act. Section 15 of the Maharashtra Rent Control Act contained in
Chapter III relating to relief against forfeiture is as extracted below :
CHAPTER III
RELIEF AGAINST FORFEITURE :
15.(1) No ejectment ordinarily to be made if
tenant pays or is ready and willing to pay
standard rent and permitted increases (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 standard rent and permitted
increases, if any, and observes and performs
the other conditions of the tenancy, insofar as
they are consistent with the provisions of this
Act.
(2) No suit for recovery of possession shall
be instituted by a landlord against the tenant
on the ground of nonpayment of the standard
rent or permitted increases due, until the
expiration of ninety days 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) No decree for eviction shall be passed by
the Court in any suit for recovery of
possession on the ground of arrears of
standard rent and permitted increases if,
within a period of ninety days from the date of
service of the summons of the suit, the tenant
pays or tenders in Court the standard rent
and permitted increases then due together
with simple interest on the amount of arrears
at fifteen per cent per annum; and thereafter
continues to pay or tenders in Court regularly
such standard rent and permitted increases
till the suit is finally decided and also pays
cost of the suit as directed by the Court.
(4) Pending the disposal of any suit, the
Court may, out of any amount paid or
tendered by the tenant, pay to the landlord
such amount towards the payment of rent or
permitted increases due to him as the Court
thinks fit.
7. The decision in Narhar's case is in pursuance of the
reference by the learned Single Judge (Masodkar, J) in Writ Petition
No. 1437 of 1979 decided on 8th September 1983 (Waman Deoram
Sonawane V. Shri Ganesh Mandir ) noticing conflict between the
two judgments of two learned Single Judges of this Court and, the
argument was put forth on behalf of respondents to the contrary
placing reliance on the judgment in the matter of Mranalini Shah
Vs. B.W. Shah, AIR 1980 SC 954. In Waman's case, decree for
eviction was passed on the ground of default in payment of
education cess and it was contended therein that such a decree
could not have been passed under section 12(3)(a) of the Bombay
Rent Act. According to Waman, the amount due was paid and
there was no default with regard to payment of rent and as such,
no cause of action survives in the landlord to file a suit and obtain
a decree. Reliance was placed on the judgment of learned Single
Judge in the matter of Ayudhyabai Shrivallabha Lahoti Vs.
Sumanchand Rupchand Phulpagar (Shah), 1983(2) Bom.C.R.
368 and decision in the matter of Shamrao Abaji Jadhav Vs.
Chaturbai Sidheshwra Javeri, 1982 Mh.L.J. 347. On the
contrary, it has been contended by the landlords placing reliance
on the judgment in the matter of Mranalini (Supra) that even when
a decree of eviction cannot be made under section 12(3)(a) of the
Act, a decree for eviction can be made if the tenant fails to protect
himself by complying with the conditions available in clause (b) of
section 12(3). On behalf of the landlords, attention of the Division
Bench was invited to judgments of the Supreme Court in the
matter Shah Dhansukhlal Chhaganlal Vs. Dalichand
Virchand Shroff, AIR 1968 SC 1109, Harbanslal
Jagmohandas Vs. Prabhudas Shivlal, AIR 1976 SC 2005 and
Ganpat Ladha Vs. Shashikan Vishnu Shinde, 1978 Mh.l.J.
550 and, it was contended that these decisions settle the law so far
as section 12(3)(b) of the Bombay Rent Act was concerned and, it is
for the tenant to satisfy all the conditions apart from the obligation
of tendering in Court all the arrears due on the first day of hearing
of the suit or on or before such date as the Court may fix and pay
regularly such rental liability till the suit is finally decided and
there is no extinction of the cause of action by reason of payment
of existing arrears. In the view of the learned Single Judge to avoid
a decree, once a notice is given, the tenant has to fulfil the
conditions laid down by section 12(3)(b) of the Bombay Rent Act.
The relevant observations of the Division Bench in paragraphs 7 to
12 are recorded as below :
7. 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 nonpayment
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 in
the manner provided in section 106 of the
Transfer of Property Act, 1882. Subsection (3)
(a) undoubtedly 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 notice referred to in subsection (2),
the Court has to pass a decree for eviction in
any such suit for recovery of possession. It is
well established that clause (b) of subsection
(3) of section 12 applies to a case which does
not fall under clause (a). Attention must also
be invited to the provisions of subsection (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, if any, and observes and
performs the other conditions of the tenancy,
in so far as they are consistent with the
provisions of the Bombay Rent Act. The
scheme of subsections (1), (2) and (3) of
section 12, therefore, is that if a tenant is
ready and willing to pay the amount of
standard rent and permitted increases, a
landlord is not entitled to recovery of
possession. The tenant has been given one
month's time during which be must pay the
rent which is demanded by a notice under
section 12(2) and if he does not pay that rent
or the amount due, then the consequences
specified in clauses (a) and (b) follow
depending upon which clause is attracted to
the facts of a given case. One thing which is,
however, clear on the face of section 12 and
its provisions is that if the tenant pays the
arrears demanded by the notice under section
12(2), then the landlord is not entitled to file a
suit for possession on the ground of arrears
in respect of which he has to give or has given
a notice under section 12(2). In such a case,
the provisions of subsection (1) will also
come into operation because if the tenant
pays the amount required to be paid by the
notice under section 12(2), then the tenant is
a person who is ready and willing to pay the
standard rent and the permitted increases, as
the case may be, and the landlord is disabled
from filing a suit for recovery of possession.
In a case where the tenant has paid or must
in law be deemed to have paid the amount
demanded by the notice under section 12(2),
not only are the provisions of section 12(3)(a)
not attracted, but there is no occasion to call
in aid the provisions of section 12(3)(b),
because even the provisions of section 12(3)
(b) will be attracted only if there is a claim for
recovery of possession. If by the compliance
with the requirements of the notice under
section 12(2) the landlord is disabled from
filing a suit for recovery of possession, there
is no question of the provisions of section
12(3)(b) being attracted at all.
8. In the referring judgment reference has
been made to the three Supreme Court
decisions which, in our view, and with
respect, were not relevant for the decision of
the question which arises before us. In
Dhansukhlal's case (supra), the facts show
that the tenant was in arrears of rent on the
date on which the landlord filed the suit
because the tenant had not made payment
even though he had received the notice under
section 12(2) of the Bombay Rent Act. The
notice in that case was dated 18th April 1955
demanding the arrears of rent and, as the
Supreme Court observed, "No reply was sent
thereto nor was any payment made to the
plaintiff." The suit for ejectment in that case
was filed on 15th March 1956 on the ground
that the defendant was in arrears of rent and
permitted increases and was, therefore, not
entitled to the protection of the Bombay Rent
Act. The judgment of the Supreme Court
shows that in that case, the applicability of
section 12(3)(b) was not canvassed and the
High Court had found that there being
default on the part of the defendant, the
operation of section 12(3)(b) of the Bombay
Rent Act was attracted. Even before the
Supreme Court the material question raised
was whether applying section 12(3)(b) there
was no default on the part of the defendant
which would render him liable to eviction. It
was while dealing with this contention that
the Supreme Court held that to be within the
protection of section 12(3)(b), the tenant must
not only pay all the arrears due from him on
the first day of hearing of the suit, but he
must thereafter continue to pay and tender in
Court regularly the rent and the permitted
increases till the suit is finally decided.
Dhansukhlal's case was, therefore, a case
which dealt only with the provisions of
section 12(3)(b) on the admitted position that
no payment was made in pursuance of the
notice under section 12(2).
9. Harbanslal's case (Supra) dealt with the
limited question as to what should be done in
order to avoid the operation of section 12(3)(a)
and it was held that in order to avoid the
operation of section 12(3)(a) of the Bombay
Rent Act, the dispute in regard to the
standard rent or permitted increases must be
raised at the latest before the expiry of one
month from the date of service of notice
under section 12(2) of the Act and it was not
enough to raise the dispute for the first time
in the written statement. In Harbanslal's
case, the notice dated 14th November 1966
was issued terminating the tenancy on the
ground that the tenant had paid rent only up
to August 1964. This notice was received by
the tenant on the 6th December 1966 and the
suit was filed on 2nd February 1967. In the
other connected appeal decided by the same
judgment, the notice terminating the tenancy
was dated 5th April 1963 and the suit was
filed on 11th September 1963. The arrears
were alleged to be for the period from 15th
March 1960 to 15th March 1963 for a period
of more than six months. The arrears were
not paid within a period of one month from
the date of the notice but were paid only on
23rd December 1964, that is, long after the
suit was filed.
10. Mranalini's case was once again a case
which was decided with reference to the
provisions of section 12(3)(b) of the Bombay
Rent Act and the question as to whether the
arrears of rent having been paid within the
period of one month from the date of service
of notice under section 12(2), a suit for
eviction could not be filed did not arise.
11. The learned Judge in the present case
has taken the view that "once a notice under
section 12(2) of the Bombay Rent Act is given
terminating the tenancy on the ground of
nonpayment of rent, the landlord is entitled
to file a suit and maintain it and in case the
conditions of section 12(3)(a) are satisfied, he
is entitled to a decree under section 12(3)(b)
of the Act, if the tenant has not availed of the
protection afforded by that provision" and
that once the notice is issued, "what reliefs
can be given are provided for by section 12(3)
(a) and section 12(3)(b) of the Act". These
observations in our view, overlook the fact
that it is implicit in the provisions of section
12(2) that if within a period of one month
specified in section 12(2) the tenant pays the
entire amount of rent demanded by the
notice, then the landlord does not have a
right to file a suit for recovery of possession.
Further, once there is no cause of action for a
suit for recovery of possession, the question
as to whether the tenant claims the
protection of section 12(3)(b) cannot also
arise.
12. It has to be pointed out that when the
tenant pays the entire amount demanded by
the notice under section 12(2), the notice
becomes ineffective and in case the landlord
wants to claim possession on the ground of
arrears of rent for the period other than that
in respect of which the notice has been given,
the provisions of section 12(2) will once again
come into operation and the landlord will
have to serve a fresh notice because the
arrears for nonpayment of which possession
is now claimed are not arrears in respect of
which a notice contemplated by section 12(2)
had been earlier given. Service of a notice
under section 12(2) is a condition precedent
to a claim for possession on the ground of
arrears of rent and such a claim cannot be
made unless a period of one month is allowed
to expire from the date of service of the
notice. We are, therefore, unable to agree
with the view of the learned Judge that there
is no expiration of cause of action by reason
of existing arrears demanded by the notice
under section 12(2).
As has been concluded by the Division Bench in the matter
of Narhar Vs. Narmadabai (Supra), once the tenant pays the entire
amount demanded by the landlord by notice issued under section
12(2), the notice becomes ineffective and, in case, the landlord
wants to claim possession on the ground of arrears of rent for the
period other than the period covered under the notice, it is
obligatory for him to issue a notice once again in view of mandate
of section 12(2) and claim arrears. Service of notice demanding
rent for a specified period required under section 12(2) is a
condition precedent for presentation of suit and landlord cannot be
permitted to deviate from the mandatory requirement and claim
eviction taking recourse of section 12(3)(b) of the Bombay Rent Act.
8. The aforesaid view of the Division Bench in the matter of
Narhar Vs. Narmadabai appears to be in conflict with the view
expressed by the another Division Bench in the matter of
Chandiram Ahuja Vs. Akola Zilla Shram Wahtuk Sahakari Sanstha
(supra). It does appear that although the attention of the court
while dealing with the matter of Chandiram was invited to the
decision in the matter of Dhansukhlal (supra), however, the
attention of the Court was not invited to the judgment in the
matter of Narhar Vs. Narmadabai. The issue before the Division
Bench in Chandiram's case is concerning interpretation of section
15 of the Maharashtra Rent Control Act. As has been recorded
above, the provisions contained in the repelled Bombay Rent Act
and the Maharashtra Rent Control Act are identical and the
decisions rendered interpreting the provisions of section 12 of the
Bombay Rent Act are relevant for consideration. It must be noticed
that if the tenant is desirous of claiming protection under section
15(1) of the Maharashtra Rent Control Act, he must demonstrate
his readiness and willingness to pay the rent i.e. the quantum of
rent which forms the subject matter of landlord's grievance. While
interpreting words "readiness and willingness to pay" one has to be
mindful of the provisions of section 15(3) which mandates the
tenant to pay or tender in Court regularly such standard rent or
permitted increases till the suit is finally decided and also pay cost
of the suit as directed by the Court.
9. After taking survey of various judgments, the Division Bench
has observed in paragraph no. 18 of the Chandiram's case as
under :
18. The entire Scheme of Chapter III
relief against forfeiture, as provided under
the provisions of section 15, indicates that a
tenant can perform his obligation and then
claim protection in the form of relief against
forfeiture as forfeiture occurs in accordance
with general law governing lease under the
Transfer of Property Act. The provision
protects the tenant from the forfeiture when
the tenant is paying rent or has proved his
readiness and willingness to pay it. Section
15(3) added further obligation upon the
tenant to pay entire arrears till date with
interest and costs, as may be ordered by the
Court. If tenant is continuing to pay rent
due during the pendency of the suit
instituted against him on the ground of nonpayment
of standard rent and permitted
increases, then such tenant is entitled to
claim relief against forfeiture of tenancy. To
put it otherwise, when tenant does not pay
rent as agreed or pays rent only when legal
notice is served upon him or Court
summons is issued against him, the
landlord is not helpless because subsection
(1) of section 15 enables the landlord to
insist upon the tenant to pay rent and
perform the conditions of tenancy. The
tenant who disobeys legal provisions under
section 15(1) of the Act can be evicted
independently, though such tenant may not
necessarily be in arrears of rent on the date
of institution of the suit. A tenant who is
prompted or induced to pay only after
service of legal notice or after service of
Court summons cannot be viewed as a
tenant who either pays or is ready and
wiling to pay standard rent and permitted
increases. Section 15 of the Maharashtra
Rent Act has extended protection to a tenant
after the landlord seeks to exercise his right
to forfeit the tenancy in accordance with the
provisions of general law. A tenant, in order
to claim relief against forfeiture of tenancy,
gets a period of 90 days after service of presuit
statutory demand notice by the
landlord calling upon the tenant to pay
entire arrears of standard rent and
permitted increases payable to the landlord.
Thereafter when suit is filed, the tenant gets
additional opportunity to pay entire arrears
of rent and permitted increases demanded
after the suit summons is served upon him.
Such a tenant has a period of 90 days from
the date of service of suit summons to pay
or tender the arrears of rent with simple
interest thereupon @ 15% p.a. During
pendency of the suit, the protection is
available as above to the tenant to claim
relief against forfeiture of tenancy provided
that the tenant shall continue to be regular
in payment of standard rent and permitted
increases payable during the pendency of
the suit as also costs of the suit as directed
by the Court. The Court cannot be oblivious
of landlords who may have to survive only
on rental income. Habitual irregular
payment of rent and permitted increases by
the tenant will prejudice and jeopardize very
survival of such landlords who survive on
rental income only. Therefore, such a tenant
who may be habitually irregular in payment
of standard rent and permitted increases
can invite eviction in view of section 15(1) of
the Maharashtra Rent Act when the Court
considers the case of such a tenant who
commits breach of conditions of tenancy as
also remains habitual in rental arrears. In
such exceptional case, provisions of section
15(1) are applicable and procedural
compliances under section 15(2) and 15(3)
will not apply.
10. In the matter of Sitaram Maruti Nagpure and Fakirchand
Purushottam Dhase, 2008(3) Mh.L.J. 610, issue was referred for
consideration of Division Bench in view of two conflicting decisions
of the Single Judge concerning interpretation of section 12(3)(a) of
the Bombay Rent Act. The basic issue raised is with regard to the
readiness and willingness of tenant to pay rent and whether the
rent should be paid only after notice of termination under section
12(3)(a) of the Bombay Rent Act or whether the tenant can show
readiness and willingness even prior to termination of tenancy
under section 15(3)(a) of the Act. In the judgment delivered in the
matter of Suka Ishram Chaudhari Vs. Ranchhoddas
Manakchand Shet Gujarathi, 1972 Mh.L.J. 477, the learned
Single Judge (Bhole J.) has interpreted readiness and willingness
of tenant in tendering rent and if the tenants were to send rent by
money order and if the money order was refused by the landlord
then landlord cannot turn round and contend that the tenant was
in arrears of rent for a period of six months or more. In another
judgment in the matter of Abdul Gani Dinalli Momin Vs.
Mohamed Yusuf Mohamed Isak, 1978 BLR 646, the learned
Single Judge (Jahagirdar, J.) disagreed with the view of Justice
Bhole and recorded his observations that a tenant cannot be said
to be ready and willing to pay the rent within meaning of section
12(1) unless he complies with the other requirements mentioned in
section 12 and, in particular, unless he has paid or tendered the
amount in arrears within one month after expiry of notice referred
to under subsection (2). Subsection (1) of section 12 forms a part
of the entire scheme relating to the payment of rent by the tenant
to the landlord and subsection (1) could not be read in isolation in
so far at least it relates to the payment of the standard rent. In the
light of the observations of the Supreme Court, in both, S.D.
Chhaganlal Vs. D.V. Shroff and in Harbanslal Vs. Prabhudas and
Fusanacht Vs. W.E. Works, where SD. Chhaganlal's case has been
referred to and reaffirmed, it cannot be said that the ratio in the
judgment in Suka Ishram's case represents the correct law.
The Division Bench, while dealing with the conflict, has
approved the view taken by Justice Bhole to be correct one.
11. Reference is also made to a judgment in the matter of
Ayodhyabai Shrivallabha Lahoti Vs. Sumanchand Rupchand
Phulpagar, 1983(2) Bom.C.R. 368. In paragraph no. 5 of the
judgment, relying upon the decision of the Supreme Court in the
matter of Md. Shafi Vs. VIIth Additional Dist. and Sessions
Judge, Allahabad and another, AIR 1977 SC 836, it is observed
by the learned Single Judge that if two interpretations are possible
then the one in favour of tenant should be preferred since the
legislation is intended to protect the tenant against the
unreasonable eviction. In the reported matter, the tenant paid all
the arrears of rent within one month of receipt of notice and
nothing was due. As such it is observed by the learned Single
Judge that at the fag end of trial, he (landlord), cannot be
permitted to take recourse of provisions of section 12(3)(b) of the
Act. It is further observed that if the suit is liable to be dismissed
on the ground that there was no cause of action for filing such
suit, then at the fag end of the trial, he (landlord) cannot take
recourse of section 12(3)(b) for fishing out the cause of action for
getting decree in a suit which was not properly instituted.
12. The preamble of the Maharashtra Rent Control Act 1999
declares that the Act is enacted to unify, consolidate and amend
the law relating to the control of rent and repairs of certain
premises and of eviction and for encouraging the construction of
new houses by assuring a fair return on the investment by
landlords and to provide for the matters connected with the
purposes aforesaid. In paragraph no.3 of the Statement of
Objects and Reasons it is recorded that the Central Government
announced the national Housing Policy which recommends inter
alia to carry out suitable amendments to the existing rent control
laws for creating enabling involvement in housing activity and for
guaranteeing access to shelter for the poor. It is recorded that the
existing rent control legislation has resulted in freeze of rent, very
low return in investment and difficulty in resuming possession and
has adversely affected investment in rental housing and cause
deterioration of rental housing stock. A number of expert bodies
such as Economic Administration Reforms Commission and the
National Commission on Urbanization have recommended reforms
of the rent legislation in a way that balances the interest of both
the landlord and tenants and also stimulates further construction.
On reading the preamble of the act as well as statement of objects
and reasons, it is clear that the Act is enacted to maintain the
balance between the the interest of both the landlords and tenants
and to take measures to stimulates growth in housing sector. The
Act is not aimed at putting hurdles in the rights of the landlord to
resume possession inspite of violation of the terms and conditions
of the tenancy by the tenant.
13. While dealing with the provisions of the Bombay Rent Act in
the matter of Ganpat Ladha Vs. Sashikant Vishnu Shinde,
1978 Mh.L.J. 550, the Apex Court has observed that "Bombay
Rents, Hotel and Lodging House Rates Control Act interferes with
the landlord's right to property and freedom to contract only for
limited purpose of protecting tenants from misuse of landlord's
power to evict them in these days of scarcity of accommodation by
asserting his superior rights in property or trying to exploit his
position by extracting too high rents from helpless tenants. The
object was not to deprive the landlord altogether of his rights to
property which have also to be respected. Another object was to
make possible eviction of tenants who fail to carry out their
obligation to pay rent despite opportunities provided by law in that
behalf. " It is, thus, clear that the rent control legislation does put
an embargo only to the limited extent on the right of landlord to
seek eviction of tenant. The right to sue for possession in respect
of the property belonging to the landlord is inherent however, it is
made subject to certain limitations by the rent control legislation.
Chapter III of the Maharashtra Rent Control Act, more particularly,
section 15 provides for relief against forfeiture to the tenant. It is
provided that ejectment of tenant ordinarily shall not be made if
the tenant pays or is ready and willing to pay standard rent and
permitted increases. The protection extended to the tenant is so
long as he complies with the terms of the tenancy in respect of
payment and pays the rent and is ready and willing to pay
standard rent and permitted increases. The phrase "tenant pays"
shall have to be read in harmony with his "readiness and
willingness" to pay standard rent and permitted increases.
Protection afforded to the tenant is to such a tenant who observes
the terms of the tenancy and pays the rent regularly. Readiness
and willingness to pay standard rent and permitted increases is a
state referable to the conduct of a tenant who is regular in payment
of rent.
14. In the matter of Mistry Premjibhai Vithldas Vs.
Ganeshbhai Kshavji, AIR 1977 Supreme Court 1707, it is
observed by the Supreme Court in paragraph no. 14 thus :
14. The readiness and the
willingness of the tenant to pay could be
found only if he had complied with the
provisions of the Act. The Act does not
cover the case of a person who is unable to
pay owing to want of means but is
otherwise "ready and willing". Such a case
is no doubt a hard one, but, unfortunately,
it does not enable Courts to make a
special law for such hard cases which fall
outside the statutory protection.
15. In the matter of Vora Abbasbhai Alimanhomed Vs. Haji
Gulamnabi Haji Safibhai, AIR 1964 SC 1341, it is observed in
paragraph no. 16 that section 12(1) does not affect the jurisdiction
of the court to entertain and decide the suit for ejectment against
the tenant. It merely confers protection upon the tenant if certain
conditions are fulfilled and clauses (2)(3)(a) and (3)(b) and the
Explanation deal with certain specific cases in which readiness
and willingness to pay standard rent, may either be presumed or
regarded as proved.
16. It is, thus, clear that the tenant who "pays" or "is ready and
willing to pay" is only required to be protected on recording
findings in that regard. Subsection (1) of section 15 of the
Maharashtra Rent Control Act provides that the landlord shall not
be entitled to recovery of possession of any premises so long as
tenant pays or is ready and willing to pay the amount of standard
rent and permitted increases if any, and observes and performs the
other conditions of tenancy in so far as they are consistent with
the provisions of the Act. Protection is extended to the tenant who
pays or is ready and willing to pay the amount of standard rent
and permitted increases. The latter part of the subsection also
mandates the tenant to observe and perform other conditions of
tenancy in so far as they are consistent with the provisions of the
Act. The term "tenant pays or is ready and willing to pay" read
with observance and performance of other conditions of tenancy
would surely include observance of the terms of the tenancy and,
one of the terms of tenancy which is consistent with the provisions
of the Act is regularity in payment of rent. A tenant who is
irregular in payment of rent and pays the amount only under the
threat of action of eviction or only after issuance of notice for
recovery of rent cannot be considered to have complied with the
mandate of subsection (1) in respect of payment of rent and
readiness and willingness on the part of the tenant so as to claim
relief against forfeiture cannot be presumed. The only limitation
that has been put on the entitlement of the landlord to avail of the
remedies for enforcing his right to recover possession is to be found
in subsection (2) of section 15. Subsection (2) of section 15
mandates that no suit for recovery of possession shall be instituted
by the landlord against a tenant on the ground of nonpayment of
the standard rent or permitted increases due, until expiration of 90
days next after notice in writing for payment of 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. A suit by the landlord is thus not entertainable on the
ground of recovery of possession for nonpayment of the standard
rent or permitted increases without transmitting a notice to the
tenant 90 days before institution of such suit, in the manner as
provided in section 106 of the Transfer of Property Act, 1882. Subsection
(3) of section 15 provides that the Court shall not pass a
decree of eviction on the ground of arrears of standard rent and
permitted increases if within a period of 90 days from the date of
service of summons of the suit, the tenant pays or tenders in the
Court standard rent and permitted increases then due together
with simple interest on the amount of arrears at the rate of 15%
per annum and thereafter continues to pay or tenders in Court
regularly such standard rent and permitted increases till the suit
is finally decided and also pays cost of the suit as directed by the
Court. It is, thus, clear that if the tenant pays the amount
demanded within the time stipulated and further continues to pay
the amount of standard rent and permitted increase during the
pendency of the proceeding regularly, the tenant is not liable to be
evicted and no decree shall be passed. There is no whisper in the
provisions of section 15 putting an embargo on the entitlement of
the landlord to file a suit for eviction against a tenant except
subject to compliance of the preconditions specified in subsection
(2) of section 15 of the Maharashtra Rent Control Act.
17. On consideration of provisions of section 15 of the
Maharashtra Rent Control Act which provide for relief against
forfeiture to the tenant, it is clear that the tenant has been
extended protection from eviction so long as he performs his
obligation in respect of payment of rent as well as observance and
performance of other conditions of the tenancy. The provisions,
thus, protect the tenant who is paying rent or has established his
readiness and willingness to pay. Further protection is also
provided in subsection (3) of section 15 if the tenant pays entire
arrears of rent on receipt of notice within contemplation of subsection
(2) of section 15 before the period prescribed under subsection
(2) together with interest and cost as may be ordered by the
Court and continues to pay rent and the permitted increases
regularly until the decision in the suit. If the tenant does not pay
rent regularly and offers to pay only after issuance of notice within
contemplation of subsection (2) of section 15 and does not observe
the other terms and conditions which include regular payment of
rent, the landlord is not disabled from proceeding against such
tenant. In nutshell, to derive that if tenant offers or pays the
amount recorded in the notice issued in pursuance to subsection
(2) of section 15, together with permitted increases, the landlord is
disabled from proceeding against the tenant is not within
contemplation of section 15 of the Act. The right to seek remedy
and claim possession of the premises owned by the landlord is
inherent in him however, initiation of such proceedings is subject
to fulfilment of certain preconditions such as issuance of notice in
accordance with section 106 of the Transfer of Property Act as
provided under section 15(2). It is, thus, clear that the tenant who
disobeys the provisions of section 15(1) can be evicted
independently though such tenant may not necessarily pay any
arrears of rent on the date of institution of the suit. Subsection
(3) of section 15 shall have to be construed independently and if
the tenant does not observe the mandate of subsection (3) in
respect of payment of amount of rent and permitted increases
regularly till disposal of the proceedings before the Court, is also
liable to be evicted.
18. In the matter of Shah Dhansukhlal Chhaganlal Vs.
Dalichand Virchand Shroff, AIR 1968 Supreme Court 1109, a
decree was passed against a tenant since he failed to comply with
section 12(3)(b) of the Bombay Rent Act. The appeal preferred by
the tenant was dismissed. Before the High Court, the only
contention that was raised was whether the tenant had or had not
complied with the requirements of section 12(3)(b) of the Bombay
Rent Act. It was found that there was no such compliance. The
issue that was raised before the Supreme Court was as to whether
the provisions of section 12(1) of the Act was applicable throughout
the hearing of the suit and down to the date of final hearing and, if
at that stage, it was found that the tenant had paid all the arrears
due from him, whether he could be ejected. While dealing with
the matter, the Supreme Court has observed in paragraph no. 14
of the judgment that to be within protection of provisions of section
12(3)(b) the tenant must not only pay all the arrears due from him
on the first day of hearing of the suit, but he must thereafter
continue to pay or tender in court regularly the rent and the
permitted increases till the suit is finally decided.
19. In the matter of Mranalini B. Shah Vs. Bapalal Mohanlal
Shah (supra) the question as regards interpretation of section 12(3)
(b) of the Bombay Rent Act was a matter of consideration. The
question that was formulated reads thus :
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 continues
to pay or tender in Court regularly such rent
and permitted increases till the suit is finally
decided and also pays costs of the suit as
directed by the Court.
While dealing with the issue, the Supreme Court has
observed in paragraphs 11 and 12 of the judgment thus :
11. We have perused the recent
Judgment of this Court in Ganpat Ladha V.
Sashikant Vishnu Shinde. In our opinion, the
point raised by the appellants, before us is
fully covered by that Judgment. The following
obervations of Beg, C.J., who spoke for the
Court are apposite :
... We think that the problem
of interpretation and application of
Section 12(3)(b) need not trouble
us after the decision of this Court i
Shah Dhansukhlal Chagganlal's
case MANU/SC/0166/1968 :
[1968]3SC 346 followed by the
more recent decision in harbanslal
Jagmohandas v. Prabhudas
Shivlal, MANU/SC/048/1976 :
[1976] 3 SC 628, which completely
cover the case before us.
It is clear to us that the Act interferes
with the landlord's right to property and
freedom of contract only for the limited
purpose of protecting tenant from misuse of
the landlord's power to evict them, in these
days of scarcity of accommodation, by
asserting his superior rights in property or
trying to exploit his position by extracting too
high rents from helpless tenants. The object
was not to deprive the landlord altogether of
his rights in property which have also to be
respected. Another object was to make
possible eviction of tenants who fail to carry
out their obligation to pay rent to the landlord
despite opportunities given by 'law in that
behalf But where the conditions of Section
12(3)(a) are not satisfied, there is a further
opportunity given to the tenant to protect
himself against eviction. He can comply with
the conditions set out in those conditions, he
cannot claim the protection of Section 12(3)(b)
and in that event, there being no other
protection available to him, a decree for
eviction would have to go against him. it is
difficult to see how by any judicial valour
discretion exercisable in favour of the tenant
can be found in Section 12(3)(b), even where
the conditions laid down by it are satisfied, to
be strictly confined within the limits,
prescribed for their operation. We think that
Chagla, C.J. was doing nothing less than
legislating in Kalidas Bhavan's case 1958 Bom
LR 1359, in converting the provisions of
Section 12(3)(b) into a sort of discretionary
jurisdiction of the Court to relieve tenants
from hardship. The decisions of this Court
referred to above, in any case, make the
position quit clear that section 12(3)(b) does
not create any discretionary jurisdiction in the
court. It provides protection to the tenant on
certain conditions and these conditions have
to be strictly observed by the tenant who seeks
the benefit of the Section. If the statutory
provisions do not go far enough to relieve the
hardship of the tenant the remedy lies with
the legislature. It is not in the hands of Court.
12. The above enunciation, clarifies beyond
doubt that the provisions of Clause (b) of
Section 12(3) are mandatory, and must be
strictly complied with by the tenant during the
pendency of the suit or appeal if the landlord's
claim for eviction on the ground of default in
payment of rent is to be defeated. The word
"regularly" in Clause (b) of Section 12(3) has a
significance of its own. it enjoins a payment
or tender characterised by reasonable
punctuality, that is to say, one made at regular
times or intervals. The regularity
contemplated may not be a punctuality, of
clocklike precision and exactitude, but it must
reasonably conform with substantial proximity
to the sequence of times or intervals at which
the rent falls due. Thus, where the rent is
payable by the month, the tenant, must , if he
wants to avail of the benefit of the latter part
of Clause (b), tender or pay it every month as
it falls due, or at his discretion in advance. If
he persistently defaults during the pendency
of the suit or appeal in paying the rent, such
as where he pays it at irregular intervals of 2
or 3 or 4 months as is the case before us, the
Court has no discretion to treat what were
manifestly irregular payments, as substantial
compliance with the mandate of this Clause
irrespective of the fact that by the time the
Judgment was pronounced all the arrears had
been cleared by the tenant.
20. On the analysis of the provisions of section 15 as well as
various judgments, it must be concluded that the provisions of
subsections (1), (2) and (3) of section 15 shall be read
independently. In order to claim relief against forfeiture, the tenant
must satisfy all the conditions in respect of payment of rent or
tender in Court all the arrears then due on the first day of hearing
of the suit or within contemplation of provisions of law and to
deposit the rental liability regularly in the Court till the suit is
finally decided and there is no extinction of the cause of action by
reason of payment of existing arrears by the tenant. It is, thus,
clear that in order to avoid decree, once the notice is issued within
contemplation of subsection (2) of section 15 of the Maharashtra
Rent Control Act by the landlord, the tenant shall have to fulfil the
conditions laid down under subsection (3) of section 15 of the
Maharashtra Rent Control Act and there is no escape therefrom.
21. It would be inappropriate to infer something which is not
specifically recorded in the provision and to read the restrictions
on the entitlement of the landlord to present proceeding for
eviction of a tenant on payment of the amount of rent or permitted
increases, if any, as demanded by the landlord under a notice
within contemplation of subsection (2) of section 15, without
considering the impact of subsection (3) of section 15. It would
amount to adding to the provision in place and making violation
and thereby putting unnecessary restrictions on the right of the
landlord. The principle that the Statute must be read as a whole is
equally applicable to different parts of the same section. The
section must be construed as a whole whether or not one part is a
saving clause. Similarly, " elementary rule of construction of
section is to be made of all the parts together" and that "it is not
permissible to omit any part of it; the whole section must be read
together". The words of Statute are first understood in their
natural, ordinary and popular sense and phrases and sentences
are constructed according to their grammatical meaning unless
there be something in the context, or in the object of the statute in
which they occur or in the circumstances in which they are used,
to show that they were used in special sense different from their
ordinary grammatical meaning.
22. For a modern statement of the rule one may refer to the
speech of Lord Simon of Glaisdale in a case where he said :
"Parliament is prima facie to be credited with meaning what is said
in an Act of parliament. The drafting of statutes, so important to a
people who hope to live under the rule of law, will never be
satisfactory unless courts seek whenever possible to apply 'the
golden rule' of construction, that is to read the statutory language,
grammatically and terminologically, in the ordinary and primary
sense which it bears in its context, without omission or addition.
Of course, Parliament is to be credited with good sense; so that
when such an approach produces injustice, absurdity,
contradiction or stultification of statutory objective the language
may be modified sufficiently to avoid such disadvantage, though no
further."
23. The Control of Rent and Eviction Acts which drastically limit
the grounds on which a tenant can be evicted are essentially to
benefit the tenants but they also to some extent protect the
landlords in the sense that they are so comprehensive that a
landlord can file a suit for eviction on the grounds mentioned in
the Act even though the tenancy has not been terminated in
accordance with the provisions of the Transfer of Property Act,
1882. (V. Dhanpal Chettiar Vs. Yesoda Ammal, 1979(4) SCC 214). A
provision enacting that a purchaser from a landlord cannot apply
for eviction on the ground of personal need before the expiry of
three years from the purchase and unless a notice of six months is
issued by him before or after expiry of three years period, was
construed to mean that no notice was necessary after the expiry of
three years or at any rate after expiry of three years and six
months from the purchase. (Anwar Hasan Khan Vs. Mohammad
Shafi, AIR 2001 SC 2984.) Provisions enacted to benefit the
landlords cannot be so construed as to benefit the tenants. (Arjun
Khaiamal Makhijani Vs. Jamnadas C. Tuliani (1989) 4 SCC 612).
As expressed by Lahoti J.: "The courts have to adopt a reasonable
and balanced approach while interpreting Rent Control Legislaions
starting with an assumption that an equal treatment has been
meted out to both the sections of the society. Inspite of the overall
balance tilting in favour of the tenants, while interpreting such of
the provisions as take care of the interest of the landlord the court
should not hesitate in leaning in favour of the landlords.
(Joginder Pal Vs. Naval Kishore Bahal, AIR 2002 SC 2256).
Indeed, it has been held that in enacting a Control and Eviction
Act the Legislature has also to take into account that its provisions
are not so unjust to the landlords that they offend Article 14 of the
Constitution in which event they will become unconstitutional.
(Malpe Vishwanath Acharya Vs. State of Maharashtra, AIR 1998
SC 602).
24. The view expressed by Division Bench in the matter
Chandiram Ahuja (supra) lays down correct preposition and we are
in agreement with the view expressed by the Division Bench in
aforesaid matter. The view expressed by Division Bench in the
matter of Narhar Wani (supra) does not lay down correct law and
we disagree with the view expressed therein.
25. To infer that once the tenant pays the amount recorded in
the notice or tenders the same, the landlord has no right to
institute a suit for recovery of possession for nonpayment of those
arrears or continue with such proceeding for eviction and no
decree for possession can be asked for, is not within contemplation
of provisions of section 15 of the Act. The provision does not
interfere with the right of the landlord to initiate proceeding for
eviction, however, subsection (2) of section 15 prescribes
precondition for presentation of suit, that is to say that no suit can
be initiated without issuing a notice within contemplation of said
subsection (2) of section 15 and tenant's entitlement to claim relief
against forfeiture shall be subject to fulfilment of conditions
stipulated under subsection (1) and (3) of section 15 of the Rent
Act.
26. The issue referred is answered accordingly.
27. The office is directed to place the Civil Revision Application
before appropriate court for disposal on merits.
(SANGITRAO S. PATIL) (RAVINDRA V. GHUGE) (R. M. BORDE)
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