THE LANDLORD CANNOT TAKE ADVANTAGE OF HIS CONDUCT IN NOT ACCEPTING RENT SENT BY THE TENANT AND THEN GIVE A NOTICE SAYING THAT THE TENANT IS IN ARREARS OF RENT FOR MORE THAN SIX MONTHS.

Headnote:
RENT ACT - TENANT - ARREARS OF RENT - PERMANENT STRUCTURE - [SECTION 12, 13(1)(A)] - THE COURT HELD THAT THE TENANT WAS NOT IN ARREARS OF RENT AS HE HAD SENT RENT BY MONEY ORDERS WHICH WERE REFUSED BY THE LANDLORD. THE COURT ALSO HELD THAT THE WALL CONSTRUCTED BY THE TENANT WAS NOT A PERMANENT STRUCTURE WITHIN THE MEANING OF SECTION 13(1)(A) OF THE RENT ACT.
Fact of the Case:

THE PETITIONER WAS A TENANT IN RESPECT OF THE SUIT PREMISES BELONGING TO THE RESPONDENT. THE LANDLORD TERMINATED THE TENANCY OF THE PETITIONER ON THE GROUNDS THAT HE WAS IN ARREARS OF RENT AND HAD CONSTRUCTED A PERMANENT STRUCTURE ON THE PREMISES.
Finding of the Court:

THE COURT HELD THAT THE TENANT WAS NOT IN ARREARS OF RENT AS HE HAD SENT RENT BY MONEY ORDERS WHICH WERE REFUSED BY THE LANDLORD. THE COURT ALSO HELD THAT THE WALL CONSTRUCTED BY THE TENANT WAS NOT A PERMANENT STRUCTURE WITHIN THE MEANING OF SECTION 13(1)(A) OF THE RENT ACT.
Issues: 1. WHETHER THE TENANT WAS IN ARREARS OF RENT? 2. WHETHER THE WALL CONSTRUCTED BY THE TENANT WAS A PERMANENT STRUCTURE?
Ratio Decidendi: 1. THE COURT HELD THAT THE TENANT WAS NOT IN ARREARS OF RENT AS HE HAD SENT RENT BY MONEY ORDERS WHICH WERE REFUSED BY THE LANDLORD. THE COURT RELIED ON THE FACT THAT THE LANDLORD HAD BEEN REFUSING TO ACCEPT RENT FOR THE PERIOD FOR WHICH THE TENANT WAS SAID TO BE IN ARREARS. THE COURT HELD THAT THE LANDLORD COULD NOT TAKE ADVANTAGE OF HIS CONDUCT IN NOT ACCEPTING RENT SENT BY THE TENANT AND THEN GIVE A NOTICE SAYING THAT THE TENANT IS IN ARREARS OF RENT FOR MORE THAN SIX MONTHS. 2. THE COURT HELD THAT THE WALL CONSTRUCTED BY THE TENANT WAS NOT A PERMANENT STRUCTURE WITHIN THE MEANING OF SECTION 13(1)(A) OF THE RENT ACT. THE COURT RELIED ON THE FACT THAT THE WALL WAS CONSTRUCTED TO PROTECT THE TENANT'S GOODS FROM THEFT AND THAT IT WAS A SMALL ANNEXATION TO THE TEMPORARY SHED. THE COURT HELD THAT THE WALL DID NOT CAUSE ANY INJURY TO THE OPEN PLOT OF LAND WHICH WAS LEASED TO THE TENANT.
Final Decision: THE COURT ALLOWED THE PETITION, SET ASIDE THE ASSISTANT JUDGE'S ORDER, AND RESTORED THE TRIAL COURT'S ORDER.

JUDGMENT - 1. The petitioner here is a tenant in respect of the suit premises belonging to the respondent in village Chopda, District Jalgaon. A vacant plot of land bearing S. No. 7543 and admeasuring 32 x 12 was leased out to the petitioner on 2-11-57 at a monthly rent of Rs. 4/-. The petitioner used it for running a shop after constructing a tin shed on it. It appears that in the year 1963 there was a theft in the shop and, therefore the petitioner constructed a wall in brick and mortar on the side touching the road, from where there was a possibility of the shop being broken open. There was exchange of notices at that time between the landlord and the tenant. There was also some litigation in which the landlord won. On 1-6-65 the respondent - landlord terminated the tenancy of the petitioner by a notice on the grounds that he is in arrears of rent from 1-11-64 to 1-5-65; that he had built another wall in brick and mortar on the southern side of the structure and had also built another wall in brick and mortar to partition the tin shed. The petitioner denied the allegations of the respondent and the suit followed on 15-7-65. The trial Court held in favour of the petitioner but the District Court did not agree and reversed the order passed by the trial court and decreed the respondents suit for possession of the suit plot. This decree of the learned Assistant Judge, Jalgaon, is sought to be corrected here by this petition under Article 227 of the Indian Constitution.

2. We are here concerned with two grounds taken up by the respondent for evicting the petitioner. The first ground is that the petitioner was in arrears of rent from 1-11-64 till 1-5-65 and the second ground is that the petitioner had constructed a wall in brick and mortar on the southern side of the tin shed : that he has also constructed another partition wall to divide the tin shed into two. The respondent, therefore, relies on Section 12 and Section 13 of the Bombay Rents, Hotel and Lodging House Rates Control Act (hereinafter called "Rent Act"). In order to understand the legal effect of certain facts and circumstances for the purpose of recording whether the petitioner has neglected to make the payment of rent it will be necessary to mention certain facts.

3. We have on record Exhs. 58 to 61, which are money order coupons. These were the money orders which were sent by the Petitioner between 24-4-63 to 29-6-64 to the respondent from time to time. The respondent refused to accept these money orders sent by the petitioner as and by way of rent between April 1963 and June 1964. The money order coupons on record also show that the petitioner had sent in lump sum Rs. 24/- towards rent at the rate of Rs. 4/- per month for the period beginning from 1-11-64 to 1-5-65. The petitioner has examined himself and stated that he had sent these money orders towards rent at the rate of Rs.4/- for the period from 1-11-64 to 1-5-65, which were refused by the respondent. In this case we are concerned with the notice dated 8-6-65 given by the respondent to the petitioner terminating the tenancy because the petitioner was in arrears from 1-11-64 to 1-5-65. Thus, we have seen that the petitioner did send rent by money orders but it was refused. The point, therefore, that is raised here for consideration is whether the petitioner could be said in these circumstances to be not ready and willing to pay rent and whether he was in arrears of rent for a period of more than six months.

4. The learned Assistant Judge while considering this point held that the payment of rent by money orders for the period from 1-11-64 to 1-5-65 absolutely irrelevant. He held that the money orders prior to the notice cannot be taken into consideration under Section 12 (2) of the Rent Act. In support of this proposition he has relied on Manorama S. Masurekar v. Dhanalaxmi, G. Shah (68 Bom LR 412). That was a case where also a notice was served demanding rent in arrears for more than six months. In that case t

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