Payment of arrears of rent demanded under section 12(2) notice of the Bombay Rent Act, 1947, bars a suit for eviction under section 12(3)(a) of the Act.

Headnote:
Bombay Rent Act, 1947 - Section 12(2) - Notice for Arrears of Rent - Payment by Tenant - Landlord's Refusal to Accept - Suit for Eviction - Maintainability.
Fact of the Case:

Tenant sent the entire amount of arrears demanded under section 12(2) notice by money order within one month, but the landlord refused to accept it. The landlord filed a suit for eviction under section 12(3)(a) of the Bombay Rent Act, 1947.
Finding of the Court:

The court held that the refusal of the landlord to receive the entire amount of rent demanded by the notice under section 12(2) of the Bombay Rent Act must be treated as equivalent to payment. Therefore, no suit for the recovery of possession for non-payment of those arrears could have been filed by the landlord, and no decree for possession could have been asked for by him in his favor.
Issues: Whether a suit for eviction can be maintained when the tenant has already remitted the entire amount due and demanded by the notice under section 12(2) of the Bombay Rent Act, 1947.
Ratio Decidendi: The court interpreted section 12(2) of the Bombay Rent Act, 1947, and held that if the tenant pays the entire amount demanded by the notice under section 12(2) within one month, the landlord does not have a right to file a suit for recovery of possession. The court further held that the refusal of the landlord to accept the payment is equivalent to payment, and therefore, no suit for eviction can be maintained.
Final Decision: The court allowed the petition, set aside the decree for possession passed by the trial court and confirmed by the appellate court, and directed that each party bear its own costs throughout.

JUDGMENT - Chandurkar, C.J. -This petition has been referred to the Division Bench-by the learned single Judge (Masodkar, J.), who, in his referring order dated 17th November 1983, found that there is a conflict between two judgments of the two learned single Judges of this Court and his own judgment in Writ Petition No. 1437 of 1979 decided on 8th September 1983 (Waman Deoram Sonawane v. Shri Ganesh Mandir)1. In Waman Sonawane's case, Waman was a tenant and a decree for eviction was passed against him under the provisions of section 12(3)(a) and (b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as “the Bombay Rent Act”). The decree for eviction was passed on default of payment of the education cess and it was contended on behalf of the tenant that such a decree could not have been under section 12(3)(a) of the Bombay Rent Act. The contention on behalf of the tenant was that the total amount due for the period 1st July 1963 to January 1971 was Rs. 3,185 and this amount was paid (1) by paying Rs. 2,860 to the Municipal Council towards the taxes and (2) by sending Rs. 325 by Money Order. Thus, according to the tenant, there was no default with regard to payment of rent and no cause of action, therefore, survived to the landlord to file a suit and obtain a decree. Reliance was placed on the decision of Dharmadhikari J. in (Ayodhyabai v. Sumapchand)2 and on the decision of Pratap J. in (Shamrao v. Chaturbai)3.

2. On behalf of the landlord, the respondent, reliance was placed on the decision of the Supreme Court in Mranalini Shah v. B W. Shah, the effect of which, according to the learned counsel for the landlord, was not considered in the two decisions referred to above. The learned Judge found that right from 1st July 1963 to 31st January 1971 rent was in arrears and the tenant was in default and rent was not paid every month but in two lump sums referred to above. It was also found that the tenant paid rent for four months and three months respectively and the education cess for the period from 1st October 1962 to 30th September 1967 worked out to Rs. 42 and for the further period from October 1967 to December 1970 it worked out to Rs. 32.2 making a total of Rs. 75.25. It was found that the educa-tion cess was covered by the term “permitted increases” and the amount of education cess was not deposited in spite of the notice in the Court when the suit was filed nor did the tenant continue to deposit even the stipulated rent every month during the pendency of the suit or during the pendency of the appeal in the appeal Court. Taking the view that in such a case sec-tion 12(3)(a) of the Bombay Rent Act was not attracted, the learned Judge took the view that the tenant had not complied with the condition required for the protection of section 12(3)(b) which must also lead to the conclusion that he was a defaulter in the matter of payment of rent and that he was not ready and willing to discharge his liability. The learned Judge further held that the cause of action for the rent suit is one that arises upon the issuance of notice terminating the tenancy as contemplated by sub-section (2) of sec-tion 12 of the Act and once the notice is given a suit can be filed. it was pointed out that in such a suit how the relief of eviction can be granted is provided for by subsection (3) of section 12 of the Act and even when a decree for 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). Thus, it was held that the lower appellate Court was right in making a decree for eviction.

3. In Shamrao's case Pratap J. took the view on the facts in that case notice sent under section 12(2) of the Bombay Rent Act and, therefore, a suit could not have been filed for possession of the premises on the ground of non-payment of rent. It was held that there was no c

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