A tenant who has demonstrated that he is ready and willing to pay the standard rent cannot be held to be a defaulter under section 12(3)(b) of the Bombay Rent Act, 1947, merely by virtue of not depositing the rent in the appellate court during the pendency of an appeal filed by the landlord whose suit for possession was already dismissed.

Headnote:
BOMBAY RENT ACT, 1947 - SECTION 12(3)(B) - STANDARD RENT - PAYMENT OF RENT - DEFAULT - EVICTION - TENANT HELD NOT TO BE A DEFAULTER - SUIT FOR POSSESSION DISMISSED.
Fact of the Case:

The plaintiff-landlady filed a suit for possession of premises and arrears of rent against the defendant-tenant. The defendant contended that the rent was excessive and that the standard rent should be fixed. The trial court held that the standard rent was Rs. 30/- and that the defendant was not a defaulter. However, the appellate court reversed the trial court's decision and held that the defendant was liable to be evicted on the ground that he was not regular in payment of rent.
Finding of the Court:

The High Court held that the appellate court erred in holding that the defendant was not regular in payment of rent. The High Court found that the defendant had tendered the entire arrears claimed within a month of receiving the notice of demand, had filed an application for fixation of standard rent, and had deposited the interim rent and all arrears as ordered till the end of November 1980. The High Court also found that the defendant was not required to deposit rent in the appellate court during the pendency of the appeal, as the suit for possession had already been dismissed by the trial court.
Issues: Whether the defendant was a defaulter under section 12(3)(b) of the Bombay Rent Act, 1947.
Ratio Decidendi: The High Court held that the defendant was not a defaulter under section 12(3)(b) of the Bombay Rent Act, 1947, as he had demonstrated that he was ready and willing to pay the standard rent. The High Court found that the defendant had tendered the entire arrears claimed within a month of receiving the notice of demand, had filed an application for fixation of standard rent, and had deposited the interim rent and all arrears as ordered till the end of November 1980. The High Court also found that the defendant was not required to deposit rent in the appellate court during the pendency of the appeal, as the suit for possession had already been dismissed by the trial court.
Final Decision: The High Court allowed the petition, quashed the appellate court's decree, and restored the trial court's decree dismissing the suit for possession.

JUDGMENT - V.P. TIPNIS, J. :--- The plaintiff landlady filed Regular Civil Suit No. 20 of 1979 in the Court of the Civil Judge, Junior Division, Roha, against the defendant-tenant for possession of premises and arrears of rent. The suit premises were let out to the defendant-tenant at the monthly rent of Rs. 30/- The defendant was in arrears for the period between 1-6-1976 and 31-3-1977 totalling to Rs. 300/-. A notice of demand was issued on 18-4-1977. According to the landlady, the defendant sent a reply dated 16-5-1977. The suit was filed on the ground that the defendant is a defaulter. The defendant resisted the suit by contending that the rent of Rs. 30/- is excessive and the standard rent should be fixed. In fact, the defendant contended that alongwith the reply to the notice, he had tendered all arrears amounting to Rs. 300/- to the learned Advocate for the plaintiff who issued the notice, but the learned Advocate accepted the reply but refused the amount of rent tendered. The defendant also brought to the notice of the Court that, in fact, soon after the receipt of the notice of demand of arrears, immediately he filed Misc. Application No. 4 of 1977 for determining the standard rent and also, as per the order of the Court, deposited all amounts from time to time in the Court. It is relevant to notice that though notice was issued on 18-4-1977, the suit was filed as late as 8-3-1979. The learned Judge of the trial Court held that the standard rent of the premises is Rs. 30/- and that the defendant is not shown to be a defaulter. The learned Judge, however, held that the plaintiff landlady is entitled to an amount of Rs. 1,020/- as arrears of rent and notice charges and that the defendant is entitled to adjustment of all the amounts which he had deposited in Court. Accordingly, by judgement and decree dated 10th December 1980, the plaintiff's suit for possession on the ground of default was dismissed and only the monetary decree was passed.

2.Being aggrieved by the said judgement and decree, the original landlady filed appeal, being Civil Appeal No. 144 of 1980. The learned Judge of the appellate Court recorded a finding that the plaintiff has proved that the defendant is not regular in payment of rent within the meaning of section 12(3)(b) of the Bombay Rent Act and on this ground, the learned Judge held that the plaintiff is entitled to the possession. Accordingly, by judgement and decree dated 1 7-3-1983, the learned Judge allowed the appeal, set aside the dismissal of the suit for possession and directed the defendant-tenant to deliver actual vacant possession of the suit premises and the order for adjustment was confirmed.

3.Being aggrieved by the said judgement and decree of the lower appellate Court, the defendant-tenant has preferred this writ petition.

4.Though served, none appears for the respondent-landlady. I have heard Mr. Rajiv Patil, learned Advocate appearing for the defendant-tenant in support of the petition. With the assistance of the learned Counsel, I have gone through the record and the judgements delivered by both the lower Courts. Mr. Rajiv Patil contended that the learned Judge, on the facts and circumstances of the case, was wrong in holding that the tenant is not a person ready and willing to pay the rent under section 12(3)(b) of the Bombay Rent Act and that he was liable to be evicted on that ground. Mr. Patil, therefore, submitted that the decree passed by the lower appellate Court being improper and illegal has to be set aside.

5.It is extremely relevant to notice that the learned Judge of the lower appellate Court has found that within one month from the date of receipt of the notice, the tenant had tendered the entire amount of arrears claimed in the notice, viz., Rs. 300/- to the Advocate who issued the notice on behalf of the plaintiff and that it is the learned Advocate for the plaintiff who has refused to accept the said amount. The learned Judge, therefore, expressly

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Judicial Analysis

1996 Supreme(Bom) 607

IN THE HIGH COURT OF BOMBAYV.P. Tipnis, J.Hasan Alam Beg Jamdar.... Petitioner.VersusSardari Bagum Usman Dabir another .....Respondents.Writ Petition No. 1647 of 1983, decided on, 25-10-1996. Advocates appeared:Rajiv L. Patil for the petitioner.

Judicial Analysis

IN THE HIGH COURT OF BOMBAY
V.P. Tipnis, J.
Hasan Alam Beg Jamdar.... Petitioner.
Versus
Sardari Bagum Usman Dabir another .....Respondents.
Writ Petition No. 1647 of 1983, decided on, 25-10-1996.
Advocates appeared:
Rajiv L. Patil for the petitioner.