1999 Supreme(Bom) 80

IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
S.B. Mhase, J.
M/s. Shrikrishna Oil Mill..... Petitioner.
Versus
M/s. Radhakishan Ramchandra..... Respondent.
Civil Revision Application No. 556 of 1989, decided on 5-2-1999.
Advocates appeared :
A.B. Bajpai, for the petitioner.
S.C. Bora, for the respondent.

Headnote:Sections 101 to 104-Eviction of tenant-Burden of proof-Once the default in payment of rent is proved by the landlord the burden of proof that the tenant is not a wilful defaulter is on tenant.-Once the default in payment of rent is proved by the landlord, the burden of proof that the tenant is not a wilful defaulter is on the tenant. In the present case, the tenant made efforts to make the payment, but the rent was not accepted. He did not make any efforts to send the same by money order of by cheque. The rent was not paid as stipulated in second half portion of Section 15(2)(i) but deposited as per the summons issued in the civil suit and before filing the petition for eviction.

       Held that the tenant was wilful defaulter. The moment the rent not being accepted and/or was found to have been avoided he should have, to protect himself taken every precaution to see that the payment was made by any modes as provided in Section 15(2)(i) and should have taken care to show that the rent was tendered within time. The subsequent payments or the payments during pendency of eviction proceedings cannot be considered for the purchase of deciding as to whether the tenant was wilful defaulter if not, such payments cannot be said to be voluntary and wilful. They were made because of the threat of proceedings and consequence of being declared as wilful defaulter. 1985 (1) BCR 403 and AIR 1978 AP 319 (FB)-Followed.

       Section 15(2)(i)-Evidence Act, 1872, Sections 101 to 104-EvictionDefault-Burden of proof.-Where for payment as provided under Section 15(2)(i) on non-acceptance of rent by landlord, then the subsequent payments during pendency of eviction proceeding makes the tenant wilful defaulter.

       Section 15(2)(i)- Tenancy Agreement for.-Where the initial agreement was on yearly basis then in absence of further extention of agreement, it continued to be yearly tenancy.

       Section 111- Termination of tenancy-Rent Act is a special statute and cannot be applied to tenancies covered under Rent Act.- The tenant was inducted into possession of the premises initially by an agreement between the parties on yearly basis and the period was for one year. The agreement was not further extended but the tenant continued to be in possession of the premises. The date or time on which the rent was payable was not specified in the agreement. The case of the tenant was that it continued to be yearly tenancy after completion of one year and as he had deposited the rent as per the summons issued in the civil suit before the eviction petition he was not defaulter. The landlords contention was that in absence of further extension of agreement it was monthly tenancy and as the tenant had not paid monthly rent, he was defaulter.

       Held that as the initial agreement was on yearly basis in the absence of further extension, it continued to be yearly tenancy. It was covered by the second half portion of Section 15(2)(i). The rent, therefore ought to have been paid after completion of one year of tenancy, within a period of one month next after the last day of the month when it had become due. In the present case, the rent was due for the period 1.11.1978 to 29.9.1981 and as the tenancy was from Diwali to Diwali, two defaults were committed by the tenant i.e. from 1.1.1978 to 20.10.1979 and 21.10.1979 to 7.10.1980. The amount of first default should have been paid within a period 30 days from 7.10.1980. As the rent was paid only on 7.10.1981, the tenant was defaulter.

       The provision of Section 111 of the Transfer of Property Act, 1882, provides for termination or determination of tenancy by efflux of time. However, the Rent Act is a special statute which governs the relations of the Landlord and the tenant in respect of certain premises and, therefore, the said provisions cannot be applied to the tenancies covered under the Rent Act. Therefore, once the tenant is inducted into possession of the premises on yearly and/or monthly basis for a particular specific period, he continues to be the tenant of the said premises as per the initial agreement between the parties and the tenancy will not come to an end after the agree period.

       The first half of the clause of Section 15(2)(i) applies to those tenancies where in the agreement of tenancy either oral or written, the parties have fixed the time for payment of rent after it has become due and payable. The second half portion i.e. "in the absence of any such agreement for which the rent is payable" applies when the parties have not fixed the time for payment of rent after it has become due and payable, This clause does not govern the nature of tenancy. It only speaks as to what point of time a tenant is said to have committed default. The words in the absence of any such agreement referred not to the tenancy either monthly or yearly but it refers to the clause in the agreement of tenancy which specifies the date or time fixed for payment of rent after it has become due and payable and in the absence of such a clause, the second half portion of the clause comes into operation. If this analysis is not accepted, the yearly tenancy which is in the absence of any agreement, will not be governed by any clauses of the Act and in the result there will not be any default in respect of yearly tenancy. Such anomalous interpretation cannot be allowed to exist.