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2009 (3) GCD 2068 (Guj)
Hon’ble Mr. Justice Mohit S. Shah
Urvashiben Kanubhai Joshi WD/o Kanubhai K. Joshi [Panchmahals]
Versus
Baskshisinh Ishwarsinh
Civil Revision Application No. 1267 of 1994—Decided on 13/03/2009
(a) Bombay Rent Act, 1947 — Section 12(3)(a) — Provision under — Applicability — Held, once the tenant has sent money order for rent the tenant can not be considered as in arrears of rent for the period and case would not fall under the provision.
Held :
In the present case, after the tenant sent on 20.08.1987 the money order of Rs. 500/- for rent at the rate of Rs. 100/- per month for the period from 01.03.1987 upto 31.07.1987, the landlord refused to accept the money order and immediately thereafter sent notice dated 08.09.1987. The tenant replied to the same on 12.09.1987 and pointed out that he had already sent Rs. 500/- by money order being rent upto 31.07.1987, but the money order was refused. The tenant further stated in the notice that the tenant was ready and willing to pay the rent at the rate of Rs. 100/- per month, but receipts may be given for the same. Within one month from receiving the tenant’s reply dated 12.09.1987, the landlord filed the present suit on 13.10.1987 for eviction of the defendant - tenant on the ground of arrears of rent for a period of six months and nuisance. Once the tenant had sent the money order for the rent upto 31.07.1987, the tenant cannot be considered as in arrears for six months either on the date of notice i.e. 08.09.1987 or on the date of filing of the suit i.e. 13.10.1987. Hence, the case did not fall under Section 12(3)(a) of the Act. As rightly observed by the learned Single Judge in the case of Lilavanti Dhirajlal Boradiya vs. Soni Harjivan Devjibhai, 1975 (16) GLR 1002, the Rent Act is a measure intended to protect the tenants and not a trap for the landlord to lay in order to draw his tenant in.
[Para 14]
it has to be held that the case on hand did not fall under Section 12(3)(a) of the Act and therefore, the Courts below were justified in refusing to pass a decree of eviction on the ground of non-compliance with the provisions of Section 12(3)(a) of the Act. [Para 15]
Head Note :
(b) Bombay Rent Act, 1947 — Section 12(3)(a) & (b) — Non-payment of rent by tenant after notice — Not established by land lord — Case would not be covered under first part of provision and landlord would not be entitled for decree of eviction — Then Court is bound to consider the next question whether case would fall under second sub-section i.e. 12(3)(b) of the Act.
Held :
A Division Bench of this Court (to which I was a party), has held in Monghiba Lakhaji vs. Hira Kunvar Mulji, 2005 (3) GCD 2034 that even where the landlord has prayed for decree of eviction under Section 12(3)(a) and the Court holds that the case is not covered by the provisions of Section 12(3)(a), the Court is bound to consider the next question whether the case would fall under Section 12(3)(b) of the Act. [Para 16]
In view of the aforesaid decision of the Division Bench, it will be necessary to consider whether the respondent - tenant had complied with the provisions of Section 12(3)(b) of the Act. Both the learned counsel, however, State that the Courts below have not given any finding on this aspect. Mr. Sheth has submitted that the Courts below were justified in not giving any such finding because such a contention about the applicability of Section 12(3)(b) was not raised at all. However, Ms. Brahmbhatt for the petitioner - landlord is justified in submitting that in view of the aforesaid decision of the Division Bench rendered during pendency of this Revision Application, the question does remain whether the tenant had complied with the provisions of Section 12(3)(b) of the Act. [Para 17]
Head Note :
(c) Bombay Rent Act, 1947 — Sections 29(2) and 12(3)(b) — Revision — Deposit of rent — Does not cover the period during which revision application remained pending — Held, expression, ‘till the suit is finally decided’ in Section 12(3)(b) covers the period during which appeal was pending as appeal is a continuation of suit but does not cover the period of revision.
Held :
Since this Court has consistently taken the view in favour of the tenant that the provisions of Section 12(3)(b) are not applicable during pendency of the Revision Application, I am bound by the said decisions taking the view that the expression “till the suit is finally decided” covers the period during which the appeal was pending, as appeal is a continuation of the suit, but the expression would not cover the period during which the Revision Application under Section 29(2) of the Rent Act has remained pending before this Court. [Para 22]
Law Laid Down :
Rent Act is a measure intended to protect the tenants and not a trap for the land lord to lay in order to draw his tenant in.
Case Law Analysis :
Gaznafarali Fatehali Hakim vs. Ratilal Maganlal Panchal, 1998 (2) GLR 1110 [Para 7];; Bhalchandra N. Vakil vs. Chandulal Mohanlal Darji, 1983 GLH (UJ) 8 [Para 7];; Sd. Umar Sd. Ahmed vs. Dadamiya Husenbhai and Others, AIR 1976 Bom 336 [Para 19].—Distiguished
Lilavanti Dhirajlal Boradiya vs. Soni Harjivan Devjibhai, 1975 (16) GLR 1002 [Para 9];; Monghiba Lakhaji vs. Hira Kunvar Mulji, 2005 (3) GCD 2034 [Para 16];; Bai Revaben WD/o Sitaram Gangaram vs. Sindhi Meghnath Enshiram, 1980 (21) GLR 560 [Para 20];; Vasudev Gordhan Adhyaru vs. M/s. Bhagwandas Kevalram & Sons, Civil Revision Application No. 103 of 1969, decided on 28.03.1977, 1977 (14) GLT 138 [Para 20].—Relied on
Ravjibhai Gigabhai vs. Virjibhai Ravjibhai, in Civil Revision Application No. 1253 of 1983, on 07.07.2008 [Para 19].—Referred with Direction
Mohit S. Shah, J.—This Revision Application under Section 29(2) of the Bombay Rent Act, 1947 is directed against the judgment and order dated 30.12.1993 passed by the learned Extra Assistant Judge, Panchmahals at Godhra dismissing Regular Civil Appeal No. 68 of 1990 of the petitioner - landlord, by which the lower Appellate Court confirmed the judgment and decree dated 30.04.1990 of the learned Civil Judge (J.D.), Godhra dismissing Regular Civil Suit No. 708 of 1987 for eviction of the respondent for the suit premises at Godhra.
2. The plaintiff had filed the above-numbered suit for eviction of the respondent –defendant on the ground of arrears of rent for more than six months and on the ground of nuisance.
3. In the suit filed on 13.10.1987, the plaintiff contended that the plaintiff had given suit notice dated 08.09.1987 demanding arrears of rent for the period from 01.03.1987 to 31.08.1987. The notice was received by the defendant - tenant on 09.09.1987. The defendant gave reply dated 12.09.1987, Exhibit 22, wherein the defendant stated that he had sent rent of Rs. 500/- for the period from 01.03.1987 upto 31.07.1987 by money order on 20.08.1987 but the money order was refused. The defendant, however, did not pay any rent after receiving the notice. The plaintiff contended that since the arrears of rent for six months were not paid within one month from the date of receipt of the notice, the plaintiff was entitled to a decree under Section 12(3)(a) of the Act.
4. The defendant resisted the suit and pointed out that apart from sending the money order on 20.08.1987 which was refused by the plaintiff, the defendant had deposited the arrears on the date of filing of the written statement, Exhibit 14 and on the same date, the defendant also deposited all the arrears upto October 1987. Evidence was led by the petitioner - landlord at Exhibit 19 and by the defendant - tenant at Exhibit 37.
5. After hearing the parties, the Trial Court held that since the defendant had sent rent by money order on 20.08.1987 which was refused by the plaintiff, the defendant was ready and willing to pay the rent and therefore, entitled to get protection of Section 12(1) of the Act and therefore, the provisions of Section 12(3)(a) were not attracted.
As regards the ground of nuisance, the Trial Court specifically recorded in Para 9 of the judgment that the learned Advocate for the plaintiff did not press the ground of nuisance.
The Trial Court accordingly dismissed the suit for eviction but confirmed the interim injunction granted below the application Exhibit 5 and permanently restrained the defendant from creating any obstruction on the passage in the suit premises.
6. Aggrieved by the above judgment and decree, the plaintiff - landlord went in appeal. The learned Extra Assistant Judge, Panchmahals at Godhra dismissed Regular Civil Appeal No. 68 of 1990. Hence, this Revision Application.
7. At the hearing of this Revision Application, Ms. Kalpana Brahmbhatt, learned Advocate for the petitioner - landlord has vehemently submitted that the respondent - tenant did not comply with the statutory notice dated 08.09.1997 at Exhibit 21 which was received by him on 09.09.1987. Since arrears of rent demanded as per the statutory notice for the period from 01.03.1987 to 31.08.1987 were not paid by the defendant to the plaintiff within one month from the date of receipt of the notice (i.e. by 09.10.1987), the plaintiff was entitled to get the decree of eviction under Section 12(3)(a) of the Act as the Court has no discretion not to pass such a decree when all the conditions of Section 12(3)(a) were fulfilled. It is submitted that for whatever reason, the plaintiff might have refused to accept the money order sent by the tenant on 20.08.1987, as on the date of receiving the notice dated 09.09.1987 and for a period of one month thereafter, the defendant was in arrears of rent for more than six months and therefore, the question whether the defendant ne
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