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1992 Supreme(Guj) 378
IN THE HIGH COURT OF GUJARAT
S.D. Shah, J.
Prafulbhai Gordhandas Dani – Petitioner
Versus
Shah Pannalal Manilal – Respondent
Civil Revision Application No. 739 of 1990
Decided On : 21-07-1992
Advocate Appeared:
For the Petitioner:- Mr. M.C. Shah, Advocate.
For the Respondent:- Mr. P.K. Jaini, Advocate.
The tenant is not liable to be evicted for non-payment of rent under Section 12(3)(a) of the Bombay Rent Act, 1947, if he is ready and willing to pay the arrears of rent and has tendered the same to the authorized agent of the landlord within the period of 30 days from the date of receipt of the notice under Section 12(2) of the Act.
Headnote:
BOMBAY RENT ACT - SECTION 12(3)(A) AND 12(3)(B) - INTERPRETATION - TENANT'S LIABILITY TO PAY ARREARS OF RENT - VALIDITY OF TENDER - APPLICABILITY OF SECTION 12(3)(B) - REVISION JURISDICTION - SCOPE.
Fact of the Case:
The petitioner-landlord filed a suit against the respondent-tenant for possession of the suit premises and arrears of rent. The trial court decreed the suit for possession on the ground that the tenant was in arrears of rent for more than six months and had failed to pay the arrears within one month from the date of receipt of the notice under Section 12(2) of the Bombay Rent Act, 1947. The appellate court, however, allowed the tenant's appeal and held that the tenant was ready and willing to pay the rent within the period of 30 days from the date of receipt of the notice and that the case was governed by the provisions of Section 12(3)(b) of the Act.
Finding of the Court:
The High Court held that the lower appellate court was justified in holding that the tenant was ready and willing to pay the arrears of rent and that the case was governed by the provisions of Section 12(3)(b) of the Act. The Court further held that the tender of arrears of rent to the authorized agent of the landlord was a valid tender and that the tenant was not liable to be evicted for non-payment of rent under Section 12(3)(a) of the Act.
Issues: 1. Whether the tenant was in arrears of rent for more than six months and had failed to pay the arrears within one month from the date of receipt of the notice under Section 12(2) of the Bombay Rent Act, 1947? 2. Whether the case was governed by the provisions of Section 12(3)(a) or Section 12(3)(b) of the Act? 3. Whether the tender of arrears of rent to the authorized agent of the landlord was a valid tender?
Ratio Decidendi: 1. The Court held that the tenant was not in arrears of rent for more than six months as he had sent the money order for the arrears of rent within the period of 30 days from the date of receipt of the notice. 2. The Court held that the case was governed by the provisions of Section 12(3)(b) of the Act as the rent was not payable by month and the tenant was ready and willing to pay the arrears of rent. 3. The Court held that the tender of arrears of rent to the authorized agent of the landlord was a valid tender.
Final Decision: The High Court partially allowed the revision application and restored the judgment and decree of the trial court for the amount of Rs.704/- being arrears of rent. The judgment and decree passed by the lower appellate court reversing the judgment and decree for possession passed by the trial court was confirmed.
JUDGMENT :
S.D. Shah, J.
1. Rule. Mr. P.K. Jaini, waives service of rule. With the consent of the learned counsel of the parties, the matter is finally heard today. This Civil Revision Application is filed by petitioner-landlord against the judgment and decree passed by Assistant Judge, Kaira at Nadiad in Civil Appeal No. 121 of 1985 dated 21st March, 1990, whereby the learned Assistant Judge, Nadiad, has allowed the appeal preferred by the respondent-defendant against the judgment and decree passed by Civil Judge, J.D. Kapadwanj in Regular Civil Suit No. 259 of 1981.
2. The petitioner-landlord instituted Regular Civil Suit No. 259 of 1981 against the respondent tenant to recover possession of the suit premises Bombay City No. 4354, situated at Zanpi Pole and for arrears of rent at the rate of Rs. 24/- per month excluding the House Tax and other taxes payable by the respondent-tenant. The suit was instituted on the ground that respondent-tenant was the tenant in arrears of rent from Ist of November, 1978 to 10th of May, 1979 and from 11th of May, 1979 to 30th September, 1981 and that he has failed to pay the arrears of rent inspite of demand made by the petitioner-landlord under Section 12(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The second ground pressed was guilty of conduct, which would amount to nuisance or annoyance to the adjoining neighbours.
3. The said suit of the petitioner-landlord was resisted by the respondent-tenant by filing his written statement and the trial Court after framing issues at Exh. 29 and recording evidence of the parties, was pleased to decree the suit of petitioner-landlord for possession on the ground that that petitioner-plaintiff landlord has proved that the respondent-tenant has neglected to make payment of the arrears of rent within one month from the date of the receipt of the notice under Section 12(2) of the Bombay Rent Act and that it was also proved that respondent-tenant was not ready and willing to pay the rent and, therefore, he was liable to be evicted from the suit premises. The trial Court has passed a decree for the amount of Rs. 770/- for arrears of rent. However, on the question of conduct of the respondent-tenant causing nuisance and annoyance to the neighbours of the premises the trial Court held against the petitioner-landlord and since the ground of nuisance or annoyance to the adjoining neighbours is not pressed in this civil revision application, the same shall not be referred here in this judgment.
4. Being aggrieved by the aforesaid judgment and decree passed by the trial Court, the respondent-tenant preferred appeal being Civil Appeal No. 121 of 1985, the Assistant Judge, Kaira heard the said appeal. The Assistant Judge Kaira buy his judgment and decree dated 21st of March, 1990, allowed the appeal of the respondent-tenant and recorded the finding that the respondent-tenant was ready and willing to pay the rent within the period of 30 days from the date of receipt of the notice under Section 12(2) of the Bombay Rent Act, and that respondent's case was governed by provision of Section 12(3)(b) of the Bombay Rent Act, and that, quashed and decree for eviction was required to be passed. He, therefore, quashed and set aside the decree of possession passed by the Trial Court in favour of the petitioner-landlord and against the respondent-tenant. The appellate Judge also quashed and set-aside the decree for arrears of rent passed by the trial Court in favour of the petitioner-landlord and, in fact, the lower appellate Court was pleased to dismiss the suit of the petitioner-landlord.
5. The aforesaid judgment and decree passed by the Assistant Judge, Kaira at Nadiad has given to the present civil revision application.
6. Mr. M.C. Shah, the learned counsel appearing for the petitioner-landlord has made the following submissions for my consideration :-
(i) The lower appellate Court erred in setting aside the decree for arrears of rent for the amount of Rs
