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SUPREME COURT OF INDIA

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PETITIONER:

RASHIK LAL AND OTHERS

Vs.

RESPONDENT:

SHAH GOKULDAS & ANR.

DATE OF JUDGMENT02/02/1989

BENCH:

SHARMA, L.M. (J)

BENCH:

SHARMA, L.M. (J)

PANDIAN, S.R. (J)

CITATION:

1989 AIR 920 1989 SCR (1) 439

1989 SCC (1) 542 JT 1989 (1) 207

1989 SCALE (1)245

ACT:

C.P. and Berar Letting of Houses and Rent Control Order,

1949: Clause 13(3)(ii)--Rent--Non payment of--When ground

for eviction ’Habitually in arrears with the rent’---The

condition requisite-Landlord accepting belated payments of

monthly rent without any objection--Whether entitled to seek

eviction of tenant on ground of default in payment of rent.

HEADNOTE:

The landlord filed a petition for eviction of his tenant

on the ground of wilful default in payment of rent and bona

fide requirement under sub-clauses (ii) & (vi) respectively

of Clause 13(3) of the C.P. and Berar letting of Houses and

Rent Control Order, 1949. The landlord alleged that the rent

was payable on the expiry of each month, and pleaded that as

the tenant paid the rent in lump-sums representing the rent

of several months together, he had committed wilful default

and was liable for eviction. The tenant contested the peti-

tion and pleaded that the accumulated rents were accepted by

the landlord without any objection, and consequently he had

no occasion to assume that the landlord was aggrieved by the

manner in which the rents were paid. The tenant further

asserted that the rent was payable at his convenience.

The Rent Controller dismissed the application of the

landlord both on the ground of bona fide requirement and

wilful default. The Appellate Authority--the Resident Deputy

Collector confirmed the order of the Rent Controller in

appeal.

The landlord thereafter approached the High Court under

Article 227 of the Constitution. The High Court while con-

firming the order of the Rent Controller in so far as the

ground of bona fide necessity was concerned, held that the

tenant was a habitual defaulter in payment of rent, and was

therefore, liable for eviction.

The tenants-appellants in CA No. 1953 of 1980 challenged

the order of their eviction, while the landlord-appellant in

CA No. 1954 of

440

1980 challenged the order rejecting his eviction application

on the ground that he failed to prove his case of bona fide

requirement.

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Allowing Civil Appeal No. 1953 of 1980, and dismissing

Civil Appeal No. 1954 of 1980 the Court,

HELD: 1. The relevant provisions of the Rent Control

Order require a tenant to be "habitually in arrears with the

rent" as a condition for the grant of the permission by the

authority to the landlord to determine the lease. This

condition in the Rent Control Order is different from the

condition in several other statutes where mere nonpayment of

rent for a particular period, has been provided as adequate

ground for eviction of the tenant. [443C]

2. The crucial test to determine whether the tenant was

a ’habitual defaulter’ is the conduct of the landlord in

receiving the rent offered belatedly. If he receives the

same under a protest and warns the tenant to be regular in

payment in the future, he cannot be assumed to have agreed

to a modified agreement in this regard. But if he, without

any objection and without letting the tenant know his

thought process, continues to receive rent at intervals of

several months, he cannot be allowed to spring a surprise on

the tenant by suddenly starting a proceeding for eviction.

[443G-H]

In the instant case, there was no objection whatsoever,

raised on behalf of the landlord against the delayed pay-

ments. The High Court, therefore was not right in reversing

the concurrent finding of the two courts below. The judgment

is set aside, and that of the Resident Deputy Collector is

resto