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IN THE HIGH COURT OF BOMBAY
M.F. Saldanha, J.
Digambar Hari Sonpatki... Petitioner.
Versus
Kishnichand Nerumal Parwani... Respondent.
Writ Petition No. 2323 of 1982, decided on 27-8-1993.
Advocates appeared :
M.D. Angal, for the petitioner.
B.J. Mulchandani and B.B. Dhanwani, for the respondent.
Land must issue demand notice after six months, default and then one months time to be given to tenant for clearing arrears of rent-Only then eviction suit is maintainable-Held, suit before completion of such statutory period not maintainable.
Section 12 (3) (a)-Constitution of India, Article 227-Civil Procedure Code, 1908, Section 151-Contempt of Courts Act, 1971, Section 10-Proceedings quashing of-Its effect.
It being premature under Section 12 (3) (a), Bombay Rents Act direction can be given for deposit of arrears of rent or face charge of contempt.
Section 12 (3) (a)-Constitution of India, Article 227-Civil Procedure Code, 1908, Section 100 and Order 42, Rule 2-Suits maintainability - Objection about for the first time in High Court whether can be raised in the circumstances of the case?
Held, the problem that arises is that on the date of the filing of the suit, no cause of action was in existence. The provisions of Section 12 of the Rent Act do not entitle a landlord to institute an eviction proceeding merely on the ground that the tenant is in arrears for six months. The cause of action arises and germinates only at the point of time when after this fact is brought to the notice of the tenant and he is given one months time by law to pay up the arrears that he still defaults and thereby renders himself liable to eviction. Having regard to the scheme of the Act, the position in law is that even the tenant who is in arrears is immune from the passing of a decree of eviction against him if he makes payment within a period of one month. Since the legislature has provided this period of one month for payment of the arrears, it must be treated as a total period of immunity, The cause of action could therefore originate only after this period of time has elapsed. The High Court has in the present instance a proceeding that has been instituted before that period of time had elapsed and at the point of time where there existed a legal bar to the institution of the suit. Under these circumstances there can be no two opinions about the fact that the suit itself was not maintainable as on 10-12-1974 when it was filed before the trial Courts. In this view .of the matter, the order passed in that proceedings or in an appeal arising out that proceeding would be non-est and are liable to be quashed.
The High Court bas however required to deal with a further aspect of the matter namely the question with regard to the default committed by the present petitioner during the pendency of this proceeding. It needs to record here that the obligation to pay rent from month to month for occupation of the premises is a statutory obligation to pay rent from month to month for occupation of the premises is a statutory obligation that arises in law and has nothing to do with the eviction proceeding. After the decree was passed against the present petitioner, he requested the indulgence from the High Court of continuing in occupation right from the years 1982 onwards under the protection of a stay order from High Court and the stay order in question was granted to him on his performing certain obligations namely depositing the arrears in the trial court and continuing to pay the arrears of rent from month to month. It has been contended that even if he fails in the proceedings that the petitioner cannot be allowed to get away from having committed a breach of the terms of the order passed by High Court. Under these circumstances he submits that the petitioner must be directed to deposit in (the trial Court all the arrears up to the end of August 1993 with liberty to the respondent withdraw the same.
Section 12 (3) (a)-Suit order.
Ground arrears of payment of rent-Trial Court dismissed the suit holding that the material before him did not disclose default under Section 12 (3)-Appeal- Trial Courts order set aside-Cause of action could originate only after the period of one month has elapsed-Suit itself was not maintainable as on 1°-12-1974 when it was filed before the trial Court-Order passed in the proceeding or in appeal arising out of it would be non-est liable to be quashed-Appeal allowed.
Section 100 and Order 42, Rule 2-See Bombay Rent, Hotel and Lodging House Rates Control Act, 1947, Section 12 (3) (a)
Section 151-See Bombay Rents, Hotel and Lodging House, Rates Control Act, 1947, Section 12 (3) (a).
Article 227-See Bombay Rents, Hotels and Lodging House Rate Control Act, 1941, Section 12 (3) (a),
Section 10-See Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, Section 12 (3)(a).
2. At the hearing of the petition today before Mr. Angal, the learned Counsel appearing on behalf of petitioner could advance his submissions, a grievance was projected by Mr. Mulchandani, learned Counsel appearing on behalf of the respondent-landord whereby he has pointed out through an affidavit that the petitioner had not only committed default in payment during the conduct of the proceeding before the trial Court and the Appeal Court but that his defence had been struck off and that further in breach of the terms of the interim order, of this Court the petitioner has not deposited the rent due from him from month to month before the trial Court. He points out to me that this affidavit was served on the petitioner's learned Counsel six months back, that the statements contained therein are not refuted and that consequently the respondent would be entitled to execute the decree. Mr. Mulchandani advanced the contention that in so far as the petitioner is in breach of the terms of the interim order, that he is dis-entitled to a hearing and that the Court should adjourn the matter so that the decree may be executed and the consequences would follow.
3. Mr. Angal, learned Counsel appearing on behalf of the petitioner, pointed out to me that the interim order passed was a conditional one meaning thereby that the trial Court was not obliged to stay its hands unless the petitioner complied with the terms of the interim order. In these circumstances, the moment a default had been committed by the petitioner it was open to the respondent without even obtaining any further orders of this Court to have executed the decree. Today the petition which is 11 years old has been called out for final hearing and Mr. Angal submits that it would be down-right wrong to delay the final hearing any longer on the technical plea that the respondent desires to execute the decree first and thereafter to leave it to the Court to restore the possession if necessary and that this would be in accordance with propriety and Mr. Angal is right in so far as if the respondent has not chosen to execute the decree all this time, he cannot request the Court to adjourn the final hearing to enable him to do that.
4. Mr. Angal has pointed out to me that this is not a mere request that he is making to the Court but that he has on a very strong legal ground when he makes the statement because he will be able to demonstrate that the suit itself was not maintainable in law and if that is the position, a decree passed in those proceedings would be o
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