Writ Petition No. 3227 of 1987

8th June, 2000

Petitioner Counsel: Shrimati SHAKUNTALA A. MUDBIDRI,
Respondent Counsel: Shri RAJEEV L. PATIL

Cases Cited:
Harbanslal V. Prabhudas, 1976 Mh.L.J. 419 [Para 4]
Narhar Damodar V. Narbadabai, 1984 Mh.L.J. 313 [Para 4]
Suka Ishram V. Ranchhoddas, 74 (1971) Bom. L.R. 220 [Para 4]
Jaywant S. Kulkarni V. Minochar Dosabhai Shroff, A.I.R. 1988 S.C. 1817 [Para 5,7]

JUDGMENT

JUDGMENT :- This writ petition, under Article 227 of the Constitution of India, has been filed by the petitioner-original plaintiff challenging the judgment and decree passed by two courts below in dismissing the suit for possession of the suit premises.

2. The petitioner gave notice to the respondent on June 12, 1980 demanding arrears of rent in respect of the suit premises for a period between December 1979 and May 1980. According to the petitioner, he was entitled to rent at the rate of Rs.20/- per month and permitted increases. The respondent gave reply to the suit notice on July 17, 1980 and disputed that he was liable to vacate the suit premises on the ground of default. According to the respondent, he was regularly paying the rent at the agreed rate of Rs.15/- per month as well as the permitted increases from time to time. The respondent claims that he had tendered rent by money order on three occasions, lastly on April 22, 1980, just before the issuance of the suit notice and on all the three occasions the landlord refused to accept the rent without any valid reason. According to the respondent, since the respondent has tendered rent from time to time, it cannot be said that he was a wilful defaulter so as to invite action under section 12 (3) (a) of the Bombay Rent Act.

3. The petitioner instituted suit for possession before the Court of Civil Judge, Junior Division, Pen, being Regular Civil Suit No.2 of 1981. The respondent resisted the said suit by filing written statement. After recording oral evidence and considering the rival contentions the trial Court by its judgment and order dated 18.1.1983 was pleased to dismiss the suit. The trial Court mainly held that from the material on record, it cannot be said that the respondent was wilful defaulter or had failed and neglected to pay the agreed rent of Rs.15/- per month. The trial Court thus refused to grant decree of eviction on the ground of default. The petitioner took up the matter in appeal before the District Court, Raigad at Alibag. The Appellate Court on reexamination of the evidence on record affirmed the finding recorded by the trial Court that the respondent was not a wilful defaulter or having failed and neglected to pay the agreed rent in respect of the suit premises.

4. The aforesaid decisions are the subject-matter of challenge in the present writ petition. Learned Counsel for the petitioner has placed reliance on a decision of the apex Court in the case of Harbanslal V. Prabhudas, 1976 Mh.L.J. 419, to contend that the tenant having failed to tender the demanded rent within one month from the receipt of the suit notice and also having failed to raise any dispute regarding standard rent, as required under section 11 of the Bombay Rent Act, has clearly made himself liable for eviction under section 12 (3)(a) of the Bombay Rent Act. According to the petitioner, in view of the above cited admitted facts, the Court had no option but to pass a decree for eviction against the respondent. On the other hand, learned Counsel for the respondent placed reliance on the decision in the case of Narhar Damodar V. Narbadabai, 1984 Mh.L.J. 313 (paragraph 4). Another decision relied upon by the respondent is reported in the case of Suka Ishram V. Ranchhoddas, 74 (1971) Bom. L.R. 220 (relevant pages 222 and 223). The respondent contends that, no doubt, the respondent had failed to tender the demanded rent within one month from the suit notice or to file any standard rent application within one month, however, since it is common ground that the respondent had offered the agreed rent to the petitioner-landlord on three occasions by money orders, lastly on April 22, 1980, just prior to the issuance of the suit notice and on all the three occasions the petitioner-landlord having refused to accept the same, there is no question of condemning the respondent as a defaulter within the meaning of section 12 (3) (a) of the Bombay Rent Act. It is vehemently contended by the respondent that the petitioner-landlord was creating evidence against the tenant and taking advantage of his own wrong has instituted the present suit. The respondent contends that if the petitioner-landlord had accepted the money order sent on three occasions, being Exhibits 36, 37 and 38, the respondent could not have been in arrears of more than six months on the date of issuance of the suit notice, in which case, there would have been no cause of action for the petitioner-landlord to institute the suit on the ground of arrears of rent. Relying on the aforesaid decision of Suka Ishram's case, learned Counsel for the respondent contends that the money orders sent by the respondent should be deemed to have been accepted by the petitioner-landlord and once the said finding is reached, the question of granting decree on the ground of arrears of rent does not arise.

5. Learned Counsel for the petitioner further contended that the decision in Harbanslal's case (Apex Court) has been followed in the subsequent decision of the Apex Court in the case of Jaywant S. Kulkarni V. Minochar Dosabhai Shroff, A.I.R. 1988 S.C. 1817. There is no doubt that ordinarily when demand notice is issued by the landlord, the tenant is under an obligation to pay the demanded amount within one month from the receipt of the notice, or, if there is a dispute with regard to the rent which is demanded by the landlord, in that case the tenant has to raise a dispute by filing an application for fixation of standard rent within the same period of one month; failing which, the provisions of section 12 (3)(a)of the Bombay Rent Act are clearly attracted. However, from the facts of the present case, what is to be seen is whether the respondent-tenant was a wilful defaulter and has failed and neglected to pay the rent. As has been held by this Court in Suka Ishram's case that if the tenant had sent money orders and the landlord refused to accept the same, it cannot be said that the tenant was in arrears of rent, inasmuch as, in such a situation, it would amount to the landlord having deemed to have accepted the money orders sent by the tenant. This Court has taken the said view on the premise that if the landlord had accepted the rent so offered, the tenant would certainly not have been in arrears of more than six months, in which case, there could not have been any cause of action for the landlord to issue demand notice or to terminate the tenancy and initiate a suit for eviction on that ground. The principle underlying the said view is that the landlord cannot be allowed to take advantage of his own wrong or conduct in not accepting the agreed rent sent by the tenant and yet give notice to vacate to the tenant on the ground of arrears of rent for more than six months. The said decision thus holds that, in such cases, it cannot be said that the tenant was not ready and willing to pay the rent or that the tenant was in arrears of rent voluntarily, on the other hand, the tenant fell in arrears due to the conduct of the landlord in refusing to accept the rent sent by money orders. The facts of the present case are similar to that in Suka Ishram's case on all fours, and, therefore, I am disposed to take the view that the said decision is squarely applicable to the present case. Learned Counsel for the petitioner was unable to point out any other decision which has either overruled Suka Ishram's case or taken a contrary view, albeit in similar facts.

6. It is seen that both the courts below have concurrently held that from the evidence on record it cannot be said that the tenant was a wilful defaulter or had failed, and neglected to pay the rent. It is held by both the Courts below that the respondent-tenant had offered rent by money orders (Exhibits 36, 37 and 38), just before the issuance of the suit notice and later on sent the entire demanded amount by money order on July 18, 1980 vide Exhibit 39. No doubt, this tender vide Exhibit 39 is after the lapse of one month from the date of receipt of the notice, however, the fact remains that the landlord had intentionally refused to accept the money orders on three occasions prior to the issuance of the suit notice. Consequently, the principle decided in Suka Ishram's case would be squarely applicable and it will have to be held that the respondent was not a wilful defaulter or having failed and neglected to pay the rent. As such, there is no reason to interfere with the concurrent view taken by the two Courts below.

7. Learned Counsel for the petitioner vehemently submitted that in view of the decision of the Apex Court in Harbanslal's case, which was subsequently followed in the case of Jaywant S. Kulkarni V. Minochar Dosabhai Shroff, A.I.R. 1988 S.C. 1817, the Court has no discretion, but to pass a decree in a case where the tenant fails to tender the demanded rent within one month from the receipt of notice or fails to raise a dispute for fixation of standard rent within the same period. It would be relevant to point out that this Court in Suka Ishram's case was fully conscious of the said legal position which is reiterated by the Apex Court in Harbanslal's case. This Court in Suka Ishram's case at page 222has referred to the broad principles that would cover the cases under section 12 (3) (a) of the Bombay Rent Act, nevertheless, in the facts of that case, which in my view are similar to the one in the present case, proceeded to hold that the tenant cannot be evicted under section 12 (3) (a) of the Bombay Rent Act. As aforesaid, it cannot be said that the respondent-tenant was a wilful defaulter prior to the issuance of the suit notice or had failed and neglected to pay the rent regularly. On the other hand, what appears from the record is that the petitioner-landlord obviously wanted to create an evidence against the respondent-tenant to maintain the suit for eviction on the ground of arrears of rent and therefore refused to accept the money orders (Exhibits 36, 37 and 38) sent by the respondent. The Courts below have therefore rightly held that the petitioner landlord had an oblique motive in refusing to accept the money orders sent just before the issuance of the suit notice and if the petitioner had accepted the said money orders, in which case, there would have been no cause of action for the petitioner to issue the suit notice or to institute the suit on the ground of default. The Courts below have consistently held that the respondent has not neglected to pay the rent, which was the prerequisite for applying section 12 (3) (a) of the Bombay Rent Act. I am in full agreement with the concurrent finding of fact as well as the conclusions reached by the Courts below.

8. In the circumstances, I affirm the conclusions and findings reached by the Courts below and dismiss this writ petition with costs quantified at Rs.3,000/- to be paid to the respondent within four weeks. Accordingly, the suit filed by the petitioner stands dismissed with costs althrough out.

Petitioner dismissed.