Saturday, 28 October 2017

Whether landlord can file eviction suit even if tenant has paid rent as per notice issued by him?

To infer that once the tenant pays the amount recorded in the notice or tenders the same, the landlord has no right to institute a suit for recovery of possession for non-payment of those arrears or continue with such proceeding for eviction and no decree for possession can be asked for, is not within contemplation of provisions of section 15 of the Act. The provision does not interfere with the right of the landlord to initiate proceeding for eviction, however, sub-section (2) of section 15 prescribes precondition for presentation of suit, that is to say that no suit can be initiated without issuing a notice within contemplation of said sub-section (2) of section 15 and tenant's entitlement to claim relief against forfeiture shall be subject to fulfillment of conditions stipulated under sub-section (1) and (3) of section 15 of the Rent Act.
IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Civil Revision Application No. 76 of 2010

Decided On: 12.06.2017

 Babulal Vs. Suresh and Ors.

Hon'ble Judges/Coram:
R.M. Borde, R.V. Ghuge and Sangitrao S. Patil, JJ.

Citation:2017(4) MHLJ 406 (FB)

1. The issue referred for consideration of the Full Bench is recorded below:

If the tenant complies the notice issued by the landlord demanding arrears of rent and pays the entire amount as demanded within the time stipulated under section 15(2) of the Maharashtra Rent Control Act, then whether the landlord can still file a suit for eviction on the ground of arrears of rent and whether the eviction can be ordered by invoking provisions of section 15(3) of the Maharashtra Rent Control Act?
2. The learned Single Judge of this Court noticing conflict of views on the issue by the two different Division Benches of this Court in the matter of Narhar Damodar Wani Vs. Narmadabai T. Nave, MANU/MH/0538/1984 : 1984 Mh.L.J. 313 and Chandiram Dariyanumal Ahuja Vs. Akola Zilla Shram Wahtuk Sahakari Sanstha, Akola, MANU/MH/1800/2012 : 2013 (1) All MR 177 has framed the question for consideration and, the papers were directed to be placed before the Honourable the Chief Justice in accordance with Rule 7 Chapter I of the Bombay High Court Appellate Side Rules, 1960. The Honourable the Chief Justice has directed placement of the matter before us for consideration, and decision on the issue.

3. The facts in the nutshell giving rise to the dispute can be stated briefly thus:

Respondents-landlords have presented suit for eviction against the tenant on the grounds that the premises are required by the landlords reasonably and bona fide for their own use and occupation, the tenant is using the suit shop for the purpose other than for which it was leased and has also committed default in payment of rent of the suit premises. Trial Court negatived the plea of the landlords based on the ground of bona fide requirement and change of user however, decreed the suit on the ground that tenant has committed default in payment of rent. Appeal presented by tenant to the District Court has been dismissed and the decree of eviction against tenant on the ground of default in payment of rent has been confirmed.
4. During the course of hearing of the matter, it was submitted on behalf of the tenant that on receipt of notice dated 01.08.2006 from the landlords, reply was tendered vide exh. 21 and the tenant not only remitted the cheque of the amount demanded by landlords but also paid rent upto the date of reply to the notice. According to tenant, in view of provisions of section 15(2) of the Maharashtra Rent Control Act, the plaintiffs-landlords do not have any cause of action to file a suit for eviction on the ground of recovery of rent. According to tenant, the cause of action to file the suit for eviction on the ground of arrears of rent ceases to exist the moment the tenant tenders rent as demanded by landlords within 90 days of receipt of notice. According to tenant, admittedly, the rent as demanded has been deposited and as such no decree could have been passed on the ground of default in payment of rent. Reliance is placed on the judgment of the Division Bench in the matter of Narhar Vs. Narmadabai (Supra) to contend that cause of action ceases to exist for proceeding against the tenant in pursuance of the notice of demand. According to the tenant, section 15(3) of the Maharashtra Rent Control Act also would not be applicable as the provisions of section 15(2) themselves are not attracted. The landlords were disabled from filing suit for recovery of possession on the ground of default in payment of rent in view of provisions of section 15(2) of the Act and, as a consequence thereof, no question arises as regards applicability of provisions of section 15(3) of the Maharashtra Rent Control Act.

5. In order to rebut the contentions, it has been contended on behalf of the landlords that the judgment of Division Bench of this Court in the matter of Chandiram Ahuja Vs. Akola Zilla Shram Wahtuk Sahakari Sanstha (supra) holds the field and, even assuming that there is compliance of section 15(2) of the Maharashtra Rent Control Act, section 15(3) can be pressed in service independently. It is contended that sub-sections (1), (2) and (3) of section 15 are independent provisions and full effect has to be given to all the three sub-sections of section 15 of the Maharashtra Rent Control Act. It is contended on behalf of the landlords that since the tenant has failed to pay the rent regularly during the pendency of the suit, provisions of section 15(3) of the Maharashtra Rent Control Act are required to be invoked and the decree of eviction that has been passed shall have to be confirmed.

6. It would be advantageous to refer to section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "The Bombay Act"). The aforesaid provisions which are similar to the provisions of section 15 of the Maharashtra Rent Control Act were matter of interpretation in the cases of Narhar Vs. Narmadabai and Chandiram Ahuja Vs. Akola Zilla Shram Wahtuk Sahakari Sanstha (Supra).

12. (1) A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, insofar as they are consistent with the provisions of this Act.

(2) No suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of the month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the Transfer of Property Act, 1882.

(3) (a) Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-section (2), the Court may pass a decree for eviction in any such suit for recovery of possession.

(b) In any other case, no decree for eviction shall be passed in any suit, if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court.

(4) Pending the disposal of any such suit, the Courts may out of any amount paid or tendered by the tenant pay to the landlord such amount towards payment of rent or permitted increases due to him as the Court thinks fit.

Explanation-In any case where there is a dispute as to the amount of standard rent or permitted increases recoverable under this Act the tenant shall be deemed to be ready and willing to pay such amount if before the expiry of the period of one month after notice referred to in sub-section (2), he makes an application to the Court under sub-section (3) of section 11 and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court."

Section 12 of the Bombay Rent Act has undergone amendment and sub-section (3) has been substituted which reads thus:-

(3) No decree for eviction shall be passed by the Court in any suit for recovery of possession on the ground of arrears of standard rent and permitted increases if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and together with simple interest on the amount of arrears of such standard rent and permitted increases at the rate of nine per cent per annum; and thereafter continues to pay or tenders in Court regularly such standard rent and permitted increases till the suit is finally decided and also pays cost of the suit as directed by the Court.

Provided that, the relief provided under this sub-section shall not be available to a tenant to whom relief against forfeiture was given in any two suits previously instituted by the landlord against such tenant.

The amendment is incorporated by Amendment Act No. 18 of 1987. Amended sub-section (3) of Bombay Rent Act is pari materia to sub-section (3) of Section 15 of the Maharashtra Rent Control Act. Section 15 of the Maharashtra Rent Control Act contained in Chapter III relating to relief against forfeiture is as extracted below:

CHAPTER III

RELIEF AGAINST FORFEITURE:

15. (1) No ejectment ordinarily to be made if tenant pays or is ready and willing to pay standard rent and permitted increases-(1) A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, insofar as they are consistent with the provisions of this Act.

(2) No suit for recovery of possession shall be instituted by a landlord against the tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of ninety days next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the Transfer of Property Act, 1882.

(3) No decree for eviction shall be passed by the Court in any suit for recovery of possession on the ground of arrears of standard rent and permitted increases if, within a period of ninety days from the date of service of the summons of the suit, the tenant pays or tenders in Court the standard rent and permitted increases then due together with simple interest on the amount of arrears at fifteen per cent per annum; and thereafter continues to pay or tenders in Court regularly such standard rent and permitted increases till the suit is finally decided and also pays cost of the suit as directed by the Court.

(4) Pending the disposal of any suit, the Court may, out of any amount paid or tendered by the tenant, pay to the landlord such amount towards the payment of rent or permitted increases due to him as the Court thinks fit.

7. The decision in Narhar's case is in pursuance of the reference by the learned Single Judge (Masodkar, J) in Writ Petition No. 1437 of 1979 decided on 8th September 1983 (Waman Deoram Sonawane V. Shri Ganesh Mandir) noticing conflict between the two judgments of two learned Single Judges of this Court and, the argument was put forth on behalf of respondents to the contrary placing reliance on the judgment in the matter of Mranalini Shah Vs. B.W. Shah, MANU/SC/0384/1978 : AIR 1980 SC 954. In Waman's case, decree for eviction was passed on the ground of default in payment of education cess and it was contended therein that such a decree could not have been passed under section 12(3)(a) of the Bombay Rent Act. According to Waman, the amount due was paid and there was no default with regard to payment of rent and as such, no cause of action survives in the landlord to file a suit and obtain a decree. Reliance was placed on the judgment of learned Single Judge in the matter of Ayudhyabai Shrivallabha Lahoti Vs. Sumanchand Rupchand Phulpagar (Shah), MANU/MH/0365/1983 : 1983 (2) Bom.C.R. 368 and decision in the matter of Shamrao Abaji Jadhav Vs. Chaturbai Sidheshwra Javeri, MANU/MH/0250/1982 : 1982 Mh.L.J. 347. On the contrary, it has been contended by the landlords placing reliance on the judgment in the matter of Mranalini (Supra) that even when a decree of eviction cannot be made under section 12(3)(a) of the Act, a decree for eviction can be made if the tenant fails to protect himself by complying with the conditions available in clause (b) of section 12(3). On behalf of the landlords, attention of the Division Bench was invited to judgments of the Supreme Court in the matter Shah Dhansukhlal Chhaganlal Vs. Dalichand Virchand Shroff, MANU/SC/0166/1968 : AIR 1968 SC 1109, Harbanslal Jagmohandas Vs. Prabhudas Shivlal, MANU/SC/0480/1976 : AIR 1976 SC 2005 and Ganpat Ladha Vs. Shashikan Vishnu Shinde, MANU/SC/0378/1978 : 1978 Mh.L.J. 550 and, it was contended that these decisions settle the law so far as section 12(3)(b) of the Bombay Rent Act was concerned and, it is for the tenant to satisfy all the conditions apart from the obligation of tendering in Court all the arrears due on the first day of hearing of the suit or on or before such date as the Court may fix and pay regularly such rental liability till the suit is finally decided and there is no extinction of the cause of action by reason of payment of existing arrears. In the view of the learned Single Judge to avoid a decree, once a notice is given, the tenant has to fulfill the conditions laid down by section 12(3)(b) of the Bombay Rent Act. The relevant observations of the Division Bench in paragraphs 7 to 12 are recorded as below:

7. Section 12(2) of the Bombay Rent Act creates a positive bar in respect of a suit for recovery of possession and it expressly provides that no suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of nonpayment of standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the Transfer of Property Act, 1882. Sub-section (3)(a) undoubtedly provides that if the tenant is in arrears of rent for a period of six months or more and the tenant neglects to make payment thereof within a period of one month after the notice referred to in sub-section (2), the Court has to pass a decree for eviction in any such suit for recovery of possession. It is well established that clause (b) of sub-section (3) of section 12 applies to a case which does not fall under clause (a). Attention must also be invited to the provisions of sub-section (1) of section 12 which provides that a landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of the Bombay Rent Act. The scheme of sub-sections (1), (2) and (3) of section 12, therefore, is that if a tenant is ready and willing to pay the amount of standard rent and permitted increases, a landlord is not entitled to recovery of possession. The tenant has been given one month's time during which be must pay the rent which is demanded by a notice under section 12(2) and if he does not pay that rent or the amount due, then the consequences specified in clauses (a) and (b) follow depending upon which clause is attracted to the facts of a given case. One thing which is, however, clear on the face of section 12 and its provisions is that if the tenant pays the arrears demanded by the notice under section 12(2), then the landlord is not entitled to file a suit for possession on the ground of arrears in respect of which he has to give or has given a notice under section 12(2). In such a case, the provisions of sub-section (1) will also come into operation because if the tenant pays the amount required to be paid by the notice under section 12(2), then the tenant is a person who is ready and willing to pay the standard rent and the permitted increases, as the case may be, and the landlord is disabled from filing a suit for recovery of possession. In a case where the tenant has paid or must in law be deemed to have paid the amount demanded by the notice under section 12(2), not only are the provisions of section 12(3)(a) not attracted, but there is no occasion to call in aid the provisions of section 12(3)(b), because even the provisions of section 12(3)(b) will be attracted only if there is a claim for recovery of possession. If by the compliance with the requirements of the notice under section 12(2) the landlord is disabled from filing a suit for recovery of possession, there is no question of the provisions of section 12(3)(b) being attracted at all.

8. In the referring judgment reference has been made to the three Supreme Court decisions which, in our view, and with respect, were not relevant for the decision of the question which arises before us. In Dhansukhlal's case (supra), the facts show that the tenant was in arrears of rent on the date on which the landlord filed the suit because the tenant had not made payment even though he had received the notice under section 12(2) of the Bombay Rent Act. The notice in that case was dated 18th April 1955 demanding the arrears of rent and, as the Supreme Court observed, "No reply was sent thereto nor was any payment made to the plaintiff." The suit for ejectment in that case was filed on 15th March 1956 on the ground that the defendant was in arrears of rent and permitted increases and was, therefore, not entitled to the protection of the Bombay Rent Act. The judgment of the Supreme Court shows that in that case, the applicability of section 12(3)(b) was not canvassed and the High Court had found that there being default on the part of the defendant, the operation of section 12(3)(b) of the Bombay Rent Act was attracted. Even before the Supreme Court the material question raised was whether applying section 12(3)(b) there was no default on the part of the defendant which would render him liable to eviction. It was while dealing with this contention that the Supreme Court held that to be within the protection of section 12(3)(b), the tenant must not only pay all the arrears due from him on the first day of hearing of the suit, but he must thereafter continue to pay and tender in Court regularly the rent and the permitted increases till the suit is finally decided. Dhansukhlal's case was, therefore, a case which dealt only with the provisions of section 12(3)(b) on the admitted position that no payment was made in pursuance of the notice under section 12(2).

9. Harbanslal's case (Supra) dealt with the limited question as to what should be done in order to avoid the operation of section 12(3)(a) and it was held that in order to avoid the operation of section 12(3)(a) of the Bombay Rent Act, the dispute in regard to the standard rent or permitted increases must be raised at the latest before the expiry of one month from the date of service of notice under section 12(2) of the Act and it was not enough to raise the dispute for the first time in the written statement. In Harbanslal's case, the notice dated 14th November 1966 was issued terminating the tenancy on the ground that the tenant had paid rent only up to August 1964. This notice was received by the tenant on the 6th December 1966 and the suit was filed on 2nd February 1967. In the other connected appeal decided by the same judgment, the notice terminating the tenancy was dated 5th April 1963 and the suit was filed on 11th September 1963. The arrears were alleged to be for the period from 15th March 1960 to 15th March 1963 for a period of more than six months. The arrears were not paid within a period of one month from the date of the notice but were paid only on 23rd December 1964, that is, long after the suit was filed.

10. Mranalini's case was once again a case which was decided with reference to the provisions of section 12(3)(b) of the Bombay Rent Act and the question as to whether the arrears of rent having been paid within the period of one month from the date of service of notice under section 12(2), a suit for eviction could not be filed did not arise.

11. The learned Judge in the present case has taken the view that "once a notice under section 12(2) of the Bombay Rent Act is given terminating the tenancy on the ground of non-payment of rent, the landlord is entitled to file a suit and maintain it and in case the conditions of section 12(3)(a) are satisfied, he is entitled to a decree under section 12(3)(b) of the Act, if the tenant has not availed of the protection afforded by that provision" and that once the notice is issued, "what reliefs can be given are provided for by section 12(3)(a) and section 12(3)(b) of the Act". These observations in our view, overlook the fact that it is implicit in the provisions of section 12(2) that if within a period of one month specified in section 12(2) the tenant pays the entire amount of rent demanded by the notice, then the landlord does not have a right to file a suit for recovery of possession. Further, once there is no cause of action for a suit for recovery of possession, the question as to whether the tenant claims the protection of section 12(3)(b) cannot also arise.

12. It has to be pointed out that when the tenant pays the entire amount demanded by the notice under section 12(2), the notice becomes ineffective and in case the landlord wants to claim possession on the ground of arrears of rent for the period other than that in respect of which the notice has been given, the provisions of section 12(2) will once again come into operation and the landlord will have to serve a fresh notice because the arrears for non-payment of which possession is now claimed are not arrears in respect of which a notice contemplated by section 12(2) had been earlier given. Service of a notice under section 12(2) is a condition precedent to a claim for possession on the ground of arrears of rent and such a claim cannot be made unless a period of one month is allowed to expire from the date of service of the notice. We are, therefore, unable to agree with the view of the learned Judge that there is no expiration of cause of action by reason of existing arrears demanded by the notice under section 12(2).

As has been concluded by the Division Bench in the matter of Narhar Vs. Narmadabai (Supra), once the tenant pays the entire amount demanded by the landlord by notice issued under section 12(2), the notice becomes ineffective and, in case, the landlord wants to claim possession on the ground of arrears of rent for the period other than the period covered under the notice, it is obligatory for him to issue a notice once again in view of mandate of section 12(2) and claim arrears. Service of notice demanding rent for a specified period required under section 12(2) is a condition precedent for presentation of suit and landlord cannot be permitted to deviate from the mandatory requirement and claim eviction taking recourse of section 12(3)(b) of the Bombay Rent Act.

8. The aforesaid view of the Division Bench in the matter of Narhar Vs. Narmadabai appears to be in conflict with the view expressed by the another Division Bench in the matter of Chandiram Ahuja Vs. Akola Zilla Shram Wahtuk Sahakari Sanstha (supra). It does appear that although the attention of the court while dealing with the matter of Chandiram was invited to the decision in the matter of Dhansukhlal (supra), however, the attention of the Court was not invited to the judgment in the matter of Narhar Vs. Narmadabai. The issue before the Division Bench in Chandiram's case is concerning interpretation of section 15 of the Maharashtra Rent Control Act. As has been recorded above, the provisions contained in the repelled Bombay Rent Act and the Maharashtra Rent Control Act are identical and the decisions rendered interpreting the provisions of section 12 of the Bombay Rent Act are relevant for consideration. It must be noticed that if the tenant is desirous of claiming protection under section 15(1) of the Maharashtra Rent Control Act, he must demonstrate his readiness and willingness to pay the rent i.e. the quantum of rent which forms the subject matter of landlord's grievance. While interpreting words "readiness and willingness to pay" one has to be mindful of the provisions of section 15(3) which mandates the tenant to pay or tender in Court regularly such standard rent or permitted increases till the suit is finally decided and also pay cost of the suit as directed by the Court.

9. After taking survey of various judgments, the Division Bench has observed in paragraph No. 18 of the Chandiram's case as under:

18. The entire Scheme of Chapter III relief against forfeiture, as provided under the provisions of section 15, indicates that a tenant can perform his obligation and then claim protection in the form of relief against forfeiture as forfeiture occurs in accordance with general law governing lease under the Transfer of Property Act. The provision protects the tenant from the forfeiture when the tenant is paying rent or has proved his readiness and willingness to pay it. Section 15(3) added further obligation upon the tenant to pay entire arrears till date with interest and costs, as may be ordered by the Court. If tenant is continuing to pay rent due during the pendency of the suit instituted against him on the ground of nonpayment of standard rent and permitted increases, then such tenant is entitled to claim relief against forfeiture of tenancy. To put it otherwise, when tenant does not pay rent as agreed or pays rent only when legal notice is served upon him or Court summons is issued against him, the landlord is not helpless because sub-section (1) of section 15 enables the landlord to insist upon the tenant to pay rent and perform the conditions of tenancy. The tenant who disobeys legal provisions under section 15(1) of the Act can be evicted independently, though such tenant may not necessarily be in arrears of rent on the date of institution of the suit. A tenant who is prompted or induced to pay only after service of legal notice or after service of Court summons cannot be viewed as a tenant who either pays or is ready and willing to pay standard rent and permitted increases. Section 15 of the Maharashtra Rent Act has extended protection to a tenant after the landlord seeks to exercise his right to forfeit the tenancy in accordance with the provisions of general law. A tenant, in order to claim relief against forfeiture of tenancy, gets a period of 90 days after service of pre-suit statutory demand notice by the landlord calling upon the tenant to pay entire arrears of standard rent and permitted increases payable to the landlord. Thereafter when suit is filed, the tenant gets additional opportunity to pay entire arrears of rent and permitted increases demanded after the suit summons is served upon him. Such a tenant has a period of 90 days from the date of service of suit summons to pay or tender the arrears of rent with simple interest thereupon @ 15% p.a. During pendency of the suit, the protection is available as above to the tenant to claim relief against forfeiture of tenancy provided that the tenant shall continue to be regular in payment of standard rent and permitted increases payable during the pendency of the suit as also costs of the suit as directed by the Court. The Court cannot be oblivious of landlords who may have to survive only on rental income. Habitual irregular payment of rent and permitted increases by the tenant will prejudice and jeopardize very survival of such landlords who survive on rental income only. Therefore, such a tenant who may be habitually irregular in payment of standard rent and permitted increases can invite eviction in view of section 15(1) of the Maharashtra Rent Act when the Court considers the case of such a tenant who commits breach of conditions of tenancy as also remains habitual in rental arrears. In such exceptional case, provisions of section 15(1) are applicable and procedural compliances under section 15(2) and 15(3) will not apply.
10. In the matter of Sitaram Maruti Nagpure and Fakirchand Purushottam Dhase, MANU/MH/0862/2007 : 2008 (3) Mh.L.J. 610, issue was referred for consideration of Division Bench in view of two conflicting decisions of the Single Judge concerning interpretation of section 12(3)(a) of the Bombay Rent Act. The basic issue raised is with regard to the readiness and willingness of tenant to pay rent and whether the rent should be paid only after notice of termination under section 12(3)(a) of the Bombay Rent Act or whether the tenant can show readiness and willingness even prior to termination of tenancy under section 15(3)(a) of the Act. In the judgment delivered in the matter of Suka Ishram Chaudhari Vs. Ranchhoddas Manakchand Shet Gujarathi, MANU/MH/0090/1972 : 1972 Mh.L.J. 477 the learned Single Judge (Bhole J.) has interpreted readiness and willingness of tenant in tendering rent and if the tenants were to send rent by money order and if the money order was refused by the landlord then landlord cannot turn round and contend that the tenant was in arrears of rent for a period of six months or more. In another judgment in the matter of Abdul Gani Dinalli Momin Vs. Mohamed Yusuf Mohamed Isak, MANU/MH/0271/1977 : 1978 BLR 646, the learned Single Judge (Jahagirdar, J.) disagreed with the view of Justice Bhole and recorded his observations that a tenant cannot be said to be ready and willing to pay the rent within meaning of section 12(1) unless he complies with the other requirements mentioned in section 12 and, in particular, unless he has paid or tendered the amount in arrears within one month after expiry of notice referred to under sub-section (2). Sub-section (1) of section 12 forms a part of the entire scheme relating to the payment of rent by the tenant to the landlord and sub-section (1) could not be read in isolation in so far at least it relates to the payment of the standard rent. In the light of the observations of the Supreme Court, in both, S.D. Chhaganlal Vs. D.V. Shroff and in Harbanslal Vs. Prabhudas and Fusanacht Vs. W.E. Works, where SD. Chhaganlal's case has been referred to and reaffirmed, it cannot be said that the ratio in the judgment in Suka Ishram's case represents the correct law.

The Division Bench, while dealing with the conflict, has approved the view taken by Justice Bhole to be correct one.

11. Reference is also made to a judgment in the matter of Ayodhyabai Shrivallabha Lahoti Vs. Sumanchand Rupchand Phulpagar, MANU/MH/0365/1983 : 1983 (2) Bom.C.R. 368. In paragraph No. 5 of the judgment, relying upon the decision of the Supreme Court in the matter of Md. Shaft Vs. Vllth Additional Dist. and Sessions Judge, Allahabad and another, MANU/SC/0485/1976 : AIR 1977 SC 836, it is observed by the learned Single Judge that if two interpretations are possible then the one in favour of tenant should be preferred since the legislation is intended to protect the tenant against the unreasonable eviction. In the reported matter, the tenant paid all the arrears of rent within one month of receipt of notice and nothing was due. As such it is observed by the learned Single Judge that at the fag end of trial, he (landlord), cannot be permitted to take recourse of provisions of section 12(3)(b) of the Act. It is further observed that if the suit is liable to be dismissed on the ground that there was no cause of action for filing such suit, then at the fag end of the trial, he (landlord) cannot take recourse of section 12(3)(b) for fishing out the cause of action for getting decree in a suit which was not properly instituted.

12. The preamble of the Maharashtra Rent Control Act 1999 declares that the Act is enacted to unify, consolidate and amend the law relating to the control of rent and repairs of certain premises and of eviction and for encouraging the construction of new houses by assuring a fair return on the investment by landlords and to provide for the matters connected with the purposes aforesaid. In paragraph No. 3 of the Statement of Objects and Reasons it is recorded that the Central Government announced the national Housing Policy which recommends inter alia to carry out suitable amendments to the existing rent control laws for creating enabling involvement in housing activity and for guaranteeing access to shelter for the poor. It is recorded that the existing rent control legislation has resulted in freeze of rent, very low return in investment and difficulty in resuming possession and has adversely affected investment in rental housing and cause deterioration of rental housing stock. A number of expert bodies such as Economic Administration Reforms Commission and the National Commission on Urbanization have recommended reforms of the rent legislation in a way that balances the interest of both the landlord and tenants and also stimulates further construction. On reading the preamble of the act as well as statement of objects and reasons, it is clear that the Act is enacted to maintain the balance between the interest of both the landlords and tenants and to take measures to stimulates growth in housing sector. The Act is not aimed at putting hurdles in the rights of the landlord to resume possession inspite of violation of the terms and conditions of the tenancy by the tenant.

13. While dealing with the provisions of the Bombay Rent Act in the matter of Ganpat Ladha Vs. Sashikant Vishnu Shinde, MANU/SC/0378/1978 : 1978 Mh.L.J. 550, the Apex Court has observed that "Bombay Rents, Hotel and Lodging House Rates Control Act interferes with the landlord's right to property and freedom to contract only for limited purpose of protecting tenants from misuse of landlord's power to evict them in these days of scarcity of accommodation by asserting his superior rights in property or trying to exploit his position by extracting too high rents from helpless tenants. The object was not to deprive the landlord altogether of his rights to property which have also to be respected. Another object was to make possible eviction of tenants who fail to carry out their obligation to pay rent despite opportunities provided by law in that behalf " It is, thus, clear that the rent control legislation does put an embargo only to the limited extent on the right of landlord to seek eviction of tenant. The right to sue for possession in respect of the property belonging to the landlord is inherent however, it is made subject to certain limitations by the rent control legislation. Chapter III of the Maharashtra Rent Control Act, more particularly, section 15 provides for relief against forfeiture to the tenant. It is provided that ejectment of tenant ordinarily shall not be made if the tenant pays or is ready and willing to pay standard rent and permitted increases. The protection extended to the tenant is so long as he complies with the terms of the tenancy in respect of payment and pays the rent and is ready and willing to pay standard rent and permitted increases. The phrase "tenant pays" shall have to be read in harmony with his "readiness and willingness" to pay standard rent and permitted increases. Protection afforded to the tenant is to such a tenant who observes the terms of the tenancy and pays the rent regularly. Readiness and willingness to pay standard rent and permitted increases is a state referable to the conduct of a tenant who is regular in payment of rent.

14. In the matter of Mistry Premjibhai Vithldas Vs. Ganeshbhai Kshavji, MANU/SC/0354/1977 : AIR 1977 Supreme Court 1707, it is observed by the Supreme Court in paragraph No. 14 thus:

14. The readiness and the willingness of the tenant to pay could be found only if he had complied with the provisions of the Act. The Act does not cover the case of a person who is unable to pay owing to want of means but is otherwise "ready and willing". Such a case is no doubt a hard one, but, unfortunately, it does not enable Courts to make a special law for such hard cases which fall outside the statutory protection.
15. In the matter of Vora Abbasbhai Alimanhomed Vs. Haii Gulamnabi Haii Safibhal MANU/SC/0233/1963 : AIR 1964 SC 1341, it is observed in paragraph No. 16 that section 12(1) does not affect the jurisdiction of the court to entertain and decide the suit for ejectment against the tenant. It merely confers protection upon the tenant if certain conditions are fulfilled and clauses (2), (3)(a) and (3)(b) and the Explanation deal with certain specific cases in which readiness and willingness to pay standard rent, may either be presumed or regarded as proved.

16. It is, thus, clear that the tenant who "pays" or "is ready and willing to pay" is only required to be protected on recording findings in that regard. Sub-section (1) of section 15 of the Maharashtra Rent Control Act provides that the landlord shall not be entitled to recovery of possession of any premises so long as tenant pays or is ready and willing to pay the amount of standard rent and permitted increases if any, and observes and performs the other conditions of tenancy in so far as they are consistent with the provisions of the Act. Protection is extended to the tenant who pays or is ready and willing to pay the amount of standard rent and permitted increases. The latter part of the sub-section also mandates the tenant to observe and perform other conditions of tenancy in so far as they are consistent with the provisions of the Act. The term "tenant pays or is ready and willing to pay" read with observance and performance of other conditions of tenancy would surely include observance of the terms of the tenancy and, one of the terms of tenancy which is consistent with the provisions of the Act is regularity in payment of rent. A tenant who is irregular in payment of rent and pays the amount only under the threat of action of eviction or only after issuance of notice for recovery of rent cannot be considered to have complied with the mandate of sub-section (1) in respect of payment of rent and readiness and willingness on the part of the tenant so as to claim relief against forfeiture cannot be presumed. The only limitation that has been put on the entitlement of the landlord to avail of the remedies for enforcing his right to recover possession is to be found in sub-section (2) of section 15. Sub-section (2) of section 15 mandates that no suit for recovery of possession shall be instituted by the landlord against a tenant on the ground of non-payment of the standard rent or permitted increases due, until expiration of 90 days next after notice in writing for payment of standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the Transfer of Property Act, 1882. A suit by the landlord is thus not entertainable on the ground of recovery of possession for non-payment of the standard rent or permitted increases without transmitting a notice to the tenant 90 days before institution of such suit, in the manner as provided in section 106 of the Transfer of Property Act, 1882. Sub-section (3) of section 15 provides that the Court shall not pass a decree of eviction on the ground of arrears of standard rent and permitted increases if within a period of 90 days from the date of service of summons of the suit, the tenant pays or tenders in the Court standard rent and permitted increases then due together with simple interest on the amount of arrears at the rate of 15% per annum and thereafter continues to pay or tenders in Court regularly such standard rent and permitted increases till the suit is finally decided and also pays cost of the suit as directed by the Court. It is, thus, clear that if the tenant pays the amount demanded within the time stipulated and further continues to pay the amount of standard rent and permitted increase during the pendency of the proceeding regularly, the tenant is not liable to be evicted and no decree shall be passed. There is no whisper in the provisions of section 15 putting an embargo on the entitlement of the landlord to file a suit for eviction against a tenant except subject to compliance of the preconditions specified in sub-section (2) of section 15 of the Maharashtra Rent Control Act.

17. On consideration of provisions of section 15 of the Maharashtra Rent Control Act which provide for relief against forfeiture to the tenant, it is clear that the tenant has been extended protection from eviction so long as he performs his obligation in respect of payment of rent as well as observance and performance of other conditions of the tenancy. The provisions, thus, protect the tenant who is paying rent or has established his readiness and willingness to pay. Further protection is also provided in sub-section (3) of section 15 if the tenant pays entire arrears of rent on receipt of notice within contemplation of sub-section (2) of section 15 before the period prescribed under sub-section (2) together with interest and cost as may be ordered by the Court and continues to pay rent and the permitted increases regularly until the decision in the suit. If the tenant does not pay rent regularly and offers to pay only after issuance of notice within contemplation of sub-section (2) of section 15 and does not observe the other terms and conditions which include regular payment of rent, the landlord is not disabled from proceeding against such tenant. In nutshell, to derive that if tenant offers or pays the amount recorded in the notice issued in pursuance to sub-section (2) of section 15, together with permitted increases, the landlord is disabled from proceeding against the tenant is not within contemplation of section 15 of the Act. The right to seek remedy and claim possession of the premises owned by the landlord is inherent in him however, initiation of such proceedings is subject to fulfillment of certain pre-conditions such as issuance of notice in accordance with section 106 of the Transfer of Property Act as provided under section 15(2). It is, thus, clear that the tenant who disobeys the provisions of section 15(1) can be evicted independently though such tenant may not necessarily pay any arrears of rent on the date of institution of the suit. Sub-section (3) of section 15 shall have to be construed independently and if the tenant does not observe the mandate of sub-section (3) in respect of payment of amount of rent and permitted increases regularly till disposal of the proceedings before the Court, is also liable to be evicted.

18. In the matter of Shah Dhansukhlal Chhaganlal Vs. Dalichand Virchand Shroff, MANU/SC/0166/1968 : AIR 1968 Supreme Court 1109, a decree was passed against a tenant since he failed to comply with section 12(3)(b) of the Bombay Rent Act. The appeal preferred by the tenant was dismissed. Before the High Court, the only contention that was raised was whether the tenant had or had not complied with the requirements of section 12(3)(b) of the Bombay Rent Act. It was found that there was no such compliance. The issue that was raised before the Supreme Court was as to whether the provisions of section 12(1) of the Act was applicable throughout the hearing of the suit and down to the date of final hearing and, if at that stage, it was found that the tenant had paid all the arrears due from him, whether he could be ejected. While dealing with the matter, the Supreme Court has observed in paragraph No. 14 of the judgment that to be within protection of provisions of section 12(3)(b) the tenant must not only pay all the arrears due from him on the first day of hearing of the suit, but he must thereafter continue to pay or tender in court regularly the rent and the permitted increases till the suit is finally decided.

19. In the matter of Mranalini B. Shah Vs. Bapalal Mohanlal Shah (supra) the question as regards interpretation of section 12(3)(b) of the Bombay Rent Act was a matter of consideration. The question that was formulated reads thus:

No decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court.
While dealing with the issue, the Supreme Court has observed in paragraphs 11 and 12 of the judgment thus:

11. We have perused the recent Judgment of this Court in Ganpat Ladha V. Sashikant Vishnu Shinde. In our opinion, the point raised by the appellants, before us is fully covered by that Judgment. The following observations of Beg, C.J., who spoke for the Court are apposite:

... We think that the problem of interpretation and application of Section 12(3)(b) need not trouble us after the decision of this Court Shah Dhansukhlal Chagganlal's case MANU/SC/0166/1968 : [1968] 3 SC 346 followed by the more recent decision in Harbanslal Jagmohandas v. Prabhudas Shivlal, MANU/SC/048/1976 : [1976] 3 SC 628, which completely cover the case before us.

It is clear to us that the Act interferes with the landlord's right to property and freedom of contract only for the limited purpose of protecting tenant from misuse of the landlord's power to evict them, in these days of scarcity of accommodation, by asserting his superior rights in property or trying to exploit his position by extracting too high rents from helpless tenants. The object was not to deprive the landlord altogether of his rights in property which have also to be respected. Another object was to make possible eviction of tenants who fail to carry out their obligation to pay rent to the landlord despite opportunities given by law in that behalf but where the conditions of Section 12(3)(a) are not satisfied, there is a further opportunity given to the tenant to protect himself against eviction. He can comply with the conditions set out in those conditions, he cannot claim the protection of Section 12(3)(b) and in that event, there being no other protection available to him, a decree for eviction would have to go against him, it is difficult to see how by any judicial valour discretion exercisable in favour of the tenant can be found in Section 12(3)(b), even where the conditions laid down by it are satisfied, to be strictly confined within the limits, prescribed for their operation. We think that Chagla, C.J. was doing nothing less than legislating in Kalidas Bhavan's case MANU/MH/0301/1958 : 1958 Bom LR 1359, in converting the provisions of Section 12(3)(b) into a sort of discretionary jurisdiction of the Court to relieve tenants from hardship. The decisions of this Court referred to above, in any case, make the position quit clear that section 12(3)(b) does not create any discretionary jurisdiction in the court. It provides protection to the tenant on certain conditions and these conditions have to be strictly observed by the tenant who seeks the benefit of the Section. If the statutory provisions do not go far enough to relieve the hardship of the tenant the remedy lies with the legislature. It is not in the hands of Court.

12. The above enunciation, clarifies beyond doubt that the provisions of Clause (b) of Section 12(3) are mandatory, and must be strictly complied with by the tenant during the pendency of the suit or appeal if the landlord's claim for eviction on the ground of default in payment of rent is to be defeated. The word "regularly" in Clause (b) of Section 12(3) has a significance of its own. It enjoins a payment or tender characterised by reasonable punctuality, that is to say, one made at regular times or intervals. The regularity contemplated may not be a punctuality, of clocklike precision and exactitude, but it must reasonably conform with substantial proximity to the sequence of times or intervals at which the rent falls due. Thus, where the rent is payable by the month, the tenant, must, if he wants to avail of the benefit of the latter part of Clause (b), tender or pay it every month as it falls due, or at his discretion in advance. If he persistently defaults during the pendency of the suit or appeal in paying the rent, such as where he pays it at irregular intervals of 2 or 3 or 4 months as is the case before us, the Court has no discretion to treat what were manifestly irregular payments, as substantial compliance with the mandate of this Clause irrespective of the fact that by the time the Judgment was pronounced all the arrears had been cleared by the tenant.

20. On the analysis of the provisions of section 15 as well as various judgments, it must be concluded that the provisions of sub-sections (1), (2) and (3) of section 15 shall be read independently. In order to claim relief against forfeiture, the tenant must satisfy all the conditions in respect of payment of rent or tender in Court all the arrears then due on the first day of hearing of the suit or within contemplation of provisions of law and to deposit the rental liability regularly in the Court till the suit is finally decided and there is no extinction of the cause of action by reason of payment of existing arrears by the tenant. It is, thus, clear that in order to avoid decree, once the notice is issued within contemplation of sub-section (2) of section 15 of the Maharashtra Rent Control Act by the landlord, the tenant shall have to fulfill the conditions laid down under sub-section (3) of section 15 of the Maharashtra Rent Control Act and there is no escape therefrom.

21. It would be inappropriate to infer something which is not specifically recorded in the provision and to read the restrictions on the entitlement of the landlord to present proceeding for eviction of a tenant on payment of the amount of rent or permitted increases, if any, as demanded by the landlord under a notice within contemplation of sub-section (2) of section 15, without considering the impact of sub-section (3) of section 15. It would amount to adding to the provision in place and making violation and thereby putting unnecessary restrictions on the right of the landlord. The principle that the Statute must be read as a whole is equally applicable to different parts of the same section. The section must be construed as a whole whether or not one part is a saving clause. Similarly, "elementary rule of construction of section is to be made of all the parts together" and that "it is not permissible to omit any part of it; the whole section must be read together". The words of Statute are first understood in their natural, ordinary and popular sense and phrases and sentences are constructed according to their grammatical meaning unless there be something in the context, or in the object of the statute in which they occur or in the circumstances in which they are used, to show that they were used in special sense different from their ordinary grammatical meaning.

22. For a modern statement of the rule one may refer to the speech of Lord Simon of Glaisdale in a case where he said: "Parliament is prima facie to be credited with meaning what is said in an Act of parliament. The drafting of statutes, so important to a people who hope to live under the rule of law, will never be satisfactory unless courts seek whenever possible to apply 'the golden rule' of construction, that is to read the statutory language, grammatically and terminologically, in the ordinary and primary sense which it bears in its context, without omission or addition. Of course, Parliament is to be credited with good sense; so that when such an approach produces injustice, absurdity, contradiction or stultification of statutory objective the language may be modified sufficiently to avoid such disadvantage, though no further."

23. The Control of Rent and Eviction Acts which drastically limit the grounds on which a tenant can be evicted are essentially to benefit the tenants but they also to some extent protect the landlords in the sense that they are so comprehensive that a landlord can file a suit for eviction on the grounds mentioned in the Act even though the tenancy has not been terminated in accordance with the provisions of the Transfer of Property Act, 1882. (V. Dhanpal Chettiar Vs. Yesoda Ammal, MANU/SC/0505/1979 : 1979 (4) SCC 214). A provision enacting that a purchaser from a landlord cannot apply for eviction on the ground of personal need before the expiry of three years from the purchase and unless a notice of six months is issued by him before or after expiry of three years period, was construed to mean that no notice was necessary after the expiry of three years or at any rate after expiry of three years and six months from the purchase. (Anwar Hasan Khan Vs. Mohammad Shafi, MANU/SC/0676/2001 : AIR 2001 SC 2984.) Provisions enacted to benefit the landlords cannot be so construed as to benefit the tenants. (Arjun Khaiamal Makhijani Vs. Jamnadas C. Tuliani MANU/SC/0031/1989 : (1989) 4 SCC 612). As expressed by Lahoti J.: "The courts have to adopt a reasonable and balanced approach while interpreting Rent Control Legislations starting with an assumption that an equal treatment has been meted out to both the sections of the society. Inspite of the overall balance tilting in favour of the tenants, while interpreting such of the provisions as take care of the interest of the landlord the court should not hesitate in leaning in favour of the landlords. (Joginder Pal Vs. Naval Kishore Banal, MANU/SC/0453/2002 : AIR 2002 SC 2256). Indeed, it has been held that in enacting a Control and Eviction Act the Legislature has also to take into account that its provisions are not so unjust to the landlords that they offend Article 14 of the Constitution in which event they will become unconstitutional. (Malpe Vishwanath Acharya Vs. State of Maharashtra, MANU/SC/0905/1998 : AIR 1998 SC 602).

24. The view expressed by Division Bench in the matter of Chandiram Ahuja (supra) lays down correct preposition and we are in agreement with the view expressed by the Division Bench in aforesaid matter. The view expressed by Division Bench in the matter of Narhar Wani (supra) does not lay down correct law and we disagree with the view expressed therein.

25. To infer that once the tenant pays the amount recorded in the notice or tenders the same, the landlord has no right to institute a suit for recovery of possession for non-payment of those arrears or continue with such proceeding for eviction and no decree for possession can be asked for, is not within contemplation of provisions of section 15 of the Act. The provision does not interfere with the right of the landlord to initiate proceeding for eviction, however, sub-section (2) of section 15 prescribes precondition for presentation of suit, that is to say that no suit can be initiated without issuing a notice within contemplation of said sub-section (2) of section 15 and tenant's entitlement to claim relief against forfeiture shall be subject to fulfillment of conditions stipulated under sub-section (1) and (3) of section 15 of the Rent Act.

26. The issue referred is answered accordingly.

27. The office is directed to place the writ petition before appropriate court for disposal on merits.




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