Whether it is necessary for tenant to prove that he is ready and willing to pay rent to avoid eviction decree?

"Tenant pays"- the material words in Section 15(1) are preceded by words "so long as" and independently or even without their support, convey a conclusion to be drawn from the conduct of tenant or a state of affairs spread over a reasonably long time. Payment of rent of one or two months or on few occasions by a tenant will not be sufficient to deduce that this tenant "pays" the rent. Similarly, its non-payment for such short duration or once or twice may not imply that he does not pay. Burden obviously will be on the landlord initially to demonstrate that his tenant "does not pay". Legal notice or threat of eviction coercing that tenant to pay and consequential payment will not show that "tenant pays". If the tenant wants to enjoy protection under Section 15(1) of the Maharashtra Rent Act, he will have to prove that he pays and had been paying rent voluntarily and not only when coerced. In a given contingency, he may prove his readiness and willingness to pay. Thus, ingredients of Section 15(2) and (3) are not germane when landlord's grievance is that his tenant does not pay or is not ready and willing to pay. Conversely the tenant will be required to prove that he was/is ready and willing to pay rent i.e. that quantum of rent which formed subject matter of landlord's grievance. Thus, characteristics or factors which are relevant for finding out whether "the tenant pays," equally apply to concept implicit in "is ready and willing to pay." Thus, factors relevant for deciding the mental habit of tenant to commit defaults are determinative under said subsection (1) of Section 15 of the Maharashtra Rent Act.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Letters Patent Appeal No. 307 of 2012 in Writ Petition No. 1101 of 2007 (D)

Decided On: 23.10.2012

Chandiram Dariyanumal Ahuja Vs. Akola Zilla Shram Wahtuk Sahakari Sanstha

Hon'ble Judges/Coram:

B.P. Dharmadhikari & A.P. Bhangale, JJ.

Citation: 2013(1) MHLJ28

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Whether revision is maintainable against order of striking off defence in default of payment of rent?

Even in the absence of such a provision, the hardship which was liable to be suffered by the landlord has been sought to be obviated by the decision of this Court in Sangeeta Prints (supra) by taking recourse to the provisions of Order 39, Rule 10 and section 151 of the Code. Having regard to the salutary object underlying the provisions, the proviso to sub-rule (1) envisages certain consequence emanating from a non-compliance of the order of deposit. The proviso stipulates that in the event of a default in making deposit as decided, the Court may, subject to the provisions of sub-rule (2), strike off the defence. Undoubtedly, before striking off the defence, sub-rule (2) provides that a notice has to be issued to the defendant to show cause and the cause, if any, shown has to be considered in order to decide as to whether the defendant should be relieved of a peremptory order striking off the defence. Sub-rule (2) in turn indicates that unless the Court is of the view that there are valid circumstances as to why the defendant should be relieved of an order striking off his defence, ordinarily the defence would be liable to be struck off upon a failure of compliance with an order of deposit. In these circumstances, there can be no gainsaying the fact that an order passed under sub-rule (1) is an order of moment and is liable to seriously effect the rights of the parties. A defendant who does not comply with the order of deposit, cannot be relieved of the striking off of his defence unless he shows sufficient cause. In these circumstances, it cannot be said that an order under sub-rule (1) of Order 15-A is merely a procedural order and is not subject to a revision under sub-section (4) of section 42 of the Act. In the present case, a revision is maintainable. There is hence no necessity for this Court to go into the challenge urged on behalf of the petitioner on the merits of the order.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 1079 of 2003

Decided On: 08.09.2003

 Colaba Central Co-operative Consumer Wholesale and Retail Stores Ltd. alias Sahakar Bhandar

Vs.

 Kusumben Kantilal Shah and Ors.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud, J.

Citation: 2003(4)ALLMR304; 2004(1)BomCR547

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Whether eviction of tenant on ground of non payment of rent and bonafide need constitute distinct cause of action?

Is the requirement of personal use and occupation by the landlord under sub-section (3)(a)(i) a distinct and separate cause of action from that of non-payment of rent under sub-sec (2)(i) for the eviction of the tenant as prescribed by S. 13 of the East Punjab Urban Rent Restriction Act, 1949--has come to the, fore as the spinal question in this reference to the Full Bench.

It is, however, well settled that a cause of action means every fact which, if traversed, would be necessary for the plaintiff to prove in order to support the right to a judgment in his favour. In other words it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the tenant. Negatively it does not comprise evidence necessary to prove the bundle of facts and equally has no relation. whatsoever to the defence, which may be set up by the defendant nor doss it defend on the character of the relief prayed for by the plaintiff. 

In my opinion. therefore, the cause of action in a petition for eviction does not consist in merely obtaining an order for eviction but the cause of action consists in obtaining an order of eviction on one or the other grounds specified in the statute.

But the landlord cannot be competed to raise in a Petition all the statutory grounds that entitle him to obtain eviction. I am of the view that if it is the legal right of the landlord to obtain eviction on the grounds afforded to him by the statute, he is free to claim it on any of them and is not obliged to press all of them in one petition nor can he be debarred from claiming eviction or pressing the grounds that mal be available to him in a subsequent petition, provided be satisfies the ingredients of the ground, e.g., if a landlord claims eviction on the ground of non-payment of rent he may not even be aware of existence d the subletting and if be comes to know about it later, he cannot be debarred from claiming eviction on the ground of subletting which he may succeed in establishing irrespective of the fact when the subletting had occurred-"

On this acid test as well, since the evidence to establish the two is clearly distinct and different, a fortiori the two causes of action are thus equally distinct and separate. They cannot possibly be termed as merely grounds for a single cause of action.

IN THE HIGH COURT OF PUNJAB AND HARYANA

Civil Revn. No. 1852 of 1977

Decided On: 25.11.1983

Harnam Singh Vs. Surjit Singh

Hon'ble Judges/Coram:

S.S. Sandhawalia, C.J., Prem Chand Jain and Satya Parkash Goyal, JJ.

Citation: 1984(1) RCR (Rent) 247

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Whether landlord can file fresh proceeding for eviction of tenant on ground of non payment of rent and bonafide need?

In our view, the High Court ought to have considered the fact that in eviction proceedings under theRent Act the ground of bona fide requirement or non-payment of rent is a recurring cause and, therefore, landlord is not precluded from instituting fresh proceeding. In an eviction suit on the ground of bona fide requirement the genuineness of the said ground is to be decided on the basis of requirement on the date of the suit. Further, even if a suit for eviction on the ground of bona fide requirement is filed and is dismissed it cannot be held that once a question of necessity is decided against the landlord he will not have a bona fide and genuine necessity ever in future. In the subsequent proceedings, if such claim is established by cogent evidence adduced by the landlord, decree for possession could be passed. {Re: K.S. Sundararaju Chettiar vs. M.R. Ramachandra Naidu [(1994) 5 SCC 14 (para 10)] and Surajmal vs. Radhe Shyam [(1988) 3 SCC 18]}.

Supreme Court of India

N. R. Narayan Swamy vs B. Francis Jagan on 31 July, 2001

Bench: M.B. Shah, R.P. Sethi

           CASE NO.:

Appeal (civil) 4800  of  2001

Citation:AIR2001SC2469 

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Whether court can condone delay of two days in payment of rent in eviction suit?

Mr. S.C. Gupta, appearing for the tenant as the
petitioner in this writ petition has submitted that there was no
evidence of any probative worth before the rent tribunal or for
that matter before the appellate rent tribunal to hold that the
notice dated 12.05.2006 in terms of proviso II Section 9(a) of the
Act of 2001 was served on the tenant on 15.05.2006. He
submitted that in fact the notice was served on 23.05.2006 and
the deposit of due rent for the period in issue upto 30.04.2006
having been admittedly made on 16.06.2006 was not well in time
and within 30 days provided for by law. He submitted that the
specific case of the tenant was overlooked by the tribunals
without good cause. His further submission is that even as per
the best case of the landlord, the notice having been served on
15.05.2006 and the rent due and outstanding for a period of 11
months having been deposited on 16.06.2006 by a mere delay of
two days, it was not a fit case for directing the eviction of the
tenant who is otherwise unprovided for and would be rendered
pernicious resulting from the loss of livelihood as the tenanted
premises is a shop. His submission is that the rent tribunal as
also the appellate rent tribunal ought to have taken a liberal
view, that this court should and condone two days' delay
dismissing the eviction petition laid by the landlord.
Mr. Swaraj Sharma, appearing for the landlord has
obviously supported the judgment passed by the rent tribunal on
21.07.2008 as affirmed by the appellate rent tribunal.
The fact of default under Section 9(a) of the Act of
2001 is inexcusable. The manner of determining a default has
been statutorily provided for and it has no variation. Effectively
the determination of the question as to whether the tenant is in
default under Section 9(a) of the Act of 2001 is an arithmetical
exercise. The tribunal has merely to see as to whether as on the
date of the notice, the contracted rent or rent due otherwise in
terms of the Act of 2001 was outstanding for more than four
months and whether a notice in regard thereto was issued by the
landlord to the tenant disclosing Bank account within the
municipal limits of the place where the tenanted premises are
situate and finally whether on receipt of notice the tenant paid
the outstanding due amount within 30 days of the receipt of the
notice. A liberal approach to the computation of the time in the
payment of rent subsequent to the receipt of notice of
outstanding rent cannot be warranted in the face of the statute.
Therefore the rent tribunal as also the appellate rent tribunal are
under a duty to approach the matter quite arithmetically with no
room at all for variation.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH

S.B. CIVIL WRIT PETITION NO.4641/2011
(Jagdish Kapoor Vs. Mohan Singh (dead) through LRs. & Anr.)
Date of Order :4 December, 2014
HON'BLE MR. JUSTICE ALOK SHARMA
Citation;AIR 2015 (NOC)365 Raj

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Whether liability of tenant to pay previous rent is absolved due to limitation for recovery of arrears of rent?

The purpose of enacting this proviso to Section 13(3) appears
to be that the arrears of rent payable by the tenant are required to be
decreed against him by way of money decree and, therefore,
limitation of three years, which is applicable for such suits is
applicable and, therefore, the provisional arrears of rent determined
should not go beyond the period of three years. This proviso neither
absolves the tenant of his liability to pay the entire due rent or
arrears thereof nor passing of such order even beyond the period of
three years renders such an order void or nonest. It is a mere
irregularity, which could be cured by the court, had the defendant-
tenant pointed out by filing proper application before the court at that
point of time itself. But the defendant-tenant did not challenge the
said order and now the eviction decree having been passed against
him and the appellate court having upheld the same, it is absolutely
infructuous to examine the validity of the order passed under Section
13(3) of the Act at the stage of second appeal. The curtailment or
restriction of period to Section 13(3) of the Act does not wipe out the
liability of the tenant to pay even such time barred arrears of rent.
Ultimately Section 13 (3) only provisionally determines such arrears
of rent at the threshold of the suit.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
JUDGMENT
S.B.CIVIL SECOND APPEAL NO. 250/2014
Om Prakash Vadvani vs. Devendra Kumar
Date of Judgment : 12th January, 2015
PRESENT
HON'BLE DR.JUSTICE VINEET KOTHARI
Citation; AIR 2015 Raj56

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When court can not give extension of time or condone default in depositing rent within stipulated period?

 Thus, on analysis of the aforesaid two
decisions we find that wherever the special Act
provides for extension of time or condonation of
default, the Court possesses the power therefor,
but where the statute does not provide either
for extension of time or to condone the
default in depositing the rent within the
stipulated period, the Court does not have
the power to do so.

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
JUDGMENT
S.B.CIVIL SECOND APPEAL NO. 250/2014
Om Prakash Vadvani vs. Devendra Kumar
Date of Judgment : 12th January, 2015
PRESENT
HON'BLE DR.JUSTICE VINEET KOTHARI
Citation; AIR 2015 Raj56

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Whether court has discretion not to pass eviction decree when tenant has failed to pay arrears of rent within prescribed period?

 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 tenants 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. Thus Section 12(3)(a) of the Act makes it obligatory for the Court to pass a decree when its conditions are satisfied as was pointed out by one of us (Bhagwati, J.) in Ratilal Balabhai Nazar v. Ranchhodbhai Shankerbhai Patel MANU/GJ/0093/1968: AIR 1968 Guj 172: (1968) 9 Guj LR 48. If there is statutory default or neglect on the part of the tenant, whatever may be its cause, the landlord acquires a right Under Section 12(3)(a) to get a decree for eviction. 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 Section 12(3)(b) and defeat the landlord's claim for eviction. If however, he does not fulfil 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 case 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 quite clear. 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 courts.

IN THE SUPREME COURT OF INDIA

SLP (Civil) No. 735 of 2014

Decided On: 07.11.2014

Yusufbhai Noormohammed Jodhpurwala
Vs.
 Mohamed Sabir Ibrahim Byavarwala

Hon'ble Judges/Coram:Dipak Misra, Rohinton Fali Nariman and Uday Umesh Lalit, JJ.

Citation: 2015(2)ABR406, AIR2015SC1131, 2015(1)ALLMR(SC)974, 2015(1)RCR(Civil)393, 2015(1)RCR(Rent)33

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When court is bound to pass decree for eviction?

IN THE SUPREME COURT OF INDIA

SLP (Civil) No. 735 of 2014

Decided On: 07.11.2014

Appellants: Yusufbhai Noormohammed Jodhpurwala
Vs.
Respondent: Mohamed Sabir Ibrahim Byavarwala

Hon'ble Judges/Coram:Dipak Misra, Rohinton Fali Nariman and Uday Umesh Lalit, JJ.

Tenancy - Arrears of rent - Eviction - Section 12(3)(b) of Bombay Rent Act, 1947 - High Court held that merely because there was short-fall in payment of rent by Respondent-Tenant on date of first hearing, when all other conditions necessary to be satisfied were satisfied, that decree for eviction could not have been passed - Hence, present petition - Whether order of High Court holding Respondent not liable to be evicted under Section 12(3)(b) of Act, was maintainable - Held, Respondent was in arrears of rent prior to filing of suit and continued to be so - On date of first hearing, rent that was paid admittedly fell short - It was clear therefore that assuming that Respondent was bonafide tenant right that was conferred upon him could be availed of only twice and on both occasions Respondent was found to be in arrears - High Court was wrong in interpreting Section 12(3)(b) of Act purposively holding that so long as High Court, in its discretion, felt that there was readiness and willingness on part of Respondent to pay rent - Impugned order set aside and order of Appellate Bench of Small Causes restored - Petition disposed of. [para 9]

Citation: 2015(2)ABR406, AIR2015SC1131, 2015(1)ALLMR(SC)974, 2015(1)RCR(Civil)393, 2015(1)RCR(Rent)33,(2015)6 SCC526

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Whether court is justified in passing decree for eviction if tenant is irregularly making payment of rent?

In Mranalini B. Shah v. Bapalal Mohanlal Shah, the Supreme court has observed:

"The above enunciation, clarified 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 eg 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 clock-like 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."

This passage was quoted with approval by a Bench of three Judges of the Supreme Court in Mohan Laxman Hede v. Noormohamed Adam Shaikh reported in MANU/SC/0286/1988 : [1988]3SCR461 . The present case is exactly like the case of Mranalini Shah wherein the tenant was depositing the rent at irregular intervals. On every occasion of deposit, the tenant was in arrears of rent for 2 to 4 months. In the circumstances, the appellate Court was right in passing a decree for possession Under Section 12(3)(b) of the Act.

Equivalent Citation: 2005(2)BomCR463, 2005(107(1))BOMLR118, 2004(4)MhLj1020

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 929 of 1999

Decided On: 22.06.2004

Shri Lalji Ramnath Pande Vs.  Smt. Hawabi Abdulla Shaikh

Hon'ble Judges/Coram:
D.G. Karnik, J.

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Whether eviction of tenant is permissible in case of non payment of time barred rent?

 It is well settled law that law of limitation bars the remedy of the claimant to recover the rent for the period beyond three years prior to the institution of the suit, but that cannot be a ground for defeating the claim of the landlord for decree of eviction on satisfaction of the ingredients of the said section.

Bombay High Court

Shri Subhash Janardhan Kulkarni vs Smt.Rajashree W/O Avinash ... on 15 January, 2009

CORAM: A.M.KHANWILKAR,J
DATE : JANUARY 15, 2009.
Equivalent Citation: AIR1983Bom212, 1982(84)BOMLR537, 1983MhLJ254

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