Praveshchandra Ramprakash ... vs Abdul Ajij Dayabhai And Ors.
2001 Latest Caselaw 529 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard learned advocates for the parties. Perused the records.

2. Rule. By consent, rule made returnable forthwith.

3. The decree of eviction, which is sought to be challenged on the ground that the Lower Appellate Court failed to give benefit of Section 12(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 to the petitioners in spite of the fact that the petitioners had deposited all the arrears along with interest within 30 days from the date of filing of the standard rent application and has further deposited all the arrears within 30 days from the date of receipt of notice of the suit for eviction and thereafter had regularly deposited the rent during the pendency of the proceedings. It is the contention of the petitioners that, the Lower Appellate Court has set aside the order of dismissal of the eviction proceedings solely on the ground that regularity in payment of rent during pendency of the suit cannot make good default committed by the tenant at the very first date of the hearing of the suit. It is apparent from the impugned judgment itself that the first payment of arrears of rent was made by the petitioners on 13-4-1987 amounting to Rs. 7860/-, being the arrears of rent for the period from 1-6-1976 to 30-4-1987. Initially, an application for fixing of standard rent was filed on 31st March, 1987 but the same had been dismissed for default on 23-8-1991. Thereafter, the eviction suit being R.C.S. No. 251/1991 came to be filed by the respondents and pursuant to the service of summons of the same, the petitioners deposited the arrears of rent from 1-5-1987 on 15-7-1994. Thereafter also the petitioners deposited the rent upto 31-12-1994. However, thereafter the rent for the period from January 1995 till March, 1995 was deposited on 20th March, 1995. The petitioners paid rent regularly from August 1995 till January, 1996. Again the rent fallen due from 1-7-1996 onwards was paid only on 1-7-1997 during the pendency of the appeal. Further payments were made in the Lower Appellate Court on 11-7-1997, 12-2-1998, 17-7-1998 and 8-4-1999. Considering these irregular payments of rent, the Lower Appellate Court has observed that it does to show the delay on number of occasions in making payment of rent.

5. Section 12(3) of the said Act provides that 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 percent 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 pay cost of the suit as directed by the Court.

6. Placing reliance upon the decision of the Apex Court in the matter of Mohan Laxman Hede v. Noormohamed Adam Shaikh , it was sought to be contended that the expression regularly does not mean with exact or mathematical punctuality. In the said decision, the Apex Court, after considering the facts of the said case, has observed that there were a few defaults committed by the tenant in the sense that in respect of the first month to which the deposit relates, there was some delay amounting to from two or three days upto a maximum of 23 days. But, on the other hand, the rent for most of the months had been deposited in advance. It was sought to be contended in the case in hand that there was payment in advance. No doubt, such payment was made in relation to the period of February, 1997 to June, 1997. However, barring the said period, there appear to be always delay in payment of rent during the period from January 1995 to March, 1995 and from June 1997 onwards. Being so, the decision of the Apex Court in Mohan Laxman Hede's case has no application to the case in hand.

7. In fact, the decision in Mranalini B. Shah and Anr. v. Bapalal Mohanlal Shah , is clearly attracted in the case in hand. Therein it was observed thus :

"We think that the problem of interpretation and application of Section 12(3)(b) need not trouble us after the decision of this Court in Shah Dhansukhlal Chhaggahlal's case, followed by the more recent decision in Harbanslal Jagmohandas v. Prabhudas Shivlal, , 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 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...... 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 Chhagla, C. J. was doing nothing less than legislating in Kalidas Bhavan's case, 1958-60 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 quite 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 Courts."

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 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."

8. The Apex Court, therefore, has clearly held that the provisions of law contained in Section 12(3)(b) are mandatory in nature. A tenant desiring to claim benefit thereunder has to comply strictly the provisions thereof, and for that purpose has to deposit the rent regularly. The facts of the case in hand apparent from the judgments of the Courts below disclose that the petitioner had not deposited the rent regularly in the Court during the pendency of eviction proceedings.

9. It is true that the Lower Appellate Court has observed that the payments of rent made in advance during pendency of the proceedings would not take away the effect of already committed default by the defendants at the very first date of hearing of the suit. However, at the same time the Lower Appellate Court has held that the petitioners have committed default during pendency of the appeal and, therefore, has denied to grant any benefit of Section 12(3) of the said Act. The decision has been arrived at on analysis of evidence on record in proper perspective and hence warrants no interference in writ jurisdiction.

10. Hence, the petition fails and is dismissed. Interim relief stands vacated. Rule is discharged with no order as to costs.

11. The lower Appellate Court had directed the petitioner to deliver the vacant possession to the respondents on or before 31-3-2000. During the hearing of the petition on admission by way of interim relief the impugned order was stayed. In view of rejection of the petition, time to vacate the suit premises is extended till 31st December, 2001 subject to petitioners filing an undertaking to the effect that they would not part with the possession in favour of third person, nor would create any third party interest in it nor will induct any third party in the suit premises and that they will deliver the vacant peaceful possession to the respondents on or before 31st December, 2001. Necessary undertaking to that effect should be filed within a period of two weeks before the Additional Registrar of this Court.