Ciby John D'Mello vs Rajashree Electric Corporation
2003 Latest Caselaw 1007 Bom

JUDGMENT

D.Y. Chandrachud, J.

1. A suit for eviction filed by the petitioner on the ground of default in the payment of rent has been dismissed. The suit was instituted in 1978. The judgement of the learned Civil Jude, Junior Division, Thane, which was delivered on 15.10.1986 has been confirmed in appeal by the Additional District & Sessions Judge, Thane, on 20.9.1989.

2. The petitioner is the owner of a shop bearing shop No. 1, admeasuring 12' x 12' on the ground floor of a building known as "Agness Ray", situate at Bhayandar in the district of Thane. The agreed rent of the shop was Rs. 70/- per month. The rent was in arrears since 1.7.1977. By a notice dated 31.3.1978, the petitioner terminated the tenancy and demanded the arrears of rent as well as possession of the suit premises. A suit for eviction came to be instituted under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the "Act"). Both before the learned trial Judge and the first appellate Court, the case turned on the question as to whether, within a period of one month of the receipt of the notice dated 31.3.1978, the tenant had tendered the arrears of rent to the landlord. There is no dispute about the fact that the notice dated 31.3.1978 wad received by the tenant on 5.4.1978. Section 12(3)(a) of the Act as it stood at the material time provided as follows:-

"12(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 shall pass a decree for eviction in any such suit for recovery of possession."

In the present case, the case of the respondent-tenant is that in response to the notice, he had on 4.5.1978 sent a money order to the petitioner.

3. The learned Trial Judge noted that the money order coupon was at exh.49 and the amount of the money order of Rs. 700/- was sent to the petitioner by the respondent on 4.5.1978 as per money order receipt No. 7478. On this finding, the Trial Juge held that the respondent had sent a money order within 30 days of the receipt of the notice to the petitioner. The learned Judge held that the suit notice was received by the tenant on 5.4.1978 and the tenant had sent the money order on the last day before the completion of 30 days from the receipt of the notice. While concluding the discussion on issue No. 2, which was the relevant issue in regard to the question of default, the Trial Court again held that the amount was already sent within 30 days from the date of service of the suit notice. That finding was affirmed by the Additional District Judge. The learned Judge held in para 12 of the judgment that the money order was sent on 4.5.1978. The Court held that once the money order had been sent within a period of 30 days, that was sufficient and in the present case, there was an endorsement on the money order coupon at exh.49 that the landlord was not available for receiving the money order when service was sought to be effected. (That endorsement is dated 12.5.1978).

Counsel appearing on behalf of the petitioner urged that the finding which has been arrived at by both the Courts below is ex facie incorrect because both the Courts have failed to consider the clear admissions on the part of the tenant. The first admission, it was urged, was to the effect that he had not sent the rent within 30 days of the service of the said notice. The second admission, it was urged, was to the effect that even thereafter the rent had not been deposited regularly by him upon the institution of the suit.

5. Section 12(3)(a) as it stood at the relevant time prior to its amendment in 1987, postulated that 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 the notice referred to in Sub-section (2), the Court shall pass a decree for eviction in any such suit for recovery of possession. Sub-section (2) of Section 12 requires the landlord to issue a notice to the tenant as provided in Section 106 of the Transfer of Property Act, 1882, and stipulates that a suit for the recovery of possession shall not be instituted on the ground of non-payment of the standard rent or permitted increases due, until after the expiration of one month next after a notice in writing of the demand has been served. In the present case, there is no dispute about the fact that the notice dated 31.3.1978 was, in fact, served on the tenant on 5.4.1978. In order to avoid the consequence of a decree under Clause (a) of Sub-section (3) of Section 12, the tenant had to make payment of the arrears of rent within a period of one month upon the receipt of the notice. In the course of his cross-examination, the tenant made the following admission:-

"It is true that I did not send the rent amount within 30 days after serving the suit notice."

The clear admission of the tenant is that the amount of rent was not sent to the landlord within a period of 30 days of the receipt of the notice of demand under Section 12(2).

6. Both the Courts below have ignored the material admission of the petitioner in the course of cross-examination. The recorded and proceedings have been perused. Before the learned trial Judge, in the course of the evidence of the tenant, the money order coupon was produced in evidence and marked as exh.49. Significantly, the money order coupon does not bear the date on which it was forwarded and about this, there is no dispute. Both the learned counsel have inspected the money order coupon and stated before the Court that there is no date of dispatch thereon. Hence, the finding of both the Courts below that the rent had, in fact, been despatched by money order on 4.5.1978 is not borne out by any evidence on record. Learned counsel for the respondent fairly states on inspecting the record that the money order receipt has not been proved in evidence and the money order coupon at exh.49 does not bear a date of despatch. On the contrary, there is the clear admission of the tenant that the rent had not been sent within a period of 30 days of the receipt of the notice from the landlord. The learned counsel appearing on behalf of the petitioner has drawn the attention of the Court to ground (5) in the Memo of Appeal before the District Court at Thane in which this ground was specifically taken. The ground of appeal reads thus:-

"(5) The learned Trial Court erred in coming to the conclusion that Defendant/Respondent sent arrears of rent by Money Order within 30 days from the date of service of suit notice, particularly when the defendant admitted in the cross-examination that he did not pay the rent amount within 30 days after service of suit notice."

Specific grounds have also been taken in grounds (4), (5) and (6) of the Memo of the Writ Petition which are in the following terms:-

"(4) It ought to have been noted that the respondent-tenant has given a categorical admission in his cross-examination to the effect that the amount of arrears of rent were not sent within one month.

(5) It ought to have been noted that Exhibit 49 which is the money order coupon of the money order allegedly sent by the respondents-defendants doe snot bear the postal stamp and also does not show the date on which it was sent.

(6) It ought to have been noted that the respondents-defendants have not filed the original receipt of sending the money order which could have easily been produced and hence adverse inference ought to have been drawn against the respondents-defendants."

Both the Courts below have overlooked the material admission on the part of the tenant which goes to the root of the matter. That admission is sufficient to come to the conclusion that a ground of eviction has been made out under Section 12(3)(a).

7. Even otherwise, the provisions of Section 12(3)(b) of the Act requires the tenant to continue to pay or tender in Court regularly, the rent and permitted increases until the suit is finally decided. The provisions of Section 12(3)(b) have been construed by the Supreme Court in Mrunalini B. Shah v. B.M. Shah wherein the Supreme Court held thus:-

"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 landlords 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 later 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.

(Emphasis supplied)

In the present case, there is a clear admission by the tenant that he was not regular in the deposit of rent. The admission is in the following terms:-

"I deposited the rent in the court sometimes after 1 or 2 months and sometimes after 3 months also. I did not deposit the rent amount every month regularly. I did not produce the rent amount receipts which are deposited in the court."

On this issue also, the express admission of the tenant in the cross-examination has been overlooked.

8. In that view of the matter, the interference of this Court in the exercise of its supervisory jurisdiction under Article 227 of the Constitution is warranted. This is a case, where the material evidence on the record, more specifically the express admissions of the tenant have been overlooked.

9. In the circumstances, the petition is allowed. The judgment and order of the learned Additional District Judge dated 20.9.1989 is quashed and set aside. The suit for eviction, accordingly, stands decreed. The rule is made absolute in the above terms.

10. On the request of the learned counsel for the respondent, there shall be a stay of operation of this judgment for a period of eight weeks from today.