Bombay High Court

Nilkanth Govind Ghodke vs Vinayak Shankar Joshi And Ors. on 4 September, 2025

Author: N.J.Jamadar

Bench: N.J.Jamadar

2025:BHC-AS:37150

                                                                           wp 7491 of 2000.doc

                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CIVIL APPELLATE JURISDICTION
                                  WRIT PETITION NO.7491 OF 2000

            Nilkanth Govind Ghodke,
            Age 60 years, Occu - Business,
            R/o H.No.1649, Balaji Koth,
            Nashik                                             ...   Petitioner

                    versus

            1.      Vinayak Shankar Joshi (deceased)
                    (through his heirs No.1A to 1C)

            1A      Hirabai Vinayak Joshi,
                    Age 50 years,

            1B      Meeta Mahesh Babrekar,
                    Age 28 years, R/o Dahanu,

            1C      Pushpa Vinayak Joshi,
                    Age 26 Years,

                    Nos.1A and 1C R/o Nashik Panchawati,
                    H.No.64601, Walmik Nagar,
                    Nashik                                     ...     Respondents

            Ms. Rukmini Khairnar i/by Mr. P.N.Joshi, for Petitioner.
            Mr. Gaurav Ugale i/by Mr. S.S.Kulkarni, for Respondent Nos.1A to 1C.

                                CORAM:       N.J.JAMADAR, J.

                                RESERVED ON              : 1 JULY 2025
                                PRONOUNCED ON            : 4 SEPTEMBER 2025

            JUDGMENT :

1. This Petition under Article 227 of the Constitution of India assails the

legality, propriety and correctness of a judgment and decree dated 31 January

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2000 passed by the learned District Judge, Nashik, in Civil Appeal No.236 of

1994, whereby the appeal preferred by the Petitioner against the judgment

and decree dated 25 March 1994 in RCS No.630 of 1985 came to be

dismissed by affirming the said decree of dismissal of the suit instituted by the

Petitioner.

2. Shorn of unnecessary details, the background facts can be stated as

under :

2.1 The Petitioner is the owner of Municipal House No.1649 situated at

Nashik. Vinayak Shankar Joshi, predecessor in title of Respondent Nos.1A to

1C, was the tenant in two rooms admeasuring 21 x 10 sq.ft. situated on the

ground floor of the said premises (the suit premises). Rent was Rs.10/- p.m.,

apart from Rs.1.50 p.m. education cess.

2.2 The Plaintiff instituted a suit, being RCS No.630 of 1985, for recovery of

possession of the suit premises with the assertion that the defendant-tenant

was the willful defaulter in payment of rent. The Defendant was in arrears of

rent from 1 February 1982 to 1 January 1985. Demand notice was issued on

13 February 1985. It was duly served on the Defendant on 1 March 1985.

However, the Defendant committed default in payment of rent within the

stipulated period. Secondly, the Plaintiff required the suit premises

reasonably and bonafide for his use and occupation as there were 17

members in the family of the Plaintiff and two sons of the Plaintiff were then of

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marriageable age. Thirdly, it was averred that the Defendant had acquired a

suitable alternate accommodation i.e. two rooms at House No.4601 at Walmik

Nagar, Nashik,

2.3 The Defendant resisted the suit by filing written statement. It was

denied that the Defendant was in arrears of rent. It was contended that the

rent was Rs.5/- p.m. and not Rs.10/- as claimed by the Plaintiff. The suit for

arrears of rent was stated to be barred by law of limitation. It was also refuted

that the Plaintiff required the suit premises reasonably and bonafide for his

occupation. It was stoutly denied that the Defendant had acquired suitable

alternate accommodation.

2.4 By a judgment and order dated 25 March 1994, learned Civil Judge,

Nashik, was persuaded to dismiss the suit on all three counts. It was, inter

alia, held that in view of the amendment to Section 12(3) of the Bombay

Rents, Hotel and Lodging House Rates Control Act, 1947 (Bombay Rent Act,

1947) by Amendment Act, 1987 (Act of 18 of 1987) w.e.f. 1 October 1987, the

Plaintiff was not entitled to a decree for eviction on the ground of default in

payment of rent, as on the first day of appearance i.e. 19 January 1985, the

Defendant had deposited the entire amount of rent and taxes. Learned Civil

Judge also answered the issues of personal bonafide requirement and

suitable alternate accommodation against the Plaintiff.

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2.5 Being aggrieved, the Plaintiff preferred an appeal before the District

Court.

2.6 By the impugned judgment and order dated 31 January 2000, learned

District Judge dismissed the appeal concurring with the view of the learned

Civil Judge on all three counts. Learned District Judge was of the view that,

in view of the 1987 amendment to Section 12(3) of the Bombay Rents Act,

1947, no decree of eviction could be passed against the tenant as the latter

had deposited the due rent and taxes on the first day of appearance without

any objection having been taken by the Plaintiff.

2.6 Being further aggrieved, the Petitioner has preferred this Writ Petition.

3. On 29 January 2001, Rule was issued.

4. I have heard Ms. Khairnar, learned Counsel for the Petitioner, and Mr.

Gaurav Ugale, learned Counsel for Respondents, at some length. With the

assistance of the learned Counsel for the parties, I have also perused the

material on record.

5. Ms. Khairnar, learned Counsel for the Petitioner, submitted that both the

Courts below committed grave error in law in holding that the tenant was

entitled to the benefit of the provisions of Section 12(3) of the Bombay Rent

Act, 1947, as amended by the Amendment Act 18 of 1987. Ms. Khairnar

submitted that the amendment introduced by the Act 18 of 1987 in Section

12(3) of the Bombay Rent Act, 1947 had no retrospective application. The

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Courts below lost sight of the fact that by not paying arrears of rent within one

month of the service of the statutory notice or filing the application for

determination of the standard rent, the tenant had incurred forfeiture of

tenancy. The subsequent amendment to sub-Section (3) of Section 12 of the

Bombay Rent Act, 1947, would not, therefore, save the tenant from the

consequences that entailed the failure to deposit the arrears of rent or raise a

dispute in regard to the standard rate, in the manner known to law.

6. To buttress this submission, Ms. Khairnar placed a very strong reliance

on the judgment of a learned Single Judge of this Court in the case of Piroja

M. Mehta V/s. Dr. Nambai Jamshedji Cama and Ors. 1, wherein it was held

that Section 12(3) of the Bombay Rents Act, 1947, as amended by the

Maharashtra Act No.18 of 1987, was not retrospective but prospective. All

the suits which had been filed prior to 1 October 1987 were to be governed by

the law prevailing at the time of the institution of the suit, namely Section

12(3) of the Bombay Rent Act, 1947, as it stood before its amendment by the

Maharashtra Act, 18 of 1987.

7. Ms. Khairnar also made an endeavour to urge that the Courts below

committed a manifest error in appreciating the evidence on the aspect of

acquisition of suitable alternate accommodation by the tenant. The voters list

indicated the names of the deceased tenant Vinayak and his wife Hirabai as

1 1988 Mh.L.J. 979

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the residents of the area where the alternate accommodation was situated i.e.

Walmik Nagar, Nashik. It was further urged that the issue of bonafide

requirement was also wrongly decided as the requirement of the children of

the landlord was unjustifiably discarded, though expression 'family' is required

to be considered liberally.

8. In opposition to this, Mr. Ugale, learned Counsel for the Respondents,

would support the impugned order. It was submitted that since the deceased

tenant had deposited the arrears of rent on the first day of appearance in

accordance with the directions of the Court, the case was, in fact, covered by

sub-Section (1) of Section 12 of the Bombay Rents Act, 1947, as it cannot be

said that the tenant was not ready and willing to pay the rent. Therefore, no

decree of eviction could have been passed. The Courts below were therefore

fully justified in declining to pass a decree of eviction on the ground of default

in payment of rent.

9. To lend support to this submission, Mr. Ugale placed reliance on a

decision of the learned Single Judge of this Court in the case of Khanderao

Malkarjun Dhotre V/s. Anandrao Laxmanrao Mashalkar 2, wherein the

import of the term "on the first day of hearing" as it appeared in clause (b) of

sub-section (3) of Section 12 of the Bombay Rent Act, 1947, was expounded.

10. Mr. Ugale would further submit that, in the light of the evidence and

2 AIR 1959 Bom 471

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material on record, it cannot be said that the learned Civil Judge and the

learned District Judge committed such error as to warrant exercise of writ

jurisdiction. At any rate, the evidence on the aspects of the personal bonafide

requirement of the Plaintiff and acquisition of the suitable alternate

accommodation did not sustain those ground of eviction, even if construed

rather generously.

11. I have given anxious consideration to the aforesaid rival submissions.

On the aspect of the personal bonafide requirement and acquisition of

alternate accommodation by the tenant, this Court finds that the trial Court as

well as the Appellate Court have not committed such error in the appreciation

of evidence as to warrant interference by this Court in exercise of supervisory

jurisdiction. It cannot be said that the findings recorded by the trial Court are

not borne out by the evidence and material on record. Nor can those findings

be termed to be perverse or so unreasonable that no court could have

recorded such findings.

12. However, the issue as to whether the tenant had incurred forfeiture of

tenancy on account of default in payment of rent, requires consideration. Few

facts deserve to be noted. Undisputedly, the landlord had addressed a notice

on 13 February 1985 asserting that the tenant was in arrears of rent and

education cess from 1 February 1983 to 31 January 1985. It seems

incontrovertible that the said notice was duly served on the tenant on 1 March

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1985. It is not in dispute that the tenant had not paid the arrears of rent within

a period of one month of the service of the notice. Nor the tenant had raised

a dispute with regard to the standard rent by filing an application. The trial

Court has categorically recorded that since the Defendant had not filed an

application for fixation of the standard rent within the stipulated period, the

dispute raised by the tenant in the written statement regarding the standard

rent, could not be considered. Accordingly, issue No.5 regarding the standard

rent of the demised premises was answered as not tenable.

13. In the backdrop of the aforesaid uncontroverted facts, the question as

to whether the trial Court and the Appellate Court were justified in extending

the benefit of the provisions contained in Section 12(3) of the Bombay Rents

Act, 1947, as amended by Act No.18 of 1987, arises for consideration.

14. Evidently, the suit was instituted on 19 August 1985, much before the

amendment came to be introduced. The Courts below were of the view that,

since the tenant had deposited the rent on 19 November 1985, the first day of

the appearance, and the suit was pending when the Amendment Act No.18 of

1987 was brought into force, the tenant was entitled to the benefit of the

amended provisions. Whether this view is legally sound ?

15. Section 12 of the Bombay Rent Act, as it stood prior to 1987, read as

under :

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"12. 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 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 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 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. (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.

(b) In any other case no decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on 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

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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 Court 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."

16. After the 1987 Amendment, sub-Section (3) of Section 12 of the

Bombay Rents Act, 1987, read as under :

"(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."

17. Significant changes were introduced by the Amendment Act 1987 in

sub-Section (3) of Section 12 of the Bombay Rents Act, 1947. Firstly, the

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distinction between the classes of suits, as envisaged by unamended Section

(3) (a) and (b) of Section 12, namely, where there was a dispute about the

standard rent and where there was no dispute about the standard rent was

done away with. Likewise, the distinction between the cases where the rent

was payable by the month and where it was not so payable, was removed.

Secondly, an opportunity was given to the tenant to pay arrears of rent on the

first day of hearing of the suit or on or before such other date, as the Court

may fix. Thirdly, the tenant was obligated to pay the said amount of arrears of

rent alongwith interest @ 9% p.a., and continue to pay the rent till the suit was

finally decided.

18. Learned Civil Judge and the learned District Judge have proceeded on

the premise that since the tenant had deposited the rent and taxes on the first

day of appearance, he was entitled to the benefit of sub-Section (3) of Section

12, as amended by the Act No.18 of 1987. That brings to the fore the

question as to whether the said amendment was prospective or retrospective,

in the sense that, its benefit could be claimed even by the tenant who had not

deposited the arrears of rent within one month of the service of notice, nor

raised a dispute about the standard rent before the said amendment came

into force.

19. In the case of Piroja M. Mehta (supra), on which reliance was placed

by Ms. Khairnar, the learned Single Judge of this Court considered the

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question, whether the amendment introduced by the Maharashtra Act, No.18

of 1987 to sub-Section (3) of Section 12 was retrospective, and, after tracing

the legislative history of relief against forfeiture under successive Rents Act,

and the governing precedents, culled out the following propositions :

"40. From the aforesaid discussion, the following propositions emerge :

(1) Section 12(3) of the Bombay Rent Act, as amended by Maharashtra Act No.XVIII of 1987, is not retrospective but is prospective.

(2) All the suits which have been filed prior to 1 st October 1987 are to be governed by the law prevailing at the time of the institution of the suit, namely Section 12(3) of the Bombay Rent Act before its amendment by Maharashtra Act No.XVIII of 1987.

(3) All suits for recovery of possession on the ground of arrears of rent filed on or after 1 st October 1987 will be governed by the provisions of Section 12(3) of the Bombay Rent Act, as amended by Maharashtra Act No.XVIII of 1987, irrespective of whether the notice under Section 12(2) was given before or after the said date."

20. It would be advantageous to note that the said question was also

considered by the Supreme Court in the case of Arjun Khiamal Makhijani

and Ors. V/s. Jamnadas C. Tuliani and Ors. 3. In the said case, a

submission was canvassed that since the tenants therein had deposited the

3 1989 (4) SCC 612

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entire arrears of rent within the time granted by the Court, the tenants could

not be treated as defaulters. The Supreme Court observed as under :

6.........We, however, find it difficult to agree with this submission. It is not denied that the arrears of rent which were for a period of more than six months and in respect of which a notice of demand had been served on the tenants under sub-section (2) of Section 12 of the Act had not been paid by the tenants to the landlord within one month of the service of the notice. It is also not denied that during the said period of one month, no dispute regarding the amount of standard rent or permitted increases was raised by the tenants. On a plain reading of clause (a) of sub-section (3) of Section 12 of the Act as it stood at the relevant time, the said clause was clearly attracted and the consequence provided therein had to follow namely a decree for eviction against the tenants had to be passed. Clause (b) of sub-

section (3) on the face of it was not attracted inasmuch. as the said clause applied only to a case not covered by clause

(a). This is amply borne out by the use of the opening words "In any other case" of clause (b)."

21. A further submission was canvassed on behalf of the tenants that since

the Bombay Rent Act, 1947 was a beneficial legislation and the tenants had

deposited the arrears of rent within the time granted by the trial Court and

continued to deposit the future rent thereafter, the decree for eviction

deserved to be reversed. Repelling the aforesaid submissions, the Supreme

Court has observed as under :

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"9.When the Act contains provisions, some of which fall under the category of beneficial legislation with regard to the tenant and the others with regard to the landlord, the assertion that even with regard to such provisions of the Act which fall under the purview of beneficial legislation for the landlord an effort should be made to interpret them also in favour of the tenant is a negation of the very principle of interpretation of a beneficial legislation on which reliance is placed on behalf of the tenants.

The argument indeed is self-defeating and only justifies the cynical proverb - Heads I win tails you lose. It is difficult to countenance the sentimental approach made by the learned Counsel for the tenants, for the simple reason that as pointed out in Latham v. R. Johnson and Nephew Ltd. 4 sentiment is a dangerous will-o-the-wisp to take as a guide in the search for legal principles." (emphasis supplied)

22. The Supreme Court even did not accede to the submission on behalf of

the tenants that, notwithstanding the provisions contained in Section 12(3)(a)

of the unamended Bombay Rents Act, 1947, the Supreme Court can grant

relief to the tenant in view of the power conferred on it under Article 142 of the

Constitution, for doing complete justice in the case. It was held that such

submission ignores the basic concept that Article 142 does not contemplate

doing justice to one party by ignoring mandatory statutory provisions and

thereby doing complete injustice to the other party by depriving such party of

the benefit of the mandatory statutory provision.

4 (1913) 1 KB 398

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23. The decision in the case of Piroja M. Mehta (supra), was followed by

another learned Single Judge in the case of Anandrao Ganpatrao Sable V/s.

Madhavrao Ramrao Kanase and Anr. 5, wherein in an identical fact situation

where the suits for eviction were instituted before the Amendment Act of 1987,

came into force, this Court rejected the submission that the benefit of the

amended sub-Section (3) of Section 12 of the Bombay Rent Act be given to

the tenants.

24. In view of the clear enunciation of law by the Supreme Court in the

case of Arjun Khiamal Makhijani (supra), and this Court in the above

referred three judgments, the Courts below committed a manifest error in law.

25. The submission on behalf of the Respondents that the case would be

governed by sub-section (1) of Section 12 of the unamended Bombay Rent

Act, 1947, does not advance the cause of the Respondents. In view of the

aforesaid clear enunciation of law and incontrovertible facts that the tenant

had neither paid the arrears of rent within one month, nor raised dispute about

the standard rate by filing an application within the stipulated period, a decree

of eviction was inevitable.

26. Reliance on the judgment in the case of Khanderao Malkarjun Dhotre

V/s. Anandrao Laxmanrao Mashalkar (supra), is of no assistance to the

Respondents, as the said decision dealt with the import of the term 'on the

5 1989(1) Bom.C.R. 256

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date of hearing of the suit' as it appeared in clause (b) of sub-Section (3) of

Section 12 of the Bombay Rent Act, 1947. The instant case was squarely

covered by clause (a) of sub-section (3) of Section 12 of the Bombay Rent

Act, 1947.

27. The conspectus of aforesaid consideration is that the impugned

judgments and orders which have proceeded on an erroneous premise that

the provisions contained in Section 12(3) of the Bombay Rent Act, 1947, as

amended by the Act No.18 of 1987, had retrospective application, deserve to

be quashed and set aside. As the Defendant committed default in payment of

arrears of rent within one month of the service of the notice, the decree for

eviction must follow.

28. Hence, the following order :

ORDER

(i) The Writ Petition stands allowed.

(ii) The impugned judgment and decree passed by the learned

District Judge in Civil Appeal No.236 of 1994 as well as the judgment and

decree passed by the trial Court in RCS No.630 of 1985 stand quashed and

set aside.

(iii) RCS No.630 of 1985 stands decreed.

(iv) The Defendants/Respondents shall handover clear and vacant

possession of the suit premises to the Plaintiff/Petitioner within a period of two

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months from today.

(v) An inquiry as to mesne profits from the date of institution of the

suit until the delivery of possession of the suit premises to the plaintiff be held.