SHOBHA NARAYAN PATIL AND ORS.versusTARAMATI R. RAUL (DECD.) BY HEIRS

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        Digitally
        signed by
                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
        KANCHAN
KANCHAN VINOD
VINOD   MAYEKAR                      CIVIL APPELLATE JURISDICTION
MAYEKAR Date:
        2026.09.11
        12:45:17                    WRIT PETITION NO. 5024 OF 2002
        +0530


                     1. Shobha Narayan Patil
                     Since Deceased Thr. LRs
                     Deleted as per order dated 02/01/2024
                     2. Amol Narayan Patil
                     Deleted as per order dated 13/01/2010
                     3. Atul Narayan Pati,
                     Age 36, Occ. Business
                     4. Kum. Mita Narayan Patil
                     Age 36, Occ. Business. Petitioner Nos.3 and 4
                     residing at Ganesh Smriti, Dr. Babasaheb
                     Ambedkar Marg, Parel, Bombay 400 012.
                     5. Smt. Hirabai Damodar Patil
                     deleted as per order dated 06/07/2005
                     6. Shweta Premnath Gunde
                     Age 34, Occ. Housewife. Kalina, Bombay.
                     7. Smt. Preeta Suresh Patil,
                     Age 33, Occ. Housewife, Shivnagar, Thane.         ….Petitioners
                            Vs
                     1. Smt. Taramati Ramchandra Raul
                     (Since deceased) Thr. LRs
                     1(a) Shri. Rajiv Subhash Raul
                     1(b) Smt. Shubhangi Subhash Raul
                     (Since deceased) Thr. LR
                     1(b)(i) Sanjay Subhash Raul
                     1(c) Shri. Jitendra Subhash Raul
                     Respondent Nos.1(a),1(b)(i) and 1(c)
                     All residing at Block No. 6, 2nd Floor,
                     Ganesh Smriti, Dr. B. R. Ambedkar Marg,
                     Parel, Mumbai – 400 012.                        …..Respondents
                     Mr. Sanjiv Sawant a/w Mr. Malhar Bageshwar, advocate for the
                     Petitioners
                     Mr. Vishwajeet S. Kapse, appointed as Amicus Curie for the
                     Respondents
                     Ms. Nirmala Gopal, advocate for Respondent No.1(a)
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                   CORAM                 : RAJESH S. PATIL, J.
                   RESERVED ON           : 17 JULY 2026
                   PRONOUNCED ON: 11 SEPTEMBER 2026
JUDGMENT:
1.    This writ petition is filed by the landlord challenging the

concurrent findings recorded by the Trial Court and the Appellate

Court, whereby the eviction suit filed by the landlord on the ground

of arrears of rent was dismissed.

2.    I have heard learned counsel for both the sides and with their

help, I have gone through the documents on record.

3.    In the present proceedings, an eviction suit was filed in the year

1983 under the provisions of The Bombay Rents, Hotel and Lodging

House Rates Control Act, 1947 (for short ‘Bombay Rent Act’) on the

grounds of arrears of rent. Hence, the provisions of Section 12(3) of

the Bomabay Rent Act, before the amendment of 1987 has to be

looked into.

4.    In the present proceedings before the Appellate Court, the

advocate appearing for the landlord gave away the ground of Section

12(3)(a). In the impugned judgment of the Appellate Court in para

no.14 it has been recorded as under:

               “14. Mr. Karia further submitted that when there is a
               demand in which a part of it is not payable by the month,
               then the whole of it is not payable by the month, and it
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               would seem to make no difference that the part which is
               not payable monthly which is a very small or in significant
               when contrasted with the the other rent or the other
               permitted increases which may be payable monthly.
               According to him, if any part of the rent is not payable by
               monthly, then it has to be held that the entire rent is not
               payable by the month, then consequently according to him,
               the section 12(3)(a) would not apply. According to him, if
               the rent is not payable monthly the case would be
               governed by section 12(3)(b) of the Bombay Rent Act.

               14. In the light of his above arguments on the point that
               the provisions of sec. 12(3)(a) of the Bombay Rent Act are
               not attracted …..”.


5.      Therefore, all that has to be looked into in this writ petition is,

‘Whether the landlord has made out a ground for eviction under

Section 12(3)(b) of the Bombay Rent Act, as it stood prior to the

amendment of 1987’.

6.      As far as Section 12(3)(b) is concerned, the date of framing of

the issues would be the date of the first hearing. In the present

proceedings, the issues admittedly were framed on 22 December

1994.

7.      Admittedly, prior to the said date of framing of issues, the

tenant had already deposited the rent before the Court. Thereafter,

the tenant had kept on depositing the rent in the Court till the

disposal of the suit and in fact, even in the Appellate Court. Both the
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Courts have concurrently held against the landlord.

8.    Supreme Court in the Judgment of Mranalini B. Shah and

another Vs. Bapalal Mohanlal Shah [(1980) 4 Supreme Court Cases

251] while confirming the view taken in Judgment of Ganpat Ladha

Vs. Shashikant [(1978) 2 SCC 573] and Shah Dhansukhlal

Chhaganlal Vs. Dalichand Virchand Shroff [AIR 1968 SC 1109] held

that the word “regularly” used in clause (b) of Section 12(3) has a

significance of its own. The regularity contemplated may not be clock-

like precision. After the tenant persistently defaults during the

pendency of the suit or appeal in paying the rent, the Court then has

no power to relieve the hardship of the tenant. Paragraph Nos.12 and

13 read as under:

             “12. 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: (SCC pp. 579 & 580,
             paras 10 & 11)
                    "... 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 Chhaganlal
             case followed by the more recent decision in Harbanslal
             Jagmohandas v. Prabhudas Shivlal which completely covers
             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
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      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's 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
      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
      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
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            legislature. It is not in the hands of courts.

            13. 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
            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.”
                                                             (Emphasis Supplied)

8.1   The Judgment of Mranalini B. Shah (supra) was followed by

the Supreme Court later in the Judgment of Mohan Laxman Hede Vs.

Noormohamed Adam Shaikh [(1988) 2 Supreme Court Cases 481]

are not applicable to the present proceedings as the demand notice
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and the averments made in the plaint, the demand was only of the

rent exclusive of permitted increases.

9.    In the present proceedings, on behalf of the landlord, it has

been stated that the tenant has not deposited rent in the writ petition

before the High Court.       Hence, the landlord had to make an

application for a direction that the tenant be directed to pay the rent

in Court. This Court by its order dated 27 November 2017, directed

the tenant to pay the rent on monthly basis and thereafter the rent

has been regularly deposited till date. An argument of the landlord

therefore is that an arrears of the rent as the judgment of the

Supreme Court states that the tenant is not only suppose to pay the

rent as demanded but he has to be punctual in payment of his rent till

the disposal of the proceedings.

10.   I am not affirming the arguments of the advocate appearing for

the landlord for the simple reason that the eviction on the ground of

arrears of rent is a strict provision where the Court has to see whether

the tenant has complied with the payment of rent by depositing the

same in Court from the first date of hearing till the disposal of the

suit. Going by the proceedings before the Trial Court from the date of

the issues till the date of hearing of the suit, the tenant has being

more or less accurate in depositing the rent. Even in the Appellate
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Court, the tenant who was the respondent, has deposited the rent in

Court. Therefore, in my view, in both, the Trial Court and the

Appellate Court the tenant was not in arrears of rent. Hence, both the

Courts held that a decree for eviction under Section 12(3)(b) of the

Maharashtra Rent Control Act cannot be granted. A writ petition is

filed by the landlord while the suit and the appeal thereon has been

dismissed. If the landlord wanted a tenant to deposit the rent, he

could have preferred an application well in advance. Once the Trial

Court and the Appellate Court has dismissed the suit for eviction on

the ground of arrears of rent, one cannot look into the writ petition

proceedings filed by the landlord and point out that there is a delay in

depositing the rent in the writ court. I am afraid this is not what is

contemplated by the Legislature under Section 12(3) of the Rent Act.

The case would be always different had it been in a situation where a

tenant has suffered an eviction decree before the Trial Court or else

both the Courts on the ground of arrears of rent and he has filed a

writ petition before this Court or the civil revision application before

this Court and in the said proceedings he does not deposit the rent,

then going by merits of that case, one has also to take into

consideration the conduct of tenant in not depositing the rent before

the High Court in the writ or else in the civil revision application.
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11.   There is one more argument raised before me on behalf of the

tenant that the demand which has been made in the notice and as

pleaded in the plaint, the demand is only of the rent exclusive of

permitted increases, how much is permitted increase has not been

stated in the notice nor the period is stated. Therefore, one cannot

say that if the tenant has deposited the rent and not permitted

increases, he should be called as a default. Further in the evidence, it

has come that as far as the property tax of the Corporation is

concerned, with regard to the suit premises, where the preliminary

liability of paying the property tax as per Section 154 of the Bombay

Municipal Corporation Act is concerned, the same is that of the

landlord. Thereafter, he can claim that the amount from the tenant. It

has come in evidence as admitted by the landlord that the demand

made by him of the property tax, the suit premises in the notice and

in the plaint as of that day was not paid by him to the Corporation,

since he had a dispute with the Corporation. Therefore, the demand

itself was a wrong demand.

12.   In the judgment of Raju Kakara Shetty v. Ramesh Prataprao

Shirole & Anr (1991) 1 SCC 570, the Supreme Court, while dealing

with the question of payment of taxes under the tenancy agreement,

held that where the tenancy agreement specifically provides for the
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payment of taxes monthly, the mere fact that, statutorily, the landlord

is liable to pay such taxes annually would not alter the contractual

obligation between the parties. The tenant cannot contend that since

the statutory liability towards taxes is annual in nature, the

corresponding amount could also be treated as payable annually or

that the same would not form part of the monthly liability under the

tenancy agreement. The Court emphasised that the rights and

obligations of the parties are to be determined in accordance with the

terms of the tenancy agreement and the statutory manner of

assessment or payment of the tax would not, by itself, override the

contractual stipulation.

13.   Considering the facts of the present case, the law laid down in

above judgments relied by the counsel of landlord will not be

applicable to the present proceedings. Hence, the petition fails and

the Rule issued in the writ petition is hereby discharged.

14.   Writ petition accordingly stands dismissed. No costs.

15.   This Court expresses its appreciation for the valuable assistance

and    contribution   made     by    the   learned    Amicus      Curiae,

Mr. Vishwajeet S. Kapase.


                                                (RAJESH S. PATIL, J.)