JAYWANT S. KULKARNI & ORS.versusMLNOCHAR DOSABHAI SHROFF & ORS.

A                       JAYWANT S. KULKARNI & ORS.
    I
                                            v.
                   MlNOCHAR DOSABHAI SHROFF & ORS.

                                   AUGUST .9, 1988
B
             [R.S. PATHAK, CJ, SABYASACHI MUKHARJI AND
                           L.M. SHARMA,JJ.]

              Bombay Rents, Hotel and Lodging House Rates Control Act,
        1947: S. 12-Tenant in arrears of rent for six months or more-Failure
        to pay within one month from notice-Dispute regarding standard rent
c       not raised-Eviction-Held valid.

              Section 12(2) of the Bombay Rents, Hotel and Lodging House
        Rates Control Act, 1947 bars suits for recovery of possession against the
        tenant on the ground of non-payment of the standard rent until the
        expiration of one month next after notice in writing. Section 12(3)(a)
0
        provides for passing of a decree for eviction of the tenant who is in
        arrears for a period of six months and neglects to make payment until
        the expiration of the notice period provided there is no dispute regard-
        ing the standard rent. Section 12(3)(b) interdicts passing of the decree if
        the ienant pays or renders in the court the standard rent and permitted
E       increases then due.

              The appellants were served with a notice under s. 12(2) of the Act
        terminating the tenancy and calling upon them to pay arrears of rent
        from 1st September, 1971to31st December, 1972. They did not pay the
        amount claimed. No dispute was raised regarding the standard rent.
        The trial court and the appellate court came to. the conclusion that
F
        there was neglect on the part of the appellants within the meaning of
        s. 12(3)(a) of the Act meriting a decree for eviction. The High C<JUrt
        dismissed the appeal.

              In the appeal by special leave, it was contended for the appellants
G       that the landlord was not granting receipts, that he was not demanding
        rent but compensation for use and oecupation, that the landlord was
        acting mala fide and preventing the tenariti'rom performing his obliga-
        tion, that this was not a case of bona-fide need and that the landlord
        was affiuent and the tenant was poor.

              Dismissing the appeal,

                                            296
                     J.S. KULKARNI v. M.D. SHROFF                     297

      HELD: l.l In view of the provisions of s. 12(3)(a) and (b) of the
                                                                             A
Act and in the background of the facts and circumstances of the case,
the courts below were right. The eviction order bad to follow by opera-
tion oflaw. [301H-D]

      l.2 Sub-section 3(a) of s. 12 categorically provided that where the
rent was payable by the month and there was no dispute regarding the         B
amount .. of standard rent or permitted increases, if such rent or
increases were in arrears for a period of six months or more and
th~ tenant neglected to make payment thereof until the expiration of
the period of one month after notice referred to in sub-s. (2), the court
shall pass a decree for eviction in any such suit for recovery of
possession. [301B]
                                                                             c
      l.3 In the instant case, the rent was payable month by month.
There was no dispute regarding the amount of standard rent or permit-
ted increases. Such rent or increases were in arrears for a period of six
months or more. The tenant had neglected to make payment until the
expiration of the period of one month after notice referred to in sub-s.     D
(2). The court was bound to pass a decree for eviction in any such suit
for recovery of possession. [301C)                                     ·

     Harbanslal Jagmohandas & Anr. v. Prabhudas Shiv/al, [1976) 3
SCR. 628 referred to.
                                                                             E
     Mohan Laxman Hede v. Noormohamed Adam Shaikh. AIR 1988
SC. 1111 distinguished.

       2. The expression "court shall pass a decree" in sub-s. 3(a) of
s. 12 was substituted for the words "court may pass a decree" by an
amendment passed in 1963, making it mandatory to pass the decree.            F
When the legislature has made its intention clear in specific terms, there
was no scope for appeal to the "spirit of the law" and not to the strict
letter of the law. [302C-D)

      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 258
of 1982.                                                                     G
     From the Judgment and Order dated 3.11.1981 of the Bombay
High Court in Spl. Civil Appln. No. 2598 of 1978.            -

      S.B. Bhasme and V.N. Ganpule for the Appellants.
                                                                             H
    298         SUPREME COURT REPORTS                I1988] Supp. 2 S.C.R.
        Dr. Y.S. Chitale, R.F. Nariman, B.H. Antia and Mrs. A.K.
A
    Verma for the Respondents.

          The Judgment of the Court was delivered by

          SABYASACHI MUKHARJI, J. This is an appeal by the tenant.
   It arises out of an order of eviction passed by the Civil Judge, Thane
   and confirmed by the learned Assistant Judge of Thane on or about
   24th July, 1976. The High Court of Bombay on or about 3rd
   November, 1981 dismissed an application under Article 227 of the
   Constitution challenging the said decision. Civil Suit No. 176 of 1974
   was filed by the respondent-landlord against the appellants for posses-
   sion of the building called J amshed Villa at Thane. The ground floor of
c the building consists of one hall, two bed rooms, two side rooms and a
   kitchen. The said premises was let out to one Shri S.H. Kulkarni the
   deceased father of the appellants some years ago by the respondent on
   the rent of Rs.50 per month. The former owner, it is stated, ter-
   minated the tenancy of the appellants on 20th June, 1976, and the
D deceased Shri Kulkarni continued to occupy it as a statutory tenant.
   On the sale of the suit property the tenancy of Shri S.H. Kulkarni was
   duly attorned to the present plaintiff. Shri S.H. Kulkarni then expired.
   On 11th January, 1973 the respondents served the notice upon the
   appellants requiring them to vacate the suit premises on various
   grounds. By the said notice the respondent also called upon the appel-
E lants to pay the arrears of rent for the period from 1st September, 1971
   to 31st December, 1972 at the rate of Rs.50 per month. The total
   arrears came to Rs.800. Indubitably, the amount claimed in this notice
    was not paid by the appellants to the respondent. The appellants re-
    plied to the notice. In that reply, several contentions were urged. It
    may be mentioned that the suit was filed on various grounds, namely,
F that the appellants have created a nuisance and they are irregular in
    paying the rent and further it was stated that the respondent required
    the suit premises reasonably and bona fide for his personal use and
    occupation. The learned trial Judge after framing the issues, on all
    issues held in favour of the tenant except the issue of the arrears of
    rent. The learned trial Judge held that the appellants had failed and
G neglected to pay the arrears of rent within the statutory period in spite
    of the notice under Section 12(2) of the Bombay Rents, Hotel and
    Lodging House Rates Control Act, 1947 (hereinafter called 'the Act').
    The trial court, however, on the question whether the appellants
    have raised a substantial plea that the rent is excessive, did not go into
    this aspect in view of the decision of this Court in Harbanslal
 H Jagmohandas & Anr. v. Prabhudas Shiv/al, [1976] 3-S.C.R. 628.
             J.S. KULKARNI v. M.D. SHROFF [MUKHARJI, J.)              299

Accordingly, the trial Judge decreed the suit on the ground that the A
appellants are in arrears of rent. There was an appeal from the said
 decision of the trial Judge to the learned Assistant Judge, Thane. The
learned Assistant Judge affirmed the order of the learned trial Judge
but reiterated that the tenant could claim protection from the opera-
tion of Section 12(3)(a) of the Act, only if the tenant had made an
application within one month from the service of the notice under B
Section 12(2) of the Act terminating the tenancy wherein a dispute was
raised regarding the standard rent. It is common ground that the
appellants in this case did not make any application within one month
from the service of the notice under Section 12(2) of the Act terminat-
ing the tenancy wherein a dispute was raised regarding the standard
rent. The learned Assistant Judge, therefore, confirmed the order for
eviction. The appellants moved the Bombay High Court. The C
Bombay High Court by the judgment under appeal on 3rd November,
1981 dismissed that application holding that neglect on the part of the
appellants in making payment as mentioned in Section 12(3)(a) of the
Act has to be decided on the facts of each case. The High Court
reiterated that after considering all the facts and circumstances both o
the Courts below had rightly come to the conclusion that there was
neglect on the part of the appellants within the meaning of Section
12(3)(a) of the Act, meriting a decree for eviction.

       Shri Bhasme appearing for the appellants contended before us
that the High Court was wrong and did not properly consider the              E
conduct of the respondent in not giving receipts. Before we consider
this contention, it may be appropriate to refer to the provisions of
Section 12 of the Act. It provides that the 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         F
conditions of the tenancy, in so far as they are consistent with the
provisidns of the Act. Sub-section (2) of Section 12 also stipulates that
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            G
increases has been served uppn the tenant in the manner provided in
Section 106 of the Transfer of Property Act, 1882. Sub-section (3)(aJ &
(b) of Section· 12 of the Act are important and set olit hereunder:

            "(3)(a) Where the rent is payable by the month and there is
            no dispute regarding the amount of standard rent or              H
    300        SUPREME COURT REPORTS                  [1988] Supp. 2 S.C.R.

               permitted increases, if such rent or increases are in arrears
A
               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
                     (b) In any other case no decree for eviction shall be
               passed in any such suit if, on the first day of hearing o~ 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 thereafter continues to
               pay or tender in Court regularly such rent and permitted
c              increases till the suit is finally decided and also pays costs of
               the suit as directed by the Court."

                                                         (Emphasis supplied)

D         This question, as to how a payment to be made. under Section
    12(3)(a) and (b), had been considered by this Court in Harbanslal
    Jagmohandas & Anr. (supra). There, both the appeals raised a com-
    mon question as to whether a tenant in order to resist passing of a
    decree of eviction under the provisions contained in Section 12(3)(a) of
    the Act must dispute the standard rent within one month from the date
E   of receipt of the notice from the landlord terminating the tenancy on
    the ground of arrears of rent or whether a tenant can raise such a
    dispute in the written statement. There was difference of opinion bet-
    ween Bombay and Gujarat High Courts. The Gujarat High Court took
    the view that the dispute as to standard rent had to be raised within
    one month from the service of the notice on the tenant. The Bombay
F   High Court had taken a contrary view and held that the tenant could
    raise a dispute as to standard rent in his written statement in answer to
    the smt and in such a case the provisions of Section 12(3)(a) of the Act
    would apply. In the Gujarat case, the High Court found that the tenant
    did not raise the dispute within one m01,1th of the service of the notice
    terminating the tenancy, inter alia, on the ground of arrears of rent for
G   more than 6 months. In the Bombay appeal the dispute was not raised
    within one month from the· date of the receipt of the notice. It was,
    however, raised in the written statement. Under Section 11 of the Act,
    the Court had power to determine standard rent when there was a
    dispute between the landlord and tenant regarding the amount of
    standard rent. It was held by this Court that under Section 12 of the
H   Act the landlord is not entitled to recover possession of the premises
             J.S. KULKARNI v. M.D. SHROFF [MUKHARJI, J.l           301

 so long as the tenant pays or is ready and willing to pay the amount of
                                                                           A
standard rent and permitted increases. Section 12(2) provides that 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 until the
expiration of one month next after notice in writing of the payment of
the standard rent. This Court held that the view of the Bombay High
 Court was erroneous and the view of the Gujarat High Court was B
correct. Sub-section 3(a) of Section 12 categorically provided that
where the rent was payable by the month and there was no dispute
regarding the amount of standard rent or permitted increases, if such
rent or increases were in arrears for a period of six months ormore and
the tenant neglected 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 c
possession. In the instant case, as has been found by the Court, the
rent is payable month by month. There is. no dispute regarding the
amount of standard rent or permitted increases. Such rent or increases
are in arrears for a period of six months or more. The tenant had
neglected to make payment until ·the expiration of the period of one D
month after notice referred to in sub-section (2). The Court was bound
to pass a decree for eviction in any such suit for recovery of possession.
In terms of the decision of this Court in Harbanslal Jagmohandas ·
(supra), the eviction order had tofollow by operation of law.

       Shri.Bhasme, however, submitted before us that here there was· E
no question of negligence in proper light because he drew our atten-
tion to several letters whereby the tenant offered to pay the rent to the
landlord. The tenant's case was that the landlord was not granting
receipts. The landlord was not demanding "rent" but was demanding
"compensation" for use and occupation. He drew .our attention to
several decisions and urged that the tenant was willing to pay the rent F
provided receipts were granted to him. Shri Bhasme urged that the
landlord did not comply with the request to give written receipt. He
was punishable with fine which might extend to one hundred rupees
under sub-section (2) of Section 26 of the Act. Shri Bhasme submitted
that in this case, the landlord was ma/a fide and by his mala fide act he
was preventing the tenant from performing his obligation. He. further G
urged that this was not a case of bona fide need. The landlord was
affluent and the tenant was poor. There was a great shortage of accom-
modation. In view of the decision of this Court in Harbanslal
Jagmohandas & Anr. v. Prabhudas Shiv/al (supra) and the provisions
of Section 12(3)(a) and (b) and in the background of the facts and
circumstances of the case, we must hold that the Courts below were right. H
    302         SUPREME COURT REPORTS                [1988] Supp. 2 S.C.R.

A         Our attention was drawn to a decision of this Court in Mohan
    Laxman Hede v. Noormohamed Adam Shaikh, A.LR. 1988 S.C.
    1111, where this Court reiterated that to take advantage of protection
    from eviction under Section J2(3)(b) of the· Act, it cannot be said that
    exact or mathematical punctuality was required in the deposit of rent
    by a tenant. The tenant had been depositing the rents in that case in
B
    Court for two or three months at a time. There the Court was concerned
    with the expression "regularly" as contemplated in clause (b) of sub-
    section (3) of Section 12 of the Act. It was not concerned with clause
    (a) of sub-section (3) of Section 12 of the Act. It was not concerned
    with the question of total failure or neglect on the part of the tenant to
    pay the rent. It may be instructive in this connection to note that in
c   sub-section (3)(a) of Sec. 12'of the Act, the expression "Court shall pass
    a decree" was substituted for the words "Court may pass a decree" by
    an amendment passed in 1963, making it mandatory to pass the
    decree. When the Legislature had made its intention clear in specific
    terms, there was no scope for Shri Bhasme's appeal to 'the spirit of the
    law' and not to the strict letter of the law.
D
        In the aforesaid view of the matter, this appeal fails and is
  accordingly dismissed. But in the facts and circumstances of the case,
  the parties will pay and bear their own costs. Furthermore, in order to
  cause less hardship in the situation, we direct that the appellants will
E have six months time to vacate the premises in question, provided they
  file an undertaking within six weeks from this date to this Court thai
  they will deliver vacant possession of the premises to the landlord after
  the expiry of six monihs from this date and to go on paying rent/
  compensation until possession is given and not to induct or let anybody
  in the premises in question, in the usual terms.

    P.S.S                                                  Appeal dismissed.