Deniel Mathew and Others vs A.L. Fernandes and Others

D.K. Deshmukh, J.—This is a tenant''s petition filed under Article 227 of the Constitution of India, challenging the order dated 5th of August 1981 passed by the Appellate Court under the Bombay Rent Act in Appeal No. 267 of 1977, whereby the Appellate Court has allowed the Appeal filed by the Respondent. The Respondent had filed an Appeal before the Appellate Court challenging the judgment dated 5th of January 1977 passed by the Judge, Small Cause Court, Bombay in RAE Suit No: 2674 of 1972. The Respondent had filed RAE Suit No. 2674/72 for a decree of eviction against the petitioner. That suit was dismissed by the judgment dated 5.1.1997 of the Judge of Small Cause Court. The Appellate Court allowed the Appeal and decreed the suit for a decree of eviction against the petitioners.

The original plaintiff i.e Respondent in the present petition - A.L. Fernandes had filed Civil Suit RAE No. 2674/72 before the Trial Court stating therein that the respondent-plaintiff and the petitioner were both the tenants in House No. 217 West Gaothan Vile Parle (West), Greater Bombay. The building was owned by Smt. Lalitaben B. Gandhi. The plaintiff stated that he purchased the said building by conveyance deed dated 12th October 1971. It was further urged that by letter dated 29.10.1971, the petitioner tenant was informed about the transaction. It was the case of the plaintiff in the plaintiff that the tenant has not paid the amount of rent since November 1971. Therefore, on 1.5.72 a notice was issued by the plaintiff to the respondent-tenant calling upon him to pay the amount of rent. That notice was received by the tenant on 8.5.1972. The said notice was replied to by the tenant by his reply dated 8.5.1972. He denied the title of the plaint in relation to the suit premises. The plaintiff, therefore, filed Civil Suit RAE Suit No. 2674 of 1972 for a decree of eviction against the tenant as he was not ready and willing to pay the rent. The Trial Court found that the date on which the notice of demand was issued namely, 1.5.1972, the tenant was not in arrears of rent for six months and therefore, decree u/s 12(3)(a) of the Bombay Rent Act cannot be passed against the tenant. In so far as the provisions of Section 12(3)(b) of the Bombay Rent Act are concerned, the Trial Court has held that as pursuant to the order or directions issued by the Court, the tenant has deposited an amount of Rs. 200/- towards the arrears of rent, a decree of eviction cannot, be passed against the tenant u/s 12(3)(b) of the Act. It is to be seen that the plaintiff had denied the title of the plaintiff but that stand was given up before the Trial Court. The Appellate Court found that the Trial Court has committed an error in holding that the date on which the notice of demand was issued, namely, 1.5.1972, the tenant was not in the arrears of rent for six months. The Appellate Court also found that the deposit of Rs. 200/- as per the directions of the Court, will not save the tenant from decree u/s 12(3)(b) and therefore, the Appellate Court allowed the Appeal and decreed the suit filed by the plaintiff, who is the respondent in this petition.

The learned Counsel for the petitioners urged before me that the date on which the notice was issued, namely, 1.5.1972 the tenant was not in arrears of rent for the period of 6 months because the rent for the month of April 1972 would become due on 1.5.1972 itself and that the rent could have been paid by the tenant during that entire day. However, without waiting for the day, namely, 1st of May, 1972 to be over, the notice was issued. Therefore, the tenant will not be in arrears of rent for the period of six months on the date on which the notice was issued. There is some substance in the contention urged by the learned Counsel for the petitioner. However, it is to be seen that even if it is assumed that the case would not be covered by Section 12(3)(a) of the Act, as on the date on which the notice u/s 12(2) of the Act was issued, the tenant was not in arrears of rent for six months, the tenant has to satisfy the Court that he has complied with the requirements of the provisions u/s 12(3)(b) of the Bombay Rent Act. It is to be seen here that after receiving the suit summons the tenant was obliged to deposit the arrears of rent on the first date of hearing and he had to go on depositing the amount of rent regularly in the Court. Perusal of the judgment of both the Courts below shows that admittedly, the tenant has not deposited the amount of arrears of rent as also the amount of monthly rent regularly in the Court, where the suit was pending. He deposited the amount of Rs. 200/- when the Court directed him to do so. The Appellate Court, in my opinion, has rightly held that the deposit made by the tenant, pursuant to the order of the Court would not protect the tenant from a decree of eviction being passed against the tenant u/s 12(3)(b) of the Act. In this context it is to be seen that this Court in its judgment in Kalandarali A. Kazi v. Shaikh Gulam Ibrahim 1997 (1) M.L.J. 289. 1997 (1) All M.R. 35 has held that the tenant is obliged to make deposits regularly and that there is no discretion left with the Court to permit deposits at a later date. In this view of the matter, therefore, in my opinion there is no substance in the petition.

In the result, therefore, the petition fails and is dismissed. Rule is discharged with no order as to costs.