Gosai vs Rampyare Shobran

V.P. Tipnis, J.—When the matter is called out neither the petitioner nor his advocate is present. Similarly neither the respondent nor his advocate is present.

Normally the matter would have been dismissed for default. However, these are old matters pending from 1983 and as such it would be in the interest of justice and expedient to dispose of the petition on merits.

Accordingly I have gone through the judgments delivered by both the lower courts. The original plaintiff filed a suit being RAE suit No. 2349 of 1969 in the court of Small Causes at Bombay and contended that defendant was the tenant of the plaintiff in respect of one room in their chawl known as Laxmi Niwas, Patrachi Chawl, Jawahar Nagar, Khar, on a monthly rent of Rs. 15.80 which consisted of Rs. 13.80 as rent and Rs. 2/- as water charges. It was alleged that the defendant tenant was in arrears of rent from 1.11.1967 and by notice dated 16.8.1968, the tenancy was terminated and arrears were demanded. Copy of the notice was also sent under certificate of posting. As the defendant-tenant refused to accept the notice and failed to pay the arrears, the suit was filed for possession on the ground of default.

By his written statement the defendant tenant contended that the tenancy of the defendant was not properly terminated. He denied that he has failed and neglected to pay the arrears of rent. The tenant specifically contended that the rent was sent by money order but the plaintiff refused to accept the same. The defendant asserted that he is ready and willing to pay the rent but it is the plaintiff who had deliberately refused to accept the rent.

The learned Judge of the trial court found that the suit notice dated 16.8.1968 was sent on proper address by registered post acknowledgement due. The packet of the said notice was returned by the postal authority with endorsement ''not found'' on 19th and 29th and ultimately ''not claimed'' on 21st. The said notice was also sent under certificate of posting. The plaintiff further stated that it was pasted on the door of the suit premises. The defendant did not enter the witness box but the brother of the defendant entered the witness box and stated that the defendant has gone to U.P. in or about 1970-71 and the witness and his brother-in-law are residing in the suit premises. The learned Judge of the trial court ultimately held that the notice of termination of tenancy and demand of rent was properly served on the defendant. The learned Judge of the trial court also found that the defendant did not accept the suit summons. Considering all the circumstances, the learned Judge held that the notice was properly served. The learned Judge also dealt with the question whether the tenancy was terminated. However, in view of the settled position the issue of termination of tenancy under the provisions of the Transfer of Property Act, is irrelevant when the suit is for possession on the ground mentioned under the Bombay Rent Act and therefore it is unnecessary to deal with that aspect of the matter.

However, the learned Judge held that the suit notice was issued on 15.8.1968 demanding rent from 1.11.1967 whereas Exhibit 2 which is the money order coupon and Exhibits 3 and 4 which are registered insured covers, produced on record, clearly show that in June 1968 itself, that is much prior to the issuance of the suit notice, the defendant and his brother had sent money order for Rs. 110.60 paise which would cover 7 months rent upto 31.5.1968. In June that was the payment for up to date rent. The said money order was returned with endorsement ''not known''. The plaintiff categorically stated that the money order was never tendered and therefore never refused by the plaintiff. It was not the case of the plaintiff that they refused the money order or registered insured covers as the amount was tendered by the defendant jointly with his brother. The learned Judge therefore held that the plaintiff has wrongfully refused to accept the tender which was valid. The learned Judge also observed that the registered insured covers Exhibits 3 and 4 covered the rent of Rs. 143 and 269 and the said tenders were made in August 1968 and April 1969 and the endorsement on the covers states-Not claimed and Not Found. The learned Judge therefore felt that it is clear that the defendant and his brother were persisting in tendering the amount of rent due from 1.11.1967 even prior to the demand notice. Even after the notice they attempted to tender the rent. In these circumstances the learned Judge held that the defendant cannot be held to be a defaulter and the defendant must be held to be ready and willing to pay the rent. The learned Judge made a reference to the fact that the court passed an order of deposit on 7.1.1970 which was amended on 16.2.1970 and the defendant had deposited Rs. 426.60 as per the amended order. The learned Judge has further observed that the defendant was most vigilant in obtaining further deposit order from month to month deposit of rent and it is admitted by the plaintiff that the defendant had deposited upto date amount of rent regularly and the plaintiff have withdrawn all the amount from the Court. The learned Judge, therefore held that the defendant is not a defaulter and is ready and willing to pay the rent and he had not neglected to pay the arrears of rent. Thereafter the learned Judge has unnecessarily dealt with as to whether the premises were sublet when that was not the case of the plaintiff. Ultimately the learned Judge of the trial court was pleased to dismiss the suit with costs by his judgment and order-decree dated 30.3.1978.

Being aggrieved by the said judgment and decree the plaintiff-landlord preferred an appeal No. 410 of 1977 to the Bench of the Court of Small Causes at Bombay. The learned Judges of the appeal court by their judgment and decree dated 17th December 1982 were pleased to allow the appeal, set aside the decree of the trial court dismissing the suit and were pleased to decree the suit for possession.

Being aggrieved by the said judgment and decree of the appeal court the original tenant has filed this petition.

The appeal court held that the tender of money order as deposed by the respondent''s witness was not proper and valid tender and the plaintiffs were justified in refusing the same. The appeal court felt that the case of the joint tenancy in respect of defendant and his brother was put up for the first time during the cross-examination in evidence and the same cannot be considered. The learned Judges of the appeal court held that the money order at Exh. 2 and the registered insured covers at Exhs. 3 and 4 show that the rent was offered to the appellant not by the original tenant alone but jointly with brother of the tenant. Then referring to the tenant''s evidence that the money order was refused by landlord as it was in the joint name, the learned Judges held that if the amount is tendered not by the tenant but by some other person alongwith the tenant claiming to be joint tenant, then the plaintiffs were quite justified in refusing to accept the amount and such amount would not be a valid tender. The appeal court held that as there was no dispute regarding the standard rent and as there was no valid tender, the decree for possession u/s 12(3)(a) of the Bombay Rent Act had to be passed. It is on these reasoning that the appeal was allowed.

It is difficult to uphold the decision of the appeal court. It is extremely relevant to notice that the plaintiff landlord''s case was that the money order or the registered insured covers were never tendered to them and were never refused by them. It was not the case of the landlord that they refused the money order or the insured covers because they were issued in the joint names. Merely because witness for the defendant tenant deposed that they were refused because they were in the joint names does not show that the tender was invalid as that was never the case of the plaintiff-landlord. The categorical case of the plaintiff landlord was that the money order or insured covers were never tendered to them. Secondly if the rent was sent by the brother of tenant and the tenant jointly, it does not become an invalid tender. Once the tenant was also a party to the tender, the tender cannot be invalid as the acceptance of that rent in the joint names could not have automatically resulted into acceptance of the alleged joint tenancy.

Taking into consideration the fact that much prior to the notice uptodate rent was sent by the tenant, may be jointly, with his brother and further fact that thereafter also twice the tenant sent total amount under the insured covers and all these amounts were refused by the landlord and that even during the pendency of the trial the tenant obtained orders of deposit of rent and in fact paid regularly uptodate rent, the tenant cannot be held to be a defaulter and the trial court was absolutely right in its conclusion that not only the tenant is not a defaulter but is a person who is ready and willing to pay the rent.

In the result petition succeeds. The judgment and decree dated 17th December 1982 passed by the appeal court of the Court of Small Causes at Bombay in appeal No. 410 of 1977 is hereby quashed and set aside and the judgment and decree dated 30.3.1978 dismissing the RAE suit No.2349 of 1969 is restored and confirmed. Rule made a absolute. There shall be no order as to costs throughout.