ivil Appeal No 258 of 1982
From the Judgment and Order dated 3111981 of the Bombay High Court in Spl
Civil Appln
No 2598 of 1978
SB Bhasme and VN Ganpule for the Appellants
PG NO 298 Dr YS Chitale
RF Nariman BH Antia and Mrs AK 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 possession of the building called Jamshed Villa at Thane
The ground floor of the building consists of one hall tow bed rooms two side rooms and a kitchen
The said premises was let out to one Shri SH 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 terminated the tenancy of the appellants on 20th June 1976 and the deceased Shri Kulkarni continued to occupy it as a statutory tenant
On the sale of the suit property the tenancy of Shri SH Kulkarni was duty attorned to the present plaintiff
Shri SH 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 appellants 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 replied to the notice
In that reply several contentions were urged
It may be mentioned that the suit was filed on various grounds namely 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 neglected to pay the arrears of rent within the statutory period in spite of the notice under Section 122 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 Jagmohandas  Anr
vs Prabhudas Shivlal  PG NO 299 Accordingly
the trial Judge decreed the suit on the ground that the 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 operation of Section l23a of the Act only if the tenant had made an application within one month from the service of the notice under Section Ii 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 122 of the Act terminating 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 Bombay High Court by the judgment under appeal on 3rd November1981 dismissed that application holding that neglect on the part of the appellants in making payment as mentioned in Section I23a 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 the Courts below had rightly come to the conclusion that there was on the part of the appellants within the meaning of Section l23a of the Act meriting a decree for eviction
Shri Bhasme appearing for the appellants concluded before us the High Court was wrong and did not properly consider the 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 a long as the tenant days or is ready and willing to pay the amount of the standard rent permitted increases it any
and observes and performs the other of the tenancy in so far as they are consistent with the of the Act
Sub section 2 of Section 12 of also stipulate that no suit for recovery of possession shall be instituted by a landlord 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 has been served upon the tenant in the manner provided in 106 of the Transfer or Property Act 1882
Sub section 3a and b of Section 12 of the Act are important and set our here under 3a Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or PG NO 300 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 u 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 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 regular l4  such rent and permitted increases till the suit is finally decided and also pay costs of the suit as directed by the Court  
Emphasis supplied This question
as to how a payment to be made under Section 123a and b had been considered by this Court in Harbanslal Jagmohandas and Anrsupra
There both the appeal raised a common question as to whether a tenant in order to resist passing of a decree of eviction under the provisions contained in Section 12 3aof the Act must dispute the standard rent within one month from the date 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 
dispute in the written statement
There was difference of opinion between Bombay and Gujarat High Courts
The Gujarat High Court tookthe 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 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 suit and in such a case the provisions of Section 12 3a of the act would apply
In the Gujarat case the High Court found that the tenant did not raise the dispute within one month of the service of the notice terminating the tenancy
inter alia on the ground of arrears of rent for 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 the Court had power to determine standard rent when there was a dispute between landlord and tenant regarding the amount of standard rent
It was held by this Court that under Section 12 of the Act the landlord is not untitled to recover possession of the premises so long as the tenant pays or is PG NO 301 ready and willing to pay the amount of standard rent and permitted increases
Section 122 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 correct
Sub section 3a 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 or more 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 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 increase 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 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 or possession In terms of the decision of this Court in Harbanslal Jagmohandas supra the eviction order had to follow by operation of law
Shri Bhasme however submitted before us that here there was no question of negligence in proper light because he drew our attention to several letters whereby the tenant to pay then rent of 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 decision and urged that the tenant was willing to pay the rent provided receipts were granted to him
Shri Bhasme urged that the landlord did not comply with the request to give written receipts
He was punishable with fine which might extend to one hundred rupee under sub section 2 of Section 26 of the Act
Shri Bhasme submitted that in this case
the landlord was mala fide and by his mala fide act he was preventing the tenant from performing his obligation
He further urged that this was not a case of bona fide need
The landlord was
affluent and the tenant was a poor
There was a great shortage of accommodation
In view of the decision of this Court in Harbanslal jagmohandas and Anr
V Prabhudas Shivlal supra and the provisions
of Section l23 a and b and in the Court below were right
circumstances of the case we must hold that the Courts below were right
PG NO 302 Our attention was drawn to a decision of this Court in Mohan Laxman Hede vs Noormohamed Adam Shaikh   where this Court reiterated that to take advantage of protection from eviction under Section l23b 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 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 sub section 3a 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
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 appellant will have six months time to vacate the premises in question provided they file an undertaking within six weeks from this date to this Court that they will deliver vacant possession of the premises to the landlord after the expiry of six months from this date and to go on paving rent compensation until possession is given and not to induct or let anybody in the premises in question
in the usual terms
PSS Appeal dismissed


Summary:
The prosecution case was the appellants who were of bad character had an evil eye on the lands belonging to the younger brother of PW 1 in furtherance of which they got a fraudulent sale deed executed and murdered him in order to eliminate the possibility of the fraud being detected
Suspecting foul play of the appellants PW 1 lodged an FIR
At the instance of appellant No 2 who was first arrested a dead body was recovered from a water logged pond and was identified to be that of PW 1 s younger brother on the basis of a shirt and a tahmad
The doctor who conducted the post mortem
could not give the cause of death or its duration
The appellants were convicted and sentenced under sections 302 364 and 210 IPC by the trial Judge
On appeal the High Court maintained the conviction and sentence of appellant No I but reduced the same of appellant No 2 to one under section 201
Allowing the appeals HELD The evidence against the appellants is purely circumstantial
But the circumstantial evidence falls short of the required standard on all material particulars
The conviction of the appellants cannot
therefore be sustained
247H 2490A There is no satisfactory evidence that the sale deed in question was executed by somebody impersonating the deceased
Though PW 12 who was identified by PW 11 scribe of the sale deed as the person who impersonated the deceased deposed that he had put his thumb impression an the sale deed the thumb impression of the executant and the admitted thumb impression of pW 12 were not sent for expert opinion
Nothing could be elicited from nor any question was put to PW 20 to corroborate the version of PW II as to PG NO 245 PG NO 246 the contents of the sale deed or the identity of the persons who accompanied him to PW 11 or those who put the thumb impression on the sale deed
248B D The evidence on record is equally unsatisfactory as to identification of the dead body
Post mortem was done more than three months from the date of alleged disappearance of the deceased
The doctor who conducted the post mortem stated that it was skeleton of a young adult male and was unable to give the cause of death or when the death took place owing to the condition of the body
The two panch witnesses for the recovery of the dead body could not identity the clothes recovered from the dead body as belonging to the deceased
Though clothes were said to have been identified by PW 1 and his wife a perusal of PW 1 s evidence would indicate that the identification was nothing but farce
The body was not recovered at his instance
He could not have seen the dead body with the clothes as these were removed washed dried and packed separately with the seal of the panchas
He was called to the Court only for the identification of the clothes and body
lie stated that the dead body by appearance looked like that of his brother
He could identify the clothes by a chit and a knot on them
The witnesses who were stated to have seen the deceased going with the appellant No 1 and his father in law did not speak anything about the dress which the deceased was wearing at that time
PVI Is evidence could not be believed since he and the deceased were living separately and he could not have seen all that he had stated in evidence
24E G H249A B D H Conviction and sentence of appellants set aside
They are acquitted of all charges
250A