Appeal No 293 of 1963
Appeal by special leave from the judgment and order dated December 17 1962 of the Gujarat High Court in Civil Revision Application No 175 of 1960
G B Pai 0
C Mathur 1
B Dadachanji and Ravinder Narainfor the appellant
M section K Sastri and M section Narasimhan for respondents Nos 1 and 2 326 August 14 1963
The Judgment of the Court was delivered by GAJENDRAGADKAR J
This appeal by special leave raises a short question about the construction and effect of section 123a of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 No 57 of 1947 hereinafter called the Act 
The appellant has been tenant of one room in a residential building known as Lalbang situated in Badekhan s Chakla in the City of Surat since October 18 1935
Under the rent note she is required to pay a monthly rent of Rs 18
On October 12 1949 respondents 1 and 2 purchased the said property
It appears that on November 21 1950 they served a notice on the appellant to vacate the premises let out to her on the ground that she was in arrears of rent from July 1 1950
On receiving the said notice the ap pellant paid a part of the rent but again fell into arrears and so the respondents served a second notice on her on February 7 1951 claiming arrears from October 1 1950
The appellant did not vacate the premises nor did she pay all the arrears due from her
A third notice was accordingly served on her on March 27
1953 in which the respondents claimed to recover arrears from January 1 1951 that is to say arrears for two years and two months
A few days after this notice was served section 123 of the Act was amended by the Bombay Amending Act No 61 of 1953 and the amendment came into force on the 31st March 1954
The respondents then filed the present suit against the appellant on April 12 1954 in which they asked for a decree for eviction against the appellant on the ground that they wanted the premises let out to the appellant bona fide for their personal use and that the appellant was in arrears for more than six months
This suit was resisted by the appellant on several grounds
Pending the hearing of the suit the appellant paid by installments in all Rs 470 before the date of the decree so that at the date when the decree was passed no arrears were due from her
The learned trial judge upheld both the pleas made by the respondents and passed a decree for eviction against the appellant
He held that the respondents reasonably and bona fide required the property for their personal use and that the appellant was in arrears of rent for more than 327 six months
This decree was challenged by the appellant by an appeal preferred before the District Court at Surat
The learned District judge held that the respondents had failed to prove that they needed the premises reasonably and bona fide for their personal use but he accepted their case that the appellant was in arrears of rent for more than six months and that the suit fell within the scope of section 123 a of the Act
That is how the decree passed by the trial Court was confirmed in appeal
The appellant then chal lenged the correctness of this decree by a revisional petition filed before the Gujarat High Court
This petition ultimately failed and the decree passed against her was con firmed
It is against this decision that the appellant has come to this Court and on her behalf
Mr Pai has con tended that the High Court was in error in holding that the requirements of section 123 a as amended justified the pas sing of the decree against the appellant
It appears that section 12 of the Act has been amended from time to time
Before the Amending Act No 611953 came into force the said section read thus 121 A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays or is ready to pay the amount of the standard rent and permitted increases if any and observes and performs the other conditions of the tenancy in so far as they are consistent with the provisions of this Act
2No 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 increases has been served upon the tenant in the manner provided in section 106 of the 
3No decree for eviction shall be passed in any suit if at the hearing of the suit the tenant pays or tenders in Court the standard rent or permitted increases then due together with the costs of the suit
 The explanation to this section dealt with cases where there was a dispute between the landlord and the tenant in regard to the amount of the standard rent
With that explanation 328 we are not concerned in the present appeal
It appears that the Bombay High Court interpreted the words at the hearing of the suit in section 123 as including the hearing of the appeal arising from the suit and so it was held that under section 123 of the Act an appeal Court cannot confirm a decree for eviction if before the passing of the order in appeal the tenant pays or tenders in Court the standard rent or permitted increases then due together with the costs of the suit and also appeal vide Dayaram Kashiram Shimpi vs Bansilal Raghunath Marwari1
After section 123 was amended by the Amending Act 61 of 1953 the words at the hearing of the suit were construed by the Bombay High Court to mean that the application which the tenant ran make offering to deposit the arrears due from him must be made before the Court of first instance and cannot be reserved to be made in the Court of appeal vide Laxminarayan Nandkishore Shravagi vs Keshardev Baijnath Narsaria2
There is one more decision of the Bombay High Court to which reference must be made before dealing with the points raised for our decision in the present appeal
In Kurban Hussen Sajuddin vs Ratikant Nilkant and Anr3 it was held that the word may used in section 123 a as amended really meant must and that in cases where the conditions of the said provision were satisfied the Court had to pass a decree for the recovery of possession in favour of the landlord
It is in the light of these decisions that we have to consider the contention of the appellant that under section 123 a as amended it was not open to the Court to pass a decree for ejectment against her in the present proceedings
On behalf of the appellant Mr Pai has emphasised the fact that the provisions of section 12 sub sections
1 and 2 are mandatory and there can be no doubt that they imposed severe restrictions on the landlord s right to sue the tenant in ejectment
He therefore contends that in construing the effect of section 123 a we must bear in mind the fact that the legislature has enacted the present statute and particularly the provisions of section 12 with a view to protect the interests of the tenant
He further contends that it 1 2 AIR 1959 Bom
329 cannot be disputed that before section 12 3a was amended it was open to the tenant to pay the arrears at any time during the pendency of the suit or even during the pendency of the appeal and so when the tenant failed or neglected to pay the arrears due from her immediately after receiving the notice of demand from the landlord it is easy to imagine that she knew that her failure to pay the arrears of rent immediately on receiving the notice would not lead to her eviction and that she would have the option to deposit the amount as required by section 123 either in the trial Court or in the Court of Appeal
That being so he suggests that in order to avoid hardship to the tenant section 123a should be read is requiring the landlord to issue a fresh notice after the amended section came into force
The notice given by the landlord prior to the date of the amendment did not convey to the tenant the knowledge that her failure to comply with it would necessarily lead to her ejectment and so the relevant provisions of this beneficent statute should be construed in a liberal way
That in substance is the first contention raised by Mr Pai before us We are unable to accept this argument
What section 123a requires is that in cases where there is no dispute between the landlord and the tenant regarding the amount of standard rent or permitted increases if the landlord is able to show that the tenant is in arrears for a period of six months or more and the said arrears continued in spite of the fact that a notice was served on him before the institution of the suit and no payment was made within a month thereafter the landlord is entitled to get a decree for ejectment against the tenant
It is true that section 123a refers to a notice but in terms it refers to a notice served by the landlord as required by section 122 and in section 122 the legislature has made no amendment when it amended sub section 3
If we turn to section 122
it would be noticed that the notice given by the respondents to the appellant in the present case satisfies the requirements of the said sub section
The respondents told the appellant by their notice that arrears were due from her and there is no doubt that the arrears were not paid up by the appellant until the expiration of one month next after the notice in writing was served on her in that behalf 22 2 SC India64 330 Section 122 never required the landlord to state to the tenant what the consequences would be if the tenant neg lected to pay the arrears demanded from himher by the notice
Therefore if the notice served by the respondents on the appellant prior to the institution of the present suit is in order and it is shown that the arrears have not been paid as required then section 122 has been complied with
and it is on that footing that the case between the parties has to be tried under section 123a
Mr Pai then contends that section 123a seems to suggest that the neglect or failure of the tenant to make the payment of arrears must be subsequent to the date on which the Amending Act came into force
He relies on the fact that section 123a refers to the case where the tenant neglects to make payment  of the rent
The section does not say has neglected to make payment says Mr Pai
In our opinion there is no substance in this argument
The use of the word neglect in the present tense has to be construed in the light of the fact that the clause refers to the tenant neglecting to make payment of the rent until the expiration of one month next after receipt of the notice  and that clearly would have made the use of the past tense inappropriate
The position therefore is that if notice has been served as required by section 122 and the tenant is shown to have neglected to comply with the notice until the expiration of one month thereafter section 122 is satisfied and section 123 a comes into operation
Mr Pai also argued that the right given to the tenant to pay the arrears at the hearing of the suit was a vested right and so in construing section 123a we should not adopt the construction which would defeat that vested right
It is not easy to accept the contention that the provisions of section 123a really confer any vested right as such on the tenant
What section 123a provided was that a decree shall not be passed in favour of the landlord in case the tenant pays or tenders in Court the standard rent at the hearing of the suit
This provision cannot prima facie be said to confer any right or vested right on the tenant
But even if the tenant had a vested right to pay the money in court at the hearing of the suit we do not see how that consideration can alter the plain effect of the words used in section 123a
The suit was filed after the amended 331 section came into force and clearly the amended provision applies to the suit and governs the decision of the dispute between the parties
If that is so the plain meaning of section 123 a is that if a notice is served on the tenant and he has not made the payment as required within the time specified in section 12 3 a the Court is bound to pass a decree for eviction against the tenant
That is the view taken by the Gujarat High Court and we are satisfied that that view clearly gives effect to the provisions of section 123a as amended in 1953
We must accordingly hold that there is no substance in the appeal
The appeal therefore fails and is dismissed with costs


Summary:
The appellant was a tenant of the respondents occupying one room of a building belonging to them
She was in arrears of rent
The respondents served a notice on her claiming to recover arrears of rent for a period of two years and two months
A few days after the service of this notice the Bombay Rents Hotel and Lodging House Rates Control Act 1947 which governs this case was amended
The respondents thereafter filed a suit for the eviction of the appellant on the ground that they required the premises for bona fide personal use and on the ground that the appellant was in arrears of rent for more than 6 months
The suit was resisted by the appellant on several grounds but pending the hearing of the suit and before the decree was passed she deposited the entire rent due from her
The trial Judge upheld both the contentions of the respondent and decreed the eviction of the appellant
On appeal the District Judge rejected the contention of bona fide personal use put forward by the respondent but found that the appellant was in arrears of rent and dismissed the appeal
The revision filed by the present 325 appellant failed the present appeal is by way of special leave granted by this Court
It was contended on behalf of the appellant that the provisions of section 121 and 2 were mandatory and that in construing section 123 a it must be borne in mind that the object of the statute and particularly section 12 was to give protection to the tenant It was further contended that before section 123a was amended it was open to the tenant to pay the arrears at any time during the pendency of the suit or even during the pendency of the appeal
In order to avoid hardship to the tenant section 123a should be read as requiring the landlord to issue a fresh notice after the amended section came into force
It was also urged that section 123a suggests that the neglect or failure of the tenant to make the payment of arrears must be subsequent to the date on which the amendment came into force
Lastly it was argued that the right given to the tenant to deposit arrears was a vested right and therefore section 123a should not be construed in such a way as to take away this vested right
Held  i section 123a refers to a notice served by the landlord as required by section 122 and in section 122 the legislature has made no amendment when it amended sub section
The notice served by the appellant in the present case satisfies the requirements of section 122
If the notice has been served as required by section 122 and the tenant is shown to have neglected to comply with the notice until the expiry of one month thereafter section 122 is satisfied and section 123a comes into operation
iiS 123a does not confer any right or vested right on tenant and even if such a right is conferred it would not alter the plain effect of the words of section 123a
The plain meaning of section 12 3a is that if a notice is served on the tenant and he hap not made the payment as required within the time specified in section 123a the court is bound to pass a decree of eviction against the tenant
The appeal is dismissed
Dayaram Kashiram Shimpi vs Bansilal Ragkunath Marwari  Laxminarayan Nandkishore Shravagi vs Keshardev Baijnath Narsaria and Kurban Hussen Sajauddin vs Ratikant Nilkant AIR 1959 Bom