Appeal No 469 of 1966
Appeal by special leave from the judgment and decree dated November 25 1965 of the Bombay High Court in Civil Revision Application No 1579 of 1962
section G Patwardhan and M V Goswami for the appellant ST Desai and K L Hathi for respondent No1 The Judgment of the Court was delivered by Bachawat J
The question arising in this appeal by special leave is whether in a case falling under sub s3a of section 12 of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 Act No 57 of 1947 a tenant can claim protection from eviction by showing his readiness and willingness to pay the arrears of rent before the date of the institution of the suit
The appellant s husband was a tenant of a flat The rent was in arrears 136 for a period of more than six months
On December 22 1956 the landlord served a notice on the tenant demanding the rent
The tenant neglected to pay the rent within one month of the notice
On January 11 1957 he died
On February 4 1957 the appellant sent the arrears of rent to the landlord by money order but the landlord refused to accept the payment
On February 5 1957 the landlord instituted the present suit for eviction of the appellant
The trial Court decreed the suit
The appellant filed a revision application before the Bombay High Court but this application was dismissed by the High Court
It is to be noticed that the rent was in arrears for a period of more than six months
The tenant neglected to make payment of the arrears of rent within one month of the service of the notice by the landlord under sub section
2 of s12
The rent was payable by the month and there was no dispute regarding the amount of the rent
The case was therefore precisely covered by sub section
3a of section 12
Nevertheless the appellant submitted that as she was ready and willing to pay the rent before the institution of the suit she could claim protection under sub section
1 of section 12
She submitted that the decided cases support this conten tion
In Mohanlal vs Maheshwari Mills Ltd  P N Bhagwati J held that even in a case falling under sub section
3 a a tenant could by paying or showing his readiness and willingness to pay the arrears of rent before the institution of the suit claim protection from eviction under sub section
A similar opinion was expressed by a Divisional Bench of the Gujarat High Court in Ambalal vs Babaidas2
The judgment under appeal dissented from the view expressed by the Gujarat High Court
The Bombay High Court held and in our opinion rightly that in a case falling under sub section
3a the tenant could not claim protection from eviction by showing his readiness and willingness to pay the rent before the institution of the suit
Sub section 1 of section 12 imposes a general restriction on the landlord s right to recover possession of the premises so long as the tenant pays or is ready and willing to pay the rent and observes and performs the other conditions of the tenancy
Subsection 2 of section 12 imposes the further restriction that no suit for recovery of possession on the ground of non payment of rent shall be instituted by the landlord until the expiration of one month after a notice in writing demanding the rent
Sub section 3a provides for the consequences which will follow where the rent is payable by the month there is no dispute regarding the amount of rent the rent is in arrears for a period of six months or more and the tenant neglects to make payment within one month of the service of the notice under sub s 2
In such a case the tenant 1 1962 3 Gujarat Law Reporter 574 at pp 618 to 62
2 1962 3 Gujarat Law Reporter 625 644
137 cannot claim any protection under sub section
1 and the Court is bound to pass a decree for eviction
At the material time sub section
3 a of section 12 read  Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or 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 s 2 the Court may pass a decree for eviction in any such suit for recovery of possession
 The word may in this sub section has the effect of shall
In Bhatya Punjalal Bhagwanddin vs Dave Bhagwatprasad Prabhuprasadl this Court held that where the requirements of sub section
3a were satisfied the Court was bound to pass a decree for eviction
The section has now been suitably amended and the word shall has been substituted for the word may by Maharashtra Act No 14 of 1963
If the conditions of sub section
3a are satisfied the tenant cannot claim any protection from eviction under the Act
By terdering the arrears of rent after the expiry of one month from the service of the notice under sub section
2 he cannot claim the protection under sub section
It is immaterial whether the tender was made before or after the institution of the suit
In a case falling within sub section
3a the tenant must be dealt with under the special provisions of sub section
3a and he cannot claim any protection from eviction under the general provisions of sub section
The landlord is vested with the right to recover possession of the premises if the rent is in arrears for a period of six months or more the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub section
2 and the other conditions of sub section
3a are satisfied
This right cannot be defeated by showing that the tenant was ready and willing to pay the arrears of rent after the default but before the institution of the suit
In effect the appellant asks us to rewrite the section and to substitute in it the following condition  the tenant neglects to make payment thereof until the date of the institution of the suit
 It is not possible to rewrite the section in the manner suggested by the appellant
The appellant s case fell precisely within sub section
3a and she could not obtain immunity from eviction by tendering the rent before the institution of the suit
The appeal is dismissed with costs
VPS Appral dismissed
1  330 331


Summary:
The tenant of a flat was in arrears of rent for more than six months
The landlord served a notice on the tenant demanding the rent
The tenant did not pay it within one month of the notice but tendered it after the expiry of the month
The landlord refused to receive it and filed a suit for eviction under section 123 a of the Bombay Rents Hotel and Lodging House Rates Control Act 1947
The tenant claimed the protection of section 121 of the Act on the ground that she was ready and willing to pay the rent before the institution of the suit
HELD  Under section 123 a the landlord is vested with the right to recover possession of the premises if the rent is in arrears for six months or more the tenant neglects to pay it until after the expiry of one month after notice demanding the rent and other conditions of sub s3 a are saitisfied
This right cannot be defeated by showing that the tenant was ready and willing to pay the rent after the default but before the institution of the suit
In a case falling within sub section
3 a the tenant must be dealt with under its special provisions and he cannot claim any protection from eviction under the general provisions of sub section
1 and the court was bound to pass a decree for eviction
137 E F Bhaiya Punjalal Dhagwanddin vs Dave Bhagwat Prosad Prabhuprasad 19631 3 SCR 312 followed
Mohanlal vs Maheshwari Mills Ltd and Ambala vs Babaldas  overrules