1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CIVIL CIVIL CIVIL REVISION APPLICATION NO.476 of 2007 REVISION APPLICATION NO.476 of 2007 REVISION APPLICATION NO.476 of 2007 Smt Smt Smt Savitridevi Virendrasingh Bhadoria Savitridevi Virendrasingh Bhadoria Savitridevi Virendrasingh Bhadoria .. .. .. Applicant Applicant Applicant (Orig.Deft) (Orig.Deft) (Orig.Deft) versus versus versus Shashikant Shashikant Shashikant Tilakdhari Jha & ors..Respondents Tilakdhari Jha & ors..Respondents Tilakdhari Jha & ors..Respondents (Orig.Plffs) (Orig.Plffs) (Orig.Plffs) Mr.M.M.Vashi Mr.M.M.Vashi Mr.M.M.Vashi i.b M.P.Vashi & Associates for i.b M.P.Vashi & Associates for i.b M.P.Vashi & Associates for Applicant Applicant Applicant Mr.R.B.Singh Mr.R.B.Singh Mr.R.B.Singh for Respondent nos. 1,(2a),2 (b) for Respondent nos. 1,(2a),2 (b) for Respondent nos. 1,(2a),2 (b) 2(c),2(d),2(e) 2(c),2(d),2(e) 2(c),2(d),2(e) & 3. & 3. & 3. CORAM CORAM CORAM : J.H.Bhatia, J : J.H.Bhatia, J : J.H.Bhatia, J DATED DATED DATED : : : 20th February, 2008 20th February, 2008 20th February, 2008 JUDGMENT JUDGMENT JUDGMENT 1. 1. 1. The respondents, who are original plaintiffs, The respondents, who are original plaintiffs, The respondents, who are original plaintiffs, had had had filed R.A.E.Suit No.96/326 of 1982 against the filed R.A.E.Suit No.96/326 of 1982 against the filed R.A.E.Suit No.96/326 of 1982 against the defendant defendant defendant who is the applicant before this Court who is the applicant before this Court who is the applicant before this Court, for for for eviction from the suit premises on several eviction from the suit premises on several eviction from the suit premises on several grounds. grounds. grounds. It was contended that the suit shop No. It was contended that the suit shop No. It was contended that the suit shop No. 2 situated at Municipal R Ward No.4648 (I)-79 situated at Municipal R Ward No.4648 (I)-79 situated at Municipal R Ward No.4648 (I)-79 Sharada Sharada Sharada Estate, L.T.Road, Borivali (West) Estate, L.T.Road, Borivali (West) Estate, L.T.Road, Borivali (West) Mumbai-92 Mumbai-92 Mumbai-92 belonged to the plaintiffs. The belonged to the plaintiffs. The belonged to the plaintiffs. The defendant defendant defendant was inducted as a tenant in the suit was inducted as a tenant in the suit was inducted as a tenant in the suit premises. premises. premises. She was irregular in payment of rent She was irregular in payment of rent She was irregular in payment of rent and and and has fallen in arrears of rent since 1st March, has fallen in arrears of rent since 1st March, has fallen in arrears of rent since 1st March, 1978. 1978. 1978. The agreed rent was Rs.35/-. On 6th The agreed rent was Rs.35/-. On 6th The agreed rent was Rs.35/-. On 6th September, September, September, 1980 a notice was issued by the 1980 a notice was issued by the 1980 a notice was issued by the 2 plaintiffs plaintiffs plaintiffs to the defendant through their advocate to the defendant through their advocate to the defendant through their advocate terminating terminating terminating the tenancy and also calling upon the the tenancy and also calling upon the the tenancy and also calling upon the defendant defendant defendant to pay the amount of Rs.1045.22 towards to pay the amount of Rs.1045.22 towards to pay the amount of Rs.1045.22 towards arrears arrears arrears of rent with permitted increases. The of rent with permitted increases. The of rent with permitted increases. The said said said notice was served but, the defendant failed notice was served but, the defendant failed notice was served but, the defendant failed to to to comply with the same and to make the payment of comply with the same and to make the payment of comply with the same and to make the payment of arrears arrears arrears of rent and the permitted increases. On of rent and the permitted increases. On of rent and the permitted increases. On 25th 25th 25th January, 1982 the plaintiffs filed the suit January, 1982 the plaintiffs filed the suit January, 1982 the plaintiffs filed the suit for for for eviction. An exparte decree was passed eviction. An exparte decree was passed eviction. An exparte decree was passed against against against the defendant on 8th December, 1982. the defendant on 8th December, 1982. the defendant on 8th December, 1982. However, However, However, the defendant had taken out Misc.Notice the defendant had taken out Misc.Notice the defendant had taken out Misc.Notice No.22 No.22 No.22 of 1983 on 22nd December, 1982 to set aside of 1983 on 22nd December, 1982 to set aside of 1983 on 22nd December, 1982 to set aside the the the exparte decree passed against her. That exparte decree passed against her. That exparte decree passed against her. That decree decree decree was set aside on 5th December, 1987 and the was set aside on 5th December, 1987 and the was set aside on 5th December, 1987 and the suit suit suit was restored to file with a direction to the was restored to file with a direction to the was restored to file with a direction to the defendant defendant defendant to pay arrears of rent and to pay costs. to pay arrears of rent and to pay costs. to pay arrears of rent and to pay costs. The The The defendant filed the written statement on 23rd defendant filed the written statement on 23rd defendant filed the written statement on 23rd February, February, February, 1988 and contested the suit. She 1988 and contested the suit. She 1988 and contested the suit. She admitted admitted admitted that she was a tenant but, denied that that she was a tenant but, denied that that she was a tenant but, denied that she she she was irregular in payment of rent and that she was irregular in payment of rent and that she was irregular in payment of rent and that she was was was in arrears of rent since 1st March, 1978. She in arrears of rent since 1st March, 1978. She in arrears of rent since 1st March, 1978. She also also also admitted to have received notice dated 6th admitted to have received notice dated 6th admitted to have received notice dated 6th September, September, September, 1980 but, denied that she was not ready 1980 but, denied that she was not ready 1980 but, denied that she was not ready and and and willing to pay arrears of rent. According to willing to pay arrears of rent. According to willing to pay arrears of rent. According to her, her, her, the termination of her tenancy was illegal the termination of her tenancy was illegal the termination of her tenancy was illegal and and and the plaintiffs were not entitled to get a the plaintiffs were not entitled to get a the plaintiffs were not entitled to get a decree decree decree for eviction. According to her, the for eviction. According to her, the for eviction. According to her, the plaintiffs plaintiffs plaintiffs were accepting rent and thus she was were accepting rent and thus she was were accepting rent and thus she was 3 entitled entitled entitled to protection under section 12 (3 of the to protection under section 12 (3 of the to protection under section 12 (3 of the Bombay Bombay Bombay Rent Act as amended in 1987. After hearing Rent Act as amended in 1987. After hearing Rent Act as amended in 1987. After hearing the the the parties, the trial Court rejected the parties, the trial Court rejected the parties, the trial Court rejected the contention contention contention of the defendant and claim and held of the defendant and claim and held of the defendant and claim and held that that that the defendant had failed to pay arrears of the defendant had failed to pay arrears of the defendant had failed to pay arrears of rent rent rent inspite of service of notice and had failed inspite of service of notice and had failed inspite of service of notice and had failed to to to pay the arrears within the stipulated period. pay the arrears within the stipulated period. pay the arrears within the stipulated period. Accordingly, Accordingly, Accordingly, the decree for eviction came to be the decree for eviction came to be the decree for eviction came to be passed. passed. passed. The defendant preferred an Appeal bearing The defendant preferred an Appeal bearing The defendant preferred an Appeal bearing No. No. No. 130 of 2002. The appeal also came to be 130 of 2002. The appeal also came to be 130 of 2002. The appeal also came to be dismissed. dismissed. dismissed. Hence, this Revision Application. Hence, this Revision Application. Hence, this Revision Application. 2. 2. 2. Heard learned counsel for the parties. Heard learned counsel for the parties. Heard learned counsel for the parties. 3. 3. 3. There is no dispute that the defendant had not There is no dispute that the defendant had not There is no dispute that the defendant had not paid paid paid rent from 1st March, 1978 and was in arrears rent from 1st March, 1978 and was in arrears rent from 1st March, 1978 and was in arrears when when when notice was issued to her on 6th September, notice was issued to her on 6th September, notice was issued to her on 6th September, 1980. 1980. 1980. The notice was served and inspite of that The notice was served and inspite of that The notice was served and inspite of that she she she had not paid the arrears of rent and the had not paid the arrears of rent and the had not paid the arrears of rent and the permitted permitted permitted increases. An exparte decree was passed increases. An exparte decree was passed increases. An exparte decree was passed in in in the suit filed by the plaintiffs. However, the suit filed by the plaintiffs. However, the suit filed by the plaintiffs. However, that that that decree was set aside and the matter was decree was set aside and the matter was decree was set aside and the matter was restored restored restored to file. The defendant had taken out to file. The defendant had taken out to file. The defendant had taken out Misc.Notice Misc.Notice Misc.Notice No.22 of 1983 on 22nd December, 1982 No.22 of 1983 on 22nd December, 1982 No.22 of 1983 on 22nd December, 1982 for for for setting aside the exparte decree and at that setting aside the exparte decree and at that setting aside the exparte decree and at that time, time, time, the defendant had deposited the arrears of the defendant had deposited the arrears of the defendant had deposited the arrears of rent rent rent till then. Misc.Notice No.22 of 1983 taken till then. Misc.Notice No.22 of 1983 taken till then. Misc.Notice No.22 of 1983 taken out out out by the defendant was made absolute and the ex by the defendant was made absolute and the ex by the defendant was made absolute and the ex 4 parte parte parte decree was set aside by an order dated 5th decree was set aside by an order dated 5th decree was set aside by an order dated 5th December, December, December, 1987 with the condition that she should 1987 with the condition that she should 1987 with the condition that she should pay pay pay all the arrears with costs of Rs.75/-. all the arrears with costs of Rs.75/-. all the arrears with costs of Rs.75/-. Admittedly, Admittedly, Admittedly, the defendant had not made any payment the defendant had not made any payment the defendant had not made any payment from from from December, 1982 to December, 1987 and she was December, 1982 to December, 1987 and she was December, 1982 to December, 1987 and she was again again again in arrears for about 5 years. Though the in arrears for about 5 years. Though the in arrears for about 5 years. Though the arrears arrears arrears were deposited after order dated 5th were deposited after order dated 5th were deposited after order dated 5th December, December, December, 1987, after that payment again, the 1987, after that payment again, the 1987, after that payment again, the defendant defendant defendant did not make any payment of rent or the did not make any payment of rent or the did not make any payment of rent or the permitted permitted permitted increases and she deposited the arrears increases and she deposited the arrears increases and she deposited the arrears from from from January, 1988 in 2002 when the decree for January, 1988 in 2002 when the decree for January, 1988 in 2002 when the decree for eviction eviction eviction was finally passed by the trial Court. was finally passed by the trial Court. was finally passed by the trial Court. 4. 4. 4. Learned counsel for the defendant/applicant Learned counsel for the defendant/applicant Learned counsel for the defendant/applicant vehemently vehemently vehemently contended that after the order of contended that after the order of contended that after the order of setting setting setting aside the ex parte decree was passed, the aside the ex parte decree was passed, the aside the ex parte decree was passed, the defendant defendant defendant had filed the written statement and had filed the written statement and had filed the written statement and issues issues issues came to be framed on 11th September, 1996 came to be framed on 11th September, 1996 came to be framed on 11th September, 1996 and and and that should be treated as the first date of that should be treated as the first date of that should be treated as the first date of hearing hearing hearing in the suit. According to him, the in the suit. According to him, the in the suit. According to him, the defendant defendant defendant had already paid the arrears of rent had already paid the arrears of rent had already paid the arrears of rent which which which were due till the date of filing of the were due till the date of filing of the were due till the date of filing of the suit, suit, suit, in 1982 itself, and thus the payment was in 1982 itself, and thus the payment was in 1982 itself, and thus the payment was made made made before the first date of hearing of the suit. before the first date of hearing of the suit. before the first date of hearing of the suit. Hence, Hence, Hence, the defendant was protected under section the defendant was protected under section the defendant was protected under section 12 12 12 (3) of the Bombay Rent Act, 1947, as amended in (3) of the Bombay Rent Act, 1947, as amended in (3) of the Bombay Rent Act, 1947, as amended in 1987. 1987. 1987. According to him, the Courts below According to him, the Courts below According to him, the Courts below committed committed committed an error in holding that the case of the an error in holding that the case of the an error in holding that the case of the 5 defendant defendant defendant is covered under section 12 (3) (a) of is covered under section 12 (3) (a) of is covered under section 12 (3) (a) of the the the Bombay Rent Act as it stood prior to amendment Bombay Rent Act as it stood prior to amendment Bombay Rent Act as it stood prior to amendment of of of 1987. The learned counsel for the 1987. The learned counsel for the 1987. The learned counsel for the respondents-plaintiffs respondents-plaintiffs respondents-plaintiffs however, supported the view however, supported the view however, supported the view taken taken taken by the Courts below and relied upon several by the Courts below and relied upon several by the Courts below and relied upon several authorities authorities authorities in support of the contention that in support of the contention that in support of the contention that because because because the suit was filed prior to the Amendment the suit was filed prior to the Amendment the suit was filed prior to the Amendment of of of 1987, the case would be covered under section 1987, the case would be covered under section 1987, the case would be covered under section 12 12 12 (3) (a) and not under section 12 (3) of the (3) (a) and not under section 12 (3) of the (3) (a) and not under section 12 (3) of the Rent Rent Rent Act as amended in 1987. Act as amended in 1987. Act as amended in 1987. 5. 5. 5. In view of the contentions raised by learned In view of the contentions raised by learned In view of the contentions raised by learned counsel counsel counsel for the defendant, the only question of for the defendant, the only question of for the defendant, the only question of law law law which is involved in the present matter is which is involved in the present matter is which is involved in the present matter is whether whether whether the case of the defendant will be covered the case of the defendant will be covered the case of the defendant will be covered by by by section 12 (3) (a) as it stood prior to 1987 section 12 (3) (a) as it stood prior to 1987 section 12 (3) (a) as it stood prior to 1987 amendment amendment amendment or it will be covered by section 12 (3) or it will be covered by section 12 (3) or it will be covered by section 12 (3) as as as amended in 1987. Therefore, it will be useful amended in 1987. Therefore, it will be useful amended in 1987. Therefore, it will be useful to to to quote the relevant provisions of the Act. quote the relevant provisions of the Act. quote the relevant provisions of the Act. 6. 6. 6. The relevant portion of section 12, as it The relevant portion of section 12, as it The relevant portion of section 12, as it stood stood stood prior to amendment of 1987, reads as follows prior to amendment of 1987, reads as follows prior to amendment of 1987, reads as follows : 12. 12. 12. No ejectment ordinarily to be No ejectment ordinarily to be No ejectment ordinarily to be made made made if tenant pays or is readyand if tenant pays or is readyand if tenant pays or is readyand willing willing willing to pay standard rent and to pay standard rent and to pay standard rent and permitted permitted permitted increases : (1) A increases : (1) A increases : (1) A landlord landlord landlord shall not be entitled to shall not be entitled to shall not be entitled to the the the recovery of possession of any recovery of possession of any recovery of possession of any premises premises premises so long as the tenant so long as the tenant so long as the tenant pays, pays, pays, or is ready and willing to or is ready and willing to or is ready and willing to pay, pay, pay, the amount of the standard the amount of the standard the amount of the standard 6 rent rent rent and permitted increases if and permitted increases if and permitted increases if any, any, any, and observes and performs the and observes and performs the and observes and performs the other other other conditions of the tenancy in conditions of the tenancy in conditions of the tenancy in so so so far as they are consistent with far as they are consistent with far as they are consistent with the the the provisions of this Act. provisions of this Act. provisions of this Act. (2) (2) (2) No suit for recovery of No suit for recovery of No suit for recovery of possession possession possession shall be instituted by a shall be instituted by a shall be instituted by a landlord landlord landlord against tenant on the against tenant on the against tenant on the ground ground ground of non payment of the of non payment of the of non payment of the standard standard standard rent or permitted rent or permitted rent or permitted increases increases increases due until the expiration due until the expiration due until the expiration of of of one month next after notice in one month next after notice in one month next after notice in writing writing writing of the demand of the of the demand of the of the demand of the standard standard standard rent or permitted rent or permitted rent or permitted increases increases increases has been served upon the has been served upon the has been served upon the tenant tenant tenant in the manner provided in in the manner provided in in the manner provided in section section section 106 of the Transfer of 106 of the Transfer of 106 of the Transfer of Property Property Property Act, 1882. Act, 1882. Act, 1882. 3. 3. 3. (a) Where the rent is payable by (a) Where the rent is payable by (a) Where the rent is payable by the the the month and there is no dispute month and there is no dispute month and there is no dispute regarding regarding regarding the amount of standard the amount of standard the amount of standard rent rent rent or permitted increases, if or permitted increases, if or permitted increases, if such such such rent or increases are in rent or increases are in rent or increases are in arrears arrears arrears for a period of six months for a period of six months for a period of six months or or or more and the tenant neglects to more and the tenant neglects to more and the tenant neglects to make make make payment thereof until the payment thereof until the payment thereof until the expiration expiration expiration of the period of one of the period of one of the period of one month month month after notice referred to in after notice referred to in after notice referred to in sub sub sub section (2) the Court shall section (2) the Court shall section (2) the Court shall pass pass pass a decree for eviction in any a decree for eviction in any a decree for eviction in any suit suit suit for recovery of possession. for recovery of possession. for recovery of possession. (b) (b) (b) In any other case, no decree In any other case, no decree In any other case, no decree for for for eviction shall be passed in any eviction shall be passed in any eviction shall be passed in any such such such suit if on the first day of suit if on the first day of suit if on the first day of hearing hearing hearing of the suit or on or before of the suit or on or before of the suit or on or before such such such other date as the Court may other date as the Court may other date as the Court may fix fix fix the tenant pays or tenders in the tenant pays or tenders in the tenant pays or tenders in Court Court Court the standard rent and the standard rent and the standard rent and permitted permitted permitted increases then due and increases then due and increases then due and thereafter thereafter thereafter continues to pay or continues to pay or continues to pay or tender tender tender in Court regularly such rent in Court regularly such rent in Court regularly such rent and and and permitted increases till the permitted increases till the permitted increases till the suit suit suit is finally decided and also is finally decided and also is finally decided and also pays pays pays costs of the suit as directed costs of the suit as directed costs of the suit as directed by by