Case: Mranalini B. Shah &amp; Another Vs. Bapalal Mohanlal Shah

in that behalf ... But where the conditions of Section 12(3)(a) are not satisfied, there is a further opportunity given to the tenant to protect himself against eviction. He can comply with the conditions set out in Section 12(3)(b) and defeat the landlords claim for eviction. If, however, he does not fulfil those conditions, he cannot claim the protection of Section 12(3)(b) and in that event, there being no other protection available to him, a decree for eviction would have to go against him. It is difficult to see how by any judicial valour discretion exercisable in favour of the tenant can be found in Section 12(3)(b) even where the conditions laid down by it are satisfied to be strictly confined within the limits prescribed for their operation. We think that Chagla, C.J., was doing nothing less than legislating in Kalidas Bhavan case (Kalidas Bhavan v. Bhagvandas Sakalchand, 60 Bom LR 1359) in converting the provisions of Section 12(3)(b) into a sort of discretionary jurisdiction of the court to relieve tenants from hardship. The decisions of this Court referred to above, in any case, make the position quite clear that Section 12(3)(b) does not create any discretionary jurisdiction in the court. It provides protection to the tenant on certain conditions and these conditions have to be strictly observed by the tenant who seeks the benefit of the section. If the statutory provisions do not go far enough to relieve the hardship of the tenant the remedy lies with the legislature. It is not in the hands of courts.13. The above enunciation, clarifies beyond doubt that the provisions of clause (b) of Section 12(3) are mandatory, and must be strictly complied with by the tenant during the pendency of the suit or appeal if the landlords claim for eviction on the ground of default in payment of rent is to be defeated. The word "regularly" in clause (b) of Section 12(3) has a significance of its own. It enjoins a payment or tender characterised by reasonable punctuality, that is to say, one made at regular times or intervals. The regularity contemplated may not be a punctuality, of clock-like precision and exactitude, but it must reasonably conform with substantial proximity to the sequence of times or intervals at which the rent falls due. Thus, where the rent is payable by the month, the tenant must, if he wants to avail of the benefit of the latter part of clause (B), tender or pay it every month as it falls due, or at his discretion in advance. If he persistently defaults during the pendency of the suit or appeal in paying the rent, such as where he pays it at irregular intervals of 2 or 3 or 4 months - as is the case before us - the court has no discretion to treat what were manifestly irregular payments, as substantial compliance with the mandate of this clause, irrespective of the fact that by the time the judgment was pronounced all the arrears had been cleared by the tenant.14. Mr. Shroff contended that, in fact, the tenant had made two other payments, viz., Rs. 744.85 on February 4, 1970 and Rs. 183.52 on March 29, 1976 towards the municipal dues or taxes payable by the landlords and that if those items were adjusted towards the rent, the tenant would be deemed to have paid the rent, in advance, for entire period of the pendency of the appeal. In support of this contention, the respondent has filed an affidavit in this Court. This claim, which has now been made for the first time by the tenant, has been controverted by the landlord in his rejoinder affidavit filed before us. We, therefore, decline to take it into consideration.15. We need not dilate on the matter further, suffice it to say that on the basis of the facts found by the courts below and in the light of this Courts decision in Ganpat Ladha v. Sashikant Vishnu Shinde ((1978) 2 SCC 573 , 579, 580), the question posed at the commencement of the judgment must be answered in favour of the appellant and against the respondent. In the result, the appeal is set aside and a decree for possession of the premises in favour of the appellant is passed.16. At this stage, Mr. Shroff requests that the respondent may be granted two years time to vacate the premises on the basis of the written undertaking of his client, which he has now filed and which has been agreed to by the appellants counsel. Of the undertaking filed by Mr. Shroff, the agreed portion is to the following effect :I shall vacate and hand over to the petitioners peaceful possession of the suit premises bearing M.C. No. 802/12 situated in Panchbhais Pole, Ahmedabad on the expiry of two years from April 30, 1978 i.e. on or before April 30, 1980 (thirtieth day of April, one thousand nine hundred and eighty) and in the meanwhile I shall pay to the petitioners the monthly rent of Rs. 65 for occupation of the suit premises. I further undertake not to part with the possession of the suit premises. I further undertake not to part with the possession and create any sub-tenancy or encumbrances on the premises.17. In paragraph 3 of his undertaking, the respondent has made a counter-claim for credit of the two items Rs. 744.85 and Rs. 183.52 which he says, he has paid towards municipal taxes and cess on behalf of the appellant-landlord. The appellants on the other hand, claim about Rs. 300 as education cess from the tenant. The parties agree before us that these claims and counter-claims may be decided within a period of six months from today by the court of the first instance - the trial Court. Subject to this condition, any amount found payable by the trial Court with regard to these counter-claims may be adjusted towards rent or shall have to be paid by the party by whom it is found due.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]It is clear to us that the Act interferes with the landlords right to property and freedom of contract only for the limited purpose of protecting tenants from misuse of the landlords power to evict them, in these days of scarcity of accommodation, by asserting his superior right in property or trying to exploit his position by extracting too high rents from helpless tenants. The object was not to deprive the landlord altogether of his rights in property which have also to be respected. Another object was to make possible eviction of tenants who fail to carry out their obligation to pay rent to the landlord despite opportunities given by law in that behalf ... But where the conditions of Section 12(3)(a) are not satisfied, there is a further opportunity given to the tenant to protect himself against eviction. He can comply with the conditions set out in Section 12(3)(b) and defeat the landlords claim for eviction. If, however, he does not fulfil those conditions, he cannot claim the protection of Section 12(3)(b) and in that event, there being no other protection available to him, a decree for eviction would have to go against him. It is difficult to see how by any judicial valour discretion exercisable in favour of the tenant can be found in Section 12(3)(b) even where the conditions laid down by it are satisfied to be strictly confined within the limits prescribed for their operation. We think that Chagla, C.J., was doing nothing less than legislating in Kalidas Bhavan case (Kalidas Bhavan v. Bhagvandas Sakalchand, 60 Bom LR 1359) in converting the provisions of Section 12(3)(b) into a sort of discretionary jurisdiction of the court to relieve tenants from hardship. The decisions of this Court referred to above, in any case, make the position quite clear that Section 12(3)(b) does not create any discretionary jurisdiction in the court. It provides protection to the tenant on certain conditions and these conditions have to be strictly observed by the tenant who seeks the benefit of the section. If the statutory provisions do not go far enough to relieve the hardship of the tenant the remedy lies with the legislature. It is not in the hands of courts.13. The above enunciation, clarifies beyond doubt that the provisions of clause (b) of Section 12(3) are mandatory, and must be strictly complied with by the tenant during the pendency of the suit or appeal if the landlords claim for eviction on the ground of default in payment of rent is to be defeated. The word "regularly" in clause (b) of Section 12(3) has a significance of its own. It enjoins a payment or tender characterised by reasonable punctuality, that is to say, one made at regular times or intervals. The regularity contemplated may not be a punctuality, ofprecision and exactitude, but it must reasonably conform with substantial proximity to the sequence of times or intervals at which the rent falls due. Thus, where the rent is payable by the month, the tenant must, if he wants to avail of the benefit of the latter part of clause (B), tender or pay it every month as it falls due, or at his discretion in advance. If he persistently defaults during the pendency of the suit or appeal in paying the rent, such as where he pays it at irregular intervals of 2 or 3 or 4 monthsas is the case before usthe court has no discretion to treat what were manifestly irregular payments, as substantial compliance with the mandate of this clause, irrespective of the fact that by the time the judgment was pronounced all the arrears had been cleared by theis clear to us that the Act interferes with the landlords right to property and freedom of contract only for the limited purpose of protecting tenants from misuse of the landlords power to evict them, in these days of scarcity of accommodation, by asserting his superior right in property or trying to exploit his position by extracting too high rents from helpless tenants. The object was not to deprive the landlord altogether of his rights in property which have also to be respected. Another object was to make possible eviction of tenants who fail to carry out their obligation to pay rent to the landlord despite opportunities given by law in that behalf ... But where the conditions of Section 12(3)(a) are not satisfied, there is a further opportunity given to the tenant to protect himself against eviction. He can comply with the conditions set out in Section 12(3)(b) and defeat the landlords claim for eviction. If, however, he does not fulfil those conditions, he cannot claim the protection of Section 12(3)(b) and in that event, there being no other protection available to him, a decree for eviction would have to go against him. It is difficult to see how by any judicial valour discretion exercisable in favour of the tenant can be found in Section 12(3)(b) even where the conditions laid down by it are satisfied to be strictly confined within the limits prescribed for their operation. We think that Chagla, C.J., was doing nothing less than legislating in Kalidas Bhavan case (Kalidas Bhavan v. Bhagvandas Sakalchand, 60 Bom LR 1359) in converting the provisions of Section 12(3)(b) into a sort of discretionary jurisdiction of the court to relieve tenants from hardship. The decisions of this Court referred to above, in any case, make the position quite clear that Section 12(3)(b) does not create any discretionary jurisdiction in the court. It provides protection to the tenant on certain conditions and these conditions have to be strictly observed by the tenant who seeks the benefit of the section. If the statutory provisions do not go far enough to relieve the hardship of the tenant the remedy lies with the legislature. It is not in the hands of courts.