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Mrs Manorama S. Masurekar. v. Mrs Dhanlaxmi G. Shah And Another
Factual and Procedural Background
The appellant’s late husband was the tenant of a flat governed by the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Rent had remained unpaid for over six months. On 22 December 1956, the landlord served a notice under Section 12(2) demanding payment. The tenant failed to pay within the statutory one-month period and died on 11 January 1957. The appellant, his widow, sent the arrears by money order on 4 February 1957, but the landlord refused to accept it. The landlord instituted a suit for eviction on 5 February 1957. The trial court decreed eviction, and the Bombay High Court dismissed the appellant’s revision. The present appeal was brought before the Supreme Court by special leave.
Legal Issues Presented
- Whether, in a case falling under Section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, a tenant can avert eviction by demonstrating readiness and willingness to pay arrears of rent before the institution of the suit.
Arguments of the Parties
Appellant's Arguments
- Although the statutory notice period had elapsed, she was ready and willing to pay the arrears before the suit was filed and therefore deserved protection under Section 12(1).
- Relied on Gujarat High Court decisions in Mohanlal v. Maheshwari Mills Ltd. and Shah Ambalal Chhotalal v. Shah Babaldas Dayabhai, which allowed such protection even when Section 12(3)(a) conditions were met.
Respondent's (Landlord's) Arguments
- Once the conditions of Section 12(3)(a) are satisfied—six months’ arrears, no dispute as to rent, and failure to pay within one month of notice—the tenant loses all statutory protection, irrespective of any subsequent tender or willingness to pay.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mohanlal v. Maheshwari Mills Ltd. (1962) 3 GLR | Gujarat High Court view that readiness and willingness to pay before suit affords protection even under Section 12(3)(a). | Expressly dissented from; Supreme Court rejected this interpretation. |
| Shah Ambalal Chhotalal v. Shah Babaldas Dayabhai (1962) 3 GLR | Same principle as above, supporting tenant protection through pre-suit tender. | Likewise dissented from; not followed. |
| Bhaiya Punjalal Bhagwanddin v. Dave Bhagwatprasad Prabhuprasad (SC) | Held that the word “may” in Section 12(3)(a) operates as “shall”, making eviction mandatory once statutory conditions are met. | Relied upon to affirm that courts are bound to decree eviction when Section 12(3)(a) applies. |
Court's Reasoning and Analysis
The Court began by contrasting the general protection granted to tenants under Section 12(1) with the specific, more stringent regime of Section 12(3)(a). It noted that Section 12(3)(a) expressly governs situations where: (i) rent is payable monthly; (ii) no dispute exists regarding the quantum of rent; (iii) arrears extend for six months or more; and (iv) the tenant neglects to pay within one month after statutory notice.
Once these prerequisites are met, the subsection obliges the court to decree eviction; the permissive word “may” has been judicially construed as mandatory (reaffirming Bhaiya Punjalal). The Court rejected the appellant’s contention that subsequent readiness or willingness to pay before suit could revive Section 12(1) protection. Accepting that view would, in the Court’s words, “rewrite the section” by effectively substituting “until the date of the institution of the suit” for the legislature’s chosen phrase “until the expiration of the period of one month after notice.”
The Court therefore upheld the Bombay High Court’s contrary stance to the Gujarat decisions, holding that Section 12(3)(a) is a self-contained, overriding provision that nullifies Section 12(1) protection once its conditions are satisfied.
Holding and Implications
DISMISSED WITH COSTS
The Supreme Court affirmed the eviction decree, ruling that a tenant who fails to clear six months’ arrears within one month after statutory notice cannot avoid eviction by later expressing willingness to pay. The decision clarifies that Section 12(3)(a) overrides the general tenant protections of Section 12(1) and disapproves contrary Gujarat High Court authority, thereby reinforcing a stricter interpretation binding on lower courts within the Act’s jurisdiction.
BACHAWAT, J.— The question arising in this appeal by special leave is whether in a case falling under sub-section (3)(a) of Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Act 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 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.
2. 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 Section 12. 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 (3)(a) 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 contention. In Mohanlal v. Maheshwari Mills Ltd (1962) 3 Gujarat Law Reporter 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 (1). A similar opinion was expressed by a Division Bench of the Gujarat High Court in Ambalal v. Babaldas (1962) 3 Gujarat Law Reporter. 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 (3)(a), the tenant could not claim protection from eviction by showing his readiness and willingness to pay the rent before the institution of the suit.
3. 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. Sub-section (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 (3)(a) provides for the consequences which will follow where the rent is payable by the month, there is no dispute regarding the amount of the 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-section (2). In such a case, the tenant 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-section (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 Bhaiya Punjalal Bhagwanddin v. Dave Bhagwatprasad Prabhuprasad this Court held that where the requirements of sub-section (3)(a) 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 14 of 1963.
4. If the conditions of sub-section (3)(a) are satisfied, the tenant cannot claim any protection from eviction under the Act. By tendering 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 (1). It is immaterial whether the tender was made before or after the institution of the suit. In a case falling within sub-section (3)(a), the tenant must be dealt with under the special provisions of sub-section (3)(a) and he cannot claim any protection from eviction under the general provisions of sub-section (1).
5. 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 (3) 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 conditions: “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.
6. The appellant's case fell precisely within sub-section (3)(a) and she could not obtain immunity from eviction by tendering the rent before the institution of the suit.
7. The appeal is dismissed with costs.
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