Citation Codes

Equivalent Citations

citation codes

Case Number

O.C.J. Suit No. 131 of 1922

Judges

Pratt E.M.

Acts

section of the English Act, the Increase of Rent and Mortgage Interest (War Restrictions) Act, 1915,
Section 9(1) of the Bombay Act and the English section
Section 9(1) of the Bombay Rent Act
Bombay Rent (War Restrictions) Act
Section 9 of the Rent Act
3 K.B. 428, 436 the section

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The plaintiff (landlord) sought to evict the defendant (monthly tenant) from a house at Sandhurst Road. On 18 July 1921 the plaintiff gave a notice to quit terminating the tenancy on 1 September 1921. The defendant admitted that rent had been in arrears since 1 July 1919 but asserted that he tendered the arrears to the plaintiff in August 1921 and that the plaintiff refused to accept payment.

Previously, in Suit No. 941 of 1920 the plaintiff had sued the defendant for possession; that suit was dismissed on the ground that the plaintiff's requirements had not been proved, the dismissal being without prejudice to the plaintiff's claim to recover arrears of rent. After that dismissal the plaintiff (through attorneys) repeatedly demanded payment of rent by letters (including letters of 23 June 1920 and 9 August 1920, and later correspondence in April–June 1921). The defendant did not reply to many demands until he wrote in April 1921 about taxed costs in the earlier suit. The plaintiff attempted to set off taxed costs against arrears; the defendant objected. The defendant alleges absence from Bombay because his wife was dying; the Court considered that excuse inadequate.

The pleadings resulted in three issues being framed. The defendant later paid into Court, on 8 February 1922 (after this suit was filed), all arrears of rent including rent up to the end of April 1922.

Legal Issues Presented

Whether the defendant did not in August 1921 offer to pay all arrears of rent?
Whether the plaintiff declined to recover arrears because he had terminated the tenancy by his letter of July 1921?
Whether in any event the plaintiff under Section 9 of the Rent Act is entitled to an order for possession?

Arguments of the Parties

Plaintiff's Arguments

The defendant is not entitled to protection under the Bombay Rent (War Restrictions) Act because he had not paid the rent (rent was in arrears since 1 July 1919).
The plaintiff relied on prior correspondence and the termination notice of 18 July 1921 as justifying eviction proceedings.

Defendant's Arguments (as advanced by Mr. Campbell)

Under Section 9(1) of the Bombay Rent Act (which uses the present tense: "pays or is ready and willing to pay"), if the tenant brings arrears into Court the Court is unable to make an order for eviction — the tenant thereby acquires a locus poenitentiae and cannot be evicted.
By analogy with the corresponding English provision in the Increase of Rent and Mortgage Interest (War Restrictions) Act, 1915 (which uses the phrase "continues to pay"), the defendant urged that the condition in Section 9(1) relates to the time of the Court's order (i.e., the present) rather than exclusively to the time of service of the writ or filing of the suit.
Mr. Campbell sought to distinguish the Indian wording ("pays") from the English wording ("continues to pay"), suggesting a different temporal scope.
He also relied on the clause "is ready and willing to pay the rent to the full extent allowable by this Act" to support a construction that would permit a tenant who tendered arrears (or showed willingness to pay) after the suit was instituted to retain protection.
Finally, Mr. Campbell invoked the Court's equitable jurisdiction to relieve against forfeiture (though the Court addressed whether that equitable relief was applicable in the factual context).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Beavis v. Carman (1920) 36 T.L.R. 396, 397	Cited for the construction that the corresponding English section imports a condition precedent which must be fulfilled at the time when the writ is served (i.e., antecedent to filing/service), not at the time of the Court's order.	The Court relied on this authority to support the view that Section 9(1) of the Bombay Rent Act should be construed as referring to conduct prior to the filing of the suit (or service of writ), and thus not satisfied by payment brought into Court after the cause of action arose.
Davies v. Bristow [1920] 3 K.B. 428, 436	Cited for the proposition that the section constitutes a condition precedent to claiming protection under the Act and that the tenant must have paid the rent and performed obligations prior to the relevant time.	The Court treated this case as confirming the same construction: that the tenant must have fulfilled the qualifying conduct before the suit was instituted to claim protection under the statute.
Nusserwanjee Pestonjee v. Meer Mynoodeen Khan (1855) 6 M.I.A. 134 (Privy Council)	The opinion refers to "the principle set forth in the judgment of the Privy Council" (no further detail of that principle is given in the provided text).	The Court invoked that principle in concluding that jurisdiction to create a statutory tenancy after termination by notice arises only where the statutory conditions are strictly complied with; on that basis the Court found issue No. 3 in the plaintiff's favor.

Court's Reasoning and Analysis

The Court proceeded in the following steps (as stated in the opinion):

Credibility and primary factual findings:
- The Court found the defendant's explanation (that he offered to pay arrears in August 1921) to be uncorroborated and inadequate, and expressly disbelieved the defendant's statement. The Court did not call Mr. Taleyarkhan to contradict that statement.
- The Court considered the defendant's excuse (absence due to wife's illness) inadequate because the house was occupied by a son and son-in-law and because the defendant spent time in Bombay after his return.
- The defendant had indeed not paid rent since 1 July 1919, as admitted in his written statement; payment into Court of all arrears occurred only on 8 February 1922, after the present suit had been filed.
Interpretation of Section 9(1) of the Bombay Rent Act:
- The Court noted that Section 9(1) reads: "No order for the recovery of possession of any premises shall be made so long as the tenant pays or is ready and willing to pay rent to the full extent allowable by this Act and performs the conditions of the tenancy."
- It acknowledged that the section is in the present tense but observed that the corresponding English section (Increase of Rent and Mortgage Interest (War Restrictions) Act, 1915) uses the words "continues to pay". English authorities had construed the English wording as importing a condition precedent applicable at the time the writ was served.
- The Court held that the same construction should apply to Section 9(1) of the Bombay Rent Act: the present tense is used to describe the conduct of the tenant which entitles him to plead the Rent Act (i.e., conduct up to or at the time when the suit was filed), not to describe conduct at the time the Court makes its order.
- The Court rejected the submission that "continues to pay" and "pays" create a distinction of temporal effect; it held both phrases refer to time anterior to the filing of the suit.
- Regarding the clause "is ready and willing to pay the rent to the full extent allowable by this Act," the Court read it as also referring to readiness and willingness prior to filing the suit (for example, in disputes about the amount of standard rent), and noted that a tenant could meet such a situation by offering to pay such sum as the Rent Controller or Court may adjudge to be the standard rent.
- The Court further rejected the argument that the contrasting tenses in Section 9(1) (present) and Section 9(2) (past) demonstrate that Section 9(1) refers only to acts at the date of order; it explained that Section 9(2) deals with past acts of waste or annoyance, hence its past tense, while Section 9(1) describes the kind of tenant entitled to claim protection.
Policy and practical considerations:
- The Court observed that construing Section 9(1) as referring to conduct at the date of the order would allow tenants to defeat eviction simply by paying arrears into Court each time a suit was filed and then withholding payment until another suit was necessary; such a construction would be unacceptable.
Application to the present case and equitable jurisdiction:
- Having found that the defendant had contumaciously refused to pay rent prior to the filing of the suit, the Court concluded that the conditions in Section 9(1) were not satisfied at the date of the cause of action.
- The Court addressed Mr. Campbell's contention about relief against forfeiture but held that equitable relief was not appropriate here because the tenancy had been terminated by notice to quit rather than by forfeiture. The question was whether the statutory conditions for protection were fulfilled; they were not.
- The Court referred to the principle in the Privy Council judgment in Nusserwanjee Pestonjee v. Meer Mynoodeen Khan as supporting the requirement that statutory conditions must be strictly complied with for the Court's jurisdiction to create a statutory tenancy to arise.
Conclusion of analysis:
- On the facts and statutory construction, the Court found that the defendant had not demonstrated fulfilment of Section 9(1) and therefore was not entitled to the protection of the Rent Act in this suit.

Holding and Implications

Holding: The Court held in favour of the plaintiff and found issue No. 3 in the plaintiff's favour. The defendant was not entitled to protection under Section 9(1) of the Bombay Rent Act because he had not satisfied the conditions antecedent to filing of the suit.

Decree and direct consequences for the parties:

Decree for the plaintiff for rent from 1 July 1919 to 31 August 1921 at the rate of Rs. 45 per mensem, less a sum of Rs. 403-0-8.
Decree for rent and compensation at the same rate per mensem from 1 September 1921 until possession is given.
Liberty to the plaintiff to recover these amounts from the sum paid into Court by the defendant.
Decree for the plaintiff for possession on or before 30 July 1922.
No order as to costs.

Implications: The immediate effect is the grant of possession to the plaintiff and a monetary decree as set out above. The Court applied and followed earlier English authorities (Beavis v. Carman; Davies v. Bristow) and a Privy Council principle (Nusserwanjee Pestonjee v. Meer Mynoodeen Khan) in construing Section 9(1) as requiring qualifying conduct prior to the filing of the suit. The opinion does not assert that it establishes a novel legal principle beyond applying those authorities to the interpretation of Section 9(1) in the facts of this case.

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Mathuradas Maganlal v. Nathubhai Vithaldas

1. The plaintiff in this suit seeks to evict the defendant who is a monthly tenant of the plaintiff's house at Sandhurst Road and, on July 18, 1921, gave notice to quit terminating the tenancy on September 1, 1921. The defendant pleads the Bombay Rent (War Restrictions) Act No. II of 1918 and the plaintiff's reply is that the defendant is not entitled to protection under the Rent Act as he has not paid the rent. The defendant admits that his rent is in arrears from July 1, 1919, but he states that he tendered arrears of rent to the plaintiff in August 1921 and that the plaintiff refused to accept the rent.

2. On these pleadings the following issues were framed:

(1) Whether the defendant did not in August 1921 offer to pay all arrears of rent?

(2) Whether plaintiff declined to recover arrears as he said he had terminated the tenancy by his letter of July 1921?

(3) Whether in any event the plaintiff under Section 9 of the Rent Act is entitled to an order for possession?

3. Now the plaintiff had in Suit No. 941 of 1920 sued the defendant for possession and the suit had been dismissed on the ground that the plaintiff's requirements had not been proved, and that dismissal was without prejudice to the plaintiff s claim to recover the arrears of rent from the defendant. Since the dismissal of that suit the plaintiff's attorneys have been repeatedly demanding payment of rent. The first letter was Exh. A of June 23, and it was followed up by a second letter of August 9, 1920. To neither of these letters did the defendant make any reply until April 1921 when the defendant wrote demanding payment of the taxed costs in Suit No. 941 of 1920. The plaintiff in reply, on April 19, 1921, claimed to set off the amount of taxed costs against the amount of rent which was payable by the defendant, but the defendant objected to this and the plaintiff's demands of payment of the arrears of rent continued on May 5, 1921, Ex. D, and June 24, 1921, Ex. E, without eliciting any reply from the defendant. Eventually, on July 18, 1921, the plaintiff gave notice to quit.

4. Now, the defendant admits that he received these letters and that he made no reply to them a ad the only excuse that he gives is, his wife was dying and that he was absent with her at Miraj and then at Deolali. This excuse is very inadequate, for the house was in the occupation of a son and son-in-law who could have paid for him; and after he returned from Miraj he spent some time in Bombay and could have paid then.

5. His unwillingness to pay the rent is manifest from his objection even to allow the amount of taxed costs to be set off against the arrears of rent.

6. I, therefore, disbelieve his uncorroborated statement that in August 1921 he offered to pay the plaintiff the arrears of rent and I have not called upon Mr. Taleyarkhan for evidence to contradict that statement.

7. That disposes of the first and second issues, but however that may be the fact remains that no rent has been paid since July 1919. That is admitted in the written statement and it is only after suit filed that the defendant with his written statement, on February 8, 1922, paid into Court all the arrears of rent including rent up to the end of April 1922.

8. Mr. Campbell contends, and has contended very strenuously, that under Section 9(1) of the Bombay Rent Act the effect of this payment is that the Court is unable to make an order for eviction. Section 9(1) runs as follows:

No order for the recovery of possession of any premises shall be made so long as the tenant pays or is ready and willing to pay rent to the full extent allowable by this Act and performs the conditions of the tenancy.

9. Mr. Campbell's contention is that the conditions here laid down are conditions which apply at the date of the order, and that even if a tenant has made any default in paying the rent and is in arrears at the time that the suit is filed, yet be has under Section 9(1) a locus pnitenti and if he brings the arrears of rent into Court the Court Cannot make an order for the recovery of possession.

10. The section is based on the corresponding section of the English Act, the Increase of Rent and Mortgage Interest (War Restrictions) Act, 1915, which is as follows:

No order for the recovery of possession of a dwelling-house to which this Act applies or for the ejectment of a tenant therefrom shall be made so long as the tenant continues to pay rent at the agreed rate as modified by this Act and performs the other conditions of the tenancy.

11. This section is also in the present tense but nevertheless it has been construed in England as importing a condition precedent which must be fulfilled by the tenant not at the time when the Court has to make its order, but at the time when the writ is served.

12. In Beavis v. Carman (1920) 36 T.L.R. 396, 397 Lawrence J. said:

There was a right in the landlord to possession when the writ was served,...and there was no locus pnitenti on the part of the tenant, nor could he (his Lordship) reinstate the tenant, as though he had continued to pay the rent and perform the terms of the tenancy.

13. So also in the case of Davies v. Bristow [1920] 3 K.B. 428, 436 the section was construed as constituting a condition precedent to the right of a tenant to claim the protection of the Act, that he should have paid the rent and performed his obligations under the tenancy agreement.

14. I think that is the proper construction of Section 9(1) of the Bombay Rent Act. The present tense is used not to describe anything that the tenant does or may do at the time when the Court's order is made, but to describe the conduct of the tenant which entitles him to plead the Rent Act, i.e., the conduct of the tenant up to or at the time when the suit was filed.

15. Mr. Campbell contends that there is a distinction between Section 9(1) of the Bombay Act and the English section in that the English section uses the words "continues to pay" the rent instead of the word "pays" which is used in the Indian section. But I do not think that the words "continues to pay" import any distinction. Whether the words are "continues to pay" or "pays", the real question is whether they refer to the time anterior to the filing of the suit or the time subsequent thereto. I think that in both the English and the Indian section the words "continues to pay" and the word "pays" respectively, refer to the time anterior to the filing of the suit.

16. Then Mr. Campbell refers to the words "is ready and willing to pay the rent to the full extent allowable by this Act". These words do not appear in the English section, but here again the question is whether readiness and willingness to pay refers to the time before the suit is filed or the time subsequent to the filing of the suit. I think it refers to the time prior to the filing of the suit and it has been inserted to meet cases in which failure to pay rent has been due to a dispute between the landlord and the tenant as to the amount of standard rent. Mr. Campbell says that this cannot be the true construction because otherwise a tenant who made a wrong estimate as to what the standard rent was would find himself evicted merely because his estimate was wrong and the landlord's estimate was right. But that is a case which could easily be met by the tenant offering not to pay any fixed sum as rent, but such sum as the Rent Controller or the Court may adjudge to be the standard rent.

17. Mr. Campbell's third argument is that the use of the past tense in Section 9(2) as contrasted with the present tense of Section 9(1) shows that the acts of the tenant referred to in Section 9(2) are past acts while the acts referred to in Section 9(1) are present acts, i.e., acts at the date of the order. But I do not think that that is so. Section 9(2) is in the past tense because it refers to past acts of waste or conduct in the past which has been an annoyance. Section 9(1) is in the present tense because that section merely describes the sort of tenant who is entitled to claim protection under the Act.

18. I think that is the only admissible construction of the section for otherwise the tenant might refuse to pay rent and the landlord will be unable to evict him. For every time that the landlord filed a suit to evict him he would bring the rent into Court and then withhold it &gain until such time as the landlord should file a fresh suit.

19. I, therefore, think that the conditions in Section 9(1) are conditions precedent which must be fulfilled at the date of the cause of action. The defendant has contumaciously refused to pay rent and I think he was encouraged to this attitude by the dismissal of Suit 941 of 1920 in June 1920.

20. Mr. Campbell says that the Court has jurisdiction to relieve against forfeiture. But this is not a case for the exercise by the Court of its equitable jurisdiction, for the tenancy was not determined by forfeiture but by a notice to quit. The question is one simply whether the defendant has proved that he has fulfilled the conditions of Section 9(1), for unless he has fulfilled those conditions, he is not entitled to protection of the Kent Act. The Act gives the Court jurisdiction to create a statutory tenancy after the termination of the previous tenancy by the notice to quit. The jurisdiction does not arise unless the terms on which the statute gives it are strictly complied with. The principle is that set forth in the judgment of the Privy Council in Nusserwanjee Pestonjee v. Meer Mynoodeen Khan (1855) 6 M.I.A. 134. I, therefore, find issue No. 3 in the affirmative and that the plaintiff is entitled to an order for possession.

21. Decree for the plaintiff for rent from July 1, 1919, to August 31, 1921, at the rate of Rs. 45 per mensem, less a sum of Rs. 403-0-8 and for rent and compensation at the same rate per mensem from September 1, 1921, till possession given. Liberty to plaintiff to recover this amount from the amount paid into Court by the defendant. Decree for plaintiff for possession on or before July 30, 1922. No order as to costs.

Mathuradas Maganlal v. Nathubhai Vithaldas

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiff's Arguments

Defendant's Arguments (as advanced by Mr. Campbell)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Mathuradas Maganlal v. Nathubhai Vithaldas

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