Order
1. Leave granted.
2. The appellant-tenant committed default in the payment of rent from March 1979 to March 1980 at the rate of Rs 80 per mensem. The respondent-landlord filed an application under clause 13(3)(ii) of the C.P & Berar Letting of Houses and Rent Control Order, 1949, for short ‘the Order’. The Rent Controller found that the respondent being the neighbour has been receiving the rent without any objection and therefore the appellant is not a habitual defaulter. The appellate authority reversed the finding and granted permission for serving notice to eject the appellant. In a writ petition filed under Article 226, the High Court affirmed that finding. On further LPA, the Division Bench in the impugned order dated October 14, 1986 affirmed the order directing permission to determine the tenancy. Thus this appeal by special leave.
3. In S.P Deshmukh v. Shah Nihal Chand Waghajibai Gujarati (1977) 3 SCC 515 this Court held that:
“Normally, a monthly tenant is under an obligation to pay the rent from month to month but this obligation is subject to a contract to the contrary. Such a contract need not be reflected in a formal document and can be spelt out from the conduct of the parties, spread over a fairly long period of time. The evidence in the case, which was believed by the two tribunals of fact, shows that the tenant has been paying rent at an interval of 3 or 4 months, which the landlord has been willingly accepting and always without even so much as a murmur.”
On that finding this Court accepted that the tenant is not in habitual default in payment of the rent. This view was reiterated in Rashik Lal v. Shah Gokuldas (1989) 1 SCC 542, (1989) 1 SCR 439. This Court held in a paragraph at page 443 of the above-cited judgment that:
“The crucial test appears to be the conduct of the landlord in receiving the rent offered belatedly. If he receives the same under a protest and warns the tenant to be regular in payment in the future, he cannot be assumed to have agreed to a modified agreement in this regard. But if he, without any objection and without letting the tenant know his thought process, continues to receive rent at intervals of several months, he cannot be allowed to spring a surprise on the tenant by suddenly starting a proceeding for eviction. Having lulled the tenant in the belief that things were all right, the landlord was under a duty to serve him with a notice demanding regular payment, if he wished to insist upon it.”
4. This view was further followed in Mangalbhai v. Dr Radheyshyam (1992) 3 SCC 448. In view of this consistent law laid by this Court, it is now well settled that by conduct of the landlord that if he accepts the rent though paid belatedly, there arises a contract to the contrary that the landlord is willing to receive the rent at irregular intervals. That conduct will be displaced by receiving the rent under protest and warns the tenant that henceforth if the payments are made at irregular intervals it would constitute habitual default and he will be liable to ejectment. If that conduct is not established and if the landlord continues to receive the rent, the conduct on the part of the parties in payment of the rent at irregular intervals cannot be said to constitute habitual default liable to ejectment under clause 13(3)(ii) of the Order.
5. The finding of the Controller and even the defence taken in the written statement filed by the appellant is that the appellant and the respondent are neighbours and are on good terms. He has been receiving the rent at irregular intervals and that he has not at any time protested in receipt of the rent though paid belatedly. Under those circumstances, we have no hesitation to conclude that though the tenant is under an obligation to pay the monthly rent regularly, by conduct there is a contract to the contrary that the rent paid at irregular intervals would not constitute habitual default in payment of rent. This being the finding of fact based on the evidence on record. The appellate tribunal and the High Court had not had advantage of the law laid by this Court. Deshmukh case (1977) 3 SCC 515 was not cited before the authorities. Thereby there is a manifest error of law committed by the courts below in granting permission to determine the tenancy of the appellant.
6. It is then contended by Shri Wad, counsel for the respondent that though this point was argued before the learned Single Judge, the appellant had not argued this point before the Division Bench, but confined to the constitutional validity of clause 13(3)(ii) of the Order and that therefore the appellant cannot be permitted to raise this point in this Court. We find no force in this contention. Though it is stated in his special leave petition that this point was argued before the Division Bench and not dealt with, we proceed on the basis that the point had not been argued. Yet being a pure question of law, it is always open to this Court to permit the parties to raise pure questions of law untrammelled by questions of fact, to be raised and decided in an appropriate case. In this case that is the only question that arises and that question was squarely gone into up to the learned Single Judge and therefore we permitted the counsel to argue the point and we answered it accordingly.
7. The appeal is allowed and the appellate and orders in writ proceedings before the Single Judge and the Division Bench are set aside and that of the Rent Controller confirmed. But in the circumstances there shall be no order as to costs.