Case Note & Summary
The judgment arises from a writ petition filed by the tenant challenging the appellate decree of eviction under the Bombay Hotels & Lodging Rent Control Act, 1947. The respondent landlord had filed a suit in the Small Causes Court at Bombay for possession on the ground of default in payment of rent. The tenant had been occupying one room in Pathare House since 1952 at a monthly rent of Rs.14. In 1976, the landlord issued a notice terminating the tenancy and demanding arrears of rent, alleging that the tenant had not paid any rent since the inception. The tenant disputed this, claiming regular payment but no receipts, and claimed that she had sent a money order for arrears from June to November 1975 which the landlord refused. The trial court dismissed the suit, holding that the tenant was in arrears for only one month and was ready and willing to pay. On appeal, the appellate bench of the Small Causes Court reversed this, finding the tenant in arrears for more than six months and failing to comply with the demand notice, thus decreeing eviction under Section 12(3)(a). Aggrieved, the tenant approached the High Court under Article 227. The core issues were whether the tenant was in arrears of rent for more than six months, whether the refusal of the money order constituted valid tender and absolved default, and whether the decree under Section 12(3)(a) was proper when the tenant claimed readiness and willingness. The tenant argued that the landlord's claim of 24 years of non-payment was absurd, that she had paid cash without receipts, and that the refused money order amounted to payment. She relied on precedent that refusal of rent by money order means the tenant is not in arrears. The landlord contended that the appellate court's finding was not perverse, the tenant had not paid within one month of the demand notice, and thus Section 12(3)(a) was attracted. The High Court examined the rival contentions and the evidence. It noted that the appellate court had thoroughly reappreciated the evidence and concluded that the tenant was in arrears for more than six months from the date of the demand notice. The tenant's reliance on the refused money order was insufficient because the tender did not cover the entire period of default, and the tenant had not paid the arrears within the statutory one-month period. The court distinguished the cited judgments, holding that the principle of deemed payment upon refusal applies only when the tenant has tendered the full amount due. Since the tenant was in default for a period beyond what she tendered, she could not claim the benefit of Section 12(3)(b) or avoid the consequences of Section 12(3)(a). The finding of the appellate court was not shown to be perverse or suffering from any patent legal error. The writ petition was dismissed, and the decree for eviction under Section 12(3)(a) was confirmed.
Headnote
A) Rent Control - Eviction on ground of arrears - Default in payment - Bombay Hotels & Lodging Rent Control Act, 1947, Section 12(3)(a) - The landlord issued a demand notice for arrears of rent; the tenant failed to pay within one month. The lower appellate court found the tenant in arrears for more than six months and non-compliant with the notice. Held that the landlord was entitled to a decree for possession under Section 12(3)(a) and the writ court would not interfere with this finding unless perverse. (Paras 8, 15) B) Rent Control - Tender of rent - Refusal of money order - Deemed payment - Bombay Hotels & Lodging Rent Control Act, 1947 - The tenant sent a money order for partial arrears which the landlord refused. The tenant relied on Suka Ishram Chaudhari v. Jamnabai (AIR 1972 Bom 273) to argue deemed payment and absence of arrears. The court rejected this, holding that the tenant was still in arrears for a longer period and the tender did not cover the full dues, hence the protection of Section 12(3)(b) was not available. (Paras 12, 13) C) Constitutional Law - Writ jurisdiction - Interference with appellate orders - Article 227 of the Constitution of India - The High Court, exercising writ jurisdiction, declined to re-appreciate evidence or substitute its view unless the lower appellate order was perverse. The finding that the case fell under Section 12(3)(a) was based on evidence and was not perverse. Held that the writ petition was liable to be dismissed. (Para 15)
Issue of Consideration
Whether the lower appellate court correctly applied Section 12(3)(a) of the Bombay Hotels & Lodging Rent Control Act, 1947, in decreeing the suit for eviction when the tenant had sent a money order for part of the arrears which the landlord refused, and the trial court had held the tenant not in arrears
Final Decision
The writ petition is dismissed. The decree for eviction passed by the lower appellate court under Section 12(3)(a) of the Bombay Hotels & Lodging Rent Control Act, 1947 is confirmed.
Law Points
- Eviction for default in payment of rent under Section 12(3)(a) of Bombay Rent Act requires tenant to pay arrears within one month of demand notice
- refusal of money order by landlord does not constitute deemed payment if arrears exceed amount tendered
- writ court will not interfere with findings of fact by lower appellate court unless perverse
