Case Note & Summary
The dispute arose from an eviction suit filed by the landlords (respondents) against their monthly tenant (petitioner) in the Small Causes Court at Pune. The landlords sought possession on grounds of default in rent, bonafide requirement, acquisition of alternate accommodation, non-user, and change of user. The tenancy pertained to two rooms on the first floor of House No.347, Rasta Peth, Pune, with a monthly rent of Rs.35. The landlords alleged that the tenant was in arrears from 1 October 1986 and had not paid despite a demand notice dated 18 March 1989. The tenant contended he had regularly paid rent and had sent a demand draft for arrears, which the landlords refused. The trial court dismissed the suit, holding that none of the grounds were proved. On appeal by the landlords, the District Court at Pune reversed the finding only on the ground of default, concluding that the tenant was a defaulter and passing a decree for eviction. Aggrieved, the tenant filed a writ petition under Article 227 of the Constitution before the Bombay High Court. The primary legal issue was whether the appellate court correctly held the tenant to be a defaulter and whether the tenant was entitled to protection under Section 12(3) of the Bombay Rent Act. The tenant argued that the appellate court erred in overturning the trial court's factual finding and that he had regularly deposited rent in the trial court, entitling him to the benefit of Section 12(3). He also advanced a detailed argument on the post-1987 amendment to Section 12(3), which introduced relief against forfeiture, citing Supreme Court decisions to contend that the amendment granted a two-time relief opportunity. The landlords countered that the tenant's claim of sending a demand draft was false, as evidenced by conflicting letters and contradictory statements in cross-examination, and that the tenant had failed to deposit rent during the pendency of the appeal, which is a continuation of the suit, thus disentitling him from claiming relief under Section 12(3). The High Court, per Smt. Ranjana Desai, J., meticulously examined the tenant's correspondence and cross-examination. It found that the tenant had sent three letters claiming to have enclosed a demand draft, but the draft numbers were inconsistent and the tenant admitted in cross-examination that he had obtained the draft only once and had sent it only with the last letter, contradicting his earlier claims. The Court concluded that the tenant never actually sent any demand draft, thereby failing to prove tender of arrears, and affirmed the default finding. On the second issue, the Court held that an appeal is a continuation of the suit, and the tenant was required to deposit rent in the appellate court to retain the shield of Section 12(3). His failure to do so forfeited any statutory protection. The Court also addressed the amended provision but observed that the tenant could not avail its benefit due to non-compliance. Consequently, the writ petition was dismissed and the eviction decree was confirmed. The judgment establishes that a tenant must not only prove payment but also continue to deposit rent during appellate proceedings to claim protection under the Bombay Rent Act; otherwise, the default results in eviction.
Headnote
A) Rent Control - Eviction - Default in Payment of Rent - Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, Section 12(3) - The court upheld the appellate court's finding that the tenant was in default for more than six months. The tenant's claim of having sent a demand draft for arrears was rejected due to contradictions in his three letters and his cross-examination, which negated his defence of payment. Held that the tenant failed to prove tender and was thus a defaulter (Paras 7-8). B) Rent Control - Protection Against Eviction - Deposit of Rent - Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, Section 12(3) - The court held that the tenant cannot claim the benefit of Section 12(3) because he did not deposit rent in the District Court during the appeal. An appeal is a continuation of the suit, so the requirement to deposit rent extends to the appellate stage. The tenant's deposit in the trial court alone was insufficient. Held that the tenant forfeited the statutory protection by non-compliance (Paras 9-10). C) Rent Control - Relief Against Forfeiture - Amended Section 12(3) - Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, Section 12(3) as amended by Act No.18 of 1987 - The court discussed the amendment which introduced relief against forfeiture for the first time, allowing courts to grant relief on compliance with deposit conditions. The Supreme Court in Vasant Ganesh Damle v. Shrikant Datar clarified that the right can be availed only twice. However, because the tenant failed to comply with the deposit requirement, he was not entitled to such relief (Paras 11-16).
Issue of Consideration
Whether the appellate court was justified in reversing the trial court's finding and holding the tenant to be a defaulter in payment of rent; and whether the tenant was entitled to the benefit of Section 12(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 despite failing to deposit arrears of rent during the pendency of the appeal.
Final Decision
The writ petition was dismissed. The Court affirmed the appellate court's decree for eviction, holding that the tenant was a defaulter in payment of rent and that his failure to deposit rent in the District Court during the appeal disqualified him from the benefit of Section 12(3) of the Bombay Rent Act. The Court found the tenant's evidence on the tender of rent to be conflicting and not credible, and that the amended provision offering relief against forfeiture did not assist because of non-compliance with the deposit requirement.
Law Points
- Default in payment of rent for more than six months is a ground for eviction under Section 12(3)
- Bombay Rents
- Hotel and Lodging House Rates Control Act
- 1947. The burden of proving tender or payment of arrears lies on the tenant. Inconsistent and conflicting evidence regarding payment of rent by demand draft vitiates the tenant's defence. An appeal is a continuation of the suit
- therefore
- the tenant must deposit rent in the appellate court to avail the protection under Section 12(3). Failure to deposit rent during appeal disentitles the tenant from claiming relief against eviction. The amended Section 12(3) (post-1987 amendment) grants limited relief against forfeiture to a tenant who complies with the statutory conditions
- but such relief is capped at two times.
