ANSUYABEN KANTILAL BHATTversusRASHIKLAL MANIKLAL SHAH AND ANR.

A                      ANSUYABEN KANTILAL BHATT
                                         v.
                  RASHIKLAL MANIKLAL SHAH AND ANR.

                                  APRIL 8, 1997

B                 [K. RAMASWAMY AND D.P. WADHWA, JJ.]

            Rent & Eviction :

            Bombay Rents, Hotel & Lodging House Rates Co/llrol Act, 1947:
c       Application for eviction of tenant on grounds of bonafide requiremellt
  and non-payment of rent-Held, in view of the protracted litigation stretching
  over 31 years, bonafide requiremelll may not exist now-Tena/II to pay an-ears
  of rent in ten bi-monthly instalments-Rent also increased with retrospective
  effect-In case the landlord's son intends to stan business after his retirement
D he may file an application before the Rem Co11trolle1; who will pass necessaiy
  orders.

            CIVIL APPELLATE .TURJSDICTION : Civil Appeal No. 2104 of
    1977.

E        From the Judgment and Order dated 6.10.76 of the Gujarat High
    Court in C.R.A. No. 12 of 1971.

            M.C. Bhandare and Ms. C.K. Sucharita for the Appellant.

            C.S. Vaictyanathan, Dr. Maya Rao, Sudama Ojha for the Respon-
F dents.

            The following Order of the Court was delivered :

        This is one of the classic instances of the cases holding the law that
  "delay defeats justice". the landlord filed a suit in 1966 for eviction of the
G tenant for personal occupation and today after 31 years, we arc disposing
  of the matter at the level of this Court. It is not necessary to detail all the
  circum,tanccs leading to the filing of the petition. Suffice it to state that
  the landlord who was just to retire from private service having four unmar-
  ried grown-up daughters and one son aged 24 years had filed an applica-
H tion for eviction of the tenant under the Bombay Rents, Hotel & Lodging
                                       784
                          A.K. BHATT v. R.M. SHAH                         785

    House Rates Control Act. 1947 (for short, the 'Act'). The application was· A
    filed on two grounds, namely, one she needs the premises for personal
    occupation and the tenant also has committed default in the payment of
,   the rent for more than six months. When a notice was issued by the
    landlady-appellant calling upon the respondents to vacate the premises on
    the above grounds, reply came with the allegation that he was not in arrears
    of the rents and the appellant is not in need of the premise. Thus,
                                                                                 B
    necessitated the respondent to file the suit for eviction. In the written
    statement, a defence was taken that the standard rent is much less than the
    contracted rent. As a consequence, the rent payable to the respondent was
    less. Therefore, he has not committed default in payment of the rent.
    Though an application under Section 11 for fixation of the standard rent C
    was not filed, the determination in that behalf was made at Rs. 101 per
    month. The Rent Controller allowed the petition. But, on appeal, the
    District Judge dismissed the appeal holding that the respondent needs the
    house for personal occupation and also the default was committed by him.
    On revision, the High Court reversed the order. Thus, this appeal by D
    special leave.

          The High Court proceeded on two premises, namely, that the
    landlady was not in need of the house since her husband has by then
    become too old and secondly it was heid that the comparative hardship to
    the tenant was not taken into consideration and, therefore, the premises E
    on which the appellate authority proceeded is wrong in law. The High
    Court came to the conclusion that under the contract, since the property
    tax was required to be paid by the tenant, the contract of monthly tenancy
    as well as the payment of property tax being a composite tenancy, there is
    no default in payment of the rent. Shri M.C. Bhandare, learned senior F
    counsel appearing for the appellant, contends that the view taken by the
    High Court is not correct in law. He contends that bona fide recruitment
    requires to be considered at the time when the need arises and mere fact
    that he has become old at the time when the petition came up, it is relevant
    ground. Though we find force in the contention, it need not be now decided
    due to long lapse of time of 31 years. Now, he is not in a position to set-up G
    any business. At the time when he filed the application, admittedly, he was
    54 years of age by now he is 87 years. Under these circumstances, the need
    of the landlady for her husband to set-up the business cannot be said to
    be subsisting. At that time, they had four unmarried daughters, obviously,
    he had to set-up the business but now they have already been married and H
    786                   SUPREME COURT REPORTS                    [1997) 3 S.C.R.

A need, therefore, no longer subsists. It is further stated that his son who was
    24 years of age is now going to retire in another four and a half years.
    Undcr'these circumstances, as and when he retires from service and if he
    intends to set-up the business, it is always open to make necessary applica-
    tion. On such suit being filed, necessarily the tenant requires to give place
B   lo the landlord to occupy the premises. The Rent Controller/civil Court,
    therefore, is directed that on filing the petition and satisfying that there is
    a need for his starting the business, the order of eviction requires to be
    passed.

        With, regard to the view taken by the High Court on the default of
C the payment of rent, it is contended by Shri M.C. Bhandare that the view
  taken that the monthly tenancy gets converted into yearly tenancy is un-
  tenable. Though the tenancy is a composite one, the monthly rent requires
  to be paid at the end of every succeeding month. If there is any written
  agreement within the stipulated time, the contracted monthly tenancy
D cannot be, by judicial interpretation, converted into yearly tenancy. On that
  premise, it cannot be held that he has not committed default in payment
  of rent, but we need not decide it on the view we have taken. Since the
  standard rent has already been fixed by the Court and deposited by the
  tenant, the default does not subsist. The concept of wilful default docs not
  apply lo the action under this Act. Therefore, if there is any default in
E payment of the rent and. if the amount so paid gets adjusted after the
  determination of the standard rent, necessarily, the default originally exist-
  ing ceases to operate. Suffice it to state that when standard rent was fixed
  as Rs. 101 per month, it is unreali~tic• as of date. Therefore, we requested
  Mr. P.H. Parekh, learned counsel practising in this Court to obtain the
F prevailing rentals in the Bank Street in Baroda. He was good enough to
  contact the people there and he has furnished the information that there
  is two tier system, one legal and one extra-legal prevailing in that area. We
  cannot give legitimacy to the illegal practice prevailing in that area but the
  legal rentals payable are now as on date range between Rs. 4,000 to Rs.
  6,000 per month to a tenancy of 250 sq. fts. Under these circumstances, we
G think that the rentals may be spread over which may he acceptable to both
  the parties. Thus, the appeal in this Court came to he filed in December
  1976, the rent from January 1, 1977 to December 31, 1980 shall be paid @
  Rs. 2,000 per month. Rent from January 1, 1981 to December 31, 1991 shall
  be paid @ Rs. 2,500 per month and from January 1, 1992 till date of
H vacating the premise @ Rs. 3,500 per month. The amount shall be paid
    )>· .

                               A.K. BHATI v. R.M. SHAH                        787

        accordingly. All the arrears shall be paid in ten bi-monthly equal instal-   A
        ments as on date starting from May 1, 1997. The rent from April 1, 1997

-       shall be paid on or before the 10th of every succeeding month @ Rs. 3,500
        per month. If the respondent commits default, he shall be liable to ejcct-
        ment even before filing of the application for personal occupation.

               The appeal is accordingly disposed of.                                B
        G.N.                                                  Appeal disposed of.