RASHIK LAL AND OTHERSversusSHAH GOKULDAS & ANR.

                   RASHIK LAL AND OTHERS                                     A
                                    v.
                    SHAH GOKULDAS & ANR.

                         FEBRUARY 2, 1989

                 [LAUT MOHAN SHARMA AND                                      B
                  S. RATNAVEL PANDIAN, JJ.]

     C. P. and Berar Letting of Houses and Rent Control Order, 1949:
Clause J3(3)(ii)-Rent-Non payment of-When ground for eviction-
' Habitually in arrears with the rent'-The condition requisite-
Landlord accepting belated payments of monthly rent without any
objection-Whether entitled to seek eviction of tenant on ground of
                                                                             c
default in payment of rent.

      The landlord filed a petition for eviction of his tenant on the
ground of wilful defanlt in payment of rent and bona fide reqniremeot
under sub-clauses (ii) & (vi) respectively of Clause 13(3) of the C.P. and   D
Berar letting of Houses and Rent Control Order, 1949. The landlord
alleged that the rent was payable on the expiry of each month, and
pleaded that as the tenant paid the rent in lnmp-sums representing the
rent of several months together, he had committed wilful default and
was liable for eviction. The tenant contested the petition and pleaded
that the accummulated rents were accepted by the landlord without any        E
objection, and consequently he had no occasion to assume that the
landlord was aggrieved by the manner in which the rents were paid.
The tenant further asserted that the rent was payable at his con-
venience.

     The Rent Controller dismissed the application of the landlord           F
both on the ground of bona fide requirement and wilful default. The
Appellate Authority-the Resident Deputy Collector confirmed the
order of the Rent Controller in appeal.

      The landlord thereafter approached the High ·Court under Article
227 of the Constitution. The High Court while confirming the order of        G
the Rent Controller in so far as the ground of bona fide necessity was
concerned, held that the tenant was a habitual defaulter in payment of
rent, and was therefore, liable for eviction.

     The tenants-appellants in CA No. 1953 of 1980 challenged the
order of their eviction, while the landlord-appellant in CA No. 1954 of      H
                                   439
    440                   SUPREME COURT REPORTS             [1989) 1 S.C.R.

A   1980 challenged the order rejecting his eviction application on the
    ground that he failed to prove his case of bona fide requirement.

       Allowing Civil Appeal No. l9S3 of 1980, and dismissing Civil
    Appeal No. l9S4of1980 the Court,

B         HELD: 1. The relevant provisions of the Rent Control Order
    require a tenant to be "habitually in arrears with the rent" as a           )
    c11ndition for the grant of the permission by the authority to the land·
    lord to determine the lease. This condition in the Rent Control Order Is
    different from the condition in several other statutes where mere non-
    payment of rent for a particular period, has been provided as adequate
    ground for eviction of the tenant. [443C I
c
          2. The crucial test to determine whether the tenant was a
    'habitual defaulter' is the conduct of the landlord in receiving the rent
    offered belatedly. If be receives the same under a protest and warns the
    tenant to be regular in payment in the future, be cannot be assumed to
D   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 pro·
    ceeding for eviction. [443G-H)

E         In the Instant case, there was no objection whatsoever, r1dsed Qn
    behalf Clf the landl<!rd against the delayed payments. The High Court,
    therefore was not right In reversing the concurrent finding of the two
    courts below. The judgment is set aside, and that of the Resident
    Deputy Collector is restored. [444B]

F         S.P. Deshmukh v. Shah Nihal Chand Waghajibai Gujarati,                ~1
    [1977) 3 SCC SIS, followed.

         Pandurang Tukaram Rajkondawar v. Salaram Madhaorao
    Chavan, [I98S) Mb. L.J. 169; Shishir Hari Mahajan v. Sanarasiobai
    Rodmal Sharma and Anr., [1982) MH. L.J. 908 and Nathuji
G   Narayanrao Udapure v. Narendra Vasanjibhai Thakkar and Anr.,
    [1981] MH. L.J. 446, referred to.

          3. Both the Rent Controller and the Resident Deputy Collector
    h;ive on a earful consideration of all the relevant circumstances held
    that the landlord has failed to prove bis case of bona fide requirement.
H   The High Court while confirming the finding has again considered the
                      RASHIK LAL v. GOKULDAS [SHARMA, J.[                441

       materials on the record. No acceptable ground for interfering with the
                                                                                A
 +     concurrent findings of the three Courts has been shown. Civil Appeal
       No. 1954of1980 has therefore to be dismissed. [441H; 442A-B]

            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1953-
       1954 of 1980.
                                                                                B
            From the Judgment and Order dated 23.1.1980 of the Bombay
  *    High Court in S.C.A. No. 240 of 1974.



~·           N .M. Ghatate for the Appellants.

             B. Kanta Rao for the Respondents.
                                                                                c
             The Judgment of the Court was delivered by
 "'-         SHARMA, J. These appeals arise out of a proceeding under the
       C.P. and Berar Letting of Houses and Rent Control Order, 1949
       (hereinafter referred to as the Rent Control Order) initiated by Shah    D
       Gokuldas, appellant in C.A. No. 1954 of 1980 (respondent in the other
       appeal) for permission to determine the lease of Bhagwanji, the origi-
       nal tenant. After the death of Bhagwanji during the pendency of the
       case, Rashiklal and others, the appellants in C.A. No. 1953 of 1980
 j.    were substituted as his legal representatives.
                                                                                E
             2. The landlord's prayer was based on alleged wilful default in
       payment of rent and bona fide requirement under sub-clauses (ii) and
       (vi) respectively of Clause 13(3) of the Rent Control Order. The
       allegations were denied by the tenant and the Rent Controller dismis-
       sed the application. The landlord's appeal was also rejected by the

t      appellate authority, the Resident Deputy Collector. The landlord
       thereafter approached the High Court which confirmed the impugned
                                                                                F

       orders so far as the ground of bona fide necessity was concerned, but
       allowed the application under Article 227 of the Constitution of India
       holding that the tenant was a habitual defaulter in payment of rent
       and, therefore, liable to eviction. The appellants in C.A. No. 1953 of
       1980 have challenged the order of their eviction and the landlord Shah   G
       Gokuldas has appealed against the finding of the courts below negativ-
...)   ing his case of bona fide requirement .

             3. So far as C.A. No. 1954 of 1980 is concerned, both the Rent
       Controller and the Resident Deputy Collector have on a careful con-
       sideration of all the relevant circumstances held that the landlord-     H
    442                   SUPREME COURT REPORTS             [1989] 1 S.C.R.

    applicant has failed to prove his case of bona fide requirement. The
A
    High Court while confirming the finding has again considered the            ....
    materials on the record. The learned counsel for the landlord has not
    been able to point out any acceptable ground for interfering with the
    concurrent findings of the three courts and C.A. No. 1954 of 1980 is,
    therefore, dismissed.
B
          4. So far as the other appeal is concerned, the High Court has        :>-
    disagreed with the view of the Rent Controller which was affirmed by
    the appellate court. It has been contended on behalf of the appellants
    Rashiklal and others that having regard to the conduct of the parties in


c
    payment and receipt of.rent of several months at a time, it should be
    held that there was an implied agreement between them to do so and
    the landlord is now not entitled to insist on the rent to be paid every
                                                                                 1
    month. Reliance was placed on the decision of this Court in S.P.
    Deshmukh v. Shah Nihal Chand Waghajibai Gujarati, [1977] 3 S.C.C.           .lr
    515.

D         5. The case of the landlord has been that rent was payable on the
    expiry of each month, and since this was not done the tenant was liable
    to eviction. The landlord filed a schedule in the trial court showing the
    intervals at which rents had been paid by the tenant during the period
    of 2 years immediately preceding the filing of the case. The schedule
    indicates that the rent was paid, according to the alleged stipulation,      Jr
E   only for a brief period, and the rent for the rest of the period was paid
    in Jump-sums representing the rent of several months together. Admit-
    tedly the accumulated rents were accepted by the landlord without any
    objection at any point of time and the tenant had no occasion to
    assume that the landlord was aggrieved by the manner in which rents
    were being paid. The question arises as to whether in these circum-
F   stances the High Court was entitled to reverse the concurrent finding
    of the two courts below.
                                                                                 1
          6. The tenant denied in express terms and arrangement pleaded
    by the landlord as mentioned above and asserted that rent was payable
    at his convenience. Mr. Kanta Rao, the learned counsel for the land-
G   lord contended that a plea about an alleged agreement to pay rent at
    the convenience of the tenant has to be rejected as untenable in law.
    According to the learned counsel an inference of implied agreement is         ..
    possible by the conduct of the parties only if it is shown that the rent
    was being paid and accepted on a fixed interval, as for example, if it
    could be shown that the rent was always paid after every 3 months (or
H   for that matter every 2 months or every 4 months) then a clear-cut
                    RASHIK LAL v. GOKULDAS [SHARMA, J.]                 443

 pattern emerges on the basis of which an implied agreement can be A
 assumed to have come in existence. No such inference is permissible
 from mere irregular and erratic payment. Reliance was placed on the
 decisions of Pandurang Tukaram Rajkondawar v. Balaram Madha-
 orao Chavan, [1985] Mh. L.J. 109; Shishir Hari Mahajan v.
 Banarasibai Rodmal Sharma and another, [1982] Mh. L.J. 908 and
 Nathuji Narayanrao Vdapure v. Narendra Vasanjibhai Thakkar and B
 another, [1981] Mh. L.J. 446.

       7. The relevant provisions of the Rent Control Order require a
 tenant to be "habitually in arrears with the rent" as a condition for the
 grant of the permission by the authority to the landlord to determine
 the lease. It is significant to note that the condition mentioned in the C
 Rent Control Order is different from the condition in several other
 statutes where mere non-payment of rent for a particular period, has
 been provided as adequate ground for eviction of the tenant. The
 question whether the tenant was a "habitual defaulter" arose before
 the Supreme Court in S.P. Deshmukh's case (supra) and was answered
 in the negative in the following words:                                   D

             "Normally, a monthly tenant is under an obligation to pay
             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 spread out from
             the conduct of the parties, spread over a fairly long period      E
             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 land-
             lord has been willingl:y accepting and always without even
              so much as a murmer."
                                                                               F
         8. We do not see any reason for holding tbat unless the rent was
 -paid and accepted at a fixed period of interval, no such implied agree-
  ment can be inferred. In the S.P. Deshmukh's case (supra) the rent
  had been paid at the varying interval of 3 or 4 months. 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   G
  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 pro-
  c<leding for eviction. Having lulled the tenant in the belief that things    H
   .,.<"

    \
    444                   SUPREME COURT REPORTS           [1989] I S.C.R.

A 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. In the case
  before us there was no objection whatsoever, raised on behalf of the
  landlord against the delayed payments. We, therefore, hold that the
  High Court was not rigbt in reversing the concurrent finding of the two
B courts below. Accordingly the impugned judgment is set aside, that of
  Resident Deputy Collector is restored and the appeal is allowed with        '
                                                                              J
  costs throughout. Before closing, however, we would like to observe
  that in view of the attitude of the parties disclosed in the present case
  the appellant should hereafter pay the rent regularly in the succeeding
  month failing which he may be liable to be adjudged a habitual
  defaulter.
c
    N.V.K.                                   C.A. No. 1953/80 allowed and
                                              C.A. No.1954/SOdismissed.




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