YUSUFBHAI NOOR MOHAMMED JODHPURWALAversusMOHMMED SABIR IBRAHIM BYAVARWALA

                       [2014] 14 S.C.R. 1200


A       YUSUFBHAINOORMOHAMMEDJODHPURWALA
                                    v.
           MOHMMED SABIR IBRAHIM BYAVARWALA
          (Special Leave Petition (Civil) No. 735 of2014)
B
                       NOVEMBER 7, 2014
        [DIPAK MISRA, ROHINTON FALi NARIMAN AND
                    UDAY UMESH LAUT, JJ.]
                               I         .   .
c        Bombay Rents, Hotel and Lodging House Rates
  Control Act, 1947- s. 12(3)(b)-Eviction suit, on the ground
  of non-payment of arrears of rent as also others - Dismissal
  of suit by trial courl, however allowed by appellate bench- In
  appeal, eviction decree in favour of landlord set aside by
0 High Courl - On appeal, held: Even assuming that the
  respondent is a bona fide tenant the right conferred upon him
  by the legislature can be availed of only twice and on two
  occasions the tenant was found to be in arrears - High Courl
  erred in interpreting s. 12(3)(b) purposively holding that there
E was substantial compliance of the Section since the tenant
  was ready and willing to pay rent, even though there was shorl- ·
  fall in payment - S.12(3)(b) being a mandatory provision
  must be strictly complied with- Thus,· order of High Courl is
  set aside, and that of appellate bench is restored.
F        Disposing of the Special Leave Petition, the Court
        HELD: The tenant was in arrears of rent prior to the
  filing of the suit and continued to be so. On the date of
  the first hearing of the suit, there was short-fall in the
  payment of rent. Therefore, even assuming that the
G respondent is a bonafide tenant the right that is conferred
  upon hi1J1 by the legislature can be availed of only twice
  and on both occasions the tenant was found to, be in
  arrears. The High Court was wrong in interpreting

H
                                   1200
YUSUFBHAINOORMOHAMMED JODHPURWALA v. MOHD.                 1201
          SABIR IBRAHIM BYAVARWALA

Section 12(3)(b) of the Bombay Rents, Hotel and Lodging A
House Rates Control Act, 1947, purposively holding that
so long as the High Court, in its discretion, feels that
there is a readiness and. willingness on the part of the
tenant to pay rent, the High Court can in its discretion
say that substantial compliance of Section 12(3)(b) is B
good enough for the tenant to escape eviction on the
ground of non-payment of arrears of rent. Since
s.12(3)(b) is construed to be a mandatory provision which
must be strictly complied with. The order of High Court
is set aside, and that of the appellate bench is restored. C
 [Para 9][1209-E-H; 1210-A-B]
     Vasant Ganesh Damle v. Shrikant Trimbak Datar
     2002 (2) SCR 198: (2002) 4 SCC 183; Ganpat
     Ladha v. Sashikant VishQU Shinde 1978 (3) SCR
     198 : (1978) 2 SCC 573; Jamnadas Dharamdas             D
     v. Joseph Farreira 1980 (3) SCR 1015: (1980) 3
     SCC 569 ; Mranalini B. Shah v. Bapa/al Mohan/al
     Shah (1980) 4 SCC 251 - referred to.
               CASE LAW REFERENCE
                                                            E
2002 (2) SCR 198          referred to.        Para 4
1978 (3) SCR 198          referred to.        Para 7
1980 (3) SCR 1015         referred to.        Para 7
(1980) 4 sec 251          referred to.        Para 7        F
     CIVILAPPELLATE JURISDICTION : SLP (Civil) No(s).
735 of2014.
     From the Judgment and Order dated 30-09-2013 of the
High Court of Gujarat at Ahmedabad in Civil Revision        G
Application No. 44 of 2013.
      Mayur R. Shah, Ms. S. Ramamani, Advs. for the
Petitioner.

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1202         SUPREME COURT REPORTS                    [2014] 14 S.C.R.


 A          The Judgment of the Court was delivered by
            ROHINTON FALi NARIMAN, J.
             1. The present Special Leave Petition is a landlord's
       appeal against an order passed by the High Col;lrt of Gujarat
 B     on 30'h September 2013 allowi,ng Civil Revision Application
       No.44/2013 by the tenant.     .                           ·
            2. The brief facts necessary for the disposal of this SLP
       are as follows:
           Some time in 1971 the landlady had let out the first floor
 C portion of the suit premises to the present respondent at the
   rate of Rs. 70/- per month. The standard rent was fixed by a
   court order in the year 1971 itself at the contractual re)'lt of Rs.
   701- per month. On 9th March 1987 the petitioner issued a legal
   notice to the respondent-tenant stating that the tenant was in
 D arrears of rent for more than s'ix months i.e. on and after 1•1
   March 1986. Various other breaches were also pointed out
   by the said notice and a claim for bonafide requirement by the
   landlord and his family members was also made under Section
   13(1 )(g) of the Bombay Rent Act. The respondent tenant
 E replied to the notice denying all the allegations by a letter dated
   9'h April 1987. This was followed by an eviction suit filed in
   1987 under various grounds including arrears of rent under
   Section 12 (3)(a), under section 12 (3) (b), bonafide
   requirement, alteration in the suit premises, and causing
 F nuisance to the landlord.
         3. The suit was tried by the Small Causes Court at
   Ahmedabad and dismissed. In appeal, the appellate bench
   held by a judgment dated 28th January 2013 that the ground of
   eviction under Section 12(3) (b) was made out. Section 12
 G (3) (b) of the Bombay Rent Act reads as under:
            "In any other case, no decree for eviction shall be passed
            in any such suit if, on the first day of hearing of the suit or
            on or before such other date as the court may fix, the

 H               •
:



YUSUFBHAI NOORMOHAMMED JODHPURWALA v. MOHD. 1203
SABIR IBRAHIM BYAVARWALA[ROHINTON FALi NARIMAN,J.] •

    tepant pays or tenders in Court the standard rent and            A
    permitted increases then due and thereafter continues
    to pay or tender in Court regularly such rent and permitted
    increases till the suit if finally decided and also pays costs
    of the suit as directed by the Court."
    The appellate bench held:                                        B
    "25. Point No.1
    Shri B. K. Damani learned Advocate for the respondent
    argued that notice dated 09.03.1987 produced at Exh.
    23 shows nothing regar9ing Municipal tax and no c
    demand of tax was made by the land lord in the said
    notice. It is true that notice required under section 12 (2)
    of the Act produced at Exh. 23, no particular amount for
    tax is averred in the notice by the landlord. But the notice·
    disclosed that rent was due and plaintiff had demanded 0
    rent at the rate of Rs. 70/- per month from 1.3.1986 till
    the date of issuance of the notice (date of issuance of
    the notice is 9.3.1987). Earlier we have held that suit
    notice is legal and valid.
    26. It is not disputed by both the parties that amount of E
    tax was to be borne by the tenant and not by the landlord.
    Therefore, when the suit filed on the ground of arrears of
    rent, then it attracts the provision of section 12 (3) (b) of
    the Act.
    27. Shri Dossani learned advocate for the respondent F
    argued that suit attract by provision of section 12 (3) (b)
    of the Bombay Rent Act, 1947, Shri Dossani further
    argued that on receipt of the notice tenant-defendant-
    respondent did not file any application for fixation of
    standard rent as provided under section 11 (3) of the · G
    Bombay Rent Act and on the first date of hearing of the
    suit, all amounts of rent due should be deposited by the
    tenant in the court and first date of hearing should be
    treated as the date of framing of issues. It is true that suit .
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1204    SUPREME COURT REPORTS                  [2014] 14 S.C.R.


 A     attracts provision of section 12 (3) (b) of the Act and in
       the present case on the receipt of notice [under section
       12 (2) of the Act] tenant respondent did not file an
       application for fixation of standard rent of the suit
       premises. Therefore, tenant-defendants-respondent had
 B     to deposit the amount of rent d.ue from him on the date of
       framing of issues. In the present case issues were framed
       vid~ Ex. 19 on 3.8.1994. that means rent from 1.3.1986
       to 31.7.1994 ought to have been deposited by the
       respondent tenant in the court on or before 3.8.1994. The
 c     details regarding deposit of rent is produced by the
       respondentvide purshis exti. 143 in the suit and the said
       purshis was seen by the learned advocate for the
       appellant. As per that purshis exh. 143, rent from
       29.9.1987 to 16.6.1994 was deposited on different dates
 o     in the court and total comes to Rs. 6860/- and
       considering the rent due from the defendant-tenant from
       1.3.1986 to July, 1994, for 101 months, multiply by rent
       Rs. 70 per month comes to Rs. 7070/-. Means when
       issues were framed by the learned trial court, at the time
 E     rent due from the respondent-tenant was Rs. 7070/- and
       rent was deposited Rs. 6860/-, Though the learned trial
       judge came to the conclusion that all rent is deposited
       by the tenant. The learned trial court did not discuss about
       the rent due on date of 13/19 of issues. ·
 F      As per section 12 (3) (b) oftheActtoget protection from
        eviction decree, tenant has to deposit all rent due on the
       ·first date of hearing i.e., date of framing of issues or on
        or before such other date as the court may fix. So far
        concerned to the later part i.e., on or before such other
 G      date as the court may fix is not relevant to the case in
        hand. After depositing all rent due on the first date of
         hearing, tenant has to keep continue to pay or tender the
        rent in the court and permitted increase till the suit is

 H
YUSUFBHAI NOORMOHAMMED JODHPURWALA v. MOHD. 1205
SABIR IBRAHIM BYAVARWALA [ROHINTON FALi NARIMAN,J.]

    decided. Formation of section 13 (1) (b) oftheAct, makes A
    compulsion on the tenant to deposit the entire rent due
    from the tenant on or before the date offraming of issues
    and that also makes compulsion upon the tenant to keep
    continue to pay or tender the rent in the court till suit is
    finally decided. Means tenant has to comply those two B
  . ingredients of that section and not one and purshis
    produced-by the tenant in the record of the suit exh. 143
    disclosed that rent was due from the defendant on the
    date when issues were framed .
   . . . . . . . . . . . .The tenant has not deposited all rent due on C
   the date of framing of issues. We are not aggrieved with
   the learned trial court that rent was deposited by the
   tenant. We further observed that the learned trial court
   did not discuss about the point that entire rent was not
   deposited on the date of framing of issues. When the D
   issues were framed, on that date, full rent was not
   deposited by the tenant. Therefore, defendant-tenant
   cam:1ot be protected under section 12 (3)(b) of the Act
   and plaintiff-landlord become entitled for eviction decree
   of the suit premises on that ground and suit filed by the E
   plaintiff attracts provision of section 12 (3) (b) oftheAct.
   When any party proves the case as required under the
   provisions of law, then court has no alternative but to pass
   a necessary order in that regard. Therefore, we give
    answer of point no.1 that learned trial court has erred in F
   deciding issues of arrears of rent and we answer point
   no. 1 in the affirmative. In view of answer given on point
   no. 1, we feel that suit filed by the respondent-plaintiff
   for eviction on the ground of section 12 (3) (b) of the
   Bombay Rent Act, 1947 is proved by the plaintiff and G
   therefore, on that ground decree of eviction of the suit
   premises is required to be passed."



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1206         SUPREME COURT REPORTS                 [2014] 14 S.C.R.


 A          4. In a Civil Revision filed by the tenant, the High Court
       by the impugned judgment has reversed the judgment of the
       First Appellate Court. The High Court noticed this Court's
       judgment in Vasant Ganesh Damle v. Shrikant Trimbak
       Datar, (2002) 4 SCC 183;and then went on to hold:
 B
                "It is true that requirement of payment of rent then
            due on the first date of hearing is held to be
            mandatory ...... .
                  It is further true that the court does not have
 C          discretionary powers under section 12(3)(b)."
             5. Despite the aforesaid finding, the High Court went on
       to hold:
                  "From reading of above provision, it would be seen
            that sub-section (1) of·Section 12 provides for a.
 D
            condition which comes as a condition precedent. It
            provides that landlord shall not be entitled to the
            recovery of possession of any premises so long as the
            tenant pays or he is ready and willing to pay the amount
            and observes other conditions of the tenancy.
 E          Therefore, so long as there is a readiness and
            willingness on part of tenant for payment of rent, a kind
            of embargo is contemplated to operate on the right of
            landlord to recover possession. Sub-Sections
          . subsequently occuffing are in the nature of sub-
 F          conditions and requirements on the basis of Which
            decree for eviction may be sought for by the landlord
            and may be resisted by the tenant ........ :·
                  ''.4 purposive interpretation has to be given to
            Section 12(3) (b) and it has to be held that merely
 G
            because there was a short-fall of Rs.270/- in payment
            of rent on the date of first hearing, when all pther
            conditions necessary to be satisfied were satisfied; .that
            the decree for eviction could not have been passed
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YUSUFBHAI NOORMOHAMMEDJODHPURWALA v. MOHD. 1207
SABIR IBRAHIM BYAVARWALA [ROHINTON FALi NARIMAN,J.]

     holding that there was a non-compliance of conditions A
     under section 12(3)(b). Applying the doctrine of object-
     oriented construction and principle of purposive
     interpretation, the non-compliance of Section 12(3) (b)
     in its conditions cannot be viewed de hors the
     elementary conditions in Section 12(1) that the tenant B
     was ready and willing to pay rent. A pedantic approach
     in applying law should be eschewed because quite
     often than not, such an approach counteracts the very
     object with which the provision is enacted in the statute
     and defeats the purpose it seeks to achieve.                c
            Once on facts when it is found that the tenant was
      ready and willing to pay the rent, merely because he
    · paid Rs. 2701- less out of the rent payable Rs. 70701- on
      the date of first hearing, it would not be prudent, nor
      proper, not legal to hold that the tenant had not fulfilled D
      the requirements under Section 12(3) (b) of the Act. The
      protective condition contemplated under Section 12(1)
      of tenant's readiness and willingness would come into
      play and it would disentitle the landlord at the threshold
      to seek decree of eviction. The reasoning supplied and E
      view taken· by the lower appellate court holding the
      applicant liable to be evicted under Section 12(3) (b)
      was erroneous and not acceptable in law."
      6. Learned counsel for the Petitioner landlord argued that
the High Court judgment is contrary to the law declared by this F
Court on Section 12(3)(b) of the Act. No one appeared for the
Respondent despite service of notice on the Respondent.
      7. The law on Section 12 (3) (b) is well settled by a series
of judgments of this Court. In Ganpat Ladha v. Sashikant G
Vishnu Shinde, (1978) 2 SCC 573, this Court overruled a
judgment in Kalidas Bhavan Bhagwandas' case in which a
Division Bench of the Bombay High Court thought that it was
open under Section 12(3)(b) to exercise a discretion in favour
of the tenant. In para 11 of the said judgment, it was stated:
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1208   SUPREME COURT REPORTS                     [2014] 14 S.C.R.


 A            "11. /tis clear to us that the Act interferes .,Yit/1 the
       landlord's right to property and freedom of contrcicj only
       for the limited purpose of protecting tenants from
       misuse of the landlord's power to evict them, in these
       days of scarcity of accommodation, by asserting his
 8     superior rights in property or tryirig to exploit his position
       by extracting too high rents from helpless tenants: The
       object was not to deprive the landlord altogether of his
       rights in property which have also to be respected.
       Another object was to make possible eviction of(enants
 c     who fail to carry out their obligation to pay rent to the
       landlord despite opportunities given by law in that f)ehalf.
        Thus Section 12(3)(a) of the Act makes it obligatory for
       the Court to pass a decree when its conditions ·are
       satisfied as was pointed out by one of us (Bhagwafi, J.)
 D     in Ratilal       Balabhai Nazar v. Ranchhodbhai
       Shankerbhai Patel {AIR 196? Guj 172: (1968) 9 Guj
       LR 48] . If there is statutory default or neglect on the
       part of the tenant, whateve[ may be its cause, the
       landlord acquires a right under Section 12(3)(a) to get
 E     a decree for eviction. But where the conditions of
        Section 12(3)(a) are not sa.tisfied, there is a further
       opportunity given to the tenant to protect himself against
       eviction. He can comply with the conditions set out in
       Section 12(3)(b) and defeat the landlord's claim for·
 F     eviction. If, however, he does not fulfil those conditions,
        he cannot claim the protection of Section 12(3)(b) and
        in that event, there being no' other protection available
        to him, a decree for eviction would have to go against
        him. It is difficult to see how by any judicial valour
        discretion exercisable in favour, of the tenant can be
 G
        found in SeCtion 12(3)(b) even where the conditions laid
        down by it are satisfied to be strictly confined within the
        limits prescribed for their operation. We think that
        Chag/a, C.J., was doing nothing less than legislating in
                                      '
 H
YUSUFBHAI NOORMOHAMMEDJODHPURWALA v. MOHD. 1209
SABIR IBRAHIM BYAVARWALA [ROHINTON FALi NARIMAN,J.]

     Kalidas Bhavan case in converting the provisions of A
     Section 12(3)(b) into a sort of discretionary jurisdiction
     of the Court to relieve tenants from hardship. The
     decisions of this Court referred to above, in any case,
     make the position quite clear. Section 12(3)(b) does
     not create any discretionary jurisdiction in the Court. It B
     provides protection to the tenant on certain conditions
     and these conditions have to be strictly observed by .
     the tenant who seeks the benefit of the section. If the
     statutory provisions do not go far enough to relieve the
     hardship of the tenant the remedy lies with the c
     legislature. /tis notin the hands of courts." .
     This statement of the law was followed in Jamnadas
Dharamdas v. Joseph Farreira (1980) 3 SCC 569 at para
12 and Mranaiini B. Shah v. Bapalal Mohanlal Shah (1980) ·
4 SCC 251 at para 12.                                      D
       8. In the judgment cited by the impugned judgment,
namely Vasant Ganesh Camie (supra), this Court
categorically held thatthe right conferred upon a bonafide tenant
can be availed of only twice under the Act and not thereafter.
                                                                    E
       9. On facts, it is clear that the tenant was in arrears of
rent prior to the filing of the suit and continued to be so. On the
date of the first hearing of the suit, that is the date on which
issues were struck, namely 3'" August 1994, the rent that was
paid admittedly fell short by Rs.270/-. It is clear therefore that F
assuming that the respondent is a bonafide tenant the right
that is conferred upon him by the legislature can be availed of
only twice and on both occasions the tenanfwas found to be in
arrears. The High Court was wrong iri interpreting Section
12(3)(b) purposively holding that so long as the High Court, ih
its discretion, feels that there is a readiness and willingness G
on the part of the tenant to pay rent, the High Court can in its
discretion say that substantial compliance of Section 12(3)(b)
is good enough for the tenant to escape eviction on the ground

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1210          SUPREME COURT REPORTS             (2014] 14 S.C.R.


 A of non payment of arrears of rent. Having regard to the
   judgments of this Court and the factthat Section 12(3)(b) has
   been construed to be a mandatory provision which must be
   strictly complied with, the judgment under appeal has to be
   set aside, and the order of the appellate bench of Small Causes
 B restored.
            1o. The Special Leave Petition is disposed of with no
     · order as to costs.


       Nidhi Jain                                   SLP disposed of.