PETITIONER: LAXMIKANT REVCHAND BHOJWANI AND ANR. Vs. RESPONDENT: PRATAPSING. MOHANSINGH PARDESHI DECEASED THROUGH HIS HEIRSAN DATE OF JUDGMENT18/09/1995 BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) AHMAD SAGHIR S. (J) CITATION: 1995 SCC (6) 576 JT 1995 (7) 400 1995 SCALE (5)481 ACT: HEADNOTE: JUDGMENT:
J U D G M E N T
Kuldip Singh, J.
Special leave granted.
Shantabai, predecessor in interest of the respondents
herein, instituted a suit under the Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947 (the Act) for
possession of the suit premises against the appellants-
tenants. The suit was decreed by the trial court. The
appellate court reversed the judgment of the trial court and
decreed the suit. The Aurangabad Bench of Bombay High Court
set aside the judgment of the appellate court and restored
that of the trial court. This appeal, by the tenants, is
against the judgment of the High Court.
The suit premises was rented to the appellants for
residential purposes at a monthly rent of Rs.70/-. The rent
was, later on, increased to Rs.80/-. The landlady served a
notice dated July 28, 1972 terminating the appellants
tenancy on the grounds of default in payment of rent and
bona fide requirement by her. It was mentioned in the notice
that arrears of rent from April 1, 1971 were due from the
tenants. As far as the bona fide requirement is concerned
the trial court rejected the case of the landlady. On the
issue of arrears of rent the trial court negatived the
contention of the landlady that the tenants neglected to pay
the rent for more than six months. The trial court, however,
held that the case of the landlady was covered under Section
12(3)(b) of the Act and since the tenants failed to comply
with the said provisions they were liable to be evicted. The
appellate court came to the conclusion that the bona fide
requirement was not proved by the landlady. On the issue of
arrears it was held that the landlady, having failed to
prove that the tenants neglected to pay rent for more than
six months, neither the provisions of Section 12(3)(a) nor
of Section 12(3)(b) of the Act were attracted and as such
the appellate court allowed the appeal and set aside the
judgment of the trial court. During the pendency of the
appeal the original landlady died and her legal heirs were
brought on record.
The judgment of the appellate court was challenged by
the respondents by way of petition under Article 227 of the
Constitution of India. The High Court converted itself into
an appellate court and reappreciated all the issues dealt
with and decided by the two courts below. The High Court
reversed the findings of the appellate court and held that
the appellants neglected to make payment of the arrears of
rent in terms of Section 12(3)(a) of the Act and as such
were liable to be evicted.
We may at this stage notice the provisions of Section
12 of the Act which are reproduced hereunder:-
“Section 12:
1) A landlord shall not be entitled to
the recovery of possession of any
premises so long as the tenant pays, or
is ready and willing to pay, the amount
of the standard rent and permitted
increases, if any, and observes and
performs the other conditions of the
tenancy, in so far as they are
consistent with the provisions of this
Act.
2) No suit for recovery of possession
shall be instituted by a landlord
against tenant on the ground of non-
payment of the standard rent or
permitted increase due, until the
expiration of one month next after
notice in writing of the demand of the
standard rent or permitted increase has
been served upon the tenant in the
manner provided in Section 106 of the
Transfer of Property Act, 1882.
3)a) Where the rent is payable by the
month and there is no dispute regarding
the amount of standard rent or permitted
increase, if such rent or increases are
in arrears for a period of six months or
more and the tenant “neglects to make
payment” thereof until the expiration of
the period of one month after notice
referred to in sub-section (2) the
(court shall pass a decree) for eviction
in any such suit for recovery of
possession.
b) 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 tenant pays or
tenders in court the standard rent and
permitted increases then due and
thereafter continues to pay or tender in
court regularly such rent and permitted
increases till the suit is finally
decided and also pays costs of the suit
as directed by the Court.”
As mentioned above, the landlady served notice in terms
of Section 12(2) of the Act on July 28, 1972. The notice was
received by the appellants on August 1, 1972. The appellants
sent a money order for Rs.400/- to the landlady on September
1, 1972. It is not disputed that the said amount covered the
arrears upto August 31, 1972. It is also on record that
another money order for Rs.500/- was sent by the appellants
on October 4, 1972 which covered the arrears upto October
31, 1972. The landlady refused to accept both the money
orders.
As mentioned above, the notice under Section 12(2) of
the Act was received by the appellants on August 1, 1972 and
they sent the first money order on September 1, 1972. The
High Court has rightly come to the conclusion that the money
order, having been sent on September 1, 1972, was within
“the period of one month after notice referred to in sub-
Section 2”. The High Court, however, fell into patent error
in reaching the conclusion that the actual payment having
not been received by the landlady within the said period
there was neglect on the part of the tenants to make
payment. The sine qua non for eviction of a tenant under
Section 12(3)(a) is “the neglect to make payment” and not
the actual making of the “payment”. When a money order or a
demand draft is sent to the landlord, during the specified
period, it cannot be said that the tenant has “neglected to
make payment”. The expression “neglect” means “to fail to
give due care, attention, or time to. To fail through
thought lessness or carelessness. To ignore or disregard”.
We are of the view that in the facts of the present case it
is not possible to hold that the appellants neglected to
make payment within the specified period after the receipt
of the notice.
Since the total arrears mentioned in the notice dated
July 28, 1972 were paid by the appellants and there was no
neglect on their part to make payment, neither the
provisions of Section 12(3)(a) nor of Section 12(3)(b) are
attracted in this case. The High Court fell into patent
error in reversing the judgment of the appellate court.
Before parting with this judgment we would like to say
that the High Court was not justified in extending its
jurisdiction under Article 227 of the Constitution of India
in the present case. The Act is a special legislation
governing landlord-tenant relationship and disputes. The
legislature has, in its wisdom, not provided second appeal
or revision to the High Court. The object is to give
finality to the decision of the appellate authority. The
High Court under Article 227 of the Constitution of India
cannot assume unlimited prerogative to correct all species
of hardship or wrong decisions. It must be restricted to
cases of grave dereliction of duty and flagrant abuse of
fundamental principles of law or justice, where grave
injustice would be done unless the High Court interferes.
We allow the appeal, set aside the judgment of the High
Court and restore that of the appellate court. No costs.
The appellants are paying Rs.80/- per month as rent
since 1980. It would be fair and just to increase the rent
reasonably. After hearing learned counsel we direct the
appellants to pay Rs.600/- as rent with effect from
September 1, 1995.