# Gurugobint1• Buu v. Sankari Prasai Ghosal and Others

- **Citation:** [1964] 4 S.C.R. 324
- **Court:** Supreme Court of India
- **Decided:** 1962-12-17
- **Bench:** P. B. Gajendragadkar, K. c. DAS GUPTA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gurugobint1-buu-v-sankari-prasai-ghosal-and-others-3148
- **Pages:** 8

## Headnote

Landlord and Tenant-Tenant in arrears of rent /01· about ltvo
years-Notice served by the landlord-A few days later the Act
amended-Suit· filed by the landlord
for
eviction-Pend:ng the
hearing of suit all arrears paid by tenant-Whether the u:rtartt can
be evicted on the ground of arrears of rent-Bon1bay l?.e1,ts, Hotel
and Lodging House Rates Cont1·ol Act, 1947 (Born. 57 of 1947)
s. 12.
The appellant was a tenant of the respondents occupying one
room of a building belonging to them. She was in arrears c,f rent.
The respondents served a notice on her clai1ning to 1eco\'er arrears
of rent for a period of two years and tvvo 1nonths. ·A fe\v days
after the service of this notice the. Bombay Rents, Hotel and Lodging
House Rates Control Act, 1947, \vhich govern-' this case was amend·
ed.
The respondents thereafter filed a suit for the eviction of the
appellant on the ground that they required the premises for bona
fidr: personal use and on the ground that the· appellant was in
arrears of rent for more than 6 months. The suit was resisted by
the appellant on several grounds but pending the hearing of the
·suit and before the decree was passed she deposited the entire rent
due from her.
The trial Judge upheld both the contentions of the respondent
and decreed the eviction of the appellant. On appeal the District
Judge rejected the contention of bona fidr: personal use put forward by the respondent but found that the appellant was in arrears
of rent and dismissed the appeal. The revision filed by the present
-
'
-
-
4 S.C.R.
SUPREME COURT REPORTS
325
appelh1nt
fail~rt; the present appeal 1s by way of special leave
granted by this Court.
It was contended on behalf of the appellant that the provisions
of s. 12(1) and (2) were mandatory and that in construing s. 12(3)
(a) it must be borne in mind that the object of the statute and
particularly s. 12 was to give protection to the tenant.
It was
further contended that before s. 12(3)(a) was amended it was
open to the tenant to pay
the
arrears at any time during the
pendency of the suit or even during the pendency of the appeal.
In order to avoid hardship to the tenant s. 12(3)(a) should he
read as reauiring the landlord to issue a fresh notice after the
arnenderl section came into force. It \Vas also urged thats. 11(3)(a)
suggests that the neglect or failure of the tenant to make the payment of arrears must be subsequent to the date on which the
amendn1ent came into force.
Lastly it was argued that the right
giYen to the tenant to deposit arrears was a vested right and
therefore s. 12(3)(a) should not be construed in such a way as
to take a'vay this vested right.
Held : (i) S. 12(3)(a) refers to a notice served by the landlord as required by s. 12(2) and in s. 12(2) the legislature has
1nade no an1endment \vhen it amended sub-s. ( 3).
The notice
ser\"ed by the appellant in the present case satisfies the requirements
of s. 12(2). H the notice has been served as required by s. 12(2)
and the tenant is shown to have neglected
to comply with the
notice until the expiry of one month thereafter s. 12(2) is satisfied
and '· 12(3)(a) come. into operation.
(ii) S. 12(3)(a) does not confer any right or vested right on
tenant and even if such a right is conferred it would not alter
the plain effect of the words of s. 12(3)(a). The plain meaning
of s. 12(3)(a) is that if a notice is served on the tenant and he
has not made the payment as required within the time specified
in s. 12(3)(a) the court is bound to pass a decree of eviction against
the tenant.
The appeal is dismissed.
Dayaram Kashiram Shimpi v. Bansilal Raghunath 1V!arwari,
(1952) 55 Born. L.R. 30, Laxminarayan Nandkishore Shravagi v.
Keshardev Baijnath Narsaria, (1956) 58 Born. L.R. 1041 and Kurban Hussen Sajauddin v. Ratikant Nilkant. A.LR. 1959 Born. 401.
CrvIL APPELLATE JuRISDicnoN: Civil Appeal No. 293 of
1963.
Appeal by special leave from the judgment and order
dated December 17, 1962 of the Gujarat High Court in
Civil Revision Applicati

## Text

1963
Gurugobint1•
Buu
v.
Sankari Prasai
Ghosal and
Others
1963
August H
324
SUPREME COURT REPORTS
[1%4]
office of profit under the Government of India within the
meaning of Art. 102(1)(a) of the Constitution. As such
he was disqualified for being chosen as, and for being, a
member of either House of Parliament. It is unnecessary
to consider the further question whether he was a holder
of an office of profit either under the Government of India
or the Government of West Bengal by reason of being an
auditor for the Life Insurance Corporation of India or a
Director of the West Bengal Financial Corporation.
The appeal accordingly fails and is dismissed with costs.
Appeal dismissed.
VASUMATIBEN GAURISHANKAR BHATT
fl.
NAVAIRAM MANCHHARAM VORA AND ORS.
(P. B. GAJENDRAGADKAR AND K. c. DAS GUPTA, JJ.)
Landlord and Tenant-Tenant in arrears of rent /01· about ltvo
years-Notice served by the landlord-A few days later the Act
amended-Suit· filed by the landlord
for
eviction-Pend:ng the
hearing of suit all arrears paid by tenant-Whether the u:rtartt can
be evicted on the ground of arrears of rent-Bon1bay l?.e1,ts, Hotel
and Lodging House Rates Cont1·ol Act, 1947 (Born. 57 of 1947)
s. 12.
The appellant was a tenant of the respondents occupying one
room of a building belonging to them. She was in arrears c,f rent.
The respondents served a notice on her clai1ning to 1eco\'er arrears
of rent for a period of two years and tvvo 1nonths. ·A fe\v days
after the service of this notice the. Bombay Rents, Hotel and Lodging
House Rates Control Act, 1947, \vhich govern-' this case was amend·
ed.
The respondents thereafter filed a suit for the eviction of the
appellant on the ground that they required the premises for bona
fidr: personal use and on the ground that the· appellant was in
arrears of rent for more than 6 months. The suit was resisted by
the appellant on several grounds but pending the hearing of the
·suit and before the decree was passed she deposited the entire rent
due from her.
The trial Judge upheld both the contentions of the respondent
and decreed the eviction of the appellant. On appeal the District
Judge rejected the contention of bona fidr: personal use put forward by the respondent but found that the appellant was in arrears
of rent and dismissed the appeal. The revision filed by the present
-
'
-
-
4 S.C.R.
SUPREME COURT REPORTS
325
appelh1nt
fail~rt; the present appeal 1s by way of special leave
granted by this Court.
It was contended on behalf of the appellant that the provisions
of s. 12(1) and (2) were mandatory and that in construing s. 12(3)
(a) it must be borne in mind that the object of the statute and
particularly s. 12 was to give protection to the tenant.
It was
further contended that before s. 12(3)(a) was amended it was
open to the tenant to pay
the
arrears at any time during the
pendency of the suit or even during the pendency of the appeal.
In order to avoid hardship to the tenant s. 12(3)(a) should he
read as reauiring the landlord to issue a fresh notice after the
arnenderl section came into force. It \Vas also urged thats. 11(3)(a)
suggests that the neglect or failure of the tenant to make the payment of arrears must be subsequent to the date on which the
amendn1ent came into force.
Lastly it was argued that the right
giYen to the tenant to deposit arrears was a vested right and
therefore s. 12(3)(a) should not be construed in such a way as
to take a'vay this vested right.
Held : (i) S. 12(3)(a) refers to a notice served by the landlord as required by s. 12(2) and in s. 12(2) the legislature has
1nade no an1endment \vhen it amended sub-s. ( 3).
The notice
ser\"ed by the appellant in the present case satisfies the requirements
of s. 12(2). H the notice has been served as required by s. 12(2)
and the tenant is shown to have neglected
to comply with the
notice until the expiry of one month thereafter s. 12(2) is satisfied
and '· 12(3)(a) come. into operation.
(ii) S. 12(3)(a) does not confer any right or vested right on
tenant and even if such a right is conferred it would not alter
the plain effect of the words of s. 12(3)(a). The plain meaning
of s. 12(3)(a) is that if a notice is served on the tenant and he
has not made the payment as required within the time specified
in s. 12(3)(a) the court is bound to pass a decree of eviction against
the tenant.
The appeal is dismissed.
Dayaram Kashiram Shimpi v. Bansilal Raghunath 1V!arwari,
(1952) 55 Born. L.R. 30, Laxminarayan Nandkishore Shravagi v.
Keshardev Baijnath Narsaria, (1956) 58 Born. L.R. 1041 and Kurban Hussen Sajauddin v. Ratikant Nilkant. A.LR. 1959 Born. 401.
CrvIL APPELLATE JuRISDicnoN: Civil Appeal No. 293 of
1963.
Appeal by special leave from the judgment and order
dated December 17, 1962 of the Gujarat High Court in
Civil Revision Application No. 175 of 1960.
G. B. Pai, 0. C. Mathur, J.B. Dadachanji and Ravinder
Narain, for the appellant.
M. S. K. Sastri and M. S. Narasimhan, for respondents
Nos. 1 and 2.
1963
V asumatiben
Gaurishankar
Bhatt
v.
Navairam
Manchharam
Vora and
Others
1963
V asumatiben
.Gaurishank_ar
Bhatt
v.
Navairam
Manchharam
Vora and
Others
.Gajendragadkar
/.
326
SUPREME COURT REPORT~
[1964]
August 14, 1963. The Judgment of the Court was delivered by
GAJENDRAGADKAR J.-This appeal by special leave raises a short question about the construction and effect of
s. 12(3)(a) of the Bombay Rents, Hotel and Lodging
House Rates Control Act, 1947, (No. 57 of 1947) (hereinafter called 'the Act').
The appellant has been tenant
of one room in a residential building known as Lalbang
situated m Badekhan's Chakla m the City of Surat
smce October 18, 1935.
Under the rent note, she is
required to pay a monthly rent of Rs. 18. On October 12, 1949, respondents 1 and 2 purchased the said
property. It appears that on November 21, 1950, thev
served a notice on the appellant to vacate,the premises let
out to her on the ground that she was in arrears of rent
from July 1, 1950. On receiving the said notice, the appellant paid a part of the rent, but again fell into arrears,
and so, the respondents served a second notice on her on
February 7, 1951, claiming arrears from October 1, 1950. The
appellant did not vacate the premises, nor did she pay all
the arrears due from her. A third notice was accordingly
·served on her on March 27. 1953, in which the respondents
.claimed to recover arrears from January 1, 1951, that is to
say, arrears for two years and two months. A few days
·after this notice was served. s. 12(3) of the Act was amended by the Bombay Amending Act No. 61 of 1953, and the
·amendment came into force on the 31st March, 1954. The
respondents then filed the present suit against the appellant
on April 12, 1954, in which they asked for a decree for
eviction against the appellant on the ground that they
wanted the premises let out to the appellant bona fide for
their personal use, and that the appellant was in arrears
for more than six months. This suit was resisted by the
appellant on several grounds. Pending the hearing of the
suit, the appellant paid by instalments in all Rs. 470
before the date of the decree. so that at the date when
the decree was passed, no arrears were due from her.
The learned trial Judge upheld both the pleas made by
the respondents and passed a decree for eviction against
the appellant. He held that the respondents reasonably
:and bona fide required the property for their personal use
.and that the appellant was in arrears of rent for more than
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-
-
-
4 S.C.R.
SUPREME COURT REPORTS
327
six months. This decree was challenged by the appellant by
an appeal preferred before the District Court at Surat. The
learned District Judge held that the respondents had failed
to prove that they needed the premises reasonably and bona
fide for their personal use, but he accepted their case that
the appellant was in arrears of rent for more than six
months and that the suit fell within the scope of s. 12(3)
(a) of the Act. That is how the decree passed by the trial
Court was confirmed in appeal. The appellant then challenged the correctness of this decree by a revisional petition
filed before the Gujarat High Court. This petition ulti-.
mately failed and the decree passed against her was confirmed. It is against this decision that the appellant has
come to this Court: and on her behalf. Mr. Pai has contended that the High Court was in error in holding that the
requirements of s. 12(3) (a) as amended justified the passing of the decree against the appellant.
It appears that section 12 of the Act has been amended
from time to time. Before the Amending Act No. 61/1953
came into force, the said section read thus:
"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 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 a tenant on the ground of
non-payment of the standard rent or permitted increases due, until the expiration of one month next after
notice in writing of the demand of the Standard rent
or permitted increases has been served upon the tenant
in the manner provided in section 106 of the Transfer
of Property Act, 1882.
(3) No decree for eviction shall be passed in any suit if,
at the hearing of the suit, the tenant pays or tenders in
Court the standard rent or permitted increases then due
together with the costs of the suit."
The explanation to this section dealt with cases where there
was a dispute between the landlord and the tenant in regard
to the amount of the standard rent. With that explanation
1963
V asumatiben
Gaurishankar
Bhatt
••
Navairam
Manchharam
Vora and
Others
Gajendragadkar
/.
1%3
Vasumatiben
Gaurishank_ar ·
Bhatt
v.
Navairam
Manchharam
Vora and
Others
Gajendragadkar
/.
328
SUPREME COURT REPORTS
[1964}
we are not concerned in the present appeal.
It appears that the Bombay High Court interpreted the
words "at the hearing of the suit" in s. 12(3) as including
the hearing of the appeal arising from the suit, and so, it
was held that under s. 12(3) of the Act, an appeal Court
cannot confirm a decree for eviction if before the passing
of the order in appeal, the tenant pays or tenders in Court
the standard rent or permitted increases then due together
with the costs of the suit and also appeal, vide Dayaram
Kashiram Shimpi v. Bansilal Raghunath Marwari('). After
s. 12(3) was amended by the Amending Act 61 of 1953,
the words "at the hearing of the s'uit" were construed by
the Bombay High Court to mean that the application
which the tenant can make offering to deposit the arrears
due from him must be made before the Court of first
instance and cannot be reserved to be made in the Court
of appeal, vide Laxminarayan Nandkishore Shravagi v.
Keshardev Baijnath Narsaria( 2 ).
There is one more decision of the Bombay High Court
to which Teference must be made before dealing with the
points raised for our decision in the present appeal.
In
Kurban Hussen Sajuddin
v.
Ratikant
Nilkant and
Anr.(3), it was held that the word "may" used in s. 12(3)
(a) as amended really meant "must" and that in cases
where the conditions of the said provision were satisfied,
the Court had to pass a decree for the recovery of possession
in favour of the landlord. It is in the light of these decisions that we have to consider the contention of the appellant that under s. 12(3) (a) as amended, it was not open
to the Court to pass a decree for ejectment against her in
the present proceedings.
On behalf of the appellant Mr. Pai has emphasised the
fact that the provisions of s. 12, sub-ss. (1) and (2) are
mandatory and there can be no doubt that they imposed
severe restrictions on the landlord's right to sue the tenant
in ejectrnent. He, therefore, contends that in construing
the effect of s. 12(3)(a), we must bear in mind the fact
that the legislature has enacted the present statute and
particularly the provisions of s. 12 with a view 10 protect
the interests of the tenant. He further contends that it
(1} (1952) 55 Born. L.R; 30. (2) (1956) 58 Born. L.R. 1041.
( 3 ) A.LR. 1959 Born. 401.
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;
'
4 S.C.R.
SUPREME COURT REPORTS
329
cannot be disputed that before s. 12(3)(a) was amended,
it was open to the tenant to pay the arrears at any time
durmg the pendency of the suit, or even during the pendency of the appeal, and so, when the tenant failed or
ne,,.lected to pay the arrears due from her immediately after
re~iving the notice of demand from the landlord, it is
easy to imagine that she knew that her failure to pay
the arrears of rent immediately on receiving the notice
would not lead to her eviction and that she would
have . the option to deposit the amount as required by
s. 12(3) either in the trial Court or in the Court of
Appeal.
That being so, he suggests that in order to
avoid hardship to the tenant, s. 12(3) (a) should be
read as requiring the landlord to issue a fresh notice
· after the amended section came into force.
The notice
given by the landlord prior to the date of the amendment did not convey to the tenant the knowledge that
her failure to comply with it would necessarily lead to her
ejectment, and so, the relevant provisions of this beneficent
statute should be construed in a liberal way.
That, in
substance, is the first contention raised by Mr. Pai before us.
We are unable to accept this argument. What
s. 12(3) (a) requires is that in cases where there is no dispute between the landlord and the tenant regarding the
amount of standard rent or permitted increases, if the landlord is able to show that the tenant is in arrears for a
period of six months or more and the said arrears continued in spite of the fact that a notice was served on
him before the institution of the suit and no payment was
made within a month thereafter, the landlord is entitled
to get a decree for ejectment against the tenant. It is true
that s. 12(3) (a) refers to a notice, but in terms, it refers
to a notice served by the landlord as required by s. 12(2),
and in s. 12(2) the legislature has made no amendment
when it amended sub-section (3). If we turn to s. 12(2),
it would be noticed that the notice given by the respondents
to the appellant )n the present case satisfies the requirements of the said sub-section. The respondents told the
appellant by their notice that arrears were due from her
and there is no doubt that the arrears were not paid up
by the appellant until the expiration of one month nat
after the notice in writing was served on her in that behalf.
22-2 SC India/64
1963
Vasumatiben
Gaurishank.ar
Bhatt
v.
Navairam
Machh'ardm
Vora and
Others
G~jendragadkar
/.
1963
Vasumatiben
Gaurishank_ar
Bhatt
v.
Navairam
Machharatii
Vora and
Others
Gajendragadkar
/.
330
SUPREME COURT REPORTS
[1964]
Section 12(2) never required the landlord to state to the
tenant what the consequences would be if the tenant neglected to pay the arrears demanded from him/her by the
notice. Therefore. if the notice served bv the respondents
on the appellant prior to the institution of the present suit
is in order and it is shown that the arears have not been
paid as required, then s. 12(2) has been complied with. and
it is on that footing that the case between the parties has
to be tried under s. 12(3)(a).
Mr. Pai then contends. that s. 12(3) (a) seems t<;> suggest that the neglect or failure of the tenant to make the
payment of arrears must be subsequent to the date on which
the Amending
Act
came
into
force.
He
relies
on the fact that s. 12(3) (a) refers to the case where
the tenant "neglects to make payment" of the rent. The·
section does not say "has neglected to make payment", says
Mr. Pai.
In our opinion, there is no substance in this
·argument. The use of the word "neglect" in the present
tense has tci be construed in the light of the fact that the
clause refers to the tenant neglecting to make payment of
the rent until the expiration of one month next after
.receipt of the notice, and that clearly would have made the
use of the past tense inappropriate. The position, therefore,
is that if notice has been served as required by s. 12(2)
and the tenant is shown to have neglected to comply with
the notice until the expiration of one month thereafter,
s. 12(2) is satisfied and s. 12(3) (a) comes into operation.
Mr. Pai also argued that the right given to the tenant
to pay the arrears at the hearing of the suit was a vested
right, and so, in construing s. 12(3) (a) we should not
adopt the construction which would defeat that vested right.
It is not easy to accept the contention that the provisions
·Of s. 12(3) (a) really confer any vested right as such on
the tenant. What s. 12(3) (a) provided was that a decree
·shall not be passed in favour of the landlord in case the
. tenant pays or tenders in Court the standard rent at the
hearing of the suit.
This provision c;mnot prima facie
be said to confer any right or vested right on· the tenant .
. But even if the tenant had a vested right to pay the money
· in court at the hearing of the suit, we do not see how
·that consideration can alter the plain effect of the words
used ins. 12(3)(a). The suit was filed after th~ amended
•
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4 S.C.R.
SUPREME COURT REPORTS
331
section came into force, and clearly the amended provision
applies to the suit and governs the decision of the dispute
between the parties. If that is so, the plain meaning of
s. 12(3)(a) is rhat if a notice is served on the tenant and
he has not made the payment as required within the time
specified in s. 12(3) (a), the Court is bound to pass a decree
for eviction against the tenant. Tha\ is the view taken
by the Gujarat High Court and we are satisfied that that
view clearly gives effect to the provisions of s. 12(3) (a)
as amended in 1953. We must accordingly hold that there
is no substance in the appeal. The appeal, therefore, fails
and is dismissed with costs.
Appeal dismissed
LACHMAN UTAMCHAND KIRPALANI
v.
MEENA alias MOTA
(B. P. SINHA, C.J., S. K DAs, K. SuBBA RAo .• RA.GHUBAR
DAYAL AND N. RAJAGOPALA AYYANGAR, JJ.)
Husband and wife-fudicial separation-Desertion without justcause-Offer to return to matrimonial home must be shown to be
bona fide-Petition for judicial separation-Burden of proof-Hindn
Marriage Act, 1955 (25 of 1955), s. lO(l)(a).
Where an application is made under s. lO(l)(a) of the Hindu
Marriage Act, 1955, for a decree
for
judicial separation on the
ground of desertion, the legal burden is upon the petitioning spouse
to establish by convincing evidence beyond any reasonable doubt
that the respondent intentionally forsook and abandoned him or her
without reasonable cause.
The petitioner must
also
prove that
there was desertion throughout the statutory period and there was
no hona fide attempt on the respondent's part to return to the
matrimonial home and that the petitioner did not by his or her
action by word or conduct provide a just cause to the other spouse
to desist from making any attempt at reconciliation or resuming
cohabitation; but where, however, on the facts it is clear that the
conduct of the deserted spouse has had no such effect on the mind
,
of the deserting spouse there is no rule of law that desertion terminates by reason of the conduct of the deserted spouse.
1963
V asumatiben
Gaurishank.ar
Bhatt
v.
Navairam
Machharam
Vora and
Others
Gaicndragadk.ar /.
1963
August 14