# J~J Bajo B M o/tadn Pt11aniJ/J1 v. Aba M ii llali

- **Citation:** [1962] Supp. 1 S.C.R. 739
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** S. K. DAs, A. K. Sarkar, Raghujiar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/j-j-bajo-b-m-o-tadn-pt11anij-j1-v-aba-m-ii-llali-2569
- **Pages:** 14

## Headnote

Landlord
and Tenant -Ejeetment-Non-payment of
r.nt /or thm years-Statutory right
to eject -Power of court
to gram rel!£/ -Equity-Bombay Tenancy a.nd Agricultural
Lan.U Act, 1948 (Bom. 67 o/ 1918), ••· 14, 25, 29.
•
Jn the first three. appeals the tenants were in default
in paying rents for three years and due notices had been
served by the landlords terminating the tenancies. The landlords thus acquired statutory rights to eject the tenants and
applied to the Mamlatdar, as required by s. 29 of the Bombay
Tenancy and Agricultural Lands Act, 1948, for possession
over the lands •. The Mamlatdar rerused to make an order for
possession on the r-ound that the tenants were entitled to
relief against forfeiture on equitable principles. Jn the fourth
appeal also tile tenants had defaulted in paying rents for
thtte yean. Jn respect of the default in the first year the
tenant had been granted relief agairut forfeiture under s. 25(1)
of the Act. The tenant contended that the default in the
first year had merged in the order under s. 25(1) and could
not be relied upon for holding that he·had defaulted for three
years.
Htltl, that the landlords, were entitled to orders for poucssion in all the four cases. Upon default in payment of rent
for three years a statutory right accrued to the landlords under
s. 25(2) to terminate the tenancy and to obtain possession.
There was no provision in the Act for granting relief against
forfeiture in such a case; the provision in s. 29(3) that the
Mamlatdar "shall pass such orders as he deems fit" did not
give him such a power. The Act merely empowered him to
grant relief where the tenant was not in arrears for more than
two years. No relief against forfeiture could be granted to the
JHJ
NiU...IA Prosd
v.
St<ll •f BU..
Hidaμtolt.A J,
JllOJ
Demn/m J.
J~J
Bajo B.. M o/tadn
Pt11aniJ/J1
v.
Aba M...ii llali
740
SUPREME COURT REPORTS [1962] SUPP.
tenants on equitable grounds; relief on
equitable grounds
could only be granted in cases of contractual rights and not
in case! of statutory rights. !'\or could relief be granted under
s. 114 Transfer of Proprrty Act as that provision was inconsistent with the provisions of the Boin hay Act and was thorefore
inapplicable.
R. V. Boteler, (1864) 33 L. I. M. C. IOI, referred to.
Raghu•·ir, Vyasaraya Acharya v. Go.,1nd
Mo~re Bandekar,
(1955) I. L. R. Born. 1069, disapproved.
Held, further, that in the fourth appeal the default in
the first year could also he taken into con')idcration in comput ..
ing of three years inspite of the tenant having b~n relieved
against forfeiture for that year. The order grantinl( the f'lief
did not wipe out the default, it only prevented the trrmination of the tenancy for that default alone.
Crv!L
APPELLATE
Ji::RI~DICTION :
Civil
Appeals Noe. 258-259 of 5!l and 404 of 60.
Appeals by special lca.v(l from the judgment
and orders dated Julv 2. 1956, January 9, 1957
and June 16, 1958 of the Bombay High Court in
Speoia.l Civil Applications Nos 1471, 1527 and 2!190
of 56 and 1431 of 1958 respectively.
V. M. Limaye, V. L. Narasimha ftfoorthy, E.
Udayaratnam and S. S. Sh1.1k/.a, for. the appellants.
B. ,C. Kamble and A. G. Ratnaparkhi, for
respondents Nos. land 3 (in C. S. No. 258/59).
S. G. l'atwardhan,
B. C. Kmnble and A.G.
Ratnaparkhi, for respondent No. I ( in C. A. No.
259/59) and the respondent in (C.A. No. t04 of 60).
Rameshwar Nath, for the respondent (in C. A.
No. 9 of60).
1961.
December I. The JudgmPnt of the
Court was delivered by
SARK.AR, J .. -These four appeals are by landlords
whose applications to the authorities under the
Bombay Tenancy and Agricultural Lands Act, 1948
for pOSBession of the lands held by their tenants, on
the grounds had that the t.enancy had been terminated by due notices on the tenants' failure to pay
rents for three years, were diemiBBed.
•
(1) s.c.R. SUPREME COURT REPORTS
741
These authorities refused in three of these
ca..oes to make an order for possession either because the tenants had paid. up all rent which ha

## Text

!
'
(1) S.C.R. SUPREME COURT REPORTS
739
In the result, the appJals are dismissed, but
in the circumstances of the case, we make no order
about costs.
Appeals dismissed.
RAJA RAM MAHADEV PARANJYPE AND
OTHERS
v.
ABA MARUTI MALI AND OTHERS
(S. K. DAs, A. K. SARKAR and
RAGHUJIAR DAYAL, JJ.)
Landlord
and Tenant -Ejeetment-Non-payment of
r.nt /or thm years-Statutory right
to eject -Power of court
to gram rel!£/ -Equity-Bombay Tenancy a.nd Agricultural
Lan.U Act, 1948 (Bom. 67 o/ 1918), ••· 14, 25, 29.
•
Jn the first three. appeals the tenants were in default
in paying rents for three years and due notices had been
served by the landlords terminating the tenancies. The landlords thus acquired statutory rights to eject the tenants and
applied to the Mamlatdar, as required by s. 29 of the Bombay
Tenancy and Agricultural Lands Act, 1948, for possession
over the lands •. The Mamlatdar rerused to make an order for
possession on the r-ound that the tenants were entitled to
relief against forfeiture on equitable principles. Jn the fourth
appeal also tile tenants had defaulted in paying rents for
thtte yean. Jn respect of the default in the first year the
tenant had been granted relief agairut forfeiture under s. 25(1)
of the Act. The tenant contended that the default in the
first year had merged in the order under s. 25(1) and could
not be relied upon for holding that he·had defaulted for three
years.
Htltl, that the landlords, were entitled to orders for poucssion in all the four cases. Upon default in payment of rent
for three years a statutory right accrued to the landlords under
s. 25(2) to terminate the tenancy and to obtain possession.
There was no provision in the Act for granting relief against
forfeiture in such a case; the provision in s. 29(3) that the
Mamlatdar "shall pass such orders as he deems fit" did not
give him such a power. The Act merely empowered him to
grant relief where the tenant was not in arrears for more than
two years. No relief against forfeiture could be granted to the
JHJ
NiU...IA Prosd
v.
St<ll •f BU..
Hidaμtolt.A J,
JllOJ
Demn/m J.
J~J
Bajo B.. M o/tadn
Pt11aniJ/J1
v.
Aba M...ii llali
740
SUPREME COURT REPORTS [1962] SUPP.
tenants on equitable grounds; relief on
equitable grounds
could only be granted in cases of contractual rights and not
in case! of statutory rights. !'\or could relief be granted under
s. 114 Transfer of Proprrty Act as that provision was inconsistent with the provisions of the Boin hay Act and was thorefore
inapplicable.
R. V. Boteler, (1864) 33 L. I. M. C. IOI, referred to.
Raghu•·ir, Vyasaraya Acharya v. Go.,1nd
Mo~re Bandekar,
(1955) I. L. R. Born. 1069, disapproved.
Held, further, that in the fourth appeal the default in
the first year could also he taken into con')idcration in comput ..
ing of three years inspite of the tenant having b~n relieved
against forfeiture for that year. The order grantinl( the f'lief
did not wipe out the default, it only prevented the trrmination of the tenancy for that default alone.
Crv!L
APPELLATE
Ji::RI~DICTION :
Civil
Appeals Noe. 258-259 of 5!l and 404 of 60.
Appeals by special lca.v(l from the judgment
and orders dated Julv 2. 1956, January 9, 1957
and June 16, 1958 of the Bombay High Court in
Speoia.l Civil Applications Nos 1471, 1527 and 2!190
of 56 and 1431 of 1958 respectively.
V. M. Limaye, V. L. Narasimha ftfoorthy, E.
Udayaratnam and S. S. Sh1.1k/.a, for. the appellants.
B. ,C. Kamble and A. G. Ratnaparkhi, for
respondents Nos. land 3 (in C. S. No. 258/59).
S. G. l'atwardhan,
B. C. Kmnble and A.G.
Ratnaparkhi, for respondent No. I ( in C. A. No.
259/59) and the respondent in (C.A. No. t04 of 60).
Rameshwar Nath, for the respondent (in C. A.
No. 9 of60).
1961.
December I. The JudgmPnt of the
Court was delivered by
SARK.AR, J .. -These four appeals are by landlords
whose applications to the authorities under the
Bombay Tenancy and Agricultural Lands Act, 1948
for pOSBession of the lands held by their tenants, on
the grounds had that the t.enancy had been terminated by due notices on the tenants' failure to pay
rents for three years, were diemiBBed.
•
(1) s.c.R. SUPREME COURT REPORTS
741
These authorities refused in three of these
ca..oes to make an order for possession either because the tenants had paid. up all rent which had
fallen in arrear or because the authorities thought
it proper on the facts of the case to give them time
to pay up. They felt that the tenants were entitled to relief against forfeiture on equitable principles.
In the fourth case, which is covered by Civil Appeal
No. 259 of 1959, it was held that there had not
been on the facts of the case, default in payment
of rent for three years and, therefore t:l:e tenant
was entitled to statutory relief against eviction
under s. 25( 1) of the Act which we shall later set
out.
The High Court at Bombay by a summary
order, without stating any reasons, refused to intEirfere when moved under Art. 227 of the Constitution.
The landlords have therefore filed these appeals
with leave of this Court.
We shall now deal with the first three cases
and later take up the fourth case. In these three
cases relief was granted to the tenants on the basis
of certain observation of the High Court at Bombay
in Sitaram Vithal CJhitnis v. Gundu Satyappa Dhade,
Special Civil Application No. 1695 of 1955, unreported, which we quote here: "Every court of equity will
be extremely reluctant to enforce an order of ejectment against a tenant when the only ground on
which the Jandl ord seeks ejectment is failure to
pay rent. Therefore, if the tenant is willing to pay
all arrenrs of rent, in our opinion, it would be inequitable to turn these tenants out when they are
prepared to make good the arrears of rent."
With
great respect to the learned Judges of the High
Court, we are unable to assent to the proposition
so broadly put.
We 1,1ow set out the relevant provisions of
the Act.
1961
Baj• Ram Mah
Para,Yype
v.
A.ha Mandt Mali
Sarlctlf J.
IHI
B4i• Ram JI ollwo
p.,~
v.
At• Maru.1i ~l•li
.f•r.~ar . t.
742
SUPREME COURT REPORTS (1962] SUPP.
S. 5 (1) No tenancy of any land shall
be for a. period of lees than ten yea.re :
Provided that at the end of the ea.id period
and thereafter a.t the end of ea.oh period of ten
years in eucce!lllion, the tenancy aha.II, subject
to the provisions of eub·eece. (2) and (3), be
deemed to be renewed for a. further period of
ten yea.rs on the same terms and C'onditione
notwithstanding any agreement to the cont·
rary.
(2)
x
x
x
x
x
x
x
x
~
x
x
x
x
x
x
x
(3) Notwithstanding
in sub-sec. (1):
anything contained
(a) every tenancy shall, subject to the
provisions of ss. 24 and 25, be liable to be
terminated at any time on any of the grounds
mentioned ins. 14.
x
x
x
x
x
x
x
x
X
X
.X
X
X
X
X
X
o. 14 (1) Notwithstanding any agreement,
usage, decree, or order of a court of law, the
tenancy of any land held by a tenant shall not
be terminated unless euoh tenant :-
(a}( Z) has failed to pay in any year, within fifteen days from the day fixed ...... the rent
of such land for that year.
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
Provided that no tenancy of any land
held by a tenant shall be terminated on any
of the grounds mentioned in this sub-section
unleBB the landlord gives three months' notice
in writing intimating the tenant hie decision
to terminate the tenancy and ground for such
termination.
(l) S.C.R. SUPREME COURT REPORTS
743
S. 25 (1) Where any tenancy of any land
held by any tenant is terminated for non-payment of rent and the landlord files any proceeding to eject the tenant, the Mamlatdar
shall call upon the tenant to tender to the
landlord the rent in arrears together with
the costs 0f the proceeding within fifteen days
from the date c>f order, and if the tenant complies with such order, the Mamlatdar shall, in
lieu of making an order for ejectment, pass
an order that the tenancy had not been
terminated, and thereupon the tenant shall
hold the land as if the tonancy had not been
terminated :
Provided that if the
Mamlatdar is
satisfied that in consequence of total or partial
failure of crops or similar calamity the tenant
has been unable to pay the rent due, the
Mamlatdar may, for reasons to be recorded
in writing, direct that the arrears of rent together with the costs of the proceedings if
awarded, shall be paid within one year from
the date of the order and that if before the
expiry of the said period, thfl tenant fails to
pay the said arrears of rent and costs, the
tenancy shall be deemed to be terminated
and the tenant shall be liable to be evicted.
(2) Nothing in this section shall apply to
any tenant whose tenancy is terminated for
non-payment of rent if he has failed for any
three years to pay rent within the period specified in section 14.
S. 29(1) A tenant or an agricultural
labourer or an artisan entitled to possession of
any land or dwelling house under any of the
provisions of this Act may apply in writing for
such possession to the Mamlatdar.
x
x
x
x
x
x
x
x
x
x
x
x
x
x
1961
Raja Ram llfahcdt•
Paranjyp,
••
Aha Maruti Mali
1961
Raj• Ram M oMrlto
p.,,aniJJ><
Y,
Aha M a,uti MoJi
Sarka, .I.
744 SUPREME COURT REPORTS [1962] SUPP.
(2) No landlord aha.II obtain posses..•ion
of any land or dwelling house held by a tenant
except under an order of the 1\lamlat<lar.
l<'or
obtaining such order he shall make an application in the prescribed form and within a
period of t.\vO years from the date 011 which the
right to obtain possession of the land or dwelling house, as the case may he, is deemed to
have accrued to him.
(3) On receipt of such application under
sub-section II) or (2) the Mamlatda.r shall,
after holding an enquiry, pass such order
thereon as he deems fit.
We are not cm;cerned in tlwsc three cases
with s. 24 mentioned in s. 5(i:)(a).
The "date
fixed" mentioned ins. Li(l)(a)(i) is it may be stated
the 20th of March of each year. It is not in di~pute
in these casc8 that the tenants were in <lefoult in
paying rents for three yt,ars within s. 14(l)(aXi) und
due notices had been served by the landlords terminating the tcna11cies as required by the proviso to
s. 14(1 ).
By s. 5, therefore, a tenancy under the Act is
made to h.wc indefinito duration being renewable fer ten yea.rs at the end of every kn years
and the landlord cannot put an end to the tenancy
except un .er the provisions of the Act, one of
which is e. 14.
This is irrespective of any contract
between the parties. Under s. 14 on the default in
payment of a year's rent oocurring, the landlord
may, if he so chooses, bring the tenancy to end by
giving the prescribed notice. If the tenancy is
terminated, the tenant has, of course, no right to
hold the land. The landlord would then be entitled
to recover poss3ssion of tho lanrl from him. In view
however of s. 29(2), the landlord oa.nnot do so ex·
oopt by an application made to a Mamlat<lar for
the purpose. Now when suc:h a.n application is ma.de
in e&se where the tenant has bePn in rlefault for not
.,
(1) S.C.R. SUPREME COURT REPORTS
745
more than two years, s. 25(1) would have to be applied and the Mamlatdar would have to give the
tenant a chance to pay up and thereby annul the
termination of the tenancy brought about under
s. 14.
In these three cases there is no controversy
that the tenancies have been terminated under s.14.
There is also no dispute that the tenants are not
entitled to be relieved against that termination
under sub-s. ( 1) of s. 25 because of the provisions of
sub-sec. (;!)of that section, as in these eases the
rent had not been paid for three years. They however claim relief on the principle on which equity
grants relief against forfeiture of tenancies. The
authorities under the Act have granted them the
relief by applying this equitable principle.
In our ovinion, the a.uthorities were clearly
in error in thinking that they could grant relief in
these cases on equitable principles. In equity
relief may be granted to a tenant who has incurred
a forfeiture under the terms of the tenancy, that is,
his contract with the landlord. Here, that is not
the position. The tenancies have been terminated
in these cams under a statutory provision. In the
circumstances that have happened, the landlords
have in our opinion acquired a statutory right to
the possession of the lands and, therefore, to eject
the tenants, the reasons for which view we shall
discuss in aome detail later. In such a case, no relief
can be granted to the tenants on equitable principles.
Equity does not operate to annul a statute.
This
appears to us to be well established but we may
refer to white and Tudors Leading Cases in Equity
(9th ed.) p. 238, where it is stated,
"Although, in cases of contract between
parties, equity will often relieve against penalties and forfeitures, where compensation can
be granted, relief can never be given against
the provisions of a statute."
Jj61
Raja Ram .v. ahad1v
ParanjyPt
v.
Aba Maruti Mali
Sarkar J.
Jg6J
Raja Ram II 11hai1•
Para11j'yp1
v.
Aha Mar111i M•li
s.,.u, J,
746
SUPHEME COURT REPORTS (1962] SUPP.
The order of the authorities taking a.way the landlords' statutory right to possession by application
of rules of equity cannot be supported.
It was then 8aid that s. 29(3) gives ample
power to the authoritie~ to refuse to make an order
for possession in the lamllord's favour if the tenant
pays up the arrears and the justice of the case
requires that the tenant should not be deprived of
the land. That sub-section no doubt says that the
Mamlatdar "shall ...... pass such order thereon as he
deems fit". We are however v.holly unable to agree
that this provision warrants the making of a.ny
order that
the
authority
concerned
thinks
in
his individual
opinion
that the justice
of the
ca.so
requires.
We
may here
refer
to R. v. Boteler(') where a statute which conferred
power upon Justices to issue a distress warrant "if
they shall think fit" was considered. In that case
the Justices had refused to issue the distress war.
rant. Cockburn C. J. observed,
"They went upon the ground that the
introduction of this extra-parochial place
into the union was a thing unjust in itself;
in other words, that the operation of the
a.ct of parliament was unjust.. ................... I
think, therefore it amounts virtually to
saying,-'We know that we ought upon all
other grounds to issue tho warrant, but we
will ta.kc upon ourselves to say that the law
is unjust, and we will not carry out the law'.
That is not such an exercise of discretion as
this Court will hold, in accordance with the
authorities cited, to be one upon which it will
act. The Justices must not omit. or decline
to discharge a. duty according to law."
We think that that is what the authorities in
the three cases before us have done. They have
(l) (1864) 33 L. J. M. C. IOJ, J03.
(l) S.C.R. SUPREME COURT REPORTS
747
refused to carry out the Act because they felt that
it worked hardship. They have refused to give to
the landlords the relief which the Act said they
should have.
Now, we feel no doubt that the Act provided
that a tenant should be granted relief only in >i case
where he had not been in arrears with his rents for
more than two years; in other words, . if he had
been in arrears · for more than two years he was not
to be given any relief against ejectment and the landlord would be entitled to an order for possession.
First, we have to point out that the tenancy having
been terminated in terms of the statute, the statute
would necessarily create a right in the landlord to
obtain possession of the demised premises. The
tenancy having been terminated, the tenant is not
entitled to remain in possession and the only person
who would then be entitled to possession would be
the landlord. The statute having provided for the
termination of the tenancy would by necessary implication create a right in the landlord to recover
possession. The statute recognises this right by
.providing bys. 29(2) for its enforcement by an application to the Mamlatdar. Indeed, s. 29(2) itself
mentions this right expressly for it says that the
application shall J:ie made within two years from
the date on which '.'the right to obtain possession
of the land" accrued to the landlord. We repeat
that this is a statutory right because it is the statute
which fixes the term of the tenancy and also provides
for its termination ; it is not a contractual right
which may be made subject to an equitable relief .
. We turn now to s. 25. Under sub-s. (1) of this
section the tenant has a right to an order continuing the tenancy inspite of its termination by notice'
under s. 14 for non-payment of rent. Sub-section (2)
however provides that sub-a. (1) shall not be available to a tenant if he has failed for any three years
to pay rent. The result is that the statute itself
1961
Raja Ram \fahatlev
Paranjype
v.
A.ha Maruti Mali
Sar/car J.
196!.
Rlljfl. P..am M ahadeu
Paranjyp~
v.
Ata .Jiaruti .1.llali
Sarkar J.
748 SUPH.E'.IIE COURT REPORTS (1962] SUPP.
provides for relief to a tenant where such a termination has taken place. and prescribes the conditions
on which relief would bo available. It would follow
that the statute indicates that the tenant would not
have the relief in any other circumstances. The
\ j result of this would inevitably be that the statute
confars a right on the landlord to recover possession
wh"r" th" rig lit unrfar R. 2ii (I) fa not Jt'<1i>i!<ibl" tn
the tenant, which right he can enforce in the
manner indicated. That being so, s. 29 (3) cannot
. be read as conferring on tho authorities a power
to annul this intendment of the Act. The words
"in lieu of making an order for ejectment'' in
sub·s. (I) of s. 25 support· the view that the Act
intends that except inthe circumstances mentioned in
it, the landlord is entitled as of right to get an order
for possession from the Mamlatdar. · This view is
further strengthened by the proviso to s. 25 (I)
which says that ii the default in payment ·of rent
had been caused by failure of crops Ol" similar
reasons, the Mamlatdar may give the tenant a
year's time to pay up and shall then provide in the
order to be made by him that on the tenant's failure
to pay within that year, "the tenancy shall be deemed to be terminated and the tenant shall be liable to
be evicted". In such a case the 1\famlatdar could
not by virtue of his supposed powers under s. 29(3)
give further relief if the tenant failed to pay as
directed, for the Act makes it incumbent on him to
pass the conditional order of ejectment. There, of
course, is possession for· the Act to have treated
the cases under sub-s. (IJ and the proviso to it,
differently.
This again is another reason for saying that the Act provides that apart from the circumstances mentioned in sub-s. (1) of s. 25 and the
proviso to . it, the landlord has on a termination
of the tenancy, a right to obtain an order for possession in his favour. It would be anomalous if the
general words in s. 29 (3) were to be construed as
conferring power on the authorities to deprive him
(1) S.C.R.
SUPREME COURT REPORTS
749
of the right which the other provisions in the Act
give him.
We think, therefore, that s. 29 (3) only confers
power to make an order in terms of the statute, an
order which would give effect to a right which the
Act has elsewhere conferred. The words "as he
deems fit" do not bestow a power to make any
order on considerations rlehors the statute whioh
the authorities consider best according to their
notions of justice. Obviously, the provision has
been framed in general terms because it covers a
variety of cases, namely, applications by landlords
and
tenants in different circumstances, each of
which circumstances may call for a different order
under the Act.
One other argument under a similar head as
dealt with previously, was that the tenants were
entitled to relief against forfeiture under s. 114
of the Transfer of Property Act.
Section 3 of the
Act provides that "the provisions of Chapter 5 of
the Transfer of Property Act, 1882 shall in so far
as they are not inconsistent with the provisions of
this Act, apply to the tenancies and leases of land
to which this Act applies''. The present contention
of the tenents is based on this section. It may be
pointed out that ch. 5 of the Transfer of Property
Act includes ss. 114 and 117. The last mentioned
section provides that nothing in oh. 5 shall apply to
leases for 'Lgriculture purposes except in so far as
the State Government by notification declare them
to be applioable. No such notification had been
issued by the State Government. Therefore, the
landlords contend, s. 114 does not apply to the present leases which are for agricultural purposes and
the tenants are not entitled to relief under it. It
does not seem to us necessary to decitle the question so raised. In our view, the provisions in
s. 114 of the Transfer of Property Act are inconsistent with the provisions of the Bombay and cannot,
1961 -
Raja R11m Maha~-
Parrinjyp•
v.
Aha Maruti Mali
Sa,kar J.
1961
Rojo Rom M aluJdttJ
ParaniJPt
v.
Aba M"'uii Mali
Sarkar J.
750 SUPREME COURT REPORTS [1962) SUPP.
therefore, under s. 3 of the latter Act govern the
tenancies to which it applies. We have earlier
stated that the Bombay Act clearly intended that
relief against termination of tendency for non-payment of rent would be given only in the cases mentioned in R. 25( I) and in no others. Under s. 114 of
the Trimsfer of Property Act relief may be given in
other circumstances. Therefore, the provisions of
this Rection are inconsistent with the provisions of
the Bombay Act. For this reason we do not think
that the tenants in the caRes before us are entitled
to claim any relief under s. 114 of the Transfer of
Property Act.
We think, therefore, that the tenants were
not entit]Pd to th~ relief which the authorities
below granted them. Before we pass on to the
other appeal raising a different question, we have
to refer to the case of Raghuvir Vyasaraya Acharya
v. Gobind Mogre Bandekar(') were it had been held by
Chagla C.J., thats. 2!1(3) justifies an order granting
relief t-0 the tenant and refusing to make an order
for po~s!'s~ion in favour of the landlord even where
the ten,mt has not paid rent for more than two
years. We think that this case was wrongly
decided. Chagla C.J., held that s. 25 did not confer
any Rubstantive right on the landlord to obtain
possession and that s. !!9( 3) conferred on the Mamlatda r a discretion to pass any proper order that he
thou.'(ht fit. We think, for the reasons earlier
sUite<l, that on both these matters the learned Chief
Justice was in error. We repeat that under the
Act the landlord gets a right to obtain poesePRion
of the demised premises on the termination of the
tenancy under s. 14 and that s. 25 as also s. 29
cl oar Iy recognises that right.
We turn now to the remaining appeal, namely
Civil Appeal No. 259 of IP59. The question raised
here is whether for the purposes of s. 25(2) a tenant
''' <1955) I. L. R. Born. 1069.
(1) S.C.R.
SUPREME COURT REPORTS
751
is to be considered as having failed to pay rent
for anv year in respect of which he had been gran·
ted relief under s. 25(1 ). The Revenue Tribunal,
following a decision of the High Court at Bombay
in Special Civil Application No. 2073 of 1955, unreported, held that where a landlord made an
11ppli<'.ation for possession of the demised land on
the failure of the tenant to pa.y rent for a year
within the time prescribed in s. 14, and the Mamlatdar granted relief to the tenant under s. 25(1 ),
the default was merged in the order of the Mamlatdar and could not thereafter be relied upon
for the purposes of s. 25(2). We did not have
the original judgment of the High Court placed
before us and are not aware of the reasons which
persuaded it to the view that it took.
In our opinion, that view is clearly incorrect.
Section 25(2) says that nothing in s. 25-which of
course only means sub s. ( 1) of that section-shall
apply to any tenant whose tenancy is terminated
for non-payment of rent if he has failed for any
three years to pay rent within the period specified
ins. 14. We are unable to appreciate the contention that when a tenant has been granted relief
under s. 25( 1) in respect of any year's default, the
default merged in the ordt:r granting relief and
ceased to be a default. How can the default for the
year merge in an order ? No doubt relief has been
given against the consequence of the default for
the year, but that does not wipe out the default itself ; it only prevents the termination of
the tenancy, if any, consequent thereon, becoming
effective. Inspite of the relief granted under s. 25( 1 ),
the ten~nt remains a tenant who made default in
payi~g rent for the year within the period specified
in s. 14 and that is the tenant mentioned in
s. 25(2). We fi11J nrt.hing in s. 25(2) to justify the
view that in ./lt.Jh a
case the year of default
cannot be taken into account in computing fhe
1061
Roja Rom Mahadev
Paran.iJ'f1t
••
Aha M:irutilMali
Sarkar J.
I
!P51
Roja Ram M oAadtD
PtzYan.iJPt
v.
.dba Maruti
~~o/i
S'"kcr J,
752 SUPREME COURT REPORTS (1962] SUPP.
three years there mentioned. It Is of some signi·
ficance to point out that s. 25(2) does not require
three successive years of default but it is satisfied
where the tenant has been in default for any three
years. If the in t~rprrtation put by the High Court
were to be accepted, then a landlord wishing to
recover possession of his land would have to wait
till the tenant has committed default for three
yea.rs, for if he took steps earlier and relief was
granted to the trnant, he would not be able to
recover possession after two more years of default
by tho tenant. We see no justification for thinking that the Act intended to put so much difficulty
in the way of landlords.
We, therefore, come to the conclusion that
these
:~ppeals must succeed. We eet aside the
orders of the High Court in the cases in which that
CourL had born moved and of the Revenue Tribunal
and other authorities under the Bombay Act refus.
ing to make an order for possession in favour of
the hmdlords.
We
direct that the respondent
tenants make over possession of the lands held by
them to their respective landlords. The appellants
will be entitled to costs throughout.
Appeals allowed.
•