# MRS. MANORAMA S. MASUREKAR v. MRS. DHANLAXMI G. SHAH AND ANR

- **Citation:** [1967] 1 S.C.R. 135
- **Court:** Supreme Court of India
- **Decided:** 1966-08-23
- **Case number:** Civil Appeal No. 469 of 1966
- **Bench:** K .. N. Wanchoo, J.C. Shah, R. S. Bachawat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mrs-manorama-s-masurekar-v-mrs-dhanlaxmi-g-shah-and-anr-3802
- **Pages:** 3

## Headnote

Bombay Rents, Hotel and Lodging· House Rates Control Act (57 of
1947), s. 12(1) and (3)(a)-Scope of. ·
The tenant of a flat was in arrears of reni for more thari six months.
The landlord served a notice on the tenant demanding the rent.
The
tenant did not pay it within one month of the notice, but tendered it
. after the expiry of tho month. The landlord refused .to receive it and
filed a suit for eviction. under s. 12(3) (a) of the Bombay Rents, Hotel
and Lodging House Rates Control Act, 1947. The tenant claimed the
protection of s. 12 ( 1) of the Act on the ground that she was ready
and willing to pay the rent before the institution of the suit.
HELD: Under s. 12(3) (a), the landlord is ·vested with the right
to recover possession of the premises if the rent is in
arrears
for six
months or more, the tenant neglects to pay it until after the expiry of
one month after notice demanding the rent and other conditions of subps.
(3) (a) are saitisfied. This right cannot be defeated by
showing that
the tenant was ready and willing to pay the rent after the default but before tho institution of the suit.
In a case falling within sub.s. (3) (a), the
tenant must be dealt with under its special provisions and he cannot claim
any protection from eviction under the general provisions of sub-s.
( 1):
and the coun was bound to pass a decree for eviction. (137 E, FJ
·
Bhalya Punjalal Bhagwanddin v. Dave Bhagwat Prasad Prabhuprasad,
[1963] 3 S.C.R. 312, followed.
Mohan/al v. Malieshwari
Mills Ltd. (1962) 3
Guj. L.R. 574· and
Ambala .v. Babaldas, (1962) 3 Guj. L.R. 625, overruled.
·

## Text

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MRS. MANORAMA S. MASUREKAR
v.
MRS. DHANLAXMI G. SHAH AND ANR.
August 23, 1966
[K .. N. WANCHOO, J.C. SHAH AND R. S. BACHAWAT, JJ.)
Bombay Rents, Hotel and Lodging· House Rates Control Act (57 of
1947), s. 12(1) and (3)(a)-Scope of. ·
The tenant of a flat was in arrears of reni for more thari six months.
The landlord served a notice on the tenant demanding the rent.
The
tenant did not pay it within one month of the notice, but tendered it
. after the expiry of tho month. The landlord refused .to receive it and
filed a suit for eviction. under s. 12(3) (a) of the Bombay Rents, Hotel
and Lodging House Rates Control Act, 1947. The tenant claimed the
protection of s. 12 ( 1) of the Act on the ground that she was ready
and willing to pay the rent before the institution of the suit.
HELD: Under s. 12(3) (a), the landlord is ·vested with the right
to recover possession of the premises if the rent is in
arrears
for six
months or more, the tenant neglects to pay it until after the expiry of
one month after notice demanding the rent and other conditions of subps.
(3) (a) are saitisfied. This right cannot be defeated by
showing that
the tenant was ready and willing to pay the rent after the default but before tho institution of the suit.
In a case falling within sub.s. (3) (a), the
tenant must be dealt with under its special provisions and he cannot claim
any protection from eviction under the general provisions of sub-s.
( 1):
and the coun was bound to pass a decree for eviction. (137 E, FJ
·
Bhalya Punjalal Bhagwanddin v. Dave Bhagwat Prasad Prabhuprasad,
[1963] 3 S.C.R. 312, followed.
Mohan/al v. Malieshwari
Mills Ltd. (1962) 3
Guj. L.R. 574· and
Ambala .v. Babaldas, (1962) 3 Guj. L.R. 625, overruled.
·
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 469 of 1966.
Appeal by special leave from the judgment and decree dated
November 25, 1965 of the Bombay High Court in Civil Revision
Application No. 1579of1962.
S. G. Patwardlzan and M. V. Goswami, for the appellant
S. T. [)esai and K. L. Hathi, for1 n~spondent No. I
The Judgment of the Court was delivered by
Bachawat, J.
The question arising in this appeal by special
leave is whether in a case falling under sub-s.(3)(a) of s. 12 of the
Bombay Rents, Hotel and Lodging House Rates Control Act,
1947 (Act No. 57 of 1947), a tenant can claim p(otection from
eviction by showing his readiness and willingness to pay the
arrears of rent before the date of the institution of the suit. The
appellant's husband was a tenant of a fiat. The rent was in arrears
135
136
SUPREME COURT llBPORTS
[1967] I S.C.lt.
for a period of more than six months. On December 22, 1956,
the landlord served a notice 011 the tenant demanding the rent.
The tenant neglected to pay the rent
within one month of the
notice. On January 11, 1957, he died.
On February 4, 1957,
the appellant sent the arrears of rent to the landlord by money
order, but the landlord refused to accept the payment.
On February 5, 1957, the landlord instituted the present suit for eviction of the appellant. The trial Court decreed the suit.
The
appellant filed a revision application before the Bombay High
Court, but this applicati0n was dismissed by the High Court.
It is to be noticed that the rent was in arrears for a period
of more than six months. The tenant neglected to make payment of the arrears of rent within one month of the service of
the notice by the landlord under sub-s. (2) of s.12. The rent was
payable by the month, and there was no dispute regarding the
amount of the rent. The case was, therefore, precisely covered
by sub-s. (3)(a) of s. 12. Nevertheless, the appellant submitted
that as· she was ready and willing to pay the rent before the institution of the suit, she could claim protectio11 under sub-s. (I) of
s. 12. She submitted that the decided cases support this contention.
In Mohan/a/ v. Maheslnrari Mills Ltd.( 1), P. 1\. Bhagwati,
J. held that even in a ease falling under sub-s. (3) (a), a tenant could.
by paying or showing his readiness and willing11ess to pay the
arrears of rent before the institution of the suit, claim protection from
eviction under sub-s. (I). A similar opinion was expressed by a Divisional Bench of the Gujarat High Court in
Amba/al v. Rabaldas('). The judgment
under appeal dissented
from the view expressed by the Gujarat High Court. The Bombay
High Court held, and, in our opinion, rightly, that in a case falling under sub-s. (3)(a), the tenant I could not claim protection
from eviction by showing his readiness and willingness to pay the
rent before the institution of the suit.
Sub-section (I) of s. 12 imposc1 a general restriction on the
landlord's right to recover possession of the premises so Jong
as the tenant pays or is ready and willing to pay the rent and observes and performs the other conditions of the tenancy.
Subsection (2) of s. 12 imposes the further restriction that no suit for
recovery of possession on the ground of non-payment of rent shall
he instituted by the landlord until the expiration of one month
after a notice in writing demanding the rent.
Sub-section (3)(a)
provides for the consequences which will follow where the rent
is payable by the month, there is no dispute regarding the amount
of rent, the rent is in arrears for a period of six months or more,
and the tenant neglects to make payment within one month of the
~ervice of the notice under sub-s '(1). In such a case, the te11ant
------
(1} (1962) 3 Gujaral Lav.· Reporter, 574 at pp. 618 lo 621.
(2) (1962) 3 Gujarat Law Reporter 6'.!:", 644.
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MANOJtAMA v. l>HANLAXMI (Bachawat, J.)
137
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cannot claim any protection under sub-s. (I), and the Court is bound
to pass a decree for eviction. At the material time, sub-s. (3) (a)
of s. 12 read :
"Where the rent is payable by the month and there
is_ no dispute regarding the amount of standard rent
or permitted increases, if such rent or increases are in
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arrears for a period of six months or i;nore and the tenant.
neglects to make payment thereof until the expiration
of the period of one month after notice referred to in sub-s
(2), the Court may pass a decree for eviction in .any such
suit for recovery of -possession."
The word "may" in this sub-section has the effect of "shall". - In
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Bhalya Punjalal Bhagwanddin v. Dave Bhagwatprasad Prabhuprasad(1), this Court held that where the requirements of sub-s.
(3)(a) were satisfied, the Court was bound to- pass a decree for
.eviction. The section has now been suitably amended, and the
word "shall" has been substituted for the word "may" by-Maharashtra Act No. 14 of 1961_
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If the conditions of sub-s. (3)(a) are satisfied, the tenant cannot claim any protection from--eviction under the Act. By ten·
dering the arrears of rent after the expiry of one month from the
service of the notice under sub-s. (2), he cannot claim the protection under sub-s. (!). It is immaterial whether the tender was
made before or after the institution of the suit. In a case falling
within sub-s. (3)(a), the tenant must be dealt with under the special
provisions of sub-s. (3)(a), and he cannot claim any protection from eviction under the general provisions of sub-s. (I).
The landlord is vested with the right to recover possession of
the premises if the rent is in arrears for a period of six months
. or more, "the tenant neglects to make payment thereof until the
expiration of the period of one month after notice referred to
in sub-s, (2)", and the other crnditions of sub-s. (3)(a) are satisfied. This right cannot be defeated by showing that the tenant
was ready and willing to pay the arrears of rent after the default,
but before the institution of the suit. In effect, the appellant
asks us to rewrite the section and to substitute in it the following
condition : "the tenant neglects to make payment thereof until
the date of the institution of the suit." It is not possible to rewrite the section in the manner suggested by the appellant.
The appellant's case fell precisely within sub-s. (3)(a) and
she could not obtain immunity from eviction by tendering the
rent before the institution of the suit.
The appeal is dismissed with costs.
V.P.S.
Appeal dismissed.
(!) [1963] 3 S.C.R. 312, 330·331.
Ml4 Sup. Cl/66-10
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