Gurugobint1• v. Sankari Prasai

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 chal lenged 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 con firmed. It is against this decision that the appellant has come to this Court: and on her behalf. Mr. Pai has con tended that the High Court was in error in holding that the requirements of s. 12(3) (a) as amended justified the pas sing 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 re covery of possession of any premises so long as the tenant pays or is the amount of the ready to pay, if any, and standard rent and permitted increases, observes and performs the other conditions of the tenancy, in so far as they are consistent with the pro visions of this Act. (2) No suit for recovery of possession shall be institut ed by a landlord against a tenant on the ground of non-payment of the standard rent or permitted increa ses 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 - - 328 SUPREME COURT REPORTS [1964} 1%3 we are not concerned in the present appeal. Vasumatiben Gaurishank_ar · Bhatt v. Navairam Manchharam Vora and Others Gajendragadkar /. 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 v. Ratikant Nilkant and Kurban Hussen Sajuddin 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 deci sions that we have to consider the contention of the appel lant 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. 1963 Vasumatiben Gaurishank.ar Bhatt v. Navairam Machh'ardm Vora and Others G~jendragadkar /. 4 S.C.R. SUPREME COURT REPORTS 329 imagine that she knew that her 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 pen dency 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 failure to pay the arrears of rent immediately on receiving the notice would not that she would to her eviction and 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 amend ment 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. this argument. What to accept s. 12(3) (a) requires is that in cases where there is no dis pute between the landlord and the tenant regarding the amount of standard rent or permitted increases, if the land lord is able to show that the tenant is in arrears for a period of six months or more and the said arrears con tinued 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 require ments 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. We are unable 22-2 SC India/64 - ; ' 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 neg lected 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). force. He Mr. Pai then contends. that s. 12(3) (a) seems t<;> sug gest 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 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 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. 1963 V asumatiben Gaurishank.ar Bhatt v. Navairam Machharam Vora and Others Gaicndragad k.ar /. Appeal dismissed LACHMAN UTAMCHAND KIRPALANI v. MEENA alias MOTA 1963 August 14 (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 just cause-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 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 ter minates by reason of the conduct of the deserted spouse. ,