DHAN SINGH RAMI<RISHNA CHAUDHRI & Ors. v. LAXMINARA YAN RAMKISHAN & Anr.

Mr. Bhandare, learned Counsel for the appellants has canvassed the following points : (i) that there was no failure to pay rent by the tenant as the agreed rent had not been established and the tenant has been paying the rent every year at the rate of Rs. 500 / which, according to him. was the agreed rent; (ii) Section 25(2) is attracted only if the amount of arrears exceeds the aggregate of two years' ren;!. This is not the case here. G Reliance has been placed on this Court's decision in Vithal Vasudeo Kulkarni and ors. v. Maruti Rama Nagane and ors. (1) wherein the earlier decision of this Court in Raja Ram Mahadev"s case ( supraJ) was distinguished. The first question to be considered is : Did the Court of Extra Aval Karkun determine the agreed rent payable by the tenant within the meaning of s. 7 of the Act? · H An analysis of the definition of s. 7 would show that the rent payable by a tenant (subject to the maximum rate fixed under s. (6) (2) [1968] I, S. C. R. 541. 8-L !31 Sup Cl/75 98 SUPRBMB COURT REPORTS [1975] l.S.C.R. is (a) the rent agreed upon between such tenant and landlord pr (b) in the absence of any agreement, the rep.t according to usage of the locality or ( c) where there is dispute as regards the reason ableness of the rent payable according to such agreement or usage, tho reasonable rent. The case before us, fell under Clause (a). Tl!e landlord alleit ed that the agreed rent was Rs. 850/-. Since the rent fixed under tho G<:>vernment Notification was less than the agreed landlord actually claimed an amount as rent calculated on the basis of the lower rate i.e. Rs. 68515/- per annum. However, the tenant cont.nded that the agreed rent was Rs. 500/- per annum. The Extra Aval Karkun reduced this point of controversy into an issue to this effect : rent, "No. 4. What was the rent fixed between the parties in respect of the suit lands." He aD11wered this point, as "Rs. 685/5/-." His reasonini in arriving at this finding was that "in the absence of any written document or suflicient oral evidence, the mere stater It will have therefore men!S (of the parties) cannot be relied upon. to be presumed that the rent of the suit lands was fixed according to Government Notification No. 3490/49 dated September 1, 1952 as five times the assessment". II is to be noted that the suit land was assessed to Rs. 137/1/ and fivo times of that assessment works out to Rs. 685/5/-. Though the language employed by the Aval Karkun with regard reliability and sufficiency of the statement of the landlord was inapt and unhappy, yet there is n,o doubt that in substance, he accepted the landlord's stand that the_ agreed rent which was Rs. 850/- wonld be presumed to have been scaled down by the parties to Rs. 685 /5 / in accordance with the Government Notification. The fact remains tl)e parties, was that he found that the Rs. 685/SJ-. fixed between It is important to bear iri mind that the tenant did not appeal against this determination whereby the Aval Karkun had rejected his contention regarding the rent being Rs. 500/-. This determina tion therefore, that the agreed rent as scaled down, was Rs. 685 /5 / had become final, so far as the tenan.t was concerned. The landlord felt aggrieved against that part of the· order by which the Aval Karknn had granted relief to the tenant against forfeiture. He therefore, carried an appeal against the order of the Karkun to the District Deputy Collector. The Deputy Collector, who was the final tribunal of fact, in his order dated September 30, 1961, noted "that the rent of the suit land was fixed at Rs. 850/-, as could be seen. from the entry of V. F. VII-XII of S. Nos. 12 of Bhokani village". But in view of the fact that under the Govern ment Notification of September 1, 1962, the maximum rent charge able in respect of the land in dispute could not exceed Rs. 685 . 31, • .. A B c D E F G H • A B c 0 • E F H DllJ\N SINGH v. L~XMINARAYAN (Sarkaria, J.) 99' he upheld the carrying over and adjustment of a part of the rent paid tor the year 1952-53, in excess of the maximum notified rate, allowed by the Aval Karkull;, towards the rent for the year 1953-54 . It is noteworthy that the contractual rent for the years 1950-51 and 1951-52 was Rs. 850/- per annum. The tenant had defaulted to pay the rent of those years. The landlord instituted proceedings for the tenant's eviction. Those proceedings ended in a compromise on February 24, 1952, according to which, the tenant was to pay the arrears at the rate of Rs. 850/- per year within a stipulated time failing which the landlord could enforce forfeiture counting previous defaults for 1950-51 tenant paid Rs. 1700/- towards the two years ren.t at the agreed rate, but beyond the stipulated time. Before the Deputy Collector, landlord contended that the previous defaults should also be taken into account so that the tenant was not entitled to any relief "gains! forfeiture. The Collector did not accept this contention for the reason that "there has been a compromise between the parties and so the force of wilfulness of default does not remain". The Deputy Collector decreed the landlord's claim to rent presumably at the rate of Rs. 685/5/- per annum, but somewhat inconsistently remanded the case to the Karkun for calcula.ting the exact amount of arrears upto the date of the order". and 1951-52. The The tenant did not challenge this order by way of revision or It is therefore too late in the day for the apQellants to otherwise. urge that the agreed rent for the years in question was not Rs. 685/5/- but Rs. 500/- per annum. Rs. 685/5/- per annum being the rent payable, there could be no_ manner of doubt that the tenant had defaulted for the three years in question in payment of that rent in two ways. Firstly, he did not pay the full rent due for any particular year; he made only part-payments. Secondly, he did not pay within the period specified according s. 14. As admitted before us, the rent was payable by the 25th February of the year for which it was due. In 1953-54. he paid Rs. 350/-, but credit was given to him later by the authorities for Rs. 164/ll./ by adjusting that amount out of Rs. 850/- which he had paid as agreed rent for the year 1952-53. Thus he paid Rs. 514/11/- only and Rs. 170/10/- remained ou'standing for the year 1953-54. He paid npthing for the year 1954-55. His claim that he had paid Rs. 500/- in that year was found to be false. He made a part payment of Rs. 394/3 /- only towards the rent for the year 1955-56. on February 29. 1956 i.e. after the expiry of the period indicated in s .14. In this defaulting manner. the total amount paid by the tenant for these three years was Rs. 1045/12/- and_ the total balance of ren.'t in arrears due from him, was Rs. 1010/3/- made up as b•clow: Arrears for the year 1953-54 Arrears for the year 1954-55 Arrears for the year I 955-56 Rs. 170-10-0 Rs. 685-5-0 Rs. 154-4-0 - - - - - - - - - · - Rs. 1010-3-0 1 0.0 SUPREME COURT REPORTS (1975] l S.C.R. The question that ,fell for decision wa,s : Whether on the above facts, the tenant could be held to have failed within the contempla tion of sub-section (2) of s. 25, as it stood before 1956, 'for any three years to pay rent within the period specified in section 14'? If the answer .to this question was in the affirmative, then the Aval Karkun/Mamlatdar would have no discretion to grant the tenant lime to pay up the arrears and thus afford relief against forfeiture. s. 25, terms. (2) of 'Failure' in for payment, or both. From a plain reading of sub section manifest that the failures or the delaults in payment for any three regard to the ' amount of years, envisaged by it may be either with rent or the period spcciJied Failure and default are synonymous sense, means 'a fatling short', 'a deficiency' or 'lack'. Default means omis sion of that which a mall; ought to do. Therefore a partial default or failure to pay the whole of the rent due for the ye~rs will also be a failure within the meaning of this sub·section, more so, if these part If the tenant _payments had been made beyond the specified period. makes only part payments of rent for any three years, he would be a persistent defaulter even if the aggregate of the amount in arrears does not exceed the total rent of two years for the · purpose of sub-section. the dictionary It is not susceptible of The language of sub-section (2) is unambiguous, clear anJ un equivocal. therefore, no scope-even with the aid of any rule of beneficien,t inter pretation-for construing this sub-section in a manner contrary its plain ordinary meaning. Moreover, the point is covered by the decision of this Court ii'\ Raja Ram's case (supra) and we are bound by the same. interpretations. There relief again.st In Raja Ram's case (supra) the tenants were in default in paying rent for three years and due notices had been served by the landlords terminating the tenancies. They applied to the Mamlatdar under s. 29 of the Act for possession of the lands. The Mamlatdar refused to tenants were make an order for possession on the ground that entitled to relief :igainst forfeiture on equitable principles. Jn 'fourth' appeal before the Court, in respect of the default in the first forfeiture under year, the tenant had been granted s. 25(1 J of the Act. The tenant contended that the default in first year had merged in the order 'under s. 25 (I) and could not be It was relied upon for holding that he had defaulted for three years. held by this Court that the landlords were entitled possession because upon default in payment of rent for three years a statutory right accrued to the landlords under s. '25(2) to terminate the ienancy 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 ll; Ot 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 a tenant who fails to ]'lay rent for any three years within the period specified to orders • A B c D E F G H DHAN SINGH v. LAXMINARAYANA (Sarkaria, J.) IOI A section 14, either on equitable grounds or under s. 114 of the Trans fer of Property Act. B c D E F G H t • • This decision does not support the appellants' contention that in order that sub-section (2) of s. 25 may be attracted the total amount of arrears must exceed the aggregate rent of two years. Rather the finding that in the "fourth appeal" the default in the first year could also be taken into consideration in computing of three years in spite of the tenant having been relieved against forfeiture for that year, and that the order granting the relief did not wipe out the default, gives an indication to the contrary. Viilza/'s case (supra) does not advance the appellants' case. does not lay down a prin, ciple in conflict with the ratio of Raja Ram's case (supra). In Vithlil's case the rent was payable by the 20th March every year. The rent for the years 1951-52, 1952-53, 1953.- 54 and 1954-55 was paid by the tenant and accepted by the lord though it was not paid on due dates. Thus, on the date on which the landlord filed the application under s. 29 of the Act eviction of the tenant on the ground that the rent had not been paid for the aforesaid years by the due dates. No arrears of rent were ouistanding against the tenant. Dismissing landlord's appeal through which he had filed by special leave, Shelat J., construed s. 25 of the Act thus ·: this Court speaking "Sub section ( l) thus pre-supposes arrears at the date of the application which the Mamlatdar can direct the tenant to pay and that on such arrears being paid the Mamlatdar has to order notwithstandin° the ter mination of the tenancy by the landlord that such tenancy had not been terminated and no order of eviction can be passed against such tenant. Sub-section (2) on the other hand deals with a case where there is persistent default by the tenant for three years and provides that to such a case the provisions of sub·s. (I) would not apply. The Mam latdar in such a case has not the power to order payment of arrears as he would do under snb section ( 1) and on payment of such arrears to direct as he would do under sub section (I ) that the tenancy shall be treated as not having been terminated. also pre supposes (i) that the tenant has made defauli< lnr more than two years and Ui) that the tenant was in arrears at th" date ~f the apvlication which arrears In this case Mam1latdar cannot order the tenant to vay up. Sub-section C2) is in contra distinction of (!) that is to sav whereas in the case of less than 3 defaults ·the Mam latdar can call uoon the tenant to pay the arrears and can on nayment of such arrears direct that the tenancy was not tormina1ed. he cannot do so under sub-section (2) where tliere ere more than two defaults and direct that the tenancy the correct had not been terminated. If this was not Sub-section (2) sub-section therefore 102 SUPREME COURT REPORTS [1975) 1 S.C.R. construction of sub-section (2) and if the appellants' con sttuction were t? be accepted it would lead to a very asto mshmg result, viz., that even where the tenan,t has paid up all the arrears and the landlord has accepted them, he would stiJI have the nght to evict the tenant, though his reason for terminating the tenancy and his cause of action for an action for eviction have disappeared by his acceptance c~ the (emphasis added) arrears due to him." In fact, if the tenant offers and It yrill be seen that in Vithal's case this Court was dealing with an enttrely different s1tuat10n. No arrears were in existence or sub sisting on ~he date of the landlord's application, _whereas present case, a sum to the tune of Rs. 1010/3/- being the total of short payments for the three years in question, was still outstanding landlord against the tenant. accepts the full amount of rent in arrears, the cause of action, ejcctment on the ground of non-payment of rent disappears. The acceptance of rent may amonnt to waiver of the landlord's right to evict. By no stretch of imagination the decision in VithaJ' s case can be understood as laying down that if the amonnt of rent due from the tenant at the date of the landlord's application for eviction does not exceed the total of two years' rent, sub-s. (2) of s. 25 cannot "Arrears" mean; money unpaid at the due time; as rent be apply. hind (see Earl Jowitt's Dictionary of English Law). Sub-section (2) of s. 25 lays down in clearest peremptory terms that if the tenant fails to pay the rent for any three years within the period specified in s. 14, the authority concerned will be left with no discretion under sub-section ( 1) to allow the tenant to pay up the arrears, and on such payment to direct that the tenancy had not been terminated. The words "the tenant has made defaults for more than two years" and "arrears" in the underlined portion of the above quoted passage convey nothing more or differen! from what is explicit in the words "if he has failed for any three years to pay rent within the period specified in s. 14" occurring in sub-section (2) of s. 25. A11 that was intended to emphasise was that even: if the tenant de faults in payment of rent for any three years, but the arrears relat- able to these defaults are cleared as a result of the amount due by the tenant and its acceptance by th!s sub-section (2) will not come into operation and the landlord's appli cation for eviction, when no arrears arc outstanding would not be maintainable. tender of landlord, A c D E F G • It will bear repetition that "failure to pay rent for any · three years" is not the same thing as failure to pay rent equivalent to !J10re than two years rent. Even if the tenant fails to pav part of the rent due in any year within the period specified, in s. 14, he defaults to n pay rent for that year. Such partial defaults are al>o defaults wit~in the contemplation of sub-s. (2) of s. 25. Any other consttuchon results, and even a persistently defaulting would lead to strange DHAN SINGH v. LAXMINARAYAN (Sarkaria, /.) 10 3 tenant would be able to stave off eviction by paying only a part of the rent due every year so that the unpaid arrears aggregate, less than the tot.al rent of two years . remain, In the light of the above discussioo, we negative the contelltioas canvassed on behalf of the appellants uphold the decision of the High In the circumstances of the case, we Conrt and dismiss this appeal. leave the parties to bear their own costs. V.P.S . Appeal di.imissed. A • •