Koli Gaju Zina v. Koli Samant Bhikha — 1976 DIGILAW 57 (GUJ)

JUDGMENT : S.H. SHETH, J. 1. The plaintiff filed against the defendant the present suit in the Court of the Civil Judge, Senior Division at Porbandar for recovering possession of the suit premises on the grounds that he reasonably and bona fide required them for his personal occupation and that the defendant had been in arrears of rent. The defendant denied the plaintiff's claim. 2. The learned Trial Judge believed the plaintiff's reasonable and bona fide requirement of the suit premises but found that, if the decree for possession was passed, greater hardship would be caused to the defendant than it would be caused to the plaintiff if it was not passed. So far as arrears of rent were concerned, he held that the plaintiff's claim was governed by section 12(3)(b) of the Bombay Rent Act and that the defendant had deposited all arrears of rent in Court in time. He, therefore, dismissed the plaintiff's claim for possession though he passed in favour of the plaintiff a decree for Rs. 56/- 4 being the arrears of rent and Rs. 10.80 for notice charges. 3. Since the plaintiff's claim for possession was dismissed, the plaintiff appealed against that decree to the District Court. The learned appellate Judge confirmed the findings recorded by the learned Trial Judge on the plaintiff's reasonable and bona fide requirement and on the question as to whom greater hardship would be caused. However, he upheld the plaintiff's claim for possession on the ground of arrears of rent and passed in favour of the plaintiff the decree for possession. 4. It is that appellate decree which is challenged by the defendant in this Civil Rivision Application. 5. Mr. Vyas who appears for the defendant has raised the following contentions:- 1. The notice of demand of arrears of rent served by the plaintiff upon the defendant under section 12 was bad in law because the rent was demanded not in terms of the British Calender months but in terms of the Gujarati Calender months. 2. The suit is also not maintainable on that ground. 3. All the heirs of the original landlord did not serve upon the defendant the notice to quit and therefore it was bad in law. 4. The Lower Appellate Court was in error in holding that at appellate stage the defendant was not protected by section 12(3) of the Bombay Rent Act. 6. 3. All the heirs of the original landlord did not serve upon the defendant the notice to quit and therefore it was bad in law. 4. The Lower Appellate Court was in error in holding that at appellate stage the defendant was not protected by section 12(3) of the Bombay Rent Act. 6. The first two contentions which Mr. Vyas has raised bring into picture my decision in Jethanand Dulhanumal Lalvani v. Pratapray Parshottam, Proprietor of Parshottam Hemchand Bhavnagar, 16 GLR 496. The learned single Judge before whom this Civil Revision Application came up for final hearing did not agree with the principle laid down in that decision and therefore he referred this Revision Application to the Division Bench. On the same question Civil Revision Application No. 1353 of 1972 and Civil Revision Application No. 952 of 1973 have also been referred by the learned single Judge to the Division Bench. In the latter-mentioned two Revision Applications we are dictating separate judgments. However, we have heard all the learned advocates appearing in these three Civil Revision Applications on the common question whether my decision in Jethanand's case (supra) lays down the correct principle of law. Mr. Vyas appearing for the defendant has very strenuously and vehemently tried to support the principle laid down therein. After having considered section 27 of the Bombay Rent Act and Rule 4 of the Bombay Rent Rules it has been laid down in that decision that the legislature at the commencement of the Bombay Rent Act wanted to introduce the uniform system in the matter of pay ability of rent. The legislature, therefore, provided for a smooth transition from any other method followed by a landlord and a tenant in the matter of pay ability of lent to the method of paying rent according to the British Calendar. In addition to providing for smooth transition, it has been further observed in that decision, the legislature has provided under sub-section (1) of section 27 that after the Bombay Rent Act came into force no landlord could charge his tenant rent according to any other calendar than the British Calendar. Having thus observed, it has been further laid down in that decision that the suit filed on the ground of arrears of rent calculated according to the calendar not answering the description of the calendar specified in sub-section (1) of section 27 is not maintainable. Having thus observed, it has been further laid down in that decision that the suit filed on the ground of arrears of rent calculated according to the calendar not answering the description of the calendar specified in sub-section (1) of section 27 is not maintainable. There is no dispute before us that under section 27 rent is recoverable only in terms of the British Calendar. It cannot be recovered in terms of any other calendar. However, the challenge which has been made by the learned advocates appearing on behalf of the landlords is that though rent can be recovered only in terms of the British Calendar a suit tiled for recovery of possession on the ground of arrears of rent calculated in terms of any other calendar cannot be said to be ipso facto not maintainable. The argument which has been advanced is that at the most the Court will work out the arrears of rent in terms of the British Calendar. In that decision I have quoted sub-section (1) of section 27 which reads as under. "Notwithstanding anything contained in any law for the time being in force or any contract, custom or local usage to the contrary, rent payable by the month or year or portion of a year shall be recovered according to the British Calendar'. Having reproduced sub-section (1) 1 have observed that it has been worded in absolute language. I have so stated in that decision because a landlord is under a statutory obligation to recover rent according to the British Calendar irrespective five of any other contract between the parties or "notwithstanding anything Contained in any contract, custom or local usage to the contrary". I have further observed in that decision that the absolute language in which sub-section (l) of section 27 has been worded shows that, if there is any contract between a landlord and a tenant to recover rent according to any calendar other than the British calendar , it is void. This view of mine is based upon the language of sub-section (1) of section 27 which recognizes only the British Calendar so far as the pay ability of rent is concerned. I have further observed that sub-section (1) of section 27 is enacted for a very good purpose because in our State there are many calendars. Different sections of people have different calendars. I have further observed that sub-section (1) of section 27 is enacted for a very good purpose because in our State there are many calendars. Different sections of people have different calendars. In order introduce uniformity in the matter of pay ability or rent, the legislature has advisedly introduced the British Calendar for paying the rent. Relying upon the language of sub-section (1) of section 27. I have further observed that the absolute language in which sub-section (1) of section 27 has been worded renders, all contracts to recover rent except in accordance with the British Calendar void. I, therefore, took the view that the plaintiff in that case could not have claimed rent according to Gujarati Calendar nor could he have claimed possession on the basis of arrears of rent calculated according to the Gujarati Calendar. Reference has also been made in that decision to sub-section (2) of section 27 of the Bombay Rent Act read with rule 4 of the Bombay Rent Rules which provides for smooth transition from situations obtaining in this behalf during the period prior to the Bombay Rent Act to the uniform system provided by section 27. 7. Mr. Vyas has argued that section 27 is mandatory because it uses the expression "Notwithstanding anything contained in any contract, custom or local usage to the contrary." He has tried to analyse the implications of this provision and argued that, if the British Calendar is followed, a landlord will recover rent for 12 months in h year and, if the Gujarati Calendar is followed, he will be able to recover rent for 13 months in a year every alternate year. According to Mr. Vyas, this is what section 27 of the Bombay Rent Act seeks to prohibit. He has tried to read section 27 with section 7 and to argue that the landlord cannot charge more than the standard rent calculated in terms of the British Calendar. Therefore, if the requirement to follow the British Calendar was held to be directory and not mandatory, it would violate other provisions of the Bombay Rent Act which require the landlord to recover from his tenant only the standard rent calculated in terms of the British Calendar months. Therefore, if the requirement to follow the British Calendar was held to be directory and not mandatory, it would violate other provisions of the Bombay Rent Act which require the landlord to recover from his tenant only the standard rent calculated in terms of the British Calendar months. According to him, if a landlord recovers standard rent not for 12 months in a year according to the British Calendar but for 13 months in a year according to the Gujarati Calendar whenever it has 13 months in a year, it would be violating the provisions of the Bombay Rent Act, particularly section 7. In other words, the argument which Mr. Vyas has raised is that the Bombay Rent Act prescribes a form and it must be strictly complied with in order to avoid undue prejudice to the tenants. It is true that if a law prescribes a form the compliance or non-compliance with which does not produce any difference, nothing turns upon it. It can certainly be held to be a directory requirement of law. But if non-compliance with a form prescribed by law causes prejudice to a party, then it must be held that compliance with the form mandatory. The principle which Mr. Vyas has tried to enunciate appears to us to be attractive. He has next argued that that the Bombay Rent Act enacted for the benefit of tenants and that, therefore, it should be interpreted in order to further the object of the Act. On the strength of this general argument Mr. Vyas has contended that the demand of a pie more than what is due to the landlord in law must not only be fatal to the landlord's claim for possession but also to the statutory notice of demand served upon the tenant under section 12. He has tried to draw a thin line of distinction between an excessive demand and demand made contrary to law. He has argued that, if a landlord demands more rent than is due from his tenant, the notice of demand served by his upon his tenant under section 12 is not bad in law but, if a landlord demands of his tenant rent on an altogether different basis which the law excludes, then such a notice of demand is bad in law. Mr. Naik who appears for the defendant-tenant in Civil Revision Application No. 1353 of 1972 has supported Mr. Mr. Naik who appears for the defendant-tenant in Civil Revision Application No. 1353 of 1972 has supported Mr. Vyas Mr. J.R. Nanavaty who appears for the defendant-tenant in Civil Revision Application No. 952 of 1973 has not at all argued the case for the tenant because he wants to argue for the landlord on whose behalf he appears in Civil Revision Application No. 462 of 1972. Mr. J.R. Nanavaty has in reply invited our attention to section 27 of the Bombay Rent Act and emphasised that sub-section (1) thereof cuts accross all laws for the time being in force, all contracts, customs and local usages to the contrary and renders mandatory the recovery of rent only according to the British Calendar. In other words, recoverability of rent according to the British Calender has nothing to do with arrears of rent simpliciter and claim for possession made by a landlord on that basis. In other words, there is no dispute about to proposition that a landlord is entitled to recover rent from his tenant only according to the British Calendar. The only dispute which has been raised before us is that, if a landlord makes a claim from possession on the basis of arrears of rent or if he makes a bare claim for recovery of arrears of rent not according to the British Calendar but according to any other calendar his claim cannot be rendered ipso facto void. All that the Court is requited to do is to adjudicate upon the plaintiff's claim in terms of the British Calendar and give him a decree if the facts of the case so considered permit such a decree to be given to him. In other words, according to Mr. Nanavaty, the Court has to modify the contract between the parties and adjudicate upon the tenant's liability in terms of the British Calendar. 8. In that behalf he has invited our attention to the decision of the Supreme Court in Bhaiya Punjalal Bhagwanddin v. Dave Bhagwatprasad Prabhuprasad and others, AIR 1963 Supreme Court 120. In that decision the Supreme Court has considered the scheme of section 27 of the Bombay Rent Act with which I was concerned in my decision under review. In that case the tenancy of the tenant originally was according to the Hindu Calendar. The notice to quit was also served by the landlord it terms of the Hindu Calendar. In that decision the Supreme Court has considered the scheme of section 27 of the Bombay Rent Act with which I was concerned in my decision under review. In that case the tenancy of the tenant originally was according to the Hindu Calendar. The notice to quit was also served by the landlord it terms of the Hindu Calendar. It is in that context that the Supreme Court considered the provisions of section 27 of the Bombay Rent Act and Rule 4 of the Bombay Rent Rules and observed that the section or the rule does not contain anything about the conversion of the month of the tenancy from the month according to the Hindu Calendar to the month according to the British Calendar. They only provide for the recoverability of the rent according to the British Calendar. Since the enforcement of the Act on 13-2-1948, the monthly rent would be for the month according to the British Calendar and that it could be recovered after the expiry of a month from that date or the rent for the period from the 13th February to the end of the month could be recovered at the monthly rate and thereafter after the expiry of each calendar month. The Supreme Court has further observed that there is nothing in section 27 or Rule 4 in regard to the date from which the month for recovery of rent should commence. According to the Supreme Court, the provision was made as a corollary to the statute providing for standard rents because standard rents necessitate standard months. Thereafter the Supreme Court has observed as under :- "There are a number of calendars in use in this country. The Hindus themselves use several calendars. The Muslims use a different one. Some calendars are used for particular purposes. It appears to be for the sake of uniformity and standardisation that a common calendar was to govern the period of the month of the tenancy and the date for the recovery of the rent. Rule 4 provided a procedure for adjustment of the recovery of the rent according to a calendar other than the British Calendar, and further provided that the rent chargeable per month, according to the British Calendar, would not exceed the rent which was chargeable per month according to the other calendar followed immediately before that date. Rule 4 provided a procedure for adjustment of the recovery of the rent according to a calendar other than the British Calendar, and further provided that the rent chargeable per month, according to the British Calendar, would not exceed the rent which was chargeable per month according to the other calendar followed immediately before that date. In the absence or any specific provision in the Act with respect to any alteration to be made in the period of the month of the tenancy, it cannot be held merely on the basis of an alteration in the period for the recovery of rent that the monthly period of tenancy had also been changed. The tenancy can be from month to month and the recoverability the rent may not be from month to month and may, under the contract, be based on any period say, a quarter or half year or a year. There is nothing in law to make the month for the period of recovering rent synchronise with the period of the month of the tenancy. The tenancy must start on a particular date, and, consequently, its month would be the month from date, according to the calendar followed. The months of tenancy according to that calendar are settled by contract from the commencement of the tenancy. The tenancy under a lease for a certain period starts from a certain date, be it according to the British Calendar or any other Calendar. The period of lease, and consequently the tenancy, comes to an end at the expiry of that period according to the Calendar followed by the parties in fixing the commencement of the tenancy. A lease, even according to the British Calendar, can start from any intermediate date of the calendar month. There is nothing in section 27 to indicate that the month of the tenancy in such a lease will start from the first of a regular month. Section 27 simply states that the rent would be recovered according to the British Calendar without fixing the first date of the month as the date from which the month for the purposes of the recovery of the rent would be counted. It follows that the month of the tenancy which commences on the 14th of a month would be from the 14th to the 13th of the next month according to the British Calendar. It follows that the month of the tenancy which commences on the 14th of a month would be from the 14th to the 13th of the next month according to the British Calendar. The rent would be recoverable with respect to this period of a month. No interference with any such term of the contract has been made by any provision of the Act and therefore we hold that the provisions of section 27 of the Act and Rule 4 of the Rules do not in any way convert the month of the tenancy according to the Indian Calendar to the month of the British Calendar." When I decided Jethanand's case (supra) this decision of the Supreme Court was not brought to my notice. 9. Mr. Oza who appears for the landlord in a companion matter has argued that the Bombay Rent Act has been enacted to gibe protection to tenants from eviction and exorbitant rents and that a tenant who wants to save his possession has to show his readiness and willingness to pay the arrears of rent irrespective of whether those arrears of rent have been calculated in terms of the Gujarati Calendar or in terms of the British Calendar. Mr. Vyas has in reply argued that arrears of rent lead to two reliefs which a landlord can get. The first relief is the recovery of possession and the second relief is tine decree for rent. In our opinion, the principle laid down by the Supreme Court in Bhaiya Punjalal's case (supra) must be given effect to and the principle which laid down in Jethanand's case (supra) must be modified in the light of that princiciple. In the light of the principle laid down by the Supreme Court we are of the opinion that section 27 of the Bombay Rent Act only provides for recovery of rent by it landlord from his tenant on the basis of the British Calendar and no other calendar. The applicability of section 27 must, therefore, be confined to recoverability of rent alone. Therefore, the principle laid down in Jethanand's case where I stated that a contract to recover rent according to any calender other than the British Calendar was, in terms of the absolute language used by sub-section (I) of section 27, void was not a correct principle. The applicability of section 27 must, therefore, be confined to recoverability of rent alone. Therefore, the principle laid down in Jethanand's case where I stated that a contract to recover rent according to any calender other than the British Calendar was, in terms of the absolute language used by sub-section (I) of section 27, void was not a correct principle. If a landlord makes a claim on the basis of a calendar other than the British Calendar, all that is required to do is that the Court must adjudicate upon the landlord's claim in terms of the British Calendar if it can do so and give such relief to the landlord as the facts and circumstances of the case warrant it to be given. If in a given case the Court is not able to give relief to a landlord because he has based his claim upon a calendar other than the British Calendar the landlord should be given an opportunity if he wants one, to amend the plaint and to set right his claim or to restate his claim in terms of the British Calendar. In such a case it will be the amended claim which will have to be adjudicated upon by the Court. In case the court is not able to give the landlord any relief on the basis of the claim made by him in terms of a calendar other than the British Calendar and if the landlord does not want to amend the plaint in order to set his claim in order for the purpose of being adjudicated upon, then the only alternative which will be left to the Court will be to dismiss his claim. The principle which have laid down in Jethanand's case (supra) must therefore stand modified to aforesaid extent. 10. The next aspect of this common contention which Mr. Vyas has raised is that a notice of demand served by a landlord upon a tenant under section 12 must also be held to be bad and void in law if by that notice the landlord has demanded rent not according to the British Calendar but according to some otter calendar. That argument does not appeal to us. Challenge to the validity of the notice of demand on this ground was not made before me in Jethanand's case (supra). That argument does not appeal to us. Challenge to the validity of the notice of demand on this ground was not made before me in Jethanand's case (supra). Analysing the situation in terms of the principle laid down by the Supreme Court in Bhaiya Punjalal case (supra) we must hold that, if a landlord makes a demand under section 12 of rent in terms of a calendar other than in British Calendar, then at the most he can be said to have made an excessive demand. An excessive demand made by a landlord does not ipso facto invalidate the statutory notice. If a landlord makes an excessive demand it is for the Court to decide whether it is a correct demand or excessive demand. If the Court comes to the conclusion that it is an excessive demand, then the Court finds out what is the correct demand and whether any relief can he given to the landlord in the light of the correct demand. The argument which Mr. Vyas has raised is principally based upon the facts that a demand made on the basis of a calendar other than the British Calendar is not merely an excessive demand but an illegal demand or in other words, according to him, if the basis on which the demand is made is unlawful (and he has in mind section 27(1) of the Rent Act), then the entire notice of demand is bad. We do not think so. We are of the opinion that accuracy of demand does not form the basis of the validity of the notice. 11. In Modi Mohanlal Bhagwandas and another v. Shah Keshavlal Jethlala, 8 GLR 814. Mr. Justice Vakil has taken the view that, merely because in the notice a claim far it larger am suit than the standard rent and permitted increases is made, the notice is not rendered illegal. What is intended by the legislature by providing for giving of a notice is that the tenant must know what was demanded from him and, if the notice made it clear that he was demanding also the standard rent and the permitted increases, the notice would comply with the requirement of section 12(1). What is intended by the legislature by providing for giving of a notice is that the tenant must know what was demanded from him and, if the notice made it clear that he was demanding also the standard rent and the permitted increases, the notice would comply with the requirement of section 12(1). In a given case, if by notice any amount is claimed by a landlord which is beyond the amount of arrears of standard rent and permitted increases, the plaintiff may not be entitled to recover that amount ultimately if he acre to file a suit to recover such an amount. However, it does not mean that, where the demand exceeds the actual amount of standard rent and permitted increases, the notice is rendered illegal if such a demand is in excess of such standard rent or permitted increases which may ultimately be held to be the standard rent or premitted increases. Therefore, according to him, when a notice under section 12(2) of the Bombay Rent Act is given for the payment of arrears of rent not at the rate of contractual rent but at a rate higher than that standard rent, the notice itself does not become invalid so as to take away the right of the landlord to institute the suit one month after the notice. In our opinion, the reasons which Mr. Justice Vakil has given for recording that conclusion arc sound reasons. We agree with him fully. 12. That was the view which was also taken by Mr. Justice Raju in Labhabhai Vithaldas v. Laxmidas Vithaldas, 4 GLR 567. In that decision he has observed that, when a notice under section 12(2) of the Bombay Rent Act is given for the payment of arrears of rent not at the rate of contractual rent but at a rate higher than the standard rent, the notice itself does not become invalid so as to take away the right of the landlord to institute the suit one month after the notice. According to him, it is the fact of the notice which is important under section 12(2) and not the correctness of the contents of the notice. According to him, it is the fact of the notice which is important under section 12(2) and not the correctness of the contents of the notice. A contrary view was taken by the Saurashtra High Court in Harivallabh v. Megbji, 8 Saurashtra Law Reporter 348 in which it was held that the expression "standard rent or permitted increases" used in sub-section (2) of section 12 of the Saurashtra Act meant the standard rent or permitted increases as ultimately fixed by the Court and that the demand in notice must conform to that figure. Adverting to this view he expressed the opinion that such an interpretation would lead to an impossible position because in every case the landlord would be required to approach the Court immediately after letting out the premises for fixation of the standard rent because, unless it was fixed, lie would not be in a position in future to serve upon his tenant statutory notice of demand under section 12. We are in full agreement with the reasons which Mr. Justice Raju has given in support of his conclusion. 13. Our attention has also been invited to the unreported decision of the Supreme Court in Gaurishankar Chhitarmal Gupta v. Shrimati Gangabai Tokersey, C. A. No. 366 of 1967 D/d. 8-1-1971. In that case a contention was raised on behalf of the tenant, governed by the Bombay Rent Act, that the notice of demand served upon him under section 12 was invalid because no particulars were given so as to make the tenant know how the sum demanded of him had been arrived at. After having observed that the notice served upon the tenant in that case did not give the break up of the sum demanded of him, the Supreme Court has expressed the view that if the tenant did not understand how a particular amount was demanded of him, he should have called for information from his landlord by sending a reply to him. According to the Supreme Court, the bald statement that the claim was excessive without having cared to elicit the particulars of the claim was of no use. The tenant is supposed to be aware of the rent which he is required to pay. In view of those reasons the Supreme Court rejected the contention which was raised on behalf of the tenant. The tenant is supposed to be aware of the rent which he is required to pay. In view of those reasons the Supreme Court rejected the contention which was raised on behalf of the tenant. The decision of the Supreme Court emboldens us in taking the view that an excessive demand made of a tenant in the statutory notice served upom him under section 12 does not invalidate the notice itself. 14. Mr. Nanavaty has invited our attention to Order 7, Rule 2 and Rule 7 of the Code of Civil Procedure and also to the decision of the Supreme Court in Bhagwati Prasad v. Chandramul, AIR 1966 Supreme Court 735 in order to bring home to us that the demand of an approximate amount does not disentitle a plaintiff from making rood his correct claim and also to bring home to us that what should prevail with the Court is not the form but the substance of the matter. Since in this case, the decision', of the Supreme Court in Bhaiya Puirjalal's case (supra) has direct application it is not necessary to enter into a detailed reasoning about the applicability of general principles incorporated in Order 7, Rule 2 and Rule 7 and the principle laid down in Bhagwati Prasad's case (supra). The first two contentions which Mr. Vyas has raised, therefore, must fail. In fact, Mr. Vyas has raised these contentions not for the purpose of challenging a finding directly recorded against the defendant in this Civil Revision Application but for the purpose of challenging the decree for possession passed at the appellate stage on the ground that the defendant had forfeited the protection of the Bombay Rent Act on account of his having not regularly deposited the rent in Court during the pendency of the appeal. If we had upheld the first and the second contentions or either of them which Mr. Vyas has raised, then irrespective of anything else the suit would have been required to be dismissed. However, in view of the findings which we have recorded we are unable to come to the conclusion to which Mr. Vyas wants us to come.