Vishwambhar Hemandas Vs Narendra Fethalal Gajjar

@JUDGMENTTAG-ORDER

1. This Revision Application is filed against the concurrent judgments and decrees of eviction on the ground of nonpayment of rent under S. 12(3)(a) of the Bombay Rent Act. The lower Courts have come to the conclusion that under S. 12(3)(b) the petitioner tenant has deposited all the rent on the first date of hearing and also continued to regularly deposit the rent during the pendency of the suit as well as during the pendency of the appeal. For coming to the conclusion that the rent is payable by month, he has held that the tenant was not required to pay taxes. However, this finding is clearly contrary to the plaintiffs own evidence. The learned appellate Judge has observed in para II of his judgment that "the plaintiff does say on oath that rent of Rs. 19.50 is inclusive of taxes". In view of this admission and finding that the amount of Rs. 19.50 includes taxes, the conclusion of the lower Court that rent is payable by month, is clearly untenable. The taxes are payable by year and merely because the tenant pays it along with the rent every month, it does not mean that the element of tax is payable by month. Since the rent is admittedly inclusive of taxes, it cannot be said that the rent is payable by month. If the rent is not payable by month as is now found, S. 12(3)(a) cannot apply and the lower Courts, have clearly gone wrong in passing the decree for possession under S. 12(3)(a). Therefore that decree is required to be quashed and set aside. Under S. 12(3)(b) there is full compliance and, therefore, there is no question of passing any decree for possession under S. 12(3)(a) or S. 12(3)(b). Hence the suit for possession on the ground of arrears of rent is required to be d ism issed.

2. It was also contended by the petitioner that he had always been ready and willing to pay the rent and, therefore, under S. 12(l) the landlord was not entitled to sue for possession'' on the ground of arrears of rent. However, it is not necessary to decide this question because otherwise also the landlord fails in the present suit.

3. In the result, the Revision Application succeeds and the rule is made absolute by quashing and setting aside the judgment of the lower Courts and by dismissing the suit of the respondent plaintiff. There will be no order as to costs throughout.

4. Revision allowed.