Main Search Premium Members Advanced Search Disclaimer
Cites 14 docs - [View All]
Section 13 in The Delhi Rent Act, 1995
Article 227 in The Constitution Of India 1949
Section 12 in The Delhi Rent Act, 1995
The Delhi Rent Act, 1995
Baldeodas Mahavirprasad vs G.P. Sonavalla on 8 January, 1948

User Queries
Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.
Bombay High Court
Mangalagauri Trikamalal Verma vs Dr. Mrs. Kamal Anil Adhiya on 2 September, 1993
Equivalent citations: 1994 (1) BomCR 718
Author: M Saldanha
Bench: M Saldanha

JUDGMENT M.F. Saldanha, J.

1. This petition once again raises some fine contentions that have been very ably canvassed by the learned Counsel appearing on both sides and which require a determination by this Court. The first of them concerns the position in law with regard to a charge under section 13(1)(k) of the Rent Act where the allegation against the respondent tenant, who incidentally is a lady Doctor, is to the effect that even though in the year 1966 the premises were let out to her for running a Maternity Home, that she had ceased to use the same for that purpose and had consequently committed an action of breach. Where it is undisputed that the tenant has ceased to run a Maternity Home in the premises since about the year 1970-72 but where she contends that she had been residing in the premises all along and that the ground of change of user is therefore not actionable, the debate has centred around the important question as to how and under what circumstances is this ground to be held proved. In other words, whether it is essential that it be demonstrated conclusively that the user was restricted to a particular purpose which had ceased to exist thereafter and where the onus in entirely on the plaintiff-landlord or landlady as happens to be the case, here, to establish this fact. Secondly, it was vehemently canvassed by the learned Counsel that a long period of time covering almost two years had elapsed between the stage at which an actionable breach under section 12(3)(a) of the Rent Act took place by virtue of default in payment of rent after which the tenant had paid up the arrears in the following year and therefore that this cause of action did not subsist. Whether the acceptance of rent constitutes waiver and thereby extinguishment of the cause of action is really the point that needs to be gone into under the second charge. For this purpose, however, it would be useful to recount a few of the salient facts.

2. The suit premises in question belong to the petitioner-landlady and consist of V.P. House Nos. 14, 15 and 16 at Dahanu which came to be purchased from the previous owner on 20th August, 1955. Admittedly the present tenancy had commenced from 1st July, 1966. There is on record at Exh. 50 a letter of offer from the tenant who at the relevant time was a practising doctor, dated 30-6-1966 offering to take the premises in question on lease on certain Terms and Conditions. We are not really concerned with the contents of this letter except to the limited extent of recording that the letter is silent with regard to the purpose for which the premises were being let. The first rent receipt is dated 1-7-1966 and is a normal rent receipt issued by the landlady to the tenant indicating that it was rent for the premises which again does not specify any restrictive user or for that matter indicate that the premises were let for a particular purpose. Thereafter, we have on record another document which is Exh. 48. This is a hand-written letter sent by the tenant Doctor on the letter-head of her Nursing Home dated 14-3-1967 which was roughly nine months after the tenancy had commenced in which she has requested the landlady for a letter specifying that the premises were being used as a Nursing Home and requesting her to issue the necessary letter to the M.S.E.B. for the purposes of reduction of the Electricity Tariff. The record indicates that there were certain disputes between the parties with regard to carrying out of repairs, maintenance etc. and that there were also some disputes with regard to the quantum of rent payable. Ultimately, the landlady served a notice dated 12-5-1972 and another one dated 11-8-1972 pointing out that the tenant was in arrears for the period 1-7-1972 to 11-8-1972. These notices were replied but the tenant did not either pay up the arrears or move the Court for determination of the question of the standard rent. Thereafter, one more final notice was served on 12-9-1972 covering all the claims upto that point of time. In response to this the tenant paid up all the arrears on 11-10-1972 i.e within less than one month. The suit came to be filed ultimately on 10-4-1974. The principal ground canvassed in the suit was that there has been a total change of user. The landlady had contended that the premises had been let out exclusively for running of a hospital, in other words, for commercial purposes and that the tenant had closed down the hospital since the year 1970 that there had been a total change of user in so far as she had shifted into the premises with her family thereafter, and had converted the house into a purely residential area. The second ground that was canvassed and which we are not really concerned with because it was not seriously agitated and subsequently given up was that the tenant was guilty of several unauthorised alterations.

3. The tenant filed her written statement and denied the charges. It was her case that there was no specific purpose indicated when the premises had been let out that she had been residing in the premises right from 1-7-1966 and that according to her, there was no cause of action under section 13(1)(k). She also denied the charge of unauthorised alterations and stated that the landlady had failed and neglected to maintain the premises as a result of which she was required to spend considerable amounts of money on repairs, and that none of the repairs carried out by her constitute unauthorised alterations. When the evidence commenced, an application was made by the plaintiff for amendment of the suit. The trial Court rejected the application as it was belated and as it sought to make out an entirely new ground namely the ground of non-payment of arrears, which was a separate cause of action and was in no way aligned to the existing one but the landlady carried the matter upto this Court and was ultimately permitted to carry out the amendment in question. The ground of non-payment of arrears inspite of notice was thereafter added on and the tenant-defendant filed an additional written statement in which it was contended that there had been a long standing dispute between the parties with regard to the adjustment of certain amounts spent on repairs etc. as also with regard to the quantum of rent payable and further more that the defendant had in fact paid up the arrears in October, 1972 and that consequently this cause of action could not be pleaded against her.

4. The trial Court after hearing the parties dismissed the suit. It is relevant for me to record that the plaintiff land-lady did not give evidence and that a solitary witness by the name of Nandlal who is a relation and power of attorney holder represented the plaintiff before the trial Court. The defendant gave evidence. She also produced two other witnesses in support of her case that she has always been ready and willing to pay rent and that no cause of action exists for a decree to be passed against her. The learned trial Judge came to the conclusion that the non-examination of the land-lady coupled with the fact that witness Nandlal was not present at the time when the negotiations took place between the parties, and the fact that the original letter of offer dated 30-6-1966 as also the rent receipt were silent with regard to the letting out of the premises for the restricted purpose of running a hospital, cumulatively indicated that the plaintiff had failed to prove an actionable breach under section 13(1)(k). As regards the question of payment of arrears the Court held that various payments had been made from time to time that admittedly the arrears that had been pleaded by way of the amendment were not in fact arrears on the date of filing of the suit and consequently that, no decree could be passed against the defendant.

5. The matter was thereafter carried in appeal and I need to briefly record that the learned Appellate Judge after hearing the parties and considering the record arrived at more or less the same conclusions. He held that the record failed to make out that the tenancy was for the purposes of running the Maternity Home only and that consequently, the tenant who claimed that she had been residing in the premises right from the date when the tenancy had been created was fully justified in residing there and that no actionable change of user had been demonstrated. Even on the question of arrears the appeal Court confirmed the view of the trial Court. It is against this judgment, that the present petition has been preferred.

6. Mr. Abhyankar, learned Counsel appearing on behalf of the petitioner-landlady had pointed to me that he does not propose to even refer to the ground of unauthorised alterations in so far as that ground was virtually given up. He has however seriously agitated the remaining two grounds on the question of section 13(1)(k). It is the contention of the learned Counsel that the two courts have mis-applied the law and have also followed a procedure that can be characterised as being erroneous. Mr. Abhyankar is conscious of his limitations in a proceeding of the present type which is virtually in the third round and where the law itself prescribes that an appreciation or evaluation of the evidence at this stage would not be permissible. He states that the record itself is required to be taken as a whole and his basic contention is that both the courts were wholly and completely in error in having established that the landlord had failed to prove that the premises had been let out for a Nursing Home and not for residential purposes. I hasten to add here that the dispute in this case is not a trivial one in so far as in essence what is pointed out by learned Counsel is that where the user has been changed from commercial to residential that it makes a substantial difference, that there are serious repurcussions and that therefore the change of user is not only academic or innocuous but that the grievance is one of considerable substance. Mr. Abhyankar hastened to add that he is conscious of the special facts of this case namely that the tenant was a practising doctor and that the maternity home in question was her own hospital. He states that both the trial Court and the Appeal Court have examined in some depth the allegations with regard to the charge that the defendant tenant was only residing in the premises. Mr. Abhyankar states that this aspect of the matter is totally insignificant and irrelevant because it is his case that he will be able to demonstrate that the record undisputedly established that the sole purpose of letting out the premises was commercial for a Maternity Home and that this purpose had ceased to exist from the year 1970. As regards this last aspect of the matter, I need to record that there is no dispute about the fact that the Maternity Home was in fact closed down and it makes little difference whether this happened in 1970 or in 1972 because thereafter, the defendant has been residing in the premises with her family and there is absolutely no ambiguity about the fact that no hospital was running in the premises. The short point that emerges is, as pointed out by Mr. Abhyankar, as to whether by changing the user from that of a Maternity Home to residential premises, the tenant can be said to have committed a breach which is serious enough to bring the case within the ambit of section 13(1)(k) and result in a decree being passed against the defendant.

7. As indicated by me above, the petitioner is represented by Mr. K.J. Abhyankar, her learned Counsel who is one of the Senior most in the field and virtually a veteran. On behalf of the respondent, Mr. Kumbhkoni, appears and I need to record that I have been deeply impressed by his skill and presentation of the matter. Mr. Kumbhkoni has commenced his submissions with the contention that this is a proceeding under Article 227 of the Constitution of India, and that the scope is extremely restricted particularly with regard to any aspect of the case relating to the appreciation of evidence. He has drawn my attention to the well known decision of the Supreme Court in , in the case of Babhutmal Raichand Oswal v. Laxmibai R. Tarte and another, wherein the Supreme Court virtually frowned upon the High Court treating the proceedings under the Rent Act particularly under Article 227 of the Constitution, as a second round of appeal and thereby permitting a denove re-examination of the entire record. In this respect, Mr. Kumbhkoni is perfectly justified in pointing out to this Court that the petitioner will be precluded from requesting the Court to re-appraise the evidence on record. In this regard, however, Mr. Abhyankar has drawn my attention to a subsequent decision of the Supreme court in the case of Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, , wherein the Supreme Court had occasion to examine the same question that fell for determination in Bahuthmal's case. The Court observed that while considering the overall correctness or otherwise of the orders of the lower forums that it would not be impermissible for the High Court to also look to the facts on record as undoubtedly such an examination is very necessary for a fair determination of the case. I do not for a moment dispute the fact that the scope of enquiry under Article 227 of the constitution is limited. The submission canvassed by Mr. Kumbhkoni however cannot be upheld because one does come across some times cases where the trial Court may have gone wrong and where the Appeal Court might have erroneously confirmed that wrong order. If the High Court were to adopt a mechanical approach that its hands are tied where there is a concurrent finding of fact, the scope of the a petition under Article 227 of the Constitution may be rendered totally illusory. The High Court, would therefore, only to a limited extent and where absolutely necessary and if it is demonstrated that the error is manifest and one which has led a total miscarriage of justice and to a wrong verdict, certainly look at the record for this limited purpose. It is in these circumstances, that a restricted appraisal of the present record becomes necessary.

8. Mr. Kumbhkoni invited my attention to the wording of section 13(1)(k) of the Rent Act which reads as follows:

"13(1)(k): Notwithstanding anything contained in this Act but subject to the provisions of sections 15 and 15-A, a landlord shall be entitled to recover possession of any premises if the Court is satisfied-

(k) that the premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit; or..."

He emphasizes the fact that it is very clear that in a proceeding wherein a breach is alleged under this section that it is a condition precedent for the landlord to establish before the trial Court as to what was the purpose for which the premises were let. He submitted that where the change of user has been alleged as a cause of action giving rise to eviction, that the further obligation on the part of the landlord would be to demonstrate that the original user has been abolished or so completely modified or as has now been interpreted by the courts, that it has ceased to be the dominant purpose for which the premises are being used on the date of filing of the suit. The statement of the law by the learned Counsel is absolutely correct and it is these tests which will have to be applied to the record of the present case.

9. Mr. Kumbhkoni submitted that the trial Court and the Appeal Court have placed heavy reliance in this case on the fact that the offer to take the premises on lease had emanated from the tenant and that the offer is in writing. That document is dated 30-6-1966 and is Exhibit 50 before the Court. He draws my attention to the fact that the offer was to take the premises on rent, and that is all. There is no mention in that document as to what exactly was purpose for which the proposed tenant intended to use the premises. He therefore submits that the courts were fully justified in holding that the tenant who was a Doctor could have used the premises which happen to be a rather large house either for a hospital or residential purposes or both. His contention is that this document unequivocally indicates as supported by the evidence of the defence, that the purpose for which the premises were let was never restricted nor was it specified. He thereafter goes to the rent receipt dated 1-7-1966 which is also silent on the question of purpose. Next he draws my attention to the document Exhibit 48 which is the letter in the handwriting of his client dated 14-3-1967 concerning the electricity charges wherein undoubtedly she has indicated that she was using the premises for a Maternity Home and therefore wanted the electricity charges to be lowered. The learned Counsel emphasizes the fact as has been done by the two courts below that the letter in question used the word "now " which according to him signifies the fact that in March, 1967 the tenant had indicated the she was using the premises for a Maternity Hospital. He submits that this document can never date back to the date of letting which is 1-7-1966 and that it can never be indicative of the purpose for which the premises were originally let, at that point of time. This argument has been put forward in order to meet the very strong contention advanced by Mr. Abhyankar that the courts haver totally misconstrued and mis-read Exhibit 48 and that they have virtually read words and meaning into the document which was never intended.

10. Mr. Kumbhakoni then points out to me that for some strange reason which has not been indicated to the trial Court, the plaintiff did not give evidence herself and therefore he contends that she has not discharged the burden of proof within the meaning of sections 101 and 102 of the Evidence Act. His contention is that the onus of proof under section 102 clearly lay on the plaintiff and he proceeds to submit that if the best evidence available is not brought before the Court, that an adverse inference under section 114(g) of the Evidence Act will have to follow. Cumulatively, Mr. Kumbhkoni contends that the plaintiff having stayed back from giving evidence is virtually fatal to the charge under section 13(1)(k). It is true that her constituted attorney Nandlal has given evidence, but learned counsel points out that Nandlal was not the landlord and Nandlal's evidence can only be secondary to that of the landlady herself, who was the contracting party. He therefore submits that if the plaintiff desires to establish conclusively before the trial Court, that the purpose of letting was restricted to the running of the hospital, that there are too many lacunee in the plaintiff's case and that in this view of the matter that this Court ought not to at all disturb the findings that have been recorded by the trial Court and confirmed by the Appeal Court.

11. The last submission advanced by learned Counsel was that it is well settled law that this Court, in exercising jurisdiction under Article 227 of the Constitution will not upset a verdict of a lower Court merely because better or superior reasoning was possible or because another view is tenable unless it is demonstrated that the decision in question is manifestly wrong or that it is in fact perverse. Mr. Kumbhkoni submits that no part of the evidence has been over-looked by the courts below that the decision can never be characterised as being wrong or perverse and in this view of the matter, regardless of the fact that another view may always be possible that this is not a case in which interference is called for.

12. With regard to this last aspect of the matter normally, I would have upheld the contention advanced by the learned Counsel because none of the propositions are faulty, but the error has arisen in applying the law and the result being manifestly wrong, will have, as of necessity to be corrected. The present case is a hotly contested one and at the stage of final hearing of this matter inevitably references to the various parts of the record and in particular the documents are necessary. Mr. Abhyankar contended that the error conmmitted by the trial Court and the Appeal Court can be summarised in that both the courts have unfortunately placed undue reliance on the document Exhibit 50 and the first rent receipt Exhibit 49 without attaching sufficient significance to Exhibit 48 which has virtually been rejected. His basic contention is that in exercise of the suprevisory jurisdiction of this Court if the approach of the lower courts has been faulty that this Court will have to rectify the error and if the faulty approach has resulted in a verdict that is unfair to the record then it is inevitable that interference with that decision will be necessary. From this point of view, he has emphasized the fact that the document Exhibit 48 which is in the hand-writing of the tenant is the strongest piece of evidence on which he proposed to rely because according to him it contains admissions in law coupled with the rest of the admissions that are clearly apparent from the evidence of the defence itself. Mr. Abhyankar does not dispute the position that undoubtedly the best evidence would have been that of the landlady and that it ought to have been clearly pointed out to the trial Court as to what was the practical difficulty in bringing the old person all the way to the trial Court. He however states that in her absence Nandlal her Constituted Attorney has given evidence which is as good as the evidence of the landlady herself and that it would therefore be unjustified to ask for any adverse inference in these circumstances.

13. I have cumulatively assessed the record in the light of the submissions advanced by the learned Counsel with regard to the ground under section 13(1)(k). I do find that the procedure adopted by the trial Court was basically faulty in so far as this is a case in which the facts virtually speak for themselves and in that light of the matter, the learned trial Judge ought not to have adopted a jaundiced approach to the material before him. Admittedly, the defendant-tenant was a doctor. The evidence of Nandlal is clear and unequivocal about the fact that she took the premises for running a hospital and that she in fact stated running a hospital and that she in fact stated running a hospital in those premises. The evidence of the defendant herself does not dispute this position. The only variation is that the defendant contends that she had not restricted the purposes of user to that of a hospital and that she was residing in part of the premises.

14. In my considered view, this last aspect of the matter is required to be carefully tested. For this purpose both Exh. 49 and 50 are of no avail because they are silent on the all important aspect of the user. The defendant herself has written the letter Exhibit 48. She is a practising doctor and she was running a hospital at the relevant time. Since the consumption of electricity in those premises qualify for a lower tariff if the user was commercial and in particular if the same was for a hospital. The defendant herself in Exhibit 48 wrote to the landlady asking for a letter to the M.S.E.B. so that she could get the lower tariff of electricity which was only applicable, if the premises were used as a hospital. She has in terms stated in that letter that the premises are being used for a hospital. The use of the expression "now" to my mind can only signify that even though in the past the premises had been used, as the record indicates, for residential purposes, that she desired to get the scale of electricity tariff varied to a lower one since the premises were being used for hospital purposes by her. The defendant is bound by the admission contained in the document and cannot be heard to say that the purpose was anything other. On the contrary, as a responsible professional and a Doctor when she was making an official application for reduction of the electricity tariff to the M.S.E.B., one needs to assume that there was no dispute whatsoever about the fact that the whole of the premises were being used for hospital purposes as otherwise she would have had to specify this fact in Exh. 48. These are material aspects of the case which to my mind have been completely and totally over-looked by the trial Court. On the other hand, the document which speaks for itself cannot be read into and a different meaning given to it altogether. This error to my mind was very basic and fundamental because the cumulative effect of following the correct procedure can only be that the trial Court would have had to hold that the purpose for which the premises were let were to run a hospital and nothing else.

15. As regards the second charge namely that the defendant was in arrears of payment of rent and that three notices dated 12-5-1972, 11-8-1972 and 12-9-1972 were addressed to her recording this fact; the material before me indicates that the notices in question were duly served and that the same had been received by the defendant. The trial Court has erroneously construed the first two notices as being bad in law on the ground that they were served on the learned advocate but the fact of the matter is that they has reached the tenant and had been accepted and acknowledged. This is a mere procedural technicality the advocate being her agent which would not affect the validity. Secondly, it was contended that they do not specify that the tenancy has been terminated. This position is correct because Mr. Abhyankar has drawn my attention to the decision of the Supreme Court, in the case of V. Dhanpal Chettiar v. Yesodai Ammal, wherein the Supreme Court has very clearly indicated that it is not an absolute requirement of law that the notice must specify in so many words that the tenancy is terminated. It is an admitted position, that the arrears were only paid up on 11-10-1972. It is true that the suit came to be filed only as late as 10-4-1974 and Mr. Kumbhakoni has advanced two submissions in this regard which to my mind do appear prima facie to be quite reasonable. The learned Counsel submitted that where it is alleged that the tenant is in arrears for a period of over six months giving rise to a right of re-entry on the part of the landlord and where the tenant pays up the amount due before the institution of the part of the landlord and where the tenant pays up the amount due before the institution of the proceedings, that a Court should refuse to entertain the grounds because according to him, the default if any has been waived by the acceptance of the arrears and consequently that the cause of action ceases to be an actionable ground. Secondly, Mr. Kubhakoni advanced a submission that it would be unjust, unfair and inequitable to uphold the position in law that if a tenant had been in arrears for over six months and where the tenant did in fact omit to pay up the arrears within the prescribed period of one month after the notice was served, but had cleared up the arrears some time thereafter that the cause of action can be said to technically subsist for all time giving a landlord an absolute right to move the Court. He contends that the breach stands perjed and that the landlord is estopped from enforcing an old breach against the poor tenant. Mr. Kumbhakoni advances a forceful plea that this Court should refuse to entertain this ground as the landlady in the present case did not even accept the arrears without prejudice to her rights and contentions and under protest. He submitted that the actionable breach contemplated by law is only one where a tenant neglects to perform her duty of paying and she has failed to make payments within the legally prescribed time and therefore, that the Court is left with no option except to throw out the errant person. The learned Counsel's contention is that where a tenant might have only overstepped the time limit and has in fact complied with the duty by having paid all the arrears of rent prior to the institution of the suit, that the Court must interpret section 12(3)(a) in such a way as to hold that the tenant was ready and willing to pay and is therefore not liable to face the harsh consequences of an eviction order.

16. In response to this submission, Mr. Abhyankar pointed out that the courts are left with no option whatsoever because of the wording of section 12(3)(a). He submitted, and to my mind with complete justification, that the first and primary duty of a tenant who takes premises from the landlord is to pay rent and to pay it as prescribed by law willingly and from time to time. If the tenant has committed a default, there is a breach of the terms of the lease and Mr. Abhyankar submits that the sole indulgence which the law permits the tenant is to pay up the arrears immediately on being asked to do so by notice and the legislature has prescribed the outer limit of one month within which this obligation has to be carried out. Once this time frame is over stapped the learned Counsel has pointed out that a decree in eviction has to follow as a matter of course. The only other situation in which the tenant can claim a defence is that there is a bona fide dispute about the quantum and if the tenant has moved the Court by way of a Standard Rent Application. Mr. Abhyankar relies on the well known decision of the Supreme Court , in the case of Mrs. Manorama M. Masurekar v. Mrs. Dhanlaxmi G. Shar and another, wherein the Supreme Court has virtually settled the legal position. That position in law has remained un-altered and in this view of the matter, it would not be possible or permissible to either consider or uphold any of the submissions canvassed by Mr. Kumbhakoni with regard to the question of arrears. I do find on the facts of the present case, that the tenant was in arrears on the date of the service of the notice and that the arrears were not paid up within the prescribed period of one month. In this view of the matter, the lower courts were also in error in not having passed a decree on this ground.

17. In response to the submissions canvassed by Mr. Kumbhakoni with regard to the unreasonableness of the view that a breach once committed under section 12(3)(a) is not curable and that it is not within the province even of the Court to condone the breach. Mr. Abhyankar has relied on two decisions of this Court. The first of them being reported in 50 Bom.L.R. page 233 in the case of Baldeodas Mahavirprasad v. G.P. Sonawalla, and the second one is reported in 51 Bom.L.R. page 874, in the case of Kaikhushroo Bezonjer v. Bai Jerbai. The point in question has been agitated several times before the courts and the position is now well settled that the breach virtually brings an end to the contract of lease. Mr. Abhyankar also drew my attention to a later decision of the Supreme Court, , in the case of Ganga Dutt Murarka v. Kartik Chandra Das and others, wherein the Supreme Court in a slightly different context had occasion to consider the status of a person holding over after the contract of tenancy has come to an end. The Court had clarified that there can be no question of continuance of the original contract by implication and the learned Counsel draws my attention to the clear position in law whereby a fresh contract of lease or tenancy would be necessary if the tenant were to be reinstated into the original status. It is under these circumstances, that Mr. Abhyankar submits that the breach is irreversible and therefore even if the suit is filed after some lapse of time that the cause of action still subsists.

18. As regards the last point that had been raised by Mr. Kumbhakoni, I do need to record that the obligation to pay the rent is an obligation that is co-extenso with the tenancy because it is a charge payable for the user of the premises and this payment is recoverable from the party in possession namely the tenant for the entire period of time that the party is in possession. The tender of rent for the old period even at a later date, therefore, is virtually no favour but is a recognition of that obligation and the tender of the subsequent rent again is a compensation for the use of the premises because the party is still in possession. Mr. Abhyankar has clarified that the acceptance of rent therefore, even if it is without prejudice would not in any manner endanger, the right of the landlord because this right has accrued on the date of breach of the law and that right cannot be extinguished merely because the arrears are subsequently tendered. Mr. Abhyankar has even clarified that if the tenant had not tendered the arrears due, that the same would have been recovered through the Court and therefore, the act of payment does not alter the position at all. This, in fact is the correct view of the law on the subject.

19. On an over-all consideration of the material placed before me, therefore, I am of the view that both the charges on which the plaintiff approached the trial Court stand established. Under those circumstances, the plaintiff is entitled to a decree against the defendant under both counts. The order passed by the trial Court and the Appeal Court are accordingly set aside. In the circumstances of the case, there shall be no order as to costs. It is clarified that the defendant will be liable to pay to the plaintiff, the arrears of rent right upto the date of restoration of possession to the plaintiff.

20. Mr. Kumbhakoni, learned Counsel, appearing on behalf of the defendant-tenant states that his client is a professional and that it would be extremely difficult for her if the decree were to be executed forthwith. Under these circumstances, he had prayed for stay of the operation of the decree for a period of two months. The application is granted. The decree in question shall not be executed for a period of two months from the date on which this order is received by the trial Court. Office to transmit the order forthwith.

21. Mr. Kumbhakoni submits that the points involved in this case and particularly the aspect of law canvassed by him regardless of the fact that there are earlier decisions on the point, do require to be reviewed by the Supreme Court in so far as due to passage of time, a different view is necessary to be taken. Under these circumstances, he submits that this is a fit case in which leave to Appeal to the Supreme Court ought to be granted for which he applies. On the facts of this case and the points involved. I find that the law has been well settled not only by the decisions of this Court by several other High Courts but also by the Supreme Court. Under these circumstances, I do not consider this to be a case that qualifies for grant of leave to appeal to the Supreme Court and the Application is accordingly rejected.

The order passed by this Court shall be subject to any further orders that may be passed by the Supreme Court in this matter.

Certified copy expedited.