ARJUN KHIAMAL MAKHIJANI ETC. versus JAMNADAS C. TULIANI & ORS. ETC.

Citation: [1989] SUPP. 1 S.C.R. 380 · Decided: 05-10-1989 · Supreme Court of India · Bench: M.N. VENKATACHALIAH, N.D. OJHA, J.S. VERMA · Disposal: Dismissed
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Judgment (excerpt)

A 
B 
ARJUN KHIAMAL MAKHIJANI ETC. 
v. 
JAMNADAS C. TULIANI & ORS. ETC. 
OCTOBER 5, 1989 
[M.N. VENKATACHALIAH, N.D. OJHA AND 
J.S. VERMA, JJ.] 
Bombay Rents, Hotel and Lodging House Rates Control Act, 
1947: Section 12-Tenant-Eviction on ground of being defaulter-
'On or before such other date as the Court may fix'-Date fixed for 
C settlement of issues, cannot be equated with 'any other date fixed in the 
suit.' 
Jamunadas C. Tuliani is the owner and the landlord of the suit 
premises. He instituted a suit for ejectment against live defendants on 
the ground that they were tenants of the said premises and were in 
D arrears of rent for a period of more than six months which had not been 
paid inspite of notice having been served on them as required by Section 
12(2) of the Bombay Rents, Hotel and Lodging House Rates, Control 
Act, 1947 (hereinafter referred to as the Act) and were consequently 
liable for eviction under sµtt,section 3(a) of the Act as it then sl\iod. Two 
other grounds were that ihe tenants had changed the user of the suit 
E 
premises and they had coiltitted breach of the terms and conditions of 
the tenancy. Subsequently Ar jun Khiamal Makhijani was impleaded as 
defendant No .. 6 in the suit on the assertion that the tenants had illegally 
sub-let a po"rtion of the premises namely garage to him and were thus 
liable to be evicted on that ground·also. 
p 
The Trial Court decreed the suit in favour of the landlord on the 
plea of default in p_ayment of rent and illegal sub-letting. The other two 
pleas that the tenants had changed the user of the suit premises and had 
committed breach of terms and conditions of tenancy were decided 
against the landlord. 
G 
Two appeals were preferred against the judgment of the Trial 
H 
Court, one by the tenants and the other by the defendant No. 6 and both 
theSe appeals were dismissed. Aggrieved by the said decree the tenants 
and defendant No. 6 filed two writ petitions in the High Court. Against 
the common judgment of the High Court dismissing these writ peti-
tions, the present civil appeals have been preferred. 
380. 
A .K. MAKHIJANI v. J.C. TULIANI 
381 
Dismissing both the appeals, the Court, 
HELD: (i) On a plain reading of clause (a) of sub-section (3) of 
· section 12 of the Act as it stood at the relevant time, the said clause was 
clearly attracted and the consequence provided therein had to follow 
namely a decree for eviction against the tenants had to be passed. Clause 
(b) of sub-section (3) of the face of it was not attracted inasmuch as the 
said clause applied only to a case not covered by clause (a). This is 
amply borne out by the use.of the opening words "In any other case" of 
clause (b). [387A-B] 
(ii) Article 142 of the Constitution does not contemplate doing 
justice to one party by ignoring mandatory statutory provisions and 
thereby doing complete injustice to the other party by depriving such 
party of the benefit of the mandatory statutory provisions. [390B] 
A 
B 
(iii) In a case where a tenant renders himself liable to be evicted 
on the ground of being defanlter in the payment of rent as contemplated 
by sub-sections (2) and 3(a) of Section 12 of the Act, bar from the way of D 
the landlord in instituting a suit for ejectment of a tenant iS removed 
and he gets a right to have a decree for eviction. Such removal of bar is 
not in any sense forfeiture of any rights under the lease which the tenant 
held. In the instant case, the suit was not based on such forfeiture of 
lease under the Transfer of Property Act bot was filed for ·the enforce-
ment of the statutory right conferred mi the hµidlord by sub-sections (2) 
and 3(a) of Section 12 of the Act. [391D; 391H;:392A] 
(iv) The tenants are not entitled even to the benefit of the 
amended sub-section (3) of Section 12 of the Act inasmuch as on a 
plain reading of the sub-section,it is not possible to give it a retrospec-
tive operation. [392C] 
The date fixed for settlement of issues in a suit cannot be equated 
with any other date or dates which may be fixed in the suit or the 
appeal. [393C] 
The words "on or before such other date as the Court may fix" 
occurring after the words "on the first day of the hearing of the suit" in 
sub-section (3) of Section 12 of the Act were obviously meant to meet a 
situation where for some inevitable reason the necessary deposit could 
not be made On the day of the hearing of the suit and the Court extended 
the time to make such deposit. [3
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