VITHAL VASUDEO KULKARNI & ORS. versus MARUTI RAMA NAGANE & ORS.

Citation: [1968] 1 S.C.R. 541 · Decided: 14-09-1967 · Supreme Court of India · Bench: J.C. SHAH · Disposal: Dismissed
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Judgment (excerpt)

541 
. A 
VITHAL VASUDEO KULKARNI & ORS . 
v. 
MARUTI RAMA NAGANE & ORS. 
September 14, 1967 
[J.C. SHAH, S. M. SIKRI AND J.M. SHELAT, JJ.J 
B 
Bombay Tenancy & Agricultural Lands Act 67 of 1948, s. 25(2)-
Whether entitles landlord to decree for eviction of tenant for non-
payment of rent on due date even when arrears are paid by tenants 
and accepted by landlord-Acceptance of arrears whether consti-
tutes waiver of termination of tenancy by landlord. 
Respondent no. 1 was the tenant of the appellants in respect of 
-C 
certain land. The rent was payable by the 20th of March every 
year. In respect of the years 1951-52, 1952-53, 1953-54 and 1954-55 the 
rent was paid by the respondent and was accepted by the appel-
lants though it was not paid on the due dates. The appellants filed 
an application under s. 29 of the Bombay Tenancy & Agricultural 
Lands Act, 1948 before the Mamlatdar for eviction and possession 
on the ground that as the rent had not been paid for the aforesaid 
years by the due dates they were entitled to an order of ejectment 
under s. 25(2) of the Act as it stood before its amendment in 1956. 
D The Mamlatdar dismissed the application. The District Deputy Col-
lector and the Appellate Tribunal upheld the order of the Mamlat-
dar. The appellants then filed an application under Art. 227 of the 
Constitution before the High Court challenging the Tribunal's order. 
The High Court dismissed the application observing that as it was 
an admitted position that the landlord had received all the rent due 
by the tenant and there were no arrears due by him at the date cf 
1l the said application, there was no ground for interfering with the 
Tribunal's order. By special leave the appellants came to this, Court. 
HELD: The High Court's refusal to interfere with the Tribunal's 
order was justified. 
Under suJ:>.s. (1) of s. 25 if the tenant has failed to pay rent 
and the tenancy is terminated on that ground, the Mamlatdar has 
the power to direct the tenant to pay up the arrears and on pay-
F ment of such arrears by the tenant the Mamlatdar has to pass an 
order directing that the tenancy had not been terminated Sub-
section (1) thus pre-suppose that there are arrears at the date d 
the application which the Mamlatdar can direct the tenant to pay 
.and that on such arrears being paid the Mamlatdar has to order 
notwithstanding the termination of the tellancy by the landlord 
that such tenancy had not been terminated and no order of eviction 
can be passed against such telllant. Sub-section (2) on the other hand • 
G 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. (1) would not apply. The Mamlatdar in such a case has not 
·the power to order payment of arrears as he would do under sub-<;. 
(1) and on such payment to direct as he would do under sub-s. 
(1) that the tenancy shall be treated as not having been terminated 
Sub-section (2) therefore pre-supposes (!) that the tenant has made 
R 
defaults for more than two years and (ii) that the tenant was in 
arrears at the date of the application which arrears in this case the 
Mamlat~a~ c~nnot order t)le ternmt to pay, Sub-section (2) is in 
contrad1shnchon to suJ:>.s. (1), that is to say, whereas in the case of 
less than three defaults the Mamlatdar can call upon the tenant to 
pay the arrears and can on payment of such arrears direct that the 
tenancy was not terminated he cannot do so under sub-s. _(2), where 
U42 
SUl'REHE COURT REPORTS 
[1968] 1 B.C.B. 
there are more than two defaults and direct that the tenancy had A 
not been terminated. (544A-E] 
The legislature could never have intended that even where 
t.he tenant has paid up all the arrears and the landlord has accepted 
tnom he would ~till. have the right to evict the tenant, through his 
reason for termmatmg the tenancy and his cause Of action for an 
action for eviction have disappeared by his acceptance of the arrears 
due to him. The Act does not rule out the payment by the tenant B 
and acceptance by the landlord of arrears of rent before a suit for 
eviction is instituted resulting in waiver by the· landlord of the 
termination of tenancy by him. [544F-H] 
Raja Ram Mahadev Paranjipe & Ors. v. Aba Maruti Mali 
& Ors. [1962] Supp. 1 S.C.R. 739, distinguished. 
'CivIL APPELLATE JuR1srncr1os : Civil Appeal No. 31 of 
1965. 
c 
Appeal by special leave from the judgment and order dated 
Oi;tober 16, 1962 of
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