- (1.) Leave granted.
(2.) The appellant-tenant committed default in the payment of rent from March 1979 in March 1980 at the rate of Rs. 80 per mensem. The respondent-landlord filed an application under Clause 13(3)(ii) of the C.P. and Berar Letting of Premises and Rent Control Order, 1949, for short 'the Order'. The Rent Controller found that the respondent being the neighbour has been receiving the rent without any objection and therefore the appellant is not a habitual defaulter. The Appellant Authority reversed the finding and granted permission for serving notice to eject the appellant. In a writ petition filed under Article 226, the High Court affirmed that finding. On further L.P.A., the Division Bench in the impugned order dated October 14, 1986 affirmed the order directing permission to determined the tenancy. Thus this appeal by special leave.
(3.) In (S.P. Deshmukh v. Shah Nihal Chand Waghjibai Gujarat)1, 1977 Mh.L.J. 710(S.C.) : 1977(3) 515 this Court held that : "Normally a monthly tenant is under an obligation to pay the rent from month to month but this obligation is subject to a contract to the contrary. Such a contract need not be reflected in a formal document and can be spelt out from the conduct of the parties, spread over a fairly long period of time. The evidence in the case, which was believed by the two Tribunals of fact, shows that the tenant has been paying rent at an interval of 3 or 4 months, which the landlord has been willingly accepting and always without even so much as a murmur." On that finding this Court accepted that the tenant is not in habitual default in payment of the rent. This view was reiterated in (Rashik Lal v. Shah Gokuldas)2, 1989(1) Bom.C.R. 610 : 1989 Mh.L.J. 207(S.C.) : 1989(1) S.C.C. 542. This Court held in a paragraph at page 443 of the above cited judgment that : "The crucial test appears to be the conduct of the landlord in receiving the rent offered belatedly. If he receives the same under a protest and warns the tenant to be regular in payment in the future, he cannot be assumed to have agreed to a modified agreement in this regard. But if he, without any objection and without letting the tenant know his thought process, continues to receive rent at intervals of several months, he cannot be allowed to spring a surprise on the tenant by suddenly starting a proceeding for eviction. Having lulled the tenant in the belief that things were all right, the landlord was under a duty to serve him with a notice demanding regular payment, if he wished to insist upon it.";