1. By way of present petition under Section 29(2) of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereafter referred to as ‘Rent Act’), the original defendant/tenant has challenged the judgment and decree dated 31.03.1997 passed by Civil Judge, (Junior Division), Upleta in Regular Civil Suit No.75/1993 as well as the judgment dated 27.7.2007 confirming the same by learned Presiding Officer 3rd Fast Track Court, Upleta dated 27.07.2007 in Regular Civil Appeal No.43/1998, by which, the eviction decree has been passed against the present petitioner-tenant on the ground that the landlord is entitled for the possession of the suit premises under Section 12(3)(a) of the Rent Act.
2. Brief facts arising from the case are as under :
2.1 That the present respondent, who is landlord of the disputed property, served a notice to his tenant i.e. present petitioner dated 12.04.1993 and called upon the tenant to pay the arrears of rent from 01.10.1987 to 31.03.1993 i.e. for about 66 months at the rate of Rs.600/- per month. It was also alleged in the notice that the defendant-tenant had acquired an alternative accommodation, therefore, he was entitled for the possession of the suit. The notice was replied, however, it was denied that
amount of 66 months, the landlord filed the above referred suit and prayed for decree of eviction on the ground that he is entitled for the possession under the provisions of Section 12(3) (a) of the Rent Act. The suit was defended by way of filing a written-statement at Exh.17. The plaintiff was examined at Exh.38 and the defendant examined himself at Exh.43 and another witness Nasir Noormamad Devani at Exh.44. The Trial Court framed the issues at Exh.19 and after considering depositions of the witnesses and documentary evidence came to the conclusion that the notice dated 12.04.1993 is a legal notice and was duly served and since the tenant had not paid the rent pursuant to the notice, the landlord would be entitled for possession of the suit premises under the provisions of Section 12(3)(a) of the Act.
2.2. Being aggrieved with the said judgment and decree passed by learned Civil Judge, the present petitioner-tenant challenged the said judgment and decree by way of filing Regular Civil Appeal No.43/1998 before the learned Fast Track Court, Upleta, who after considering the record and proceedings and judgment of the Trial Court again came to the conclusion that since the tenant had not paid the amount of rent for about 66 months under the provisions of Section 12(3) (a) of the Act, the judgment and decree passed by the Trial Court does not require any interference and dismissed the Appeal. Hence, the present Civil Revision Application.
3. Mr.M.B. Gandhi, learned advocate for the petitioner submitted that during pendency of the suit, the tenant had paid the rent. The Trial Court as well as Appellate Court has committed an error by passing decree under Section 12(3)(a) of the Act. Hence, the Civil Revision Application may be allowed and decree passed by the Trial Court and confirmed by the Appellate Court be quashed and set aside.
4. On the other hand, Mr.Tushar L.Sheth, learned advocate for the respondent-landlord submitted that a notice was served to the petitioner-tenant under Section 12(2) of the Rent Act. Though the notice was served upon defendant- tenant and the same was replied, the tenant did not raise any dispute with regard to the standard rent or with regard to any permissible increases nor any application was filed before the Trial Court for fixing standard rent and, therefore, the Trial Court as well as the Appellate Court has rightly held that the landlord is entitled for decree of eviction under Section 12(1)(a) of the Act. It is further submitted that the case of the tenant would not fall under Section 12(3)(b) of the Act. Since the tenant had neither paid the arrears of rent which was more than the period of 66 months nor raised any dispute with regard to standard rent or permissible increase, the petition may be dismissed.
5. Heard learned counsel for the parties and perused the record and proceedings of the case. It is not in dispute that the notice dated 12.4.1993, Exh.28, by which, the landlord had called upon the tenant to pay the arrears of rent for about 66 months or handover the peaceful possession of the suit premises. The said notice was served upon the tenant and the postal receipt of acknowledgement is proved by the landlord at Exh.27. Exh.30 is the reply by the tenant to the notice at Exh.27. By the said reply, the tenant has not raised any dispute with regard to standard rent or permissible increase as provided under Section 12(3)(a) of the Rent Act. It is also admitted that even during pendency of the suit, no application for fixing the standard rent which is provided under Section 11 of the Rent Act, was filed by the tenant.
7. As far as depositing the rent before the decision of the Trial Court is concern, the Court has not passed any decree under Section 12(3)(b) and, therefore, submission made by learned advocate M.B.Gandhi for the petitioner cannot be accepted.
8. In view of the above facts and concurrent findings of both the Courts about non- compliance of Section 12(3)(a) of the Act, I am not inclined to exercise my limited jurisdiction provided under Section 29(2) of the Rent Act. Hence, the present petition is dismissed. The interim relief is hereby vacated. Rule is discharged. There shall be no order as to costs.
9. Office is directed to send back the record and proceedings of the case to the concerned Courts.
Ashish Tripathi (A.J.DESAI, J.)