1 By way of the present Revision Application under Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as “the Rent Act” for short), the petitioner – original respondent - plaintiff–landlord has challenged the judgment and order dated 18.12.2008 passed by the 6th Additional District & Sessions Judge, Surat, by which Regular Civil Appeal No.59 of 1996, filed by the respondents–original appellants-defendants-tenants is allowed and decree of eviction dated 31.8.1996 passed by the Additional Small Cause Judge, Surat, in Small Suit No. 422 of 1980 has been quashed and set aside.
2 Brief facts arising from the memo of petition as well as record and proceedings of the suit as well as appeal are as under:
2.1 That the petitioner is the owner of a property, being residential House No.2622/B/1, situated at Rudarpura, Kharvawad, Ward No.2 of Surat. On the southern side of the said premise, one room was given to the father of the respondents–tenants on rent @ Rs. 5/- per month in addition to the service provided by him for keeping watch on the clothes as the plaintiff-landlord was doing the business of laundry. It was the case of the landlord that, the father of the respondents-tenants was regularly paying the monthly rent of Rs.5 of the disputed property till his death, but, after the death of the original tenant i.e. father of the respondent, the son was permitted to stay in the said premise on the same terms and conditions i.e. to pay the rent @ Rs.5/- every month. It was the case of the plaintiff that, initially, the defendants–tenants used to pay the rent regularly in absence of any written agreement between the landlord and tenants, however, the landlord used to maintain a diary noting the rent received by him from the tenants.
2.2 Since the defendants-tenants did not pay rent for about 122 months i.e. from 1.1.1972 to 29.2.1980, the landlord served a statutory notice under Section 12(2) of the Rent Act and called upon the respondents–tenants to pay the arrears of rent for about 122 months, which comes to a total amount of Rs.620/-. Though, the statutory notice was duly served upon the respondents- tenants, they neither replied to the said notice nor paid any rent to him. It was the case of the plaintiff before the Trial Court that the statutory notice dated 25.3.1980, which was sent by Registered Post A.D, has been duly served on the defendants– tenants on 3rd March, 1980, however, the tenants did not raise any objections about the demand made in the statutory notice nor paid the arrears of rent. Therefore, the plaintiff filed a suit, being Small Suit No. 422 of 1980, before the learned Small Causes Court at Surat, on 3.5.1980 and requested for a decree of eviction on the ground that he is entitled for recovery of the suit premises under the provisions of Section 12(3)(a) of the Rent Act. In support of his case, the plaintiff-landlord had produced the statutory notice dated 25.3.1980, acknowledgment receipt of Postal Department as well as the diary which he used to maintain about the receipt of the rent.
2.3 The said suit was opposed by the defendants–tenants by filing a written statement at Exhibit-13. It was denied by the defendants in the written statement that part of the property was given on rent, but a kachha room was given on rent by the plaintiff-landlord to his father at the rate of Rs. 5 per month. It was also contended in the written statement that there is no agreement between the landlord and his father about the rent and, therefore, there is no question of imposing conditions on the defendants, as stated in the plaint by the plaintiff- landlord. It was further stated that since his father and he himself were taking care of the clothes of the plaintiff by keeping watch in the premises as the landlord was doing the business of laundry, the property was handed over to them to reside in the kachha room, which is a part of the disputed property.
2.4 The plaintiff examined himself at Exhibit-75 as witness No.1 and was able to prove the statutory notice, acknowledgment receipt as well as diary at Exhibits 79, 80 and 82 respectively. The defendant himself examined at Exhibit-85 as witness No.1, however, he had not produced any documents in support of his case.
3 The learned Trial Judge after considering the rival case of the parties, depositions of the witnesses and documentary evidence proved on record, had come to the conclusion that, the plaintiff-landlord was entitled for possession of the suit premises since the tenants had committed breach of Section 12(3)(a) of the Rent Act and therefore passed a decree of eviction. The same was challenged by the respondents-defendants-tenants by way of filing a Regular Civil Appeal No.59 of 1996 before the learned Sixth Additional District and Sessions Judge, Surat. The learned Appellate Judge carved out two points for consideration, viz. (i) is there any scope to interfere with the judgment and decree passed by the Trial Court or not, and (ii) what order” and, ultimately, came to the conclusion that the decree of eviction passed by the Additional Small Causes Judge, Surat, is required to be quashed and set aside and, accordingly, the appeal came to be allowed and quashed and set aside the judgment and decree of eviction passed by the Trial Court.
4 The learned Appellate Court came to the conclusion that since the appellants-tenants had paid rent during the hearing of the suit, the case falls under the provisions of Section 12(3)(b) of the Rent Act and, therefore, the decree passed under Section 12 (3)(a) of the Rent Act by the Trial Court is required to be quashed and set aside. Another reason for allowing the appeal is that the suit was filed at the premature stage as the suit was filed within one month from the date of receipt of the notice, which is barred under Section 12(2) of the Rent Act. It was held by the Appellate Court that the statutory notice came to be served upon the tenants on 6.4.1980, while the suit was filed on 3.5.1980 and, therefore, the suit was not maintainable as per the provisions of Section 12(2) of the Rent Act.
5 Mr. Udayan Vyas, learned Advocate, appearing for the petitioner has vehemently argued that, though, the statutory notice dated 25.3.1980, Exhibit-79, was served upon the respondents–tenants, they had not replied to the same nor had raised any objections with regard to the standard rent. It was not denied by the respondents-tenants by replying to the statutory notice that the suit premise was not given on rent and rent of Rs. 5/- per month was fixed. He further submitted that the defendants-tenants had not filed any application as provided under Section-11 of the Rent Act by raising objections with regard to the standard rent and, therefore, the Appellate Court has committed error in coming to the conclusion that the case falls under Section 12(3)(b) of the Rent Act. He further submitted that it has been categorically pleaded in the plaint by the plaintiff that the statutory notice dated 25.3.1980 was served upon the defendants-tenants on 31st March, 1980, which has not been denied by the tenants in their written statement. He has taken me through the record and proceedings and particularly the statutory notice-Exhibit-79 and acknowledgment receipt issued by the Postal Department at Exhibit-80 and submitted that it can be seen on the acknowledgment receipt that there is a thumb mark of the defendant as well as the seal of the Postal Department put on the receipt in the month of March.
5.1 Mr. Vyas, learned Advocate for the petitioner, has further submitted that the petitioner-plaintiff was keeping the accounts with regard to the rent received from the tenants, which has been duly proved by him at Exhibit-82. It is clear from the said diary that the tenants had paid the rent upto 31st December, 1969 and thereafter he had not paid any rent. He has also placed reliance on the depositions of the plaintiff as well as defendants and submitted that the defendants did not raise any objections with regard to the standard rent at any point of time and, hence, the Appellate Court has erred in coming to the conclusion that the case falls under the provisions of Section 12(3)(b) of the Rent Act. In support of his case, he has placed reliance on the the decision of the Apex Court in the case of Arjun Khiamal Makhijani vs. Jamnadas C. Tuliani & Anr., as reported in (1989) 4SCC 612 and submitted that the ratio laid down in the said decision would squarely apply to the facts of the present case. Lastly, he submitted that the judgment and order passed by the Appellate Court be quashed and set aside and the judgment and decree passed by the Trial Court be upheld.
6 On the other hand, Mr. Milind R. Kulkarni, learned Advocate for the respondents has submitted that, in absence of any agreement or rent note with regard to the rent, the petitioner landlord is not entitled for any decree of eviction. He further submitted that the suit premise is being used by the respondents–tenants since number of years i.e. initially by his father and thereafter by the respondents themselves and the possession of the same was handed over by the landlord only on the ground that they had to keep watch the clothes which were lying near the house for washing purpose and to see that the same were not stolen by anyone as the plaintiff-landlord was doing the business of laundry. The premise was given only for that purpose and they were not paying any rent to the landlord and, therefore, the case is not covered under the provisions of the Rent Act. He further submitted that since the respondents– tenants had paid rent during the pendency of the suit as well as appeal, the Appellate Court has rightly come to the conclusion that the case falls under Section-12(3)(b) of the Rent Act and, therefore, no interference is required in the judgment and order passed by the Appellant Court by this Court. He has placed reliance on a decision of this Court in the case of Urvashiben Kanubhai Joshi Wd/o Kanubhai K.Joshi vs. Baskshisinh Ishwarsinh, as reported in 2009(0)GLHEL-HC221156 in support of his case. As far as findings recorded by Appellate Court with regard to breach of Section 12(2) of the Rent is concerned, he submitted that the Appellate Court has not committed any error.
7 I have heard learned Advocates appearing for the respective parties and perused the record and proceedings of the suit as well as the appeal. It is an undisputed fact that the statutory notice at Exhibit-79 dated 25.3.1980 was sent by the plaintiff for the arrears of rent for about 122 months and the defendants-tenants were called upon to pay the same within a period of one month. It is also an admitted position that the respondents–tenants did not reply to the said statutory notice nor paid the amount of arrears of rent. It is also an admitted position that specific averments have been made by the plaintiff in the plaint itself that the statutory notice was served upon the defendants–tenants on 31st March, 1980, which has not been denied by the defendants in their written statement at Exhibit-13. Now, perusing the original documents i.e. the acknowledgment receipt at Exhibit-80, it is not denied that the defendant had not put his thumb mark on the said receipt. The seal of the Postal Department on the acknowledgment receipt would also indicate that it was in the month of March. It is also an admitted position that the witnesses were not put any questions with regard to the date of acknowledgment receipt. I am failed to understand that on what basis the Appellate Court has observed that the statutory notice dated 25.3.1980 was served upon the respondents–tenants on 6.4.1980 in absence of any other material, which would establish that the statutory notice was received on the said date. It is also pertinent to note that in absence of such contentions raised by the tenants in the written statement, the Trial Court did not frame any issue with regard to the said legal point, but, the Appellate Court has raised this point and decided the same.
7.1 In view of above facts, I am of the opinion that, the Appellate Court has erred in coming to the conclusion that the statutory notice was received by the respondents–tenants on 6.4.1980 and, therefore, the suit was not maintainable under the provisions of Section 12(2) of the Rent Act.
8 Now, the next question with regard to the finding of the Trial Court that considering the case of the defendants–tenants under Section12(3)(b) of the Rent Act is concerned, it is an admitted position that, in response to the statutory notice, the defendants–tenants had not raised any objection by replying the same about the standard rent nor permissible increase, as provided under Section 12(3)(a) of the Act. It is also an admitted position that, during the pendency of the suit, the defendants–tenants had not filed any application under Section-11 of the Rent Act and had raised the defense of standard rent. The judgment cited by Mr. Kulkarni, learned Advocate, for the respondents–tenants in the case of Urvashiben Kanubhai Joshi (supra) , in my opinion, the facts of the said case are different than the facts of the present case. In the said case, pursuant to the notice, the opponent had sent a money order for six months rent in response to the notice served by the landlord and, therefore, the Trial Court had held that the case would not fall under Section 12(3)(a) of the Rent Act. The willingness shown by the tenants for payment of rent during the pendency of the suit or appeal, would not bring the case of the respondents-tenants under the provisions of Section 12(3)(b) of the Rent Act since the respondents-tenants had not raised objections which are provided under Section 12(3)(a) of the Rent Act. In the present case, as stated here-in-above, the objections, which are available under Section 12(2)(a) of the Rent Act, are not raised by the respondents– tenants and, therefore, the aforesaid decision would not be applicable in the facts of the present case.
9 In the case of Arjun Khamal Makhijani (supra), the Apex Court held that, rent in arrears for more than six months not paid within one month of service of notice of demand as required under Section 12(3)(a) of the Rent Act and if there is no demand regarding the amount of standard rent or permitted increases raised within one month of the statutory notice, the court is bound to pass eviction decree following mandatory provisions of Section 12(3)(a) of the Rent Act. It has been further held that the court has no discretion to extend the period prescribed by the statute for payment of arrears. It is evident in the present case that even after filing of the suit on 3.5.1980, the tenants had deposited an amount of Rs.200/- towards rent only on 29.7.1980 with the Trial Court and thereafter since 1993 onwards the tenants had paid the amount. The aforesaid decision cited by the learned Advocate for the petitioner would squarely apply to the facts of the present case.
9.1 In view of the afore facts and circumstances of the case, I am of the opinion that, the Appellate Court has also erred in coming to the conclusion that the case of respondents-tenants would fall under the provisions of Section 12(3)(b) of the Rent Act.
10 Hence, the present Revision Application deserves to be allowed and is allowed accordingly. Judgment and or order dated 18.12.2008 passed by the 6th Additional District and Sessions Judge, Surat, in Regular Civil Appeal No. 59 of 1996 is quashed and set aside and the judgment and decree dated 31.8.1996 passed by Additional Small Cause Judge, Surat, in Small Suit No. 422 of 1980 is hereby confirmed. Rule is made absolute accordingly. There shall be no order as to costs.
11 Registry is directed to remit the Record and Proceedings of the case to the concerned courts forthwith.
(A.J.DESAI, J.) pnnair