1. The present civil revision application under section 29(2) of the Bombay Rent Act has been preferred by the petitioners herein - heirs and legal representatives of original defendant, to quash and set aside the impugned judgement and order/decree dated 25/01/2008 passed by learned Appellate Court i.e. learned Additional District Judge, Bhavnagar in Regular Civil Appeal No.332 of 2003, by which, learned Appellate Court has allowed the said appeal preferred by the respondent herein - original plaintiff by quashing and setting aside the judgement and decree dated 30/09/2003 passed by learned Trial Court in Regular Civil Suit No.397 of 1991, by which, learned Trial Court has dismissed the same and consequently decreeing the suit preferred by the original plaintiff and passing eviction decree against the petitioners herein - original defendants on the ground of arrears of rent more particularly under section 12(3)(a) of the Bombay Rent Act.
2. That respondent herein - original plaintiff instituted Regular Civil Suit No.397 of 1991 in the Court of learned Civil Judge (J.D.), Bhavnagar against the original defendant– tenant – Pranshankar Mayashankar Dave, who died during the pendency of the suit and the petitioners herein being heirs of original defendant-tenant, for recovery of possession and eviction decree on the ground that the tenant was in arrears of rent for more than six months; on the ground of bonafide and personal requirement of the landlord as well as on the ground that the tenant has acquired alternative suitable accommodation. It was the case on behalf of the original plaintiff that original defendant- tenant was given on lease the suit property on monthly rent of Rs.50/- and liability to pay municipal taxes and other taxes was also upon the tenant, over and above monthly rent of Rs.50/-.
It was the case on behalf of the original plaintiff that defendant-tenant was in arrears of rent for the period between 01/10/1974 to 30/03/1991 and despite there was statutory notice u/s.12(2) of the Bombay Rent Act issued upon defendant- tenant calling the defendant-tenant to pay arrears of rent, neither there was any dispute with respect to standard rent raised within one month nor entire arrears of rent was deposited and, therefore, it was case on behalf of the original plaintiff that the case would fall under section 12(3)(a) of the Bombay Rent Act. It was the case on behalf of the original plaintiff that defendant-tenant has acquired alternative suitable accommodation, which was sold by him.
3. The suit was resisted by the original defendant – tenant by filing written statement by submitting that as liability to pay municipal taxes and other taxes was upon the tenant, it cannot be said that there was monthly tenancy and, therefore, the case would not fall under section 12(3)(a) of the Bombay Rent Act. It was the case on behalf of the defendant- tenant that the case would fall u/s.12(3)(b) of the Bombay Rent Act and as the defendant-tenant deposited entire amount of arrears of rent in the Court and, therefore, in view of the amendment in section 12(3)(b) of the Rent Act, the word “regularly” is deleted, no eviction decree u/s.12(3)(b) of the Bombay Rent Act can be passed.
3.1. So far as case on behalf of plaintiff of his bonafide personal requirement is concerned, it was the case on behalf of the original defendant that as during the pendency of the suit i.e. in the year 1997, the plaintiff sold another property therefore, no decree can be passed under section 13(1)(g) of the Bombay Rent Act. Learned Trial Court framed issues and considering the fact that liability to pay municipal taxes and other taxes was upon the defendant-tenant, learned Trial Court has held that the case would not fall u/s.12(3)(a) of the Act as it cannot be said that tenancy was monthly tenancy. Considering section 12(3)(b) and considering the fact that entire amount of arrears of rent is deposited in the Court, learned Trial Court held that original plaintiff is not entitled to get eviction decree u/s.12(3)(b) of the Bombay Rent Act.
3.2 Now so far as the tenant having acquired alternative suitable accommodation and to pass eviction decree on that ground is concerned, learned Trial Court held the same negative by observing that the suit filed by the plaintiff is not for seeking eviction decree on the ground that the tenant has acquired alternative suitable accommodation and consequently learned Trial Court dismissed the suit by judgement and decree dated 30/09/2003.
4. Being aggrieved by and dissatisfied with the judgement and decree passed by learned Trial Court in dismissing Regular Civil Suit No.397 of 1991, original plaintiff preferred Regular Civil Appeal No.332 of 2003 before learned District Court, Bhavnagar and learned Additional District Judge, Bhavnagar by impugned judgement and order/decree dated 25/01/2008 has allowed the said appeal by quashing and setting aside the judgement and decree passed by learned Trial Court dismissing the suit and consequently passing eviction decree under section 12(3)(a) of the Bombay Rent Act and also on the ground that the tenant has acquired alternative suitable accommodation.
5. Being aggrieved by and dissatisfied with the judgement and order/decree dated 25/01/2008 passed by learned Appellate Court i.e. learned Additional District Judge, Bhavnagar in Regular Civil Appeal No.332 of 2003, the petitioners herein – heirs of original defendant have preferred the present Civil Revision Application u/s.29(2) of the Bombay Rent Act.
6. Mr.Uday Vyas, learned advocate appearing on behalf of the petitioners herein has vehemently submitted that learned Appellate Court has materially erred in passing eviction decree under section 12(3)(a) of the Bombay Rent Act. It is submitted that as liability to pay municipal taxes and other taxes was upon the tenant, the case would not fall under section 12(3)(a) of the Bombay Rent Act as it cannot be said that tenancy is monthly tenancy. It is submitted that learned Trial Court has rightly held that the case would fall under section 12(3)(b) of the Bombay Rent Act. It is submitted that when the case would fall under section 12(3)(b) of the Act and the tenant deposited the entire amount of arrears of rent in the Court and considering amended provision of section 12(3) (b) of the Bombay Rent Act, by which, word "regularly" is deleted, learned Trial Court has rightly dismissed the suit and refused to pass eviction decree, which was not required to be interfered with by the learned Appellate Court. Therefore, it is submitted that when the tenant deposited entire amount of arrears of rent in the Court, learned Appellate Court has materially erred in passing eviction decree on the ground that the petitioners herein - tenants are in arrears of rent and, therefore, it is requested to allow the present application.
7. The present Civil Revision Application is opposed by Mr.Kirtidev Dave, learned advocate appearing on behalf of the respondent herein – original plaintiff - landlord. Mr.Dave, learned advocate appearing on behalf of the respondent herein has relied upon the decision of the Hon'ble Supreme Court in the case of Hotel Kings and others V/s. Sara Farhan Lukmani and others reported in (2007)1 SCC 202 as well as unreported decision of this Court rendered in Civil Revision Application Nos.70/2008 and 71/2008 and it is submitted that as liability to pay municipal taxes and other taxes was upon the tenant, over and above monthly rent of Rs.50/-, no illegality has been committed by learned Appellate Court in passing eviction decree under section 12(3)(a) of the Bombay Rent Act and the case would fall under section 12(3) (a) of the Bombay Rent Act and as no dispute was raised with respect to standard rent within a period of one month from the date of receipt of statutory notice u/s.12(2) of the Rent Act and entire amount of arrears of rent was not deposited within one month, the Court has no other alternative but to pass eviction decree under section 12(3)(a) of the Bombay Rent Act and section 12(3)(b) is not required to be considered. Therefore, it is submitted that learned Appellate Court has not committed any error and/or illegality in passing eviction decree under section 12(3)(a) of the Bombay Rent Act.
By making above submissions and relying upon above decisions, it is requested to dismiss the present civil revision application.
8. Heard learned advocates appearing on behalf of the respective parties and considered the impugned judgement and orders/decree passed by both the Courts below.
9. At the outset, it is required to be noted that learned Appellate Court has passed eviction decree under section 12(3)(a) of the Bombay Rent Act. However, it is the case on behalf of the petitioners herein - original defendants that as liability to pay municipal taxes and other taxes was upon the defendant and, therefore, tenancy cannot be said to be monthly tenancy and, therefore, section 12(3)(a) of the Bombay Rent Act would not be applicable. However, learned Appellate Court has held that as liability to pay municipal taxes and other taxes was upon the tenant over and above the monthly rent of Rs.50/-, tenancy can be said to be monthly tenancy and as no dispute with respect to standard rent was raised within a period of one month from the date of receipt of the statutory notice u/s.12(2) of the Bombay Rent Act and even did not deposit entire amount of arrears of rent within a period of one month, the case would fall under section 12(3) (a) of the Bombay Rent Act and, therefore, learned Appellate Court has passed eviction decree under section 12(3)(a) of the Bombay Rent Act. Therefore, a short question, which is posed for consideration of this Court as to Whether despite the fact that tenant is required to pay rent at the rate of Rs.50/- per month and over and above that, the tenant is liable to pay municipal taxes and other taxes, the case would fall under section 12(3)(a) or 12(3)(b) of the Bombay Rent Act?
10. The aforesaid controversy is now not res-integra and is squarely covered by the decision of the Hon'ble Supreme Court in the case of Hotel Kings and others (supra). In similar facts where the liability to pay rates and taxes was upon the tenant over and above the liability to pay the lease rent monthly, the question that arose before the Hon'ble Supreme Court was whether despite the specific provisions of lease deed for payment of lease rents on monthly basis in advance on or before the 5th day of every English calender month, whether the trial court was right in holding that having regard to the provisions relating to payment of rates and taxes and other out goings by the lessee in effect the lease would be governed under sec.12(3)(b) and not under sec.12 (3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Answering the aforesaid question in negative, in para 38 the Hon'ble Supreme Court has observed and held as under:-
“38. Consequently, even though the lease deed contained a provision for payment of the rates and taxes exclusively by the lessee and it is also stipulated that the lessor will have no liability therefor, the lease will still be governed under Section 12(3)(a) of the Bombay Rent Act as held by Appellate Bench of the Small Cause Court at Bombay and affirmed by the High Court. The expression “consideration” indicated in Section 105 of Transfer of Property Act has been used in a generic sense to include the price paid or promised or money, a share of crops, service or any other thing of value. On the other hand, the lease deed specifies the mount to be paid as rent each month while the rates and taxes and other outgoings are treated to be the separate liability of the lessee, no doubt having regard to the intention of the parties that a building was to be erected by the lessee on the demised land.”
Thus, the Hon'ble Supreme Court did not accept the argument advanced on behalf of the lessee that notwithstanding the stipulation in the lease deed that the lease rent was required to be paid on monthly basis, since the lessee was required to pay rates and taxes either annually or every six months and, therefore, it should be considered as part of the rent payable and therefore, sec.12(3)(b) be applicable. The Hon'ble Supreme Court did not accept the submission made on behalf of the lessee that since the rates and taxes were payable either annually or after every six months, the same form part of the rent and it must be held that the rent was payable not monthly but after every six months. The Hon'ble Supreme Court has specifically held that when the rent under the lease deed is payable monthly and over and above that lessee is liable to pay rates and taxes, still the case would be governed by sec.12(3)(a) of the Bombay Rent Act.
11. Thus, considering the lease deed entered into between the parties and considering the aforesaid decision of the Hon'ble Supreme Court, present case would fall under sec.12(3)(a) of the Bombay Rents Act and not under sec.12(3) (b) of the Bombay Rents Act.
12. Once it is held that the case would fall under sec.12(3)(a) of the Bombay Rents Act and all the conditions of sec.12(3)(a) of the Bombay Rents Act are satisfied, in that case, the Court has no alternative but to pass an eviction decree on the ground of arrears of rent. Only in a case where it is found that the case would fall under sec.12(3)(b) of the Bombay Rents Act, the question with respect to regular payment of rent during the pendency of suit and/or appeal would arise and in such a case, if all the conditions under sec.12(3)(b) of the Bombay Rents Act are satisfied in favour of the tenants and the tenant has paid the entire rent by the time the final decision is taken in the suit and/or appeal, though not regularly, the tenant can avoid the eviction decree. The aforesaid aspect is required to be considered only in a case where it is found that the case falls under sec.12(3)(b) of the Bombay Rents Act. As stated above, once the case falls under sec.12(3)(a) of the Bombay Rents Act and all the conditions of sec.12(3)(a) of the Bombay Rents Act are satisfied, Court has no alternative but to pass eviction decree. Under the circumstances, even if it is accepted that entire amount of arrears of rent was paid by the tenant at the time of suit as well as appeal though not regularly (though in the present case landlord has disputed that the entire amount due and payable has not been paid at the time of suit and/or appeal), as the case falls under sec.12(3)(a) of the Bombay Rents Act, learned Appellate Court has rightly passed the decree of possession on the ground of arrears of rent. No case is made out to interfere with the impugned judgement and order/decree passed by learned Appellate Court in exercise of the powers under sec.29(2) of the Bombay Rent Act.
13. In view of the above and for the reasons stated hereinabove, no illegality has been committed by learned Appellate Court in passing eviction decree u/s.12(3)(a) of the Bombay Rent Act as tenancy would be monthly tenancy and tenant has not raised any dispute with respect to standard rent within a period of one month from the date of receipt of statutory notice and the tenant has not deposited entire amount of arrears of rent within a period of one month from the date of receipt of the statutory notice under section 12(2) of the Act.
14. In view of the above, the present Civil Revision Application fails and the same deserves to be dismissed and is accordingly dismissed. Ad-interim relief, if any, stands vacated forthwith. In the facts and circumstances of the case, there shall be no order as to costs.
[M.R.SHAH,J] *dipti