[1.0] Present Civil Revision Application under Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as “Bombay Rent Act”) has been preferred by the petitioner herein – original plaintiff – landlord to quash and set aside the impugned judgment and decree dated 22.09.1994 passed by the learned Small Causes Court, at Ahmedabad in H.R.P. Suit No.40 of 1985 by which the learned trial Court has dismissed the said suit and refused to pass the eviction decree on the ground of arrears of rent etc. as well as the impugned judgment and order dated 18.03.1999 passed by the learned Appellate Bench of the Small Causes Court, at Ahmedabad in Civil Appeal No.104 of 1994 by which the learned Appellate Bench has dismissed the said Appeal preferred by the petitioner herein – original plaintiff and has confirmed the judgment and decree passed by the learned trial Court dismissing the suit. [2.0] That the petitioner herein – original plaintiff instituted H.R.P. No.40 of 1985 against the respondents herein for recovery of possession/eviction decree on the ground of arrears and rent for more than six months as well as on the ground that the defendant tenant has erected on the premises a permanent structure without consent of the landlord and also on the ground of nuisance and annoyance to the neighbouring and adjoining occupiers and on the ground of reasonable and bonafide requirement of the plaintiff for occupation and also on the ground that the tenant has acquired alternative suitable residential accommodation. That the said suit was resisted by the defendants by filing the written statement at Exh.12. It was denied that the defendant is in arrears of rent for more than six months. It was the case on behalf of the defendant that she was doing household work of the plaintiff and his brother and for that each work, she was getting Rs.10 per month and thus from household work she was to take Rs.20 per month. However, the plaintiff and his brother did not pay the household work remuneration as agreed and told that it would be adjusted in future rent and thus the plaintiffs already recovered Rs.650/ from the defendant and for that two kachcha receipts were given. However, the said receipts were taken back to issue pucca receipts which were never returned. The defendant also denied the allegations of nuisance and annoyance as well as acquiring the suitable alternative residential accommodation as well as the permanent construction without the consent.
[2.1] That the learned trial Court framed issues at Exh.56 and after considering the evidence and on appreciation of evidence held all the issues in negative except giving the finding that the defendant was in arrears of rent for more than six months as on the date of filing of the suit; defendant has failed to prove any payment for the arrears of rent for the period from 01.06.1976 to 28.10.1984. However, considering the fact that the liability of the municipal tax is on the defendant, the learned trial Court held that the case falls under Section 12(3)(b) of the Bombay Rent Act and as the tenant has deposited in the Court entire arrears of rent before the judgment, the learned trial Court refused to pass the eviction decree and consequently dismissed the suit by judgment and decree dated 22.09.1994.
[2.2] Feeling aggrieved and dissatisfied with the impugned judgment and decree dismissing the suit and not passing the eviction decree as prayed for, the petitioner herein – original plaintiff preferred Civil Appeal No.104 of 1994 before the learned Appellate Bench of Small Causes Court, at Ahmedabad and the learned Appellate Bench by impugned judgment and order dated 18.03.1999 has dismissed the said Appeal confirming the judgment and decree passed by the learned trial Court dismissing the suit by holding that the case falls under Section 12(3)(b) of the Bombay Rent Act and as entire arrears of rent was deposited prior to the judgment in the suit, the defendant would be entitled to protection under Section 12(3)(b) of the Bombay Rent Act and consequently dismissed the Appeal.
[2.3] Feeling aggrieved and dissatisfied by the judgment and order passed by both the Courts below, the petitioner herein – original plaintiff – landlord has preferred the present Civil Revision Application under Section 29(2) of the Bombay Rent Act.
[3.0] Ms. Binoda Gajjar, learned advocate appearing on behalf of the petitioner has vehemently submitted that both the Courts below have materially erred in refusing to pass the eviction decree. It is submitted that both the Courts below have materially erred in holding that the case would fall under Section 12(3)(b) of the Bombay Rent Act and therefore, the tenant would be entitled to protection under Section 12(3)(b) of the Bombay Rent Act. It is submitted that both the Courts below have materially erred in holding that the case would fall under Section 12(3)(b) of the Bombay Rent Act on the ground that the liability to pay the municipal tax is upon the tenant. It is submitted that both the Courts below have materially erred in not properly appreciating the fact that the rent at the rate of Rs.12 per month was over and above the liability to pay the municipal tax i.e. the municipal tax was not included in the monthly rent at the rate of Rs.12 per month. Therefore, it is submitted that as the liability to pay the monthly tax was over and above the monthly rent at the rate of Rs.12 per month, the case would fall under Section 12(3)(a) of the Bombay Rent Act. In support of her above submissions, she has heavily relied upon the decision of this Court in the case of Ravjibhai Gigabhai vs. Virjibhai Ravjibhai & Ors. reported in 2009(1) GLR 407.
[3.1] It is submitted by Ms. Gajjar, learned advocate appearing on behalf of the petitioner that as such both the Courts below have concurrently found that the tenant was in arrears of rent for more than six months on the date on which the suit notice was given as well as the suit was filed. Therefore, it is submitted that when the case falls under Section 12(3)(a) of the Bombay Rent Act and that the arrears was found to be more than six months and when there was no dispute of standard rent raised, in reply to the notice the Court has no other alternative but to pass a decree under Section 12(3)(a) of the Bombay Rent Act. Therefore, it is requested to allow the present Civil Revision Application and quash and set aside the judgment and order passed by both the Courts below and consequently to decree the suit.
[4.0] Shri Dipak Sindhi, learned advocate appearing on behalf of the tenant has opposed the present Civil Revision Application. It is submitted that as such there are concurrent findings of fact given by both the Courts below holding that the case would fall under Section 12(3)(b) of the Bombay Rent Act and therefore, the same are not required to be interfered by this Court in exercise of revisional jurisdiction. It is submitted that as such the tenant was not in arrears of rent at all. It is submitted that the defendant was doing household work in the house of plaintiff as well as his brother for which she was to get Rs.20 per month and the same was to be adjusted towards rent to be paid to the defendant and accordingly the same was adjusted and even for which two kachcha receipts were received, which were subsequently taken back by the plaintiff. Therefore, it is submitted that as such the defendant was not in arrears of rent at all.
[4.1] It is further submitted by Shri Sindhi, learned advocate appearing on behalf of the respondents – original defendants – tenant that as the liability to pay the municipal tax was upon the tenant and the municipal tax is payable yearly and therefore, it cannot be said that the rent is payable monthly and therefore, both the Courts below have rightly held that case falls under Section 12(3)(b) of the Bombay Rent Act and consequently the learned trial Court has rightly dismissed the suit and refused to pass the eviction decree, which is rightly confirmed by the learned Appellate Court.
Making above submissions, it is requested to dismiss the present Civil Revision Application.
[5.0] Having heard the learned advocates appearing for respective parties at length and considering the impugned judgment and order passed by both the Courts below, the short question which is posed for consideration of this Court is whether a case, where the liability to pay municipal tax over and above the monthly rent is upon the tenant, would fall under Section 12(3)(a) or 12(3) (b) of the Bombay Rent Act?
[5.1] It is not in dispute that the rent payable by the tenant was at the rate of Rs.12 per month, however, as per the agreement, the tenant was required to pay the municipal tax also. It is an admitted position that the monthly rent payable at the rate of Rs.12 per month is exclusive of the municipal tax meaning thereby the municipal tax is not included in the monthly rent at the rate of Rs.12 per month. Therefore, as such the rent at the rate of Rs.12 per month is payable monthly. Both the Courts below have held that the case would fall under Section 12(3)(b) of the Bombay Rent Act solely on the ground that liability to pay the municipal tax is upon the tenant. However, both the Courts below have materially erred in not properly appreciating and/or distinguishing the fact that the liability to pay the monthly tax was over and above the monthly rent at the rate of Rs.12 per month. As such the aforesaid issue is now not res integra.
Identical question came to be considered by this Court in the case of Ravjibhai Gigabhai (Supra) and considering the decision of the Hon'ble Supreme Court in the case of Ganpat Ladha vs. Sashikant Vishnu Shinde reported in AIR 1978 SC 955, when the liability to pay the municipal tax by the tenant is over and above the monthly rent payable i.e. the monthly rent payable is not inclusive of the municipal tax in that case the case would fall under Section 12(3)(a) of the Bombay Rent Act as still the rent would be payable monthly and the liability to pay the tax would be over and above the monthly rent. Under the circumstances, both the Courts below have materially erred in holding that the case would fall under Section 12(3)(b) of the Bombay Rent Act and consequently the tenant would be entitled to protection under Section 12(3)(b) of the Bombay Rent Act.
[5.2] It is required to be noted that there are concurrent findings of fact given by both the Courts below that as such the tenant was in arrears of rent for more than six months at the time of issuing notice under Section 12(2) of the Bombay Rent Act as well as at the time of filing of the suit. Both the Courts below have concurrently found that tenant – defendant has failed to prove any payment for the arrears of rent for the period from 01.06.1976 to 28.10.1984. The said findings of fact given by both the Courts below have attained finality as the defendant – tenant has not challenged the same. Under the circumstances, when the rent was payable monthly and there was no dispute with respect to standard rent raised as mentioned in Section 12(3)(a) of the Bombay Rent Act i.e. within a period of one month and/or when the entire amount of arrears of rent was not paid/deposited within a period of one month from the receipt of notice under Section 12(2) of the Bombay Rent Act, the Court has no other alternative but to pass the decree under Section 12(3)(a) of the Bombay Rent Act. Under the circumstances, both the Courts below have materially erred in not passing the decree on the ground of arrears of rent. Under the circumstances, the impugned judgment and order passed by the learned trial Court confirmed by the learned Appellate Court dismissing the suit and not passing the eviction decree on the ground of arrears of rent for more than six months deserves to be quashed and set aside.
[6.0] In view of the above and for the reasons stated above, present Civil Revision Application succeeds. Impugned judgment and decree dated 22.09.1994 passed by the learned Small Causes Court, at Ahmedabad in H.R.P. Suit No.40 of 1985 as well as the impugned judgment and order dated 18.03.1999 passed by the learned Appellate Bench of the Small Causes Court, at Ahmedabad in Civil Appeal No.104 of 1994 confirming the judgment and decree dated 22.09.1994 are hereby quashed and set aside and consequently the suit preferred by the petitioner herein – original landlord to get the eviction decree is hereby decreed on the ground of arrears of rent i.e. under Section 12(3)(a) of the Bombay Rent Act and consequently the respondents are directed to handover the peaceful and vacant possession of the suit premises to the petitioner – landlord within a period of six months from today. Rule is made absolute to the aforesaid extent. No costs.
(M.R. Shah, J.) menon