1.00. Present Civil Revision Application under section 29(2) of the Bombay Rent Act has been preferred by the petitioner – original defendant to quash and set aside the impugned judgement and decree passed by the learned Small Causes Court at Ahmedahad in HRP Suit No.1218 of 1989 dtd.30/6/1997 as well as the impugned Judgement and Order passed by the learned Appellate Bench of the Small Causes Court at Ahmedabad in Civil Appeal No.97 of 1997 by which the learned Appellate Bench has dismissed the said appeal preferred by the petitioner – original defendant – tenant confirming the judgement and decree passed by the learned trial court passing eviction decree under section 12(3) (a) of the Bombay Rent Act on the ground of arrears of rent. 2.00. That the original plaintiff – landlord instituted HRP Suit No.1218 of 1989, against the petitioner – original defendant for recovery of possession / eviction decree in the Small Causes Court at Ahmedabad alleging inter-alia that the tenant was in arrears of rent for more than six months and despite the service of statutory notice as required under section 12(2) of the Bombay Rent Act, neither entire arrears of rent has been paid within a period of one month nor any dispute with respect to standard rent was raised within a period of one month from the date of receipt of the statutory notice and therefore case would fall under section 12(3)(a) of the Bombay Rent Act.
2.01. That the suit was resisted by the petitioner – original defendant by filing Written Statement at Ex.15. That the defendant denied all the allegations and averments made in the suit. It was the case on behalf of the defendant that Rs.15/- per month agreed rent is not the standard rent and therefore, there is dispute with respect to standard rent. It was also the case on behalf of the defendant that the defendant had paid rent to the plaintiff for a period of 13 months from 20/6/1986 to 19/7/1987 of Rs.270 in cash but receipts were not issued. It was also the case on behalf of the defendant that the defendant had sent rent from 20/7/1987 to 21/1/1989 of Rs.270 by Money Order which was refused and not accepted by the plaintiff. Therefore, it was also the case on behalf of the defendant that he was always ready and willing to pay rent.
2.02. That the learned trial court framed Issues at Ex.17. Both the parties led evidence documentary as well as oral.
2.03. That on appreciation of evidence, the learned trial court held the tenant to be in arrears of rent for more than six months when the suit notice was issued and also held that as the tenant did not pay the entire arrears of rent within a period of one month from the date of receipt of statutory notice under section 12(2) of the Bombay Rent Act and as the tenant was in arrears of rent for more than six months and the tenancy was monthly and no dispute with respect to standard rent was raised within a period of one month, the case would fall under section 12(3)(a) of the Bombay Rent Act and accordingly, the learned Small Causes Court at Ahmedabad decreed the suit by passing eviction decree in HRP Suit No.1218 of 1989 dtd.30/6/1997.
2.04. Being aggrieved by and dissatisfied with the judgement and decree passed by the learned Small Causes Court at Ahmedabad in HRP Suit No.1218 of 1898 dtd.30/6/1997, petitioner - original defendant preferred Civil Appeal No.97 of 1997 before the learned Appellate Bench of the Small Causes Court at Ahmedabad and the learned Appellate Bench of the Small Causes Court at Ahmedabad by the impugned Judgement and Order / decree has dismissed the said appeal preferred by the petitioner – original defendant confirming the judgement and decree passed by the learned trial court.
2.05. Being aggrieved by and dissatisfied with the Judgement and Orders / Decrees passed by both the courts below in passing eviction decree under section 12(3)(a) of the Bombay Rent Act and directing the petitioner defendant to handover the vacant and peaceful possession of the suit premises to the plaintiff, the petitioner – original defendant has preferred present Civil Revision Application under section 29(2) of the Bombay Rent Act.
3.00. Mr.S.M. Shah, learned advocate has vehemently submitted that both the courts below have materially erred in passing eviction decree against the petitioner – original defendant under section 12(3)(a) of the Bombay Rent Act. It is submitted by Mr.Shah, learned advocate appearing on behalf of the petitioner that undisputedly the father of the petitioner was let the suit premises and that he was the tenant of the suit premises and he had died leaving five sons inclusive of the defendant and the suit notice was issued upon the petitioner – defendant only and other sons being heirs of the deceased tenant were not even served with statutory notice and even transmission of the tenancy was not decided at any time, and therefore, the learned trial court has materially erred in passing eviction decree under section 12(3)(a) of the Bombay Rent Act and the learned appellate court has materially erred in confirming the same. It is submitted that unless and until transmission of tenancy is decided, no decree for possession could have been passed by serving statutory notice only upon one of the son of the deceased tenant and even by joining only one of the son as co-tenant.
3.01. Mr.S.M. Shah, learned advocate appearing on behalf of the petitioner – tenant has further submitted that even otherwise, the learned trial court has materially erred in passing eviction decree us 12(3)(a) of the Bombay Rent Act by holding that the defendant was in arrears of rent for more than six months. It is submitted that as such the plaintiff was paid rent to the plaintiff for a period of 13 months from 20/6/1986 to 19/7/1987 of Rs.270/- in cash but receipts were not issued. It is further submitted that even the defendant had sent rent from 20/7/1987 to 21/1/1989 of Rs.270 by Money Order which was refused and not accepted by the plaintiff. Therefore, it is submitted that it can be said that the defendant was ready and willing to pay the rent and in any case, refusal of the money order can be said to be payment of rent and therefore, when the Money Order was refused, it can not be said that the tenant was in arrears of rent which warrants eviction decree under section 12(3)(a) of the Bombay Rent Act.
3.02. Mr.S.M. Shah, learned advocate appearing on behalf of the petitioner – tenant has further submitted that even otherwise, both the learned courts below have materially erred in holding that the case would fall under section 12(3) (a) of the Bombay Rent Act. It is submitted that as the liability to pay the tax was upon the tenant and therefore, it cannot be said that the tenancy was monthly and therefore, the case would not fall under section 12(3)(a) of the Bombay Rent Act.
By making above submissions, it is requested to admit / allow the present Civil Revision Application.
4.00. Present Civil Revision Application is opposed by Mr.K.V. Shelat, learned respondents – heirs of the original plaintiff. It is submitted that as such there are concurrent finding of facts given by both the courts below on appreciation of evidence that the case would fall under section 12(3)(a) of the Bombay Rent Act. It is submitted that even there are concurrent finding of facts given by both the courts below that the defendant was in arrears of rent for more than six months at the time when the suit notice was issued and within a period of one month the entire arrears of rent was not paid and even no dispute with respect to standard rent was raised within a period of one month from the date of receipt of the notice. Therefore, it is submitted that no illegality has been committed by both the courts below in passing eviction decree under section 12(3)(a) of the Bombay Rent Act.
4.01. So far as the contention on behalf of the petitioner that as father of the defendant was tenant and on his death all the sons became tenants and unless the transmission of the tenancy was decided and statutory notice was served upon the defendant only and the only the defendant was joined as tenant and other sons of the deceased tenant were not joined as tenants and therefore, no decree of eviction can be passed under section 12(3)(a) of the Bombay Rent Act is concerned, Mr.K.V. Shalat, learned advocate appearing on behalf of the respondents has heavily relied upon the decision of the Hon’ble Supreme Court in the case of H.C. Pandey Versus G.C. Paul, reported in AIR 1989 S.C. 1470 as well as in the case of Ashok Chintaman Juker & Ors. Versus Kishore Pandurang Mantri & Anr., reported in 2001 SAR (Civil) 558. It is submitted by Mr.Shelat, learned advocate appearing on behalf of the respondents that as held by the Hon'ble Supreme Court in the aforesaid decisions, heirs of original tenant succeed to tenancy as “joint tenant” and not as “tenancy in common” and therefore, service of notice us 106 of the Transfer of Property Act upon one of the joint tenants, who acted on behalf of others, is sufficient.
He has submitted that In the present case, the defendant has specifically and categorically admitted that he is appointed as Vahivatkarta i.e. administrator of the suit premises after the death of his father and he looks after the management of the suit premises and he pays the rent of the suit premises. He has further submitted that the defendant – tenant has admitted in his cross-examination that he is working as Vahivatkarta – i.e. administrator of the suit premises with the consent of other members of the family and that all the members of the family were informed about the service of notice upon him and the notice was read over to all the family members. Therefore, it is submitted that both the courts below have rightly held the suit notice to be legal and valid and therefore, no illegality has been committed in passing eviction decree under section 12(3)(a) of the Bombay Rent Act.
4.02. So far as the contention on behalf of the petitioner that the defendant paid rent to the plaintiff for a period of 13 months from 20/6/1986 to 19/7/1987 of Rs.270 in cash and that the defendant tenant had sent rent from 20/7/1987 to 21/1/1989 of Rs.270 by Money Order which was refused and not accepted by the plaintiff and therefore, it cannot be said that the defendant – tenant is in arrears of rent for more than six months, is concerned, Mr.K.V. Shalat, learned advocate appearing on behalf of the respondents – plaintiffs has submitted that as such the defendant has failed to prove any payment of rent from 20/6/1986 to 19/7/1989 as claimed and therefore, even if the refusal of Money Order of rent from 20/7/1987 to 21/1/1989 can be said to be payment of rent, as the same was refused by the plaintiff, in that case also, as the defendant has failed to prove any payment of rent from 20/6/1986 to 19/7/1987, it can be said that the tenant was still in arrears of rent for the aforesaid period which is more than six months and as the entire arrears of rent was not paid by the tenant within a period of one month and no dispute with respect to standard rent was raised, no illegality has been committed by both the courts below in passing eviction decree under section 12(3)(a) of the Bombay Rent Act.
4.03. Mr.K.V. Shalat, learned advocate appearing on behalf of the respondents – plaintiffs has further submitted that even the liability to pay Municipal Tax was upon the landlord and the landlord has never demanded any Municipal Tax from the tenant and therefore, tenancy is rightly held to be monthly.
By making above submissions and relying upon the above decisions, it is requested to dismiss the present Civil Revision Application.
4.04. Heard the learned advocates appearing on behalf of the respective parties at length and considered the impugned Judgement and Orders and Decrees passed by both the courts below.
5.00. At the outset it is required to be noted that there are concurrent finding of facts given by both the courts below holding the tenant to be in arrears of rent for more than six months and case would fall under section 12(3)(a) of the Bombay Rent Act. The finding given by both the courts below are on appreciation of evidence and they are neither perverse nor contrary to the evidence on record. Under the circumstances, as such no illegality has been committed by both the courts below in passing eviction decree under section 12(3)(a) of the Bombay Rent Act and therefore, no interference of this Court in exercise of revisional jurisdiction is called for.
5.01. The impugned Judgement and Orders / Decrees passed by both the courts below are assailed mainly on the ground that as the father of the defendant was tenant and on his death all his five sons became tenants and the statutory notice under section 12(2) of the Rent Act was served upon the defendant – one of the sons of the deceased tenant only and other sons were not served with the statutory notice though they can be said to be joint tenants and therefore, no eviction decree can be passed as the statutory notice is not legal and valid. It is also the case on behalf of the petitioner – defendant – tenant that unless and until the issue with respect to transmission of tenancy in favour of other heirs is decided, no decree for eviction for possession can be passed. However, it has come on record and even the original defendant has also admitted that he is appointed as Vahivatkarta i.e. administrator of the suit premises after the death of his father. He has also further admitted that he has received the suit notice and he had replied the same also. In cross-examination he has specifically admitted in terms that he is the eldest in the family and he looks after the management of the suit premises. He has also admitted that he pays the rent of the suit premises. He has also admitted that he does the aforesaid works with the consent of other members of the family. He has also admitted that all the members of the family were informed about the notice served upon him and the notice was read over to all. He has also admitted that the Money Order sent by him was sent as per the say of all the members of the family. He has also admitted that all the members of the family are aware about filing of the suit against him by the landlord. Considering the aforesaid evidence and admission on behalf of the defendant – tenant, the aforesaid contention on behalf of the petitioner – original defendant is required to be considered.
5.02. In the case of H.C. Pandey (supra) the Hon'ble Supreme Court has held that on the death of the original tenant, tenancy right devolves upon the heirs of the deceased tenant and the heirs succeed to the tenancy as “joint tenant”. It is also further specifically held by the Hon'ble Supreme Court in the said decision that on the death of the original tenant, tenancy right devolves upon the wife, sons and daughters of the deceased tenant and the notice for termination of tenancy under section 106 of the Transfer of Property Act was addressed to and served upon one of the sons of the deceased tenant, and one joint tenant paid rent on behalf of all and acted on behalf of all heirs of the original tenant, notice to only one of the joint tenants would be sufficient. Thus, considering the aforesaid decision of the Hon'ble Supreme Court which is also relied upon by the learned appellate court, it cannot be said that notice upon only one of the heirs – petitioner herein – original defendant was insufficient.
5.03. In the case of Ashok Chintaman Juker and Ors. (supra) the Hon'ble Supreme Court, while considering the suit for eviction against the joint tenants, has specifically observed and held that no notice is necessary on all the joint tenants and one of them only is necessary to be implicated in the suit and decree for eviction is executable against all joint tenants. Under the circumstances, and considering the aforesaid two decisions of the Hon'ble Supreme Court as well as the facts of the case on hand, no illegality has been committed by both the courts below in holding the suit notice issued and served upon one of the son of the deceased tenant as sufficient and valid.
5.04. Now, so far as the contention on behalf of the petitioner that as the defendant had sent paid to the plaintiff for a period of 13 months from 20/6/1986 to 19/7/1987 of Rs.270 in cash and the defendant had sent rent from 20/7/1987 to 21/1/1989 of Rs.270 by Money Order which was refused and not accepted by the original plaintiff and therefore, it cannot be said that the tenant was in arrears of rent for more than six months, is concerned, it is required to be noted that as such the defendant has failed to prove the payment of rent for a period of 13 months from 20/6/1986 to 19/7/1987 of Rs.270 which was alleged to have been paid in cash. On the contrary the original plaintiff has successfully proved by leading evidence that rent was due from 20/6/1986 and therefore, even considering the fact that Money Order which was sent by the defendant towards rent for the period from 20/7/1987 to 21/1/1989, was refused and therefore, the same can be said to have been payment of rent by the defendant tenant, in that case also the petitioner herein – original defendant - tenant has failed to prove the payment of rent for a period of 13 months from 20/6/1986 to 19/7/1987 and therefore, the tenant was in arrears of rent for more than six months i.e. from 20/6/1986 to 19/7/1987 and as on receipt of notice under section 12(2) of the Bombay Rent Act, entire arrears of rent was not paid and the defendant tenant was found to be in arrears of rent for more than six months, and admittedly no dispute with respect to standard was raised within a period of one month from the date of receipt of the statutory notice and tenancy was found to be monthly, as such no illegality has been committed by both the courts below, eviction decree under section 12(3)(a) of the Bombay Rent Act.
5.05. Now, so far as the contention on behalf of the petitioner – original defendant - tenant that the liability to pay the Municipal Tax was upon the tenant and therefore, it cannot be said that the tenancy was monthly is concerned, it is required to be noted that as such the liability to pay the Municipal Tax is upon the landlord and even the same is so stated in the plaint itself. In the suit notice also the original plaintiff has claimed rent only and not claimed Municipal Tax and even in the reply to the notice given by the tenant also the tenant has specifically stated that the liability to pay the Municipal Tax is upon the landlord. Under the circumstances, when the tenancy is found to be monthly and the tenant was found to be in arrears of rent for more than six months and no dispute with respect to standard rent was raised within a period of one month from the date of receipt of the statutory notice, both the courts are justified in passing eviction decree under section 12(3)(a) of the Bombay Rent Act as all the ingredients of section 12(3)(a) are satisfied.
6.00. In view of th above and for the reasons stated above, present Civil Revision Application fails and the same deserve to be dismissed and is accordingly dismissed. Rule is discharged. Interim Relief granted earlier, if any, stands vacated forthwith. No costs.
[M.R. SHAH, J.] rafik