1.0 As common question of law and facts arise and both this Civil Revision Applications arise out of the common judgment and order passed by the learned Appellate Court, they are disposed of by this common judgment and order.
2.0 Civil Revision Application No.1381 of 1998 has been preferred by the applicant hereinoriginal heirs and legal representatives of the original plaintiff to quash and set aside the impugned judgment and order passed by the learned Appellate Bench of the Small Cause Court, Ahmedabad dated 17.8.1998 passed in Appeal From Order No.131 of 1997 by which the learned Appellate Bench has quashed and set aside the order passed by the learned trial Court dismissing the application submitted by the respondent herein under Order 9 Rule 13 of the Code of Civil Procedure to set aside the exparte judgment and decree passed in HRP Suit No.175 of 1996.
2.1. Civil Revision Application No.1382 of 1998 has been preferred by the very applicantheirs and legal representatives of original plaintiff to quash and set aside the impugned judgment and order passed by the learned Appellate Bench of the Small Cause Court, Ahmedabad dated 17.8.1998 passed in Civil Appeal No. 173 of 1997, by which the learned Appellate Court has allowed the said appeal preferred by the respondent hereinoriginal defendant by quashing and setting aside the judgment and decree passed by the learned trial Court dated 4.7.1997 passed in HRP Suit No. 175 of 1996 on merits.
3.0 The facts leading to the present Civil Revision Applications in nutshell are as under:
3.1. That the original plaintiff landlord instituted HRP Suit No.175 of 1996 before the Small Cause Court, Ahmedabad against the respondent herein tenantoriginal defendant for recovery of possession and eviction decree on the ground of arrears of rent as well as on the ground of his reasonable bonafide requirement of the suit premises and on the ground of tenant being guilty of conduct which is nuisance and annoyance of the neighbouring occupants. That though served the defendant did not contest the suit and though the summons were served to the defendanttenant he did appear through his advocate, he did not file any written statement and therefore, the suit proceeded exparte against the defendant. That the learned trial Court framed the issues at Exh.8. It appears that landlord did not press for eviction decree on the ground of bonafide requirement. On appreciation of evidence, the learned trial Court held that the plaintiff has failed to prove his case of nuisance and annoyance by the tenant to adjoining or neighbouring occupants. However, the learned trial Court held that the tenant is in arrears of rent for more than six months and despite the service notice under Section 12(2) of the Bombay Rents, Hotel and Lodging House Rents Control Act, 1947 (hereinafter referred to as “Rent Act”) neither the arrears of rent was deposited by the tenant nor any dispute with respect standard rent was raised within a period of one month and therefore, it was held that tenant is in arrears of rent for more six months. However, the learned trial Court observed that as liability to pay Municipal Tax is upon the tenant over and above rent at the rate of Rs. 10 p.m the case would not fall under Section 12(3)(a) of the Rent Act and case would fall under Section 12(3)(b) of the Rent Act and passed eviction decree against the respondent tenant under Section 12(3)(b) of the Rent Act. The learned trial Court passed exparte judgment and decree on 4.7.1997. It appears that thereafter the respondent tenant preferred application for setting aside the exparte judgment and decree under Order 9 Rule 13 of the Code of Civil Procedure. That there was a delay in preferring the application under Order 9 Rule 13 of the Code of Civil Procedure and therefore, the tenant submitted application to condone the delay. That the learned trial Court allowed the application to condone the delay, however did not accept the case of the respondent hereinoriginal defendant for setting aside the exparte judgment and decree passed in HRP Suit No. 175 of 1996. That being aggrieved and dissatisfied with the order passed by the learned trial Court passed in Restoration Application No. 962 of 1997 passed below Exh. 1 in not quashing and setting aside the exparte judgment and decree passed in HRP Suit No.175 of 1996, the tenant respondent herein original defendant preferred the Appeal from Order No. 131 of 1997 before the learned Appellate Bench of the Small Causes Court, Ahmedabad. Simultaneously, the respondent herein original defendant also preferred Regular Civil Appeal No. 173 of 1997 before the learned Appellate Bench of the Small Causes Court, Ahmedabad challenging the judgment and decree passed by the learned Small Causes Court, Ahmedabad dated 4.7.1997 passed in HRP Suit No. 175 of 1996 on merits. Both the appeals came to be consolidated by the learned Appellate Bench of the Small Causes Court, Ahmedabad and by common judgment and order, learned Appellate Bench of the Small Cause Court, Ahmedabad not only allowed the Appeal From Order No. 131 of 1997 quashing and setting aside the order passed by the learned trial Court dismissing the application for setting aside the exparte decree and consequently quashing and setting aside the exparte judgment and decree, the learned Appellate Bench of the Small Cause Court, Ahmedabad also allowed the Appeal which was against the final judgment an decree passed by the learned trial Court on merits and quashed and set aside the judgment and order passed by learned Small Cause Court, Ahmedabad dated 4.7.1997 passed in HRP Suit No. 175 of 1996.
3.2. Being aggrieved and dissatisfied with the impugned common judgment and order passed by the learned Appellate Bench of the Small Causes Court, Ahmedabad passed in Civil Appeal No.173 of 1997 as well as Appeal From Order No.131 of 1997, the petitioner herein (now heirs and legal representatives of original plaintiffs) have preferred present Civil Revision Applications under Section 29(2) of the Bombay Rent Act.
Civil Revision Application No.1381 of 1998
4.0 Shri Yatin Soni, learned advocate for the applicant has vehemently submitted that once the learned Appellate Bench of the Small Causes Court, Ahmedabad quashed and set aside the judgment and decree passed by the learned trial Court on merits, the learned Appellate Bench was required to set aside the order passed by the learned trial Court passed in Restoration Application by which the application submitted by the tenant to set aside the exparte judgment and decree was rejected. It is submitted that it would have been different thing if by quashing and setting aside the order passed by the learned trial Court rejecting the application to set aside the exparte judgment and decree, the Appellate Bench had remanded the matter to the learned trial Court to decide and dispose of the suit afresh and in accordance with law and on merits and after giving an opportunity to the defendant. However, once Revision Appeal against the judgment and decree passed by the learned trial Court came to be decided on merits by the learned Appellate Bench, thereafter, the learned Appellate Bench was not required to consider the order passed by the learned trial Court rejecting the application under Order 9 Rule 13 of the Code of Civil Procedure to set aside the exparte judgment and decree. It is submitted that once the order passed by the learned Small Causes Court at Ahmedabad rejecting the application to set aside the ex parte judgment and decree under Order 9 Rule 13 of the Code of Civil Procedure is set aside, the consequence would be to remand the matter to the learned trial Court to decide the same on merits. It is submitted that if that be so the final judgment and decree passed by the learned Appellate Bench in Regular Civil Appeal No.
173 of 1997 would come in the way of learned trial Court as learned Appellate Court has as such set aside the judgment and decree passed by the learned trial Court on merits. Therefore, it is requested to quash and set aside the order passed by the learned Appellate Bench passed in Appeal From Order No. 131 of 1997 as the same would be exercise in futility.
5.0 Shri Vyas, learned advocate for the respondent herein original defendant appellant is not in a position to dispute the above. He has also not disputed that the learned Appellate Court has as such quashed and set aside the judgment and decree passed by the learned Small Causes Court, Ahmedabad on merits by holding that the learned trial Court has materially erred in passing the decree under Section 12(3)(b) of the Act. Therefore, he is also not in a position to dispute the fact that once exparate judgment and order passed by the learned trial Court is set aside by the learned Appellate Court on merits, the Appeal from Order against the order rejecting the application under Order 9 Rule 13 of the Code of Civil Procedure was not required to be decided and is accordingly quashed and set aside.
6.0 In view of the above facts and circumstances, Civil Revision Application No.1381 of 1998 which has been filed against the impugned judgment and order passed by the learned Appellate Bench of the Small Cause Court, Ahmedabad passed in Appeal from Order No.131 of 1997 cannot be sustained and same deserves to be quashed and set aside.
Civil Revision Application No. 1382 of 1998
7.0 Now, so far as impugned judgment and order passed by the learned Appellate Bench of the Small Cause Court, Ahmedabad passed in Civil Appeal No. 173 of 1997 quashing and setting aside the judgment and decree passed by the learned trial Court on merits is concerned, Shri Soni, learned advocate for the applicant has vehemently submitted that as such the learned Appellate Bench has materially erred in reversing the judgment and decree passed by the learned trial Court passing the eviction decree on the ground of arrears of rent. It is submitted that as such both the Courts below have materially erred in holding that the case would fall under Section 12(3)(b) of the Act. It is submitted that both the Courts below have held that as the liability to pay the Municipal Tax is upon the tenant over and above rent at the rate of Rs. 10 p.m, the case would fall under Section 12(3)(b) of the Rent Act is erroneous. It is submitted that such finding with respect to applicability of Section 12(3)(b) of the Act is contrary to the decision of the Hon'ble Supreme Court in the case of Hotel Kings and Others vs. Sara Farhan Lukmani and others and other allied matters reported in (2007) 1 SCC 202 as well as unreported decision of this Court dated 27.4.2010 in Civil Revision Application Nos.70 of 2008 and 71 of 2008. It is submitted that as held by this Court relying upon the decision of the Hon'ble Supreme Court in the case of Hotel Kings (supra) if the liability to pay Municipal Tax is upon tenant over and above the monthly rent due and payable by the tenant, in that case, if all other conditions mentioned in Section 12(3)(a) of the Act are satisfied the Court has no other alternative but to pass eviction decree.
8.0 Shri Soni, learned advocate for the applicant has submitted that in the present case admittedly there was no reply to the statutory notice by the tenant. It is also an admitted position that no dispute of standard rent was raised by the tenant within a period of one month from the date receipt of statutory notice. It is also an admitted position that there was arrears of rent for more than six months at the time of issuance of notice under Section 12(2)of the Rent Act and that the tenant did not deposit the arrears of rent which was for more than six months, within one month from the receipt of notice under Section 12(2) of the Rent Act. Therefore, it is submitted that the case would fall under Section 12(3)(a) of the Rent Act and therefore, the Court had no other alternative but to pass eviction decree under Section 12(3)(a) of the of the Act. Therefore, it is requested to allow present Civil Revision Application and to quash and set aside the impugned judgment and order passed by the learned Appellate Bench of the Small Causes Court, Ahmedabad and to confirm the eviction decree passed by the learned trial Court may be under Section 12(3)(a) of the Rent Act and not under Section 12(3)(b) of the Rent Act as passed by the learned trial Court.
9.0 Shri Vyas, learned advocate for the respondent herein original tenant is not in a position to show any contrary decision to the decision relied upon by Shri Soni, learned advocate for the applicant referred to hereinabove. He is also not in a position to dispute that liability of Municipal Tax upon the tenant is over and above the rent at the rate of Rs.10 per month. However, has requested that as learned trial Court has passed the eviction decree under Section 12(3)(b) of the Rent Act this Court may not pass eviction decree under Section 12(3)(a) of the Rent Act learned trial Court had not passed eviction decree under Section 12(3)(a) of the Rent Act. By making above submissions, it is requested to dismiss the present Civil Revision Application.
10. Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that original landlord sought eviction decree and prayed for recovery of possession on the ground that the tenant is in arrears of rent for more than six months. The original landlord did not sought decree either under Section 12(3)(a) or Section 12(3)(b) of the Rent Act. Whether case would fall under Section 12(3)(a) of the Rent Act and /or under Section 12(3)(b) of the Rent Act would depend upon the facts of the case. It has come on record and it is not in dispute that original plaintifflandlord served statutory notice upon the tenant as required under Section 12(2) of the Rent Act calling upon the defendant to pay arrears of rent which was for more than six months. It is an admitted position that the defendanttenant did not reply to the statutory notice. It is also an admitted position that no dispute with respect to the standard rent was raised within the period of one month from the date of receipt of the statutory notice. It is also an admitted position that the tenant did not deposit the amount of arrears of rent within one month from the date of receipt of statutory notice, therefore as, as such case would fall under Section 12(3(a) of the Rent Act. However, both Courts below have held that Section 12(3)(a) of the Act would not be applicable merely on the ground that liability to pay the Municipal Tax is / was upon the tenant. As held by the Hon'ble Supreme Court in the case of Hotel Kings (supra) as well as unreported decision of this Court in Civil Revision Application Nos. 70 of 2008 and 71 of 2008, if the liability to pay Municipal Tax is upon the tenant over and above monthly rent due and payable, in that case and when all other conditions mentioned in Section 12(3)(a) of the Rent Act are satisfied, in that case, the case would fall under Section 12(3)(a) of the Rent Act and therefore, the Court had no other alternative but to pass eviction decree under Section 12(3)(a) of the of the Act.
11. Under the circumstances, both the Courts below have materially erred in holding that the case would fall under Section 12(3)(b) of the Rent Act and not under Section 12(3)(a) of the Act. It is true that the learned trial Court did not pass eviction decree under Section 12(3)(a) of the Act and passed eviction decree under Section 12(3)(b) of the Act. However as stated above, when the plaintiff came before the Court seeking eviction decree on the ground of arrears of rent he is not required to specifically mentioned in the plaint under which provisions i.e. under Section 12(3)(a) or under Section 12(3)(b) of the Rent Act he is asking for eviction decree. Under the circumstances this Court can certainly confirm the judgment and decree passed by the learned trial Court by holding that case would fall under Section 12(3)(a) of the Act though the learned trial Court passed decree under Section 12(3) (b) of the Rent Act.
12. In view of the facts and circumstances of the case, the impugned judgment and order passed by the learned Appellate Bench passed in Regular Civil Appeal No. 173 of 1997 in quashing and setting aside the eviction decree passed by the learned trial Court passed in HRP Suit No.175 of 1996 cannot be sustained and same deserves to be quashed and set aside and judgment and decree passed by the learned trial Court passing eviction decree deserves to be restored not on the ground stated by the learned trial Court under Section 12(3)(b) of the Rent Act but would be under Section 12(3)(a) of the Rent Act.
13. In view of the above and for the reasons stated above, Civil Revision Application No.1381 of 1998 is allowed and the impugned judgment and order passed by the learned Appellate Bench of the Small Causes Court, Ahmedabad dated 17.8.1998 passed in Appeal From Order No.131 of 1997 is hereby quashed and set aside for the reasons stated above.
14. For the reasons stated above, Civil Revision Application No.1382 of 1998 is hereby allowed and the impugned judgment and order passed by the learned Appellate Bench of the Small Cause Court, Ahmedabad dated 17.8.1998 passed in Civil Appeal No. 173 of 1997 is hereby quashed and set aside and the judgment and decree passed by the learned Small Cause Court dated 4.7.1997 passed in HRP Suit No. 175 of 1996 in passing eviction decree is hereby confirmed and restored. Rule is made absolute to the aforesaid extent in each of the Civil Revision Applications. No costs.
“kaushik”
sd/ ( M. R. Shah, J. )