Date : 25/04/2012 1.00. Present Civil Revision Application under section 29(2) of the Bombay Rents, Hotel and Lodging House Rents Control Act, 1947 (hereinafter referred to as “the Bombay Rent Act” for short) has been preferred by the petitioners herein – heirs and legal representative of the original plaintiff – landlord to quash and set aside the impugned Judgement and Order passed by the learned appellate court - learned Additional District Judge and Presiding Officer, FTC No.3, Rajkot in Regular Civil Appeal No. 38 of 1999 dtd.24/7/2008, by which the learned appellate court has allowed the said appeal preferred by the respondent No.1 – original defendant No.1 – tenant and has quashed and set aside the judgement and decree passed by the learned Second Small Cause Judge, Rajkot dtd.13/4/1999 in Regular Civil Suit No.76 of 1987. 2.00. The original plaintiff instituted Regular Civil Suit No.76 of 1987 against the respondent No.1 and another in the court of learned Small Causes Court at Rajkot for recovery of the possession on the ground of arrears of rent for six months and also on the ground of subletting by original defendant No.1 in favour of the defendant No.2. That it was the case on behalf of the plaintiff that the tenant was in arrears of rent for more than six months and despite the settlement in earlier proceedings in Civil Misc.Application No.275 of 1980, fixing standard rent at the rate of Rs.69 per month and liability to pay tax was upon the defendant No.1 – tenant. The tenant was in arrears of rent for a period of 41 months w.e.f. 1/7/1983 and despite the statutory notice under section 12(2) of the Bombay Rent Act, defendant No.1 failed to make the payment of arrears of rent and therefore, suit was filed for recovery of possession.
2.01. That the suit was resisted by the defendant No.1 by filing Written Statement at Ex.22 by submitting that the liability to pay the municipal tax was also upon the tenant - defendant No.1 and therefore the case would fall under section 12(3)(b) of the Bombay Rent Act. It was submitted that there was dispute with respect to standard rent and that he was already and willing to pay tax. It was also case on behalf of the defendant No.1 that as he has cleared arrears of rent during the pendency of the suit, it was requested to dismiss the suit.
2.02. That the learned trial court framed the Issues at Ex.30A. That the plaintiff himself was examined at Ex.51 and the plaintiff also produced documentary evidences also. That on behalf of the defendants, defendant No.1 was also examined at Ex.105. That on appreciation of evidence and considering the earlier order passed in Civil Misc.Application No.275 of 1980 under which it was agreed between the parties that the defendant No.1 shall pay rent at the rate of Rs.69 per month plus municipal tax etc., the learned trial court held that the case would fall under section 12(3)(a) of the Bombay Rent Act and therefore, passed eviction judgement and decree dtd.13/4/1999 on the ground of arrears of rent and directed the defendants to handover peaceful and vacant possession of the suit shop to the plaintiff. That the learned trial court also passed the judgement and decree on the ground of subletting also. Being aggrieved by and dissatisfied with the judgement and decree passed by the learned trial court in passing the eviction decree on the ground of arrears of rent as well as on the ground of subletting by the defendant No.1 to the defendant No.2, petitioner - original defendant No.1 only preferred Regular Civil Appeal No.38 of 1999 and the learned Additional District Judge, FTC No.3, Rajkot, by the Judgement and Order dtd.24/8/2008 has allowed the said appeal by quashing and setting aside the judgement and decree passed by the learned trial court mainly on the ground that as the liability to pay tax was also upon the tenant, case would fall under section 12(3)(b) of the Bombay Rent Act and therefore, as the defendant tenant has deposited the amount, no eviction decree can could be passed and therefore, the learned appellate court reversed the decree passed by the learned trial court. The learned appellate court also held that the plaintiff has failed to prove subletting by the defendant No.1. Being aggrieved by and dissatisfied with the Judgement and Order passed by the learned appellate court in allowing the appeal preferred by the respondent No.1 - original defendant No.1 and in quashing and setting aside the judgement and decree passed by the learned trial court, heirs and legal representatives of the original plaintiffs have preferred the present Civil Revision Application under section 29(2) of the Bombay Rent Act.
3.00. Mr.Mankad, learned advocate appearing on behalf of the petitioners – heirs and legal representatives of the original plaintiffs has vehemently submitted that the learned appellate court has materially erred in allowing the appeal preferred by the respondent No.1 – original defendant No.1 – tenant and has materially erred in quashing and setting aside the judgement and decree passed by the learned trial court. It is submitted that the learned appellate court has materially erred in holding that the case would fall under section 12(3)(b) of the Act. It is submitted that under the compromise, decree / order has been passed in Civil Misc.Application No.275 of 1980 and rent was fixed at the rate of Rs.69 per month plus Municipal Taxes and as the rent and the taxes were separate, as per the decision of the Hon'ble Supreme Court in the case of Hotel Kings and others Vs. Sara Farhan Lukmani and others, reported in (2007) 1 SCC 202 as well as this Court in the case of Ravjibhai Gigabhai Versus Virjibhai Ravjibhai and others, reported in 2009(1) GLR 407, case would fall under section 12(3)(a) of the Bombay Rent Act. It is submitted that in the present case, the learned appellate court has specifically observed and held that amount of Rs.69/- was not including the tax but the amount of tax was separate, Still the learned appellate court has held that case would fall under section 12(3)(b) of the Bombay Rent Act. It is submitted that as such the aforesaid finding is absolutely contrary to the decision of the Hon'ble Supreme Court in the case of Hotel Kings (supra) and decision of this Court in the case of Ravjibhai Gigabhai (supra). Therefore, it is submitted that when dispute with respect to standard rent was resolved by consent order in Civil Misc.Application No.275 of 1980 and thereafter when rent was payable monthly and arrears of rent was for more than 6 months at the time of notice under section 12(2) of the Bombay Rent Act and there was no dispute with respect to standard rent, case would fall under section 12(3)(a) of the Rent Act. Therefore, it is submitted that the learned appellate court has materially erred in quashing and setting aside the judgement and decree passed by the learned trial court on the ground that the case would fall under section 12(3)(b) of the Bombay Rent Act.
3.01. Mr.Mankad, learned advocate appearing on behalf of the petitioners has further submitted that even the learned appellate court has also materially erred in quashing and setting aside the judgement and decree passed by the learned trial court on the ground that the plaintiff has failed to prove subletting by the defendant No.1 in favour of the defendant No.2.
By making above submissions and relying upon above decisions, it is requested to allow the present Civil Revision Application.
4.00. Present Civil Revision Application is opposed by Mr.Sandip Bhatt, learned advocate appearing on behalf of the respondent No.1 – original defendant No.1 – tenant. It is submitted that the learned appellate court, on appreciation of evidence, has held that the plaintiff has failed to prove subletting by the defendant No.1 in favour of the defendant No.2 and therefore, the learned appellate court has rightly quashed and set aside the judgement and decree passed by the learned trial court which was passed on the ground of subletting also.
4.01. Now, so far as the arrears of rent is concerned, it is submitted that in facts and circumstances of the case, the learned appellate court has rightly held that the case falls under section 12(3)(b) and as the entire arrears of rent was paid during the pendency of the suit and even thereafter during the pendency of the appeal, the tenant has paid rent regularly, the learned appellate court has not committed any error and/or illegality in allowing the appeal and quashing and setting aside the judgement and decree passed by the learned trial court which was passed on the ground of arrears of rent. It is submitted that as such there was dispute with respect to standard rent also and therefore, case would fall under section 12(3)(b) of the Bombay Rent Act.
By making above submissions it is requested to dismiss the present Civil Revision Application.
5.00. Heard the learned advocate appearing on behalf of the respective parties at length and considered the Judgement and Order passed by both the courts below.
6.00. At the outset, it is required to be noted that the tenant was in arrears of rent for more than six months at the time of notice under section 12(2) of the Bombay Rent Act.
6.01. It is also required to be noted that prior thereto, one Civil Misc.Application No.275 of 1980, was preferred by the tenant for standard rent and in said Civil Misc.Application No.275 of 1980, compromise had taken place and it was agreed between the parties that tenant shall pay Rs.69/- per month towards the rent and liability to pay tax was upon the tenant separately and therefore, as such the dispute with respect to standard rent was resolved in Civil Misc.Application No.275 of 1980. Therefore, when the rent was payable monthly, and there was no dispute with respect to standard rent and the tenant was found to be in arrears of rent for more than six months, the case would fall under section 12(3)(a) of the Bombay Rent Act and therefore, the learned trial court passed eviction decree on the ground of arrears of rent under section 12(3)(a) of the Bombay Rent Act. The learned appellate court reversed the said decree on the ground that as the liability to pay the tax was upon the tenant, the case would fall under section 12(3)(b) of the Bombay Rent Act. The aforesaid finding that the case would fall under section 12(3)(b) of the Bombay Rent Act is just contrary to the decision of this Court in the case of Ravjibhai Gigabhai (supra). Considering the aforesaid decision of this Court, Mr.Bhatt, learned advocate appearing on behalf of the respondent is not in a position to satisfy this Court as to how the case would fall under section 12(3)(b) of the Bombay Rent Act. He is also not in a potion to show any decision contrary to the aforesaid decisions. As such, he is also not in a position to dispute that as such the dispute with respect to standard rent was already resolved by compromise in Civil Misc.Application No.275 of 1980. He is also not in a position to dispute that standard rent at the rate of Rs.69 per month was fixed in Civil Misc.Application No.275 of 1980 and the liability to pay tax was separate. It is also required to be noted that when the learned appellate court in the impugned Judgement and Order has specifically observed and held that an amount of Rs.69 was excluding taxes and the amount of tax was separate. In the aforesaid facts and circumstances, when the amount of Rs.69 was towards the rent only and was not including the taxes, but the amount of tax was to be paid separately, case would certainly fall under section 12(3)(a) of the Bombay Rent Act. Under the circumstances, the learned appellate court has materially erred in holding that the case would fall under section 12(3)(b) of the Bombay Rent Act and has materially erred in quashing and setting aside the judgement and decree passed by the learned trial court on the ground of arrears of rent.
6.02. The aforesaid controversy raised in the present Civil Revision Application 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.
6.03. In view of the above, when the judgement and decree passed by the learned trial court is sustainable on the ground of arrears of rent, this Court is not further considering anything on merits with respect to subletting. Even the learned advocates appearing on behalf of the respective parties have also not pressed the issue of subletting before this Court.
7.00. In view of the above and for the reasons stated above, present Civil Revision Application is allowed and the impugned judgement and order passed by the learned appellate court - learned Additional District Judge and Presiding Officer, FTC No.3, Rajkot in Regular Civil Appeal No.
38 of 1999 dtd.24/7/2008, in allowing the said appeal and quashing and setting aside the judgement and decree passed by the learned Small Cause Court, Rajkot dtd.13/4/1999 in Regular Civil Suit No.76 of 1987, on the ground of arrears of rent is hereby quashed and set aside and the judgement and decree passed by the learned trial court - learned Small Cause Court, Rajkot dtd.13/4/1999 in Regular Civil Suit No.76 of 1987, on the ground of arrears of rent, is hereby restored. Rule is made absolute accordingly.
In view of above judgement and order allowing the main Civil Revision Application, no order in the Civil Application No.4696 of 2012 and the same is accordingly disposed of.
[M.R. SHAH, J.] rafik