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 “Rent Act”) has been preferred by the petitioner herein original plaintiff (now through subsequent purchaser) to quash and set aside the impugned judgment and order passed by learned Appellate Court learned Joint District Judge, 2nd Fast Track Court, Amreli dated 16.10.2003 passed in Regular Civil Appeal No. 36 of 1990 by which the learned Appellate Court has allowed the said appeal preferred by the respondent herein original defendant by quashing and setting aside the judgment and decree passed by the learned trial Court – learned 2nd Joint Civil Judge (S.D.), Amreli dated 22.11.1990 passed in Regular Civil Suit No. 372 of 1988 by which the learned trial Court decreed the suit and passed the eviction decree under Section 12(3)(a) of the Rent Act and consequently dismissing the suit.
2.0 That the original plaintiff landlord instituted Regular Civil Suit No.372 of 1988 against the respondent herein original defendant tenant for decree for possession / eviction decree on the ground of arrears of rent. It was the case on behalf of the plaintiff that the suit property was given on rent / lease to the defendant at the monthly rent of Rs. 32/ and the tenant was in arrears of rent for 29 months. It was the case on behalf of the plaintiff that though the defendant has been served with the statutory notice as required under Section 12(2) of the Rent Act by notice dated 9.7.1988 the defendant neither deposited the arrears of rent within one month nor raised any dispute with respect to standard rent within the period of one month from the date of receipt of notice and therefore, it was requested to pass eviction decree under Section 12 (3)(a) of the Rent Act. The suit was resisted by the defendant by filing written statement at Exh.9. The tenant as such admitted that the monthly rent of Rs. 32/ which is a standard rent as determined by the Court. However, it was submitted that he was always ready and willing to pay rent. It was also the case on behalf of the defendant that earlier plaintiff filed one suit in which the Court passed order to pay cost upon the defendant and therefore, the defendant called the plaintiff to recover the balance rent after deducting cost which was refused by the plaintiff landlord and therefore, there was arrears of rent due to the fault of the plaintiff. The defendant also denied that having receipt of the notice under Section 12(2) of the Rent Act. Therefore, it was requested to dismiss the suit.
2.1. That the learned trial Court framed the issues at Exh.11. Both the sides led evidence oral as well as documentary. On appreciation of evidence the learned trial Court held that the tenant is in arrears of rent for more six months and as the dispute with respect to the standard rent was not raised within the period of one month from the date of receipt of the notice under Section 12(2) of the Rent Act and case would fall under Section 12(3)(a) of the Rent Act and decreed the suit and passed eviction decree against the defendant tenant on the ground that the tenant is in arrears of rent for more than six months i.e. under Section 12(3)(a) of the Rent Act.
2.2. Being aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court, the original defendant preferred Regular Civil Appeal No. 36 of 1990 before the learned District Court. The learned Appellate Court held that notice under Section 12(2) of the Rent Act was served upon the defendant and that he was in arrears of rent for more than six months. However, considering the decision of this Court in the case of Shantaben Harilal Brahmbhatt vs. Hashmukhlal Maneklal Chokshi reported in 2001 (2) GLR 1615 the learned Appellate Court held that in the notice under Section 12(2) of the Rent Act Exh.16 does not terminate the tenancy of the tenant and therefore, without determination of the tenancy, no suit for eviction is maintainable, therefore, the learned Appellate Court has held that notice under Section 12(2) of the Rent Act, which was served upon the defendanttenant was not legal notice and therefore, on that ground alone the learned Appellate Court by impugned judgment and order has allowed the said appeal by quashing and setting aside the judgment and decree passed by the learned trial Court.
2.3. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Appellate Court in allowing the appeal and quashing and setting aside the judgment and decree passed by the learned trial Court, the petitioner herein original plaintiff has preferred Civil Revision Application under Section 29(2) of the Rent Act. It appears that during the pendency of the present Civil Revision Application the petitioner herein has purchased the suit premises with a right to pursue the present proceedings and seeking tenancy subject to the decision in the present Civil Revision Application, an application was submitted by the present applicant permitting him to pursue the present Civil Revision Application and said application has been allowed and consequently subsequent purchaser has been permitted to substitute the original petitioneroriginal plaintiff and pursue the present Civil Revision Application.
3.0 Shri P. J. Kanabar, learned advocate for the petitioner has submitted that as such the learned Appellate Court has not properly considered the suit notice at Exhs. 16 & 18. It is submitted that as such the learned Appellate Court has misinterpreted and/ or misread the suit notice at Exhs. 16 & 18. It is submitted that as such in the suit notice there is specific demand for arrears of rent and even tenancy has also been terminated and therefore, the finding given by the learned Appellate Court in the suit notice the tenancy has not been terminated is factually incorrect. It is submitted that as such the suit notice is legal and valid and as the case has been made out under Section 12(3)(a) of the Rent Act, it is requested to allow the present Civil Revision Application. It is submitted that as such suit notice is legal and valid and tenancy has been terminated as required the learned Appellate Court has materially erred in relying upon the decision of this Court in the case Shantaben Harilal Brahmbhatt (supra). Therefore, it is requested to allow present Civil Revision Application.
4.0 Shri D.C. Sejpal, learned advocate has appeared on behalf of the respondentoriginal defendant. From the suit notice at Exhs. 16 and 18 he is not in a position to substantiate the finding of fact given by the learned Appellate Court that the tenancy has not been terminated and therefore, the suit notice is not legal and valid. However, has submitted that as liability to pay the municipal tax upon the tenant the tenancy would not be monthly that the tax would be payable yearly / half yearly and therefore, the case would not fall under Section 12(3)(a) of the Rent Act and at the most it can fall under Section 12(3)(b) of the Rent Act and as entire arrears of rent has been paid subsequently during the pendency of the suit, it is requested to dismiss the present Civil Revision Application.
5.0 Heard the learned advocates for the respective parties at length and considered the impugned judgment and order passed by both the Courts below, more particularly, impugned judgment and order passed by the learned Appellate Court and considered and gone through the entire evidence on record from the Record and Proceedings received from learned trial Court. This Court has also considered the suit notice at Exhs. 16 and 18. At the outset, it is required to be noted that there are concurrent findings of fact given by both the Courts below that the suit notice at Exh.16 and 18 has been served upon the defendant. That the learned trial Court has as such decreed the suit and passed eviction decree under Section 12(3)(a) of the Rent Act by holding that the tenant was in arrears of rent for more than six months and that the tenancy was monthly and that no dispute with respect to standard rent was raised within the period of one month from the receipt of the notice. The learned trial Court also held the suit notice as legal and valid. However, in appeal the learned Appellate Court has held that the suit notice is not legal and valid as in the notice tenancy has not been terminated specifically and therefore, relying upon decision of this Court in the case of Shantaben Harilal Brahmbhatt (supra)the learned Appellate Court has held that as the suit notice is not legal and valid no decree for eviction can be passed under Section 12(3)(a) of the Rent Act. However, considering the suit notice at Exhs. 16 and 18, it appears there is misleading and / or misinterpretation of the suit notice. In the suit notice, there is a specific demand of arrears of rent and even the tenant also been called upon to make arrears of rent and even the tenancy has also been terminated on non payment of arrears of rent. Under the circumstances, the finding given by the learned Appellate Court that by serving notice the tenancy has not been terminated is factually incorrect. Even the learned advocate for the respondent is also not in a position to satisfy how the finding given by the learned Appellate Court holding the suit notice is just and proper. Under the circumstances, when in the statutory notice under Section 12(2) of the Rent Act there is specific demand of arrears of rent and he was called upon to pay arrears of rent which was due for 29 months, failing which the tenancy has been terminated, the learned Appellate Court has materially erred in holding the suit notice as not legal and valid and consequently has materially erred in quashing and setting aside the judgment and decree passed by the learned trial Court passed under Section 12(3)(a) of the Rent Act.
6.0 Now, so far as contention on behalf of the respondent that tenancy was not monthly as the liability to pay the municipal tax was upon the tenant is concerned, the aforesaid has no substance. At the outset, it is required to be noted that as such in the statutory notice and / or in the suit the plaintiff never claimed any municipal tax. Even in the deposition, it was never the case on behalf of the defendant that liability to pay tax is upon the tenant. On the contrary in the examination in chief itself, he has admitted that the monthly rent is Rs. 32/ which is standard rent as decided by the Court. Under the circumstances, when the defendanttenant himself has stated in the examination in chief that rent is Rs.32/ per month, it cannot be said that both the Courts below have committed any error in holding the tenancy as monthly. Considering the fact that tenant was in arrears of rent for more than six months and no dispute with respect to standard rent was not raised within the period of one month from the date of receipt of the notice under Section 12(2) of the Rent Act and tenancy was monthly the case would fall under Section 12(3)(a) of the Rent Act and therefore, impugned judgment and order passed by the learned Appellate Court quashing and setting aside the judgment and decree passed by the learned trial Court solely on the ground that suit notice was not legal and valid deserves to be quashed and set aside.
7.0 In view of the above and for the reasons stated above, present Civil Revision Application succeeds. The impugned judgment and order passed by learned Appellate Court learned Joint District Judge, 2nd Fast Track Court, Amreli dated 16.10.2003 passed in Regular Civil Appeal No. 36 of 1990 is hereby quashed and set aside and judgment and decree passed by the learned trial Court – learned 2nd Joint Civil Judge (S.D.), Amreli dated 22.11.1990 passed in Regular Civil Suit No. 372 of 1988 is hereby restored and consequently eviction decree is passed against the respondent hereinoriginal defendant under Section 12(3)(a) of the Rent Act. Rule is made absolute to the aforesaid extent. No costs.
sd/ ( M. R. Shah, J. ) “kaushik”