1. The present Civil Revision Application under Section 29(2) of the Bombay Rent Act has been preferred by the applicants- original defendants to quash and set aside the impugned judgment and decree passed by the learned Additional Judge, Small Cause Court, Rajkot dated 13/03/1990 in Regular Civil Suit No. 122/1986 as well as the impugned judgment and order passed by the learned appellate Court-learned Extra Assistant Judge, Rajkot dated 21/12/2002 in Regular Civil Appeal No. 29/1991 by which the learned appellate Court has dismissed the said appeal preferred by the applicants-original defendants confirming the judgment and decree passed by the learned trial Court decreeing the suit and passing the eviction decree and directing the applicants-original defendants to handover peaceful and vacant possession of the suit premises to the respondents-original plaintiffs.
2. The respondents-original plaintiffs instituted Regular Civil Suit No. 122/1986 against the original defendant-tenant in the Court of learned Small Cause Court at Rajkot for recovery of possession/eviction decree under Section 12 of the Bombay Rent Act i.e. on the ground of arrears of rent. The learned Small Cause Court, Rajkot by impugned judgment and decree dated 13/03/1990 allowed the suit/decreed the suit by passing the eviction decree directing the original defendant-tenant to handover peaceful and vacant possession of the suit premises to the original plaintiff. It appears that being aggrieved and dissatisfied with the impugned judgment and decree passed by the learned trial Court dated 13/03/1990 in Regular Civil Suit No. 122/1986 in decreeing the suit, the original defendant- tenant preferred Regular Civil Appeal before the learned appellate Court and the learned appellate Court confirmed the judgment and decree passed by the learned trial Court. It appears that being aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court Court confirmed by the learned lower appellate Court, the applicants- heirs and legal representatives of the original defendant-tenant preferred Civil Revision Application No. 517/1997 before this Court and it was submitted that the case would fall under Section 12(3)(a) of the Bombay Rent Act as the liability to pay the tax and electricity charges is upon the tenant as the taxes are payable annually and not monthly. It was submitted that the learned appellate Court did not give specific finding or opinion whether the case is covered under Section 12(3)(a) or not. Considering the above, the learned Single Judge vide impugned judgment and order dated 23/06/1998 allowed the said Civil Revision Application quashing and setting aside the judgment and order passed by the learned lower appellate Court and remanded the matter to the learned lower appellate Court for afresh decision firstly on the point, whether the case of the landlord is covered under Section 12(3)(a) of the Bombay Rent Act or not and if it comes to the conclusion that Section 12(3)(a) is applicable on the facts of the case, then it may proceed accordingly. The learned Single Judge observed that if, however, it comes to the conclusion that Section 12(3)(a) is not applicable then he shall consider whether alternative case though not pleaded in the plaint that the case is covered under Section 12(3)(b) of the Bombay Rent Act could be considered and the decree for eviction could be confirmed. It appears that thereafter, on remand, the learned lower appellate Court has passed the impugned judgment and order by which the learned appellate Court has dismissed the said appeal preferred by the applicants-original defendants confirming the judgment and decree passed by the learned trial Court. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned lower appellate Court dated 21/12/2002 in Regular Civil Appeal No. 29/1991 the applicants-original defendants have preferred the present Civil Revision Application under Section 29(2) of the Bombay Rent Act.
3. Shri Mehul Shah, learned advocate appearing on behalf of the applicants-heirs and legal representatives of the original defendant-tenant has vehemently submitted that as the liability to pay the municipal tax as well as the electricity charges is upon the tenant and as the municipal tax is payable yearly and, therefore, the case would not fall under Section 12(3)(a) of the Bombay Rent Act and the case would fall under Section 12(3)(b) of the Bombay Rent Act and, therefore, it is submitted that as such both the Courts below have materially erred in passing the eviction decree under Section 12(3)(a) of the Bombay Rent Act. Making the above submission it is requested to allow the present Civil Revision Application.
4. The present Civil Revision Application is opposed by Shri Prajapati, learned advocate appearing on behalf of the respondents-original plaintiffs. It is submitted that as such the controversy raised in the present Civil Revision Application is now not res integra in view of the decision of the Hon'ble Supreme Court in the case of Hotel Kings & Ors. Vs. Sara Farhan Lukmani & Ors. reported in 2007(1) SCC 202 as well as the unreported decision of this Court in Civil Revision Application Nos. 70/2008 and 71/2008. It is submitted that as held by the Hon'ble Supreme Court if the liability to pay the municipal tax and electricity charges upon the tenant is over and above the rent due and payable monthly, in that case, the case would fall under Section 12(3)(a) of the Bombay Rent Act and, therefore, it is submitted that no illegality has been committed by the learned trial Court in passing the eviction decree under Section 12(3)(a) of the Bombay Rent act and, therefore, it is requested to dismiss the present Civil Revision Application.
5. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the learned trial Court passed the eviction decree under Section 12(3)(a) of the Bombay Rent Act. However, in appeal, the learned appellate Court did not give specific finding, whether the case would fall under Section 12(3)(a) of the Bombay Rent Act and, therefore, the learned Single Judge remanded the matter to the learned appellate Court to decide first whether the case would fall under Section 12(3)(a) of the Bombay Rent Act or not. Thereafter, the learned appellate Court has decided the matter confirming the judgment and decree passed by the learned trial Court. It is the case on behalf of the applicants-original defendants that as the liability to pay the municipal tax and the electricity charges is upon the tenant and as the municipal tax is payable annually/yearly the case would not fall under Section 12(3)(a) of the Bombay Rent Act. The controversy is now not res integra in view of the decision of the Hon'ble Supreme Court in the case of Hotel Kings & Ors.(Supra) as well as the unreported decision of this Court in Civil Revision Application Nos. 70/2008 and 71/2008. It is specifically held by this Court relying upon the decision of the Hon'ble Supreme Court in the case of Hotel Kings & Ors.(Supra) that if the liability to pay the municipal tax upon the tenant is over and above the rent payable monthly the case would fall under Section 12(3)(a) of the Bombay Rent act. 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 Section 12(3)(b) and not under Section 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.”
5.1. 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, Section 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. In view of the above and for the reasons stated hereinabove, it cannot be said that both the Courts below have committed any error and/or illegality in passing the eviction decree under Section 12(3)(a) of the Bombay Rent Act, which calls for the interference of this Court in exercise of powers under Section 29(2) of the Bombay Rent Act.
7. In view of the above and for the reasons stated hereinabove, the present Civil Revision Application fails and the same deserves to be dismissed and is accordingly dismissed. Rule is discharged. Ad-interim relief granted earlier, if any, stands vacated forthwith.
(M.R. SHAH, J.) siji