Vasantaben Somabhai Rathod & 8 ­ Opponents

1.0 Present Civil Revision Application under Section 29 (2) of the Bombay Rents, Hotel and Lodging Houses Rent (Control) Act, 1947 (hereinafter referred to as “Bombay Rent Act”) has been preferred by the petitioners herein original plaintiffs to quash and set aside the impugned judgment and decree dated 24.4.1992 passed by the learned Civil Judge (J.D.), Dharampur passed in Regular Civil Suit No.2 of 1984 by which the learned trial Court dismissed the said suit preferred by the original plaintiffs and refused to pass eviction decree against the respondents ­original defendants under Section 12(3)(a) of the Rent Act i.e. on the ground of non payment of rent for more than six months as well as impugned judgment and order passed by the learned Additional District Judge Valsad camp at Navsari dated 22.6.1999 passed in Regular Civil Appeal No. 44 of 1992 by which the learned Appellate Court has dismissed the said appeal confirming the judgment and decree passed by the learned trial Court dismissing the suit.

2.0 That the original plaintiffs instituted Regular Civil Suit No. 2 of 1984 in the Court of learned Civil Judge (J.D.), Dharampur against the respondents herein ­original defendants for recover of possession / eviction decree on the ground of arrears of rent for more than six months. It was the case on behalf of the plaintiffs that 23 months rent was due and payable for the period between 30.11.1981 to 1.12.1981 by the tenant and despite the service of statutory notice as required under Section 12(2) of the Rent Act neither the tenants replied to the same nor paid the arrears of rent within the period of one month and therefore, the case would fall under Section 12(3)(a) of the Rent Act.

2.1 That the suit was resisted by the defendants by filing written statement submitting that only 14 months rent was due and payable and Rs.500 was lying with the landlord by way of deposit and if the said amount of Rs.500/­ is given credit by deducting the rent for more than six months is not due and payable and therefore, it was requested to dismiss the suit. It was the case on behalf of the defendants that their case was fall under Section 12(3)(b) of the Act and not under Section 12(3)(a) of the Rent Act.

2.2. That the learned trial Court framed the issue at Exh.13(a). That on appreciation of evidence the learned trial Court held that the case would fall under Section 12(3)(a) of the Rent Act, however the learned trial Court observed and held that according to the defendants only 14 months rent was due and payable and Rs.500/­ was lying with the original plaintiffs ­landlord by way of deposit and therefore, the said amount of Rs.500/­ is given credit and the amount due and payable towards rent is deducted from the same there would be arrears of rent of only five months i.e. less than six months and therefore, the learned trial Court refused to pass eviction decree and consequently dismissed the suit by judgment and decree dated 24.4.1992.

2.3. Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned Civil Judge (J.D.), Dharampur dated 24.4.1992 passed in Regular Civil Suit No.2 of 1984, the petitioners herein heirs and legal representatives of plaintiff instituted Regular Civil Appeal No.44 of 1992 before the District Court, Valsad and the learned Additional District Judge, Valsad camp at Navsari by impugned judgment and order dated 22.6.1999 has been pleased to dismiss the said appeal confirming the judgment and decree passed by the learned trial Court dismissing the suit.

2.4. Being aggrieved and dissatisfied with the impugned judgment and order passed by both the Courts below in not passing the eviction decree against the respondents herein­original defendants­ tenants, the petitioners herein heirs and legal representatives of original plaintiffs have preferred the present Civil Revision Application under Section 29(2) of the Bombay Rent Act.

3.0 Shri Panchal, learned advocate for the petitioners has vehemently submitted that both the Courts below have materially erred in not passing the eviction decree on the ground of arrears of rent. It is submitted that once both the Courts below have held that the case would fall under Section 12(3)(a) of the Rent Act, the Court has no other alternative but to pass eviction decree.

3.1. It is further submitted by Shri Panchal, learned advocate for the petitioners that learned trial Court has materially erred in holding that the arrears of rent was for only five months i.e. less than six months. It is submitted that the learned trial Court has even materially erred in giving credit of Rs.500/­ which was alleged to have been paid to the landlord by way of deposit. It is further submitted by Shri Panchal, learned advocate for the petitioners that the learned trial Court has materially erred in holding that there was arrears of rent of only 14 months as contended by the tenant and giving credit of Rs.500/­ which was alleged to have been paid to the plaintiffs by way of deposit the learned trial Court has materially erred in holding that the arrears of rent was for less than six months. It is submitted by Shri Panchal, learned advocate for the petitioners that as such arrears of rent at the time of suit notice was for 23 months form 1.12.1981 and even if assuming that Rs.500/­ which was deposited with the plaintiffs is required to be given credit in that case also, the arrears of rent would be 13 months, therefore, learned trial Court ought to have passed the eviction decree. By making above submission, it is requested to allow the present Civil Revision Application.

4.0 Ms. R.V. Acharya, learned advocate for the respondents has tried to oppose the present Civil Revision Application by submitting that no illegality has been committed by both the Courts below in refusing to passed eviction decree on the ground of arrears of rent. It is submitted that the learned trial Court has rightly giving the credit of Rs.500/­ which was kept with the plaintiffs by way of deposit and the if the same is adjusted towards arrears of rent in that case, as rightly held by the learned trial Court the arrears of rent would be only five months i.e. less than six months and therefore, the learned trial Court has rightly refused to pass eviction decree and has rightly dismissed the suit which is rightly confirmed by the learned Appellate Court. By making above submissions, 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 as well as evidence on record from the record and proceedings which has been received from the learned trial Court. Considering the above, it appears that according to the plaintiffs arrears of rent was for 23 months from 1.12.1981 at the time when the suit notice under Section 12(2) of the Rent Act was served. It is an admitted an position that within the period of one month from the date of receipt of the statutory notice under Section 12(2) of the Rent Act, under which, the tenant was called upon to pay arrears of rent for 23 months from 30.11.1981 t, the defendants­tenants neither replied to the said notice nor deposited / paid the arrears of rent claim in the suit notice. The defendants­tenants also did not raised the dispute with respect to standard rent within a period of one month. Under the circumstances, as such both the Courts below have rightly held that case would fall under Section 12(3)(a) of the Act and not under Section 12(3)(b) of the Act. Under the circumstances, when both the Courts below have concurrently held and found that the case would fall under Section 12(3)(a) of the Act in that case, Court has no other alternative but to pass eviction decree.

6.0 However, it appears from the impugned judgment and order that the learned trial Court refusing to pass eviction decree on the ground that as per the tenant only 14 months rent was due and payable and Rs.500/­ was lying with the plaintiffs ­landlord by way of deposit and if the same is given credit in that case, there would be arrears of rent of five months only and therefore, the learned trial Court held that as the rent due and payable was for less than six months the eviction decree cannot be passed. From the evidence on record, it appears that the learned trial Court committed error there. It is required to be noted that in the suit notice the plaintiffs claim the arrears of rent for 23 months from 1.12.1981 which was not disputed by the defendants ­tenants by replying the statutory notice. In the written submission, the defendants came out with the case that only 14 months rent was due and payable. However, considering the written statement closely, it appears that according to the defendants 14 months rent was due and payable which was for the period after filing of the suit and not when the statutory notice under Section 12(2) of the Rent Act was issued by the plaintiffs. Under the circumstances, when at the time of issuance statutory notice under Section 12(3) (a) of the Rent Act 23 months rent was due and payable and even if Rs.500/­ which was alleged to have been deposited with the plaintiffs ­landlord by way of deposit is given credit it would be 10 months rent and still there would be arrears of rent for 13 months i.e. more than six months. Under the circumstances, when both the Courts below have held that the case would fall under Section 12(3)(a) of the Rent Act and considering the above, the rent due and payable would be 13 months (even after giving credit of Rs.500/­ which was lying with the landlord by way of deposit as alleged by the tenant) the Court had no other alternative but to pass eviction decree under Section 12(3)(a) of the Rent Act. Under the circumstances, both the Courts below have materially] erred in not passing eviction decree under Section 12(3)(a) of the Rent Act and same 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. impugned judgment and decree dated 24.4.1992 passed by the learned Civil Judge (J.D.), Dharampur passed in Regular Civil Suit No.2 of 1984 as well as impugned judgment and order passed by the learned Additional District Judge Valsad camp at Navsari dated 22.6.1999 passed in Regular Civil Appeal No. 44 of 1992 are hereby quashed and set aside and eviction decree is passed under Section 12(3)(a) of the Rent Act and consequently Regular Civil Suit No.2 of 1984 is decreed and respondents herein are hereby directed to handover the peaceful and vacant possession of the suit premises to the petitioners herein­original plaintiffs­landlord within a period of three months from the date of receipt of the present order. Rule is made absolute to the aforesaid extent. No costs.

kaushik sd/­ ( M. R. Shah, J. )