Bombay High Court
Ramchandra Appaji Hanjage, Since ... vs Mahavir Gajanan Mug on 18 December, 1991
Equivalent citations: 1991(4)BOMCR381
JUDGMENT D.R. Dhanuka, J.
1. This petition raise an interesting and important question of law relating to interpretation and application of section 12(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Bombay Rent Act). The relevant question arising for consideration of the Court is formulated as under:---
"Whether notice demanding arrears of rent purported to have been issued under section 12(2) of the Bombay Rent Act is invalid where the demand made thereby if for an excessive amount i.e. the amount which is not legally due and payable by the tenant on the date of notice of demand and the error in computation of arrears is not marginal or insubstantial? "
I answer the question in affirmative.
2. The petitioners are heirs and legal representatives of one Ramchandra Appaji Hanjage, the original tenant in respect of the premises precisely described in paragraph 1 of the petition, situate at Raviwer Peth, 'B' Ward, Kolhapur City. The said Ramchandra had acquired the suit premises as a tenant on tenancy basis from the then landlord of the property sometime in the year 1942. By a sale deed dated 17th July 1970, one Shri Mandhar Mirji, the then owner of the property, transferred his right, title and interest in the property in favour of one Mahavir Gajanan Mug, the respondent in this petition. By a letter dated 6th November 1972, the respondent (original plaintiff) called upon the tenant to pay arrears of rent for the period commencing from 1st January 1961 on the assumption that the monthly rent payable by the tenant stipulated between the tenant and the former landlord was Rs. 50/- per month. The tenant did not comply with the demand made by the said notice. The petitioners dispute the validity of the notice of demand on the ground that the demand made was for excessive amount and was not for the amount legally due and payable by the petitioners.
3. Sometime in the year 1973, the respondent filed Regular Civil Suit No. 16 of 1973 for eviction of the tenant from the suit premises in the Court of the Joint Civil Judge, Junior Division, Kolhapur. The only ground which survives for consideration of this Court is as to whether the original tenant had committed default in respect of his obligation to pay arrears of rent within the contemplation of section 12(3)(a) of the Bombay Rent Act. In the written statement filed in the said suit, the tenant contended that the contractual rent payable in respect of the suit premises was Rs. 7/- per month and not Rs. 50/- per month. the tenant contended that the former landlord Mirji always used to collect contractual rent from the tenant in respect of the suit premises at the said rate. The tenant contended that the standard rent of the suit premises was also liable to be fixed at Rs. 7/- per month. It was also contended by the tenant in the said suit that the defendant-tenant had already paid to the former owner Shri Mirji arrears of rent for the period prior to the transfer of the suit property, but no receipts used to be issued by the then landlord. It was further contended by the defendant that the defendant had paid various amounts to the authority concerned towards water charges, half of which were payable by the landlord. The tenant claimed adjustment in respect of such amount towards the rent payable.
4. On 26th June 1978, the trial Court passed a decree for eviction against the tenant Ramchandra. The trial Court held that the standard rent of the suit premises was liable to be fixed at Rs. 50/- per month. The trial Court held that the predecessor-in-title Shri Mirji had not authorised the plaintiff to recover the arrears of rent and the plaintiff was entitled to recover rent from the defendant only for the period commencing from 16th July 1970. The trial Court held that the defendant was entitled to appropriate Rs. 89.88 p towards rent being half share of water charge payable by the plaintiff as particularised in paragraph 34 of its judgment. The trial Court held that the defendant was in arrears of rent for a period of more than six months on the date of the notice and the said amount had remained unpaid during the notice period. The defendant did not pay any amount to the plaintiff during the notice period. The defendant did not make any application for fixation of standard rent within one month from service of notice of demand. The defendant had paid amounts in Court during the pendency of the suit.
5. Being aggrieved by the said decree for eviction, the defendant-tenant filed an appeal before the Court of the Extra Assistant Judge, Kolhapur, being Regular Civil Appeal No. 153 of 1978. The appeal Court below recorded the following findings :--
1. The contractual rent of the suit premises was Rs. 7/- per month;
2. The standard rent of the suit premises was Rs. 7/- per month;
3. Notice of demand issued by the plaintiff to the defendant demanding arrears of rent at the rate of Rs. 50/- per month could not be considered as invalid even though the landlord had demanded much more amount than the amount which was actually due by the tenant towards arrears of rent;
4. Since the defendant-tenant had not paid any amount to the plaintiff during the notice period, the defendant was liable to be considered in default. The case was therefore governed under section 12(3)(a) of the Bombay Rent Act;
5. Even though the contractual rent of the suit premises was Rs. 7/- per month, the demand of rent made by the plaintiff at the rate of Rs. 50/- per month could not be considered as mala fide. The said demand notice was liable to be treated as valid in law.
6. The finding of fact recorded in the appellate judgment shall have to be considered as correct and binding on both the parties for the purpose of deciding this writ petition. The finding of fact recorded by the appellate Court were not assailed by either of the learned counsel. It follows, therefore, that by the notice of demand dated 6th November, 1972, the plaintiff required the defendant to pay arrears of rent for the period commencing from 1st January 1961 at the rate of Rs. 50/- per month. The said demand was clearly for an excessive and exorbitant amount as it has been by the final Court of facts that the contractual rent as well as standard rent payable in respect of the suit premises was only Rs. 7/- per month. The final court of facts has also held that the standard rent payable in respect of the suit premises was also Rs. 7/- per month. The said demand was for "excessive" and "exorbitant amount" as the two Courts below have held that the predecessor-in-title of the plaintiff was not authorised by the plaintiff to recover the arrears of rent prior to the date of purchase and the plaintiff was entitled to recover rent from the defendant for the period commencing from 16th July, 1970 and not for the period commencing from the year 1961. It is therefore, unnecessary to inquire as to whether the tenant had paid the amount of rent for the period prior to 16th July 1970 to the old landlord or not.
7. In the suit which was filed soon after the expiry of the notice period, the plaintiff claimed a money decree for Rs. 7,225/-. If one is to calculate arrears of rent for the period commencing from 16th July 1970 at the rate of Rs. 7/- per month, the same being the contractual as well as standard rent in respect of the suit premises, the amount of arrears would come to Rs. 189/- Out of the said amount, credit will have to be given for Rs. 89.88p. Thus the difference between the amount claimed and the amount payable is to much. It was not a case of any marginal error or insubstantial error in computation of the amount of arrears. Mala fide or bona fide of the landlord is irrelevant for judging validity of notice of demand.
8. Section 12(2) of the Bombay Rent Act reads as under:--
"12(2) . No suit for recovery of possession shall be instituted by a landlord against tenant on the ground of non-payment of the standard rent or permitted increases dur, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the Transfer of Property Act, 1882."
9. No suit for eviction on the ground of non-payment of rent or permitted increases can be filed unless a valid notice of demand is serve by the landlord on the tenant demanding amount of standard rent or permitted increases which was due from the tenant. No such suit can be filed on the said ground unless the valid notice of demand remains uncomplied with by the tenant within the period of one month next after the notice is served on the tenant in the manner provided in section 106 of the Transfer of Property Act, 1882. If no valid notice is served, the landlord has no cause of action to file a suit for ejectment on the ground of non-payment of rent and the court has no jurisdiction to entertain the suit for eviction on ground of non-payment of rent.
10. Shri Abhyankar, the learned Counsel for the petitioners, has relied upon the judgment of Tated, J., in the cases of Shantilal v. Sadashiv, reported in 1989 Bombay Rent Cases, 407. In this case, it was held by this Court that is the landlord claimed excessive or exaggerated amount from the tenant in the notice of demand, the notice of demand was liable to be considered as invalid unless the difference between the amount claimed and the amount actually due was marginal. I agree.
11. Shri Abhyankar has also relied upon the judgment of the Supreme Court in the case of Chimanlal v. Mishrilal, reported in (1985)1 Supreme Court Cases, 14. In this case, the Apex Court was concerned with the interpretation of section 12(1)(a) of the Madhya Pradesh Accomodation Control Act, 1961. The said section also provided that no suit shall be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the grounds set out therein. Section 12(1) (a) of the Madhya Pradesh Accommodation control Act, 1961 reads as under:--
"12. Restriction on eviction of tenants.:---
(1) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only, namely:
(a) that the tenant has neither paid not tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner."
In this case, the question before the Supreme Court was as to whether the notice demanding the rental arrears was valid or not. By a notice of demand dated 21st October, 1969, the landlord had demanded arrears of rent in respect of the accommodation which, according to the landlord, consisted of a portion of a shop and verandah and not the entire shop. The tenant contended before the Courts below as well as before the Supreme Court that the demised premises consisted of the entire premises and not portion of the shop premises. Pathak, J., (as High Lordship then was ) speaking for the Bench of the supreme Court observed that this was not a case where the discrepancy between the accommodation alleged by the landlord and actually let to the tenant was marginal or insubstantial. In paragraph 8 of its judgment the Hon'ble Supreme Court interpreted section 12(1)(a) of the Madhya Pradesh Accommodation Control Act, 1961 as under:--
"The notice referred to in section 12(1)(a) must be a notice demanding the rental arrears in respect of accommodation actually let to the tenant. It must be notice (a) demanding the arrears of rent in respect of the accommodation let to the tenant and (b) the arrears of rent must be legally recoverable from the tenant."
It was further held by the court that a valid notice demanding arrears of rent was a vital ingredient of the conditions which govern the maintainability of the suit and unless a valid demand was made, no complaint could be laid of non-compliance with the notice and no suit for ejectment of the tenant could lie on that ground. In my judgment, the petitioners are fully supported by the ratio of this judgment and also by the ratio of the judgment of Tated, J., already referred to hereinabove. I completely agree with the ratio of the above judgments.
12. Shri Abhyankar has also relied upon the unreported judgment of the Supreme Court in the case of Shah Navinchandra Thakerlal & Ors v. Jitendra Narsingrao Jodh, Civil Appeal No. 111 of 1966 decided on 17th December, 1968. In case, the landlord had issued a notice of demand on the tenant claiming arrears for use and occupation of the premises describing the same as compensation instead of describing the same as rent. The Supreme Court held that the notice issued in that case was invalid as the issue of a valid notice of demand for payment of rent was jurisdictional requirement and the Court be invested with jurisdiction to entertain a suit eviction only if a valid notice of demand claiming arrears of rent was duly served.
13. Shri Abhyankar has also relied upon the judgment of Daud, J., in the case of Pratap N. Khandaket v. Ramchandra G. Angolkar, reported in 1986 Bom. R.C. 414. In this case, it was held by the Court that the expression "due" proceeded the mention of the words "notice in writing" and the words "demand" and "due" would have to be treated as synonymous. In other words, there can be no valid notice of demand unless the amount demanded was legally due and the same was legally recoverable. The only exception made by the judicial decisions is in respect of notices where the error and mistake in computation of the amount is marginal or insubstantial. In this case the court is concerned with the question as to whether the notice of demand can be treated as valid even if the demand is for an excessive amount or the demand is fora claim which is not at all tenable on any view of the matter.
14. Shri Ajit P. Shah, the learned Counsel for the respondent, heavily relied upon two Division Bench judgments of our Court in the cases of Chimanalal v. Naryan Jagannath, reported in 1983 Mh.L.J. 254, and Dnyaneshwar v. Pandharinath, .
15. Before analysing the above referred two judgments relied upon by Mr. Shah, the learned Counsel for the respondent, it is necessary to refer to the judgment of R.L. Aggarwal, J., in the case of Ganpat v. Motilal, . In this case, Mr. Justice Aggarwal, in paragraph 17 of the judgment, observed that the construction of notice of demand of arrears of rent and permitted increases issued under section 12(2) of the Bombay Rent Act must not be liberal. It was further observed by the learned Judge in the same paragraph of the judgment that the landlord must take a "correct demand" unless he choose not to specify the amount. These observations made by Hon'ble Mr. Justice Aggarwal, single Judge of our Court were undoubtedly incorrect. In the unreported judgment of the supreme Court in the case of Civil Appeal No. 387 of 1964 decided on 5th April, 1966, the Apex Court had already held that the notice of demand must be liberally construed and a marginal mistake in respect of computation of the amount demanded would not invalidate the notice. It was already held by our Court in the case of Lalshanker Mulji v. Kantilal, 74 Bom .L.R. 241, that a notice under section 12(2) of the Bombay Rent Act was not invalied simply because by mistake or oversight the landlord had demanded the rent for the month for which it was not due. It is therefore obvious that the observations made by Aggarwal, J., in paragraph 17 of his judgment do not lay down correct law and the same are in conflict with the ratio of Division Bench judgments and the Supreme Court judgment.
16. In Chimanlal v. Narayan Jagannath, 1983 Mh.L.J. 254, Gadgil, J., speaking for the Division Bench consisting of Chadurkar and Gadgil, JJ. observed in paragraph 11 of the judgment at the observations made in paragraph 17 of the judgment of Aggarwal, J., in Ganpat's case (supra) were not correct. It was further observed in paragraph 11 of the said judgment that if the landlord claimed larger amount towards arrears of rent by mistake, the notice of demand thereby was not rendered invalid. To quote the exact words of Gadgil, J., it was observed in paragraph 11 of the judgment as under :--
"It will be very difficult to accept the contention that a mistake here or a mistake there in the demand notice would entail the dismissal of the suit."
After making the above observations, Gadgil, J., further observed in paragraph 11 of the said judgment that if the landlord made a false and untenable demand of certain amount in the notice, the tenant had an option to pay the undisputed amount of rent and to give a reply that the rest of the claim was a false one. This statement of law propounded by the Division Bench, with respect, is not a complete statement of law. The tenant undoubtedly has an option to pay the amount which according to the tenant was admittedly due. This is not the only option available to the tenant. The question to asked in this case is as to whether the notice of demand must necessarily be treated as valid howsoever false and untenable is the demand incorporated in the notice. The Hon'ble Division Bench did not consider this aspect of the matter and accordingly the ratio of this judgment shall have to be restricted to what it specifically decided and it cannot be extended by analogy to a case where the principal issue before the Court is as to whether the notice of demand is valid or not. In a given case the landlord may make shockingly exorbitant demand. Can it be said that the tenant incurs liability to be evicted and the notice of demand must be treated as valid merely because the tenant has not paid the amount which was due and payable by the tenant to the landlord according to his own calculation? Has the tenant not got an option to contended that notice of demand served on him in this case was invalid and accordingly the condition precedent prescribed by the Bombay Rent Act for institution of a suit for eviction is not satisfied? The tenant has right to contend that the notice of demand is invalid. The judgment of the Supreme Court in the case of Chimanlal v. Mishrilal, , is more direct on the point. Mr. Shah, the learned counsel for the respondent, has invited to recommend to the learned Chief Justice to constitute a larger Bench if I do not accept his submission to the effect that this case is covered by the ratio of judgment of Chandurkar and Gadgil, JJ. in Chaganlal v. Narayan Jagannath (supra). I cannot accept this submission for the obvious reason that this case is directly covered by the judgment of the Hon'ble Supreme Court in the case of Chimanlal v. Mishrilal (supra) and the judgment of Tated, J., in the case of Shantilal v. Sadashiv (supra). The case decide result, the petition succeeds. Rule is made absolute in terms of prayer (a).
19. Having regard to the facts of this case, there shall be no order as to costs.