Bombay High Court
Indubai Sidram Mundewade & Others vs Sidramappa Baslingappa Kalyanshetti, ... on 30 September, 1997
Equivalent citations: 1998(2)BOMCR71, 1998(1)MHLJ282, 1998 A I H C 1658, (1998) 1 MAH LJ 282, (1998) 1 MAHLR 269, (1998) 1 ALLMR 611 (BOM), 1998 BOMRC 381, (1998) 2 BOM CR 71
Author: S.S. Nijjar
Bench: S.S. Nijjar
ORDER S.S. Nijjar, J.
1. The petitioners by way of this writ petition under Article 227 of the Constitution of India challenge the legality and validity of the judgement and order dated 13th July, 1983 passed by the III Extra Asstt. Judge, Solapur in Revision Application No. 27 of 1981 confirming the judgement and order dated 30th April, 1981 passed by the II Joint Civil Judge, Junior Division, Solapur in Misc. Application No. 150 of 1996. The other Writ Petition No. 4550 of 1983 challenges the same order as the Civil Appeal No. 612 of 1981 and the Revision Application No. 27 of 1981 arising out of the judgement and decree passed in Regular Civil Suit No. 1400 of 1976 have been decided by a common judgement. Both the writ petitions are heard together and are being disposed of by this common judgement.
2. The petitioners are the original applicants/ tenants and the respondents are the original opponents/landlords of the suit premises. The petitioners filed Misc. Civil Application No. 150 of 1976 on 7th June, 1976 in the Court of the Joint Civil Judge, J.D., Solapur for fixation of standard rent of the suit premises under section 11 of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, hereinafter referred to as "the Act". The petitioners have been residing in the suit premises for a very long time. According to the petitioners, at the beginning the rent of the suit premises were Rs. 3/- per month which was increased to Rs. 5/- per month and thereafter to Rs. 12/- per month. The landlord issued a quit notice to the tenants on 24th April, 1976 terminating the petitioners tenancy and asking the petitioners to vacate the suit premises. This was received by the petitioners on 30th April, 1976. The petitioners, however, denied that they were in arrears of rent from Sept. 1975. It was also stated that they have paid the rent upto March, 1976. According to the petitioners, in the month of September, 1940 the rent of the premises was Rs. 3/- per month only. Thus the standard rent ought to have been fixed at Rs. 3/- only. It was further stated that the respondents never gave the receipt for the rent paid to them. Thus a prayer was made in the application for fixing of standard rent at Rs. 3/- per month. The claim of the petitioners were resisted by the landlords. They contended that the standard rent ought to have been fixed at Rs. 12/- per month. The respondents -landlords filed a Regular Civil Suit No. 1400 of 1976 in the court of the Civil Judge, Junior Division, Solapur for decree of possession of the suit premises on the ground of arrears of rent. The suit had been filed after the filing of the application by the petitioners for the fixation of standard rent. It was pleaded that the premises were required for a bona fide personal interest. It was also pleaded that the conduct of the petitioners amounted to nuisance. The allegations made by the respondent- landlords were denied by the petitioners in the written statement filed. It was contended by the petitioners that they were in possession of the premises since last about 40 years. Thus it was stated that they suffered greater hardship if the decree of possession came to be passed. During the pendency of the Misc. Civil Application No. 150 of 76 the petitioners filed an application for fixation of interim rent on 30th August, 1976. On this application an order came to be passed on 14th March, 1978 directing the petitioners to deposit as interim rent Rs. 7/- per month. This was to be paid on 15th July, 1978 and thereafter it was to be paid on or before 10th day ot every month. Being aggrieved against the said order, the petitioners filed Revision Application No. 5 of 1978 before the District Court, Solapur. The District Judge was pleased to fix the interim rent in the revision application at the rate of Rs. 5/- per month. The Revision Application itself came to be dismissed on 30th July, 1979. Since both the matters i.e. Misc. Application No. 150 of 1976 and the Regular Civil Suit No. 1400 of 1976 were between the same parties and the same cause of action, evidence in both the proceeding were recorded together. The trial Court framed 9 issues which are as follows.
1. What is the standard rent of the suit premises?
2. Do plaintiffs prove that defendants are defaulters?
3. Do plaintiffs prove that they require the suit premises reasonably and bona fide for their personal use and occupation?
4. To whom greater hardship will be caused by passing or refusing to pass the decree for possession?
5. Do plaintiffs prove that the conduct of the defendants causes nuisances or annoyance to them?
6. Is the notice to quit legal and valid?
7. What is due to the plaintiffs from defendants?
8. Do plaintiffs entitled to recover possession of the suit premises?
9. What order and decree?
The findings of the aforesaid issues are as follows.
1. Rs. 12/- (para 6)
2. No. (Para 7, 8 and 9)
3. No. (Para 10)
4. To the defendant (Para 11)
5. No. (Para 12)
6. No. (Para 13)
7. Rs. 180/- (Para 14)
8. No. (Para 15)
9. As per final order.
After going through the evidence and hearing Counsel for the parties, a common judgement and order came to be passed on 30th April, 1981. The suit of the plaintiff was dismissed so far as possession is concerned. The standard rent was fixed at Rs. 12/- per month. A decree was also passed against the petitioners in the amount of Rs. 180/-. Aggrieved against the said judgement, the petitioners filed Revision Application No. 27 of 1981 and the respondents landlords had filed Civil Appeal No. 612 of 1981. As noted earlier, both the appeal and the revision have been disposed of by a common judgement. The writ petitions have been filed by the tenants-petitioners.
3. It has been submitted by the Counsel for the petitioners that the revision application has been dismissed erroneously. The standard rent ought to have been fixed at Rs. 3/- per month. No reasons whatsoever have been given for fixing the rent at Rs. 12/- per month. Admittedly the premises was in occupation of the petitioners before September, 1940. Thus the agreed rent of Rs. 3/- ought to have been fixed as standard rent. Mr. page has taken this Court through the judgement of the trial Court as also of the District Court. It has been submitted that so far as the civil suit is concerned, the trial Court has rightly come to the conclusion that there is no default but the appellate Court has wrongly held that the petitioner has committed defaults and, therefore, the eviction has been ordered. Judgement of the trial Court shows that the petitioner has been held to have deposited the rent even in advance. It is held that the entire amount of rent as ordered by the Court has been deposited. Thus it has been held that the petitioners were regularly depositing the rent in Court and they cannot be considered as defaulters. This finding, however, has been upset by the District Court in the appeal filed by the respondents. The Appellate Court has relied upon a judgement of this Court in the case of Anant v. Damodar, 1980 M.L.J. 737. In this case it is held that in order for a tenant to take advantage of section 12(3)(b) of the Act, two conditions have to be satisfied. Firstly he has to make an application to the Court under section 11(3) of the Act within one month after the receipt of the notice. Secondly he has to pay or tender the amount of rent or permitted increases specified in the order made by the Court. Analysing the case of the petitioner in view of the above it has been held that the application has been made within time. Therefore, it has been held that the first condition is satisfied. On the second point it has been held that since the rent has not been regularly paid by the 10th of every month, thus the petitioner is liable to eviction. Counsel for the petitioner has submitted that it has been held by both the courts concurrently that the petitioner is not actually in default. Thus it would be very harsh and unjust to order eviction of the petitioner on the technicality that the rent was not regularly paid on 10th of each month. For this proposition Counsel has relied upon a judgement of the Supreme Court in the case on Mohan Laxman Hede v. Noormohamed Adam Shaikh, . In that case the Supreme Court considered the factual situation and observed that both the sides accepted the position that the appellant had deposited in Court the entire arrears of rent on the basis of interim rent fixed well within time as directed by the Court. It was also common ground that until the application of standard rent made by the tenant is finally decided, the interim rent fixed by the Court must be regarded as the standard rent. The question which was posed by the Court in that case was (i) whether it can be said that the appellant, after the first deposit, of the arrears of rent, continued to deposit in Court the rent and the permitted increases "regularly" till the suit was finally decided as contemplated under section 12(3)(b) of the Act. The Supreme Court relies on certain observations of an earlier judgement of the Supreme Court in the case of Mranalini B. Shah v. Bapalal Mohanlal Shah, . Thereafter the observations made by the Supreme Court in the earlier case have been extracted which are as follows:--
"The above enunciation, clarifies beyond doubt that the provisions of Clause (b) of section 12(3) are mandatory, and must be strictly complied with by the tenant during the pendency of the suit or appeal if the landlord's claim for eviction on the ground of default in payment of rent is to be defeated. The word 'regularly' in Clause (b) of section 12(3) has a significance of its own. It enjoins a payment or tender characterised by reasonable punctuality, that is to say, one made at regular times or intervals. The regularity contemplated may not be a punctuality, of clock-like precision and exactitude, but it must reasonably conform with substantial proximity to the sequence of times or intervals at which the rent falls due. Thus where the rent is payable by the month, the tenant must, if he wants to avail of the benefit of the latter part of Clause (b) tender or pay every month as it falls due or at his discretion in advance. If he persistently defaults during the pendency of the suit or appeal in paying the rent, such as where he pays it at irregular intervals of 2 or 3 or 4 months-as is the case before us - the Court has no discretion to treat what were manifestly irregular payments, as substantial compliance with the mandate of this clause, irrespective of the fact that by the time the judgement was pronounced all the arrears had been cleared by the tenant."
Keeping the aforesaid observations in view the facts of that case were examined. It was found that during the period 29-1-1981 to 17-12-1985 the appellant has been depositing the rents in Court for two or three months at a time. In respect of some months, there are undoubtedly a few defaults in the sense that the deposits have been made a few days later than directed. Therein the Court had directed to deposit the rent on the 5th day of each month. Thereafter it was observed that there are undoubtedly a few defaults committed by the appellant in the sense that in respect of the first month to which the deposit relates there is some delay amounting to from two or three days upto a maximum of 23 days. But on the other hand, the rent for most of the months has been deposited in advance. Thus it was held that the rent has been deposited by the appellant with reasonable punctuality and hence the appellant/tenant can be regarded as having deposited the rent 'regularly'. It was held that the courts below were in error in taking a view that exact or mathematical punctuality was required in the deposit of rent by a tenant to take advantage of the provisions of section 12(3)(b) of the Rent Act. In view of the above, Mr. Page submits that there is actually no default and there has been substantial compliance with the orders of the Court to deposit the rent by 10th of each month. Consequently it is submitted that both the judgements deserve to be set aside and quashed.
4. Mr. Agrawal, appearing for the respondents has, however, submitted that the consistent view taken by the courts is that there should be strict compliance of the two conditions which are required in order to take advantage of section 12(3)(b) of the Act. In support of this proposition Mr. Agrawal has relied upon the judgement in the case of Arjun Khiamal Makhijani v. Jamnadas Tuliani and others, . I find although in this case the eviction of the tenant has been upheld upto the Supreme Court, the question raised by Mr. Page was not under the consideration of the Supreme Court. The question of substantial compliance was not the subject matter of the said judgement. Mr. Agarwal has thereafter relied on another judgement in the case of Kulkarni Patterns Pvt. Ltd. v. Vasant Baburao Ashtekar and others, . In this case the suit for possession filed by the landlord was dismissed by the Small Causes Court. This order was set aside in appeal and the suit of the plaintiff was decreed. The tenant filed writ petition in the High Court but the same was dismissed and the decree for possession passed by the Additional District Judge was affirmed. The trial Court had held that he case does not fall under section 12(3)(b) of the Act as the defendants had made payment on 16-1-84 and had thereafter made regular payments. The Additional District Judge reversed the above finding and held that the notice had been correctly served by the plaintiffs on the defendants. It was held that the plaintiffs have succeeded in showing that the defendants were in default and, therefore, liable to eviction under section 12(3)(b) of the Act. It was held that the provisions of section 12(3)(b) are mandatory and are required to be strictly complied with by the tenants during the pendency of the suit and also appeal when the landlord claims possession of the suit premises on the ground of section 12(3)(b) of the Act. The aforesaid finding was affirmed by the Supreme Court. Thereafter Counsel has relied upon a Division Bench judgement of this Court in the case of Shantabai Vishnumal v. Ganpat Ladha, 1976 M.L.J, 332. It has been held that in cases falling under section 12(3)(b) of the Act the first injunction is that the tenant is required to pay or tender in Court on the first day of the hearing of the suit the standard rent and the permitted increases then due. What is required to be paid is standard rent and not contractual rent. Thereafter it is held that if the standard rent is not fixed then it is necessary for the tenant to adopt appropriate proceedings and get the standard rent fixed either as interim or final. Thus it is held that tenant cannot be heard to say that he is entitled to claim protection under section 12(3)(b) of the Rent Act without showing that he had taken diligent steps to get the standard rent or interim standard rent fixed. Thereafter it is to be determined as to whether the tenant has continued to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided. It was submitted on behalf of the tenant that section 12(3)(b) is for the protection of the tenant and if it is construed liberally then there is compliance because the tenant had been making payments from time to time although not regularly. It was submitted that when the suit was decreed all payments due had already been made. It was submitted that the word 'regularly' has to be construed to mean substantial compliance with the provisions. Relying on an earlier judgement of this Court it was submitted that if there has been substantial compliance with the conditions of section 12(3)(b) of the Act it is in the discretion of the Court to decline to pass a decree for eviction. For this proposition reliance was placed on the judgement of this Court in Kalidas Bhavan v. Bhagwandas, 60 Bom.L.R. 1359. In this case it was held that if the tenant did all that was enjoined by sub-section (3)(b), then the Court would have no jurisdiction to pass a decree for eviction. The Division Bench agreed with the view taken by Chagla, C.J., in Kalidas Bhavan case (supra) and held that if on the facts of each case there is found to be substantial compliance with the provisions of section 12(3)(b) the Court may exercise its discretion and refrain from passing a decree for eviction. The submission to the effect that the observations of Chagla, C.J., in the above case have been impliedly over-ruled by the Supreme Court in Shah Dhansukhlal v. Dalichand V. Shroff, 1968 M.L.J. 887 : 70 Bom.L.R. 714, was not accepted. It is held that it would be not proper to construe the section in the manner suggested by the landlord so that the failure to strictly comply with the conditions, for whatsoever reasons would entail compulsory denial of the protection of this section to the erring or unwary tenant. It is held that the Court may, of course, pass a decree for eviction but it would not be bound to do so. Counsel has thereafter relied upon a judgement given in Anant Purshottam Athavle v. Damodar D. Bedekar and others, 1980 M.L.J. 737. In this case it was submitted by the Counsel for the petitioner landlord that the respondent tenant had not paid the rent regularly during the pendency of the proceeding and, therefore, he was in default. Considering the submission it has been held that the tenant had not deposited the interim rent as ordered by the Court. Considering the facts of that case it was held that the Court had ordered interim rent to be paid deposited every month by the 10th of each month. Thus the rent was not paid by the tenant by the 10th of each month and it was held that the tenant was not clearly entitled to the benefit of section 12(3)(b) of the Rent Act. The Division Bench relied on the observations of the Supreme Court given in the case of Ganpat v. Sashikant, in which the Supreme Court had pointed out "If, however, he does not fulfil those conditions, he cannot claim the protection of section 12(3)(b) and in that event there being no protection available to him, a decree for eviction would have to go against him. Section 12(3)(b) does not create any discretionary jurisdiction in the Court." A perusal of the ratio of the judgements would show that provisions of section 12(3)(b) would have to be strictly complied with by the tenant. Once it has been held that the conditions of section 12(3)(b) have not even been substantially complied with by the tenant, then on the basis of the judgement of the Supreme Court (supra) and the Division Bench it would have to be held that the Court will have no jurisdiction but to pass the decree for possession. Counsel has thereafter relied upon another Division Bench judgement of this Court in the case of Jaypal Bandu Adake and another v. Basavali G. Mhalank and another, . In this case relying on the judgement of the Supreme Court the Division Bench has held that the earlier Division Bench reported in 1978 M.L.J, 550 is no longer good law. In this case it has been held as under:
"Section 12(3)(b) prescribes two conditions, as already pointed out, namely, that the arrears will be deposited or paid on the first day of hearing and thereafter rent must be paid or tendered in Court regularly till the suit is decided, and now in view of the decision of this Court in Venkatrao Anant v. Narayanlal cited above, till the appeal, if any, is also decided. In Ganpat v. Sashikant, the decision of the Division Bench of this Court was set aside by the Supreme Court. The effect of setting aside the decision of this Court can only be that the approach which was adopted by the Division Bench in holding that the tenant was entitled to the protection of section 12(3)(b) because the entire amount due had been paid before the date of the judgement though it was not paid regularly, and that there was, therefore, a substantial compliance with section 12(3)(b) was not approved. The Division Bench in Shantabai v. Ganpat applied the principle enunciated by Chagla, C.J., in Kalidas Bhavan v. Bhagvandas. In our view, the effect of the decision of the Supreme Court in Dhansukhlal's case and in Ganpat v. Sashikant can be nothing else except that the decision in Kalidas Bhavan v. Bhagvandas must be treated as no longer good law.
39. Now, when these decisions were cited before Jahagirdar, J., the learned Judge seems to have read the decision in Ganpat's case as merely holding that if the condition in section 12(3)(b) were not satisfied, the Court has no discretion to pass a decree for eviction and, according to the learned Judge, the other part of Chagla, C.J.'s judgement in Kalidas's case laying down that there is compliance with the provisions contained in section 12(3)(b) even if the tenant has made payments after the dates originally fixed by the Court and if the said delay was condoned and payments were accepted by the Court, has not been touched at all by the Supreme Court in Ganpat's case. As we have already pointed out, the judgement of the Division Bench against which the Supreme Court was deciding the appeal in Ganpat's case expressly proceeded on the footing that where payments had been accepted by the Court, the tenant will be entitled to the benefit of section 12(3)(b) on the principle of substantial compliance. It is this view which has been set aside by the Supreme Court. The observations of the Supreme Court that the conditions contained in section 12(3)(b) have to be strictly observed by the tenant who seeks the benefit of the section emphasise the fact that there was no question of any substantial compliance and if the conditions laid down are not satisfied, there is no power in the Court to grant any relief to the tenant. The very concept of extending the lime for deposit which is specifically provided by the provisions in section 12(3)(b) as a condition which is strictly to be satisfied by the tenant would imply that the Court has a discretion to accept payment which is made otherwise in accordance with the requirements of section 12(3)(b). It is this discretion which the Supreme Court has held the Court did not have and which was being exercised so far by courts in view of the decision in Kalidas Bhavan v. Bhagvandas. We are, therefore unable to concur with the view taken by Jahagirdar, J., that the decision of the Supreme Court in Ganpat v. Sashikant does not overrule the decision of Chagla C. J., in Kalidas Bhavan v. Bhagvandas."
Counsel has thereafter referred to another judgement of this Court given in the case of Mohd. Y. Gulzarkhan v. Mogalbeg Durbeg and others, . The question which arose in that case was as to whether a decree in eviction would still follow if inspite of defaults committed during the pendency of the proceedings under section 12(3)(b) of the Rent Act, the arrears are deposited from time to time, the time gap between such deposits being relatively wide but the entire quantum of arrears having been cleared prior to the date of the judgement. What was submitted was that the tender of the arrears regardless of how and when it is done will have the effect of purging the acts of default that entitle the landlord to a decree. Support to the said contention was sought from the fact that since the Court has power to confirm delays as far as money defaults are concerned, where a Court accepts or permits the acceptance of the rent, that is in arrears, or that has been deposited regardless of the fact that the time factor has been overstepped that it must be held that the lapse in question has also been condoned. After considering the whole gamut of the law, it has been held that the provisions of section 12(3)(b) had to be strictly complied with.
5. Keeping the aforesaid views expressed on the proposition of law, the facts of this case have to be examined. It is an admitted case that the interim rent was fixed at Rs. 7/- by an order dated 14th March, 1978. This was to be paid by 10th of each month. The amount of Rs. 7/- was reduced to Rs. 5/- in revision, which otherwise came to be dismissed on 30-7-1979. The net result was that the tenant was to pay at the rate of Rs. 7/- p.m. from 14-3-78 till 30-7-79. Thereafter at the rate of Rs. 5/- p.m. till the disposal of the suit and the appeal. The payment was to be made on or before the 10th of each month. From a perusal of the order of the Appellate Court it becomes apparent that although tenant has paid the amount due yet the same has not been paid on the 10th of each month as required by the order dated 14th, March, 1978. Between 7th June, 1977 and 24th March, 1981 the following deposits of rent were made.
S.No Amount (Rs.) Date
1. 48.00 7-6-1977
2. 7-6-1977 16-11-1977
3. 126.00 15-4-1978
4. 6.00 21-9-1978
5. 10.00 6-1-1979
6. 15.00 26-2-1979
7. 20.00 25-6-1979
8. 35.00 18-9-1979
9. 20:00
-12-79
10. 20.00 29-4-1980
11. 40.00 25-9-1980
12. 66.00 5-12-1980
13. 28.00 24-3-1981 Total-
484.00 Keeping the aforesaid position of facts in view it was observed by the District Court that the tenant has not complied with the provisions of section 12(3)(b) of the Act. Thereafter it is noticed that the tenant had made the following deposits.
S.No Amount (Rs.) Date
1. 250.00 3-12-1981
2. 162.00 25-2-1982
3. 148.00 15-12-1982
4. 100.00 26-4-1983.
In view of the above the District Court has observed that the rent has not been paid regularly month by month. Thus it was held that the tenant could not be said to have complied with the provisions of section 12(3)(b) of the Act in view of the Supreme Court decision in Mrinalini's case. Even during the pendency of the petition the tenant has not been regular in payment of the rent. Following payments have been made since the admission of the writ petition.
Year Month Date of payment of rent Arrears of rent 1984 1 Nil 2 21-2-84 Rs. 112/-
3 to 8 Nil 9 3-9-84 Rs. 276/-
10 to 12 Nil 1985 1 to 12 Nil 1986 1 to 12 Nil 1987 1 29-01-87 Rs. 250/-
19881 and 2 Nil 3 24-3-88 Rs. 278/-
4 to 12 Nil 1990 1 to 11 Nil 12 4-12-90 Rs. 162/-
19911 to 12 Nil 1992 1 to 12 Nil 1993 1 to 12 Nil 1994 1 Nil 2 15-2-94 3 11-3-94 Rs. 96/-
4 to 8 Nil 9 22-9-94 Rs. 72/-
10 to 12 Nil 1995 1 to 12 Nil 1996 1 to 12 Nil 1997 1 to 31-7-97 Nil.
Till today it is stated that the tenant is still in arrears of rent. Keeping the aforesaid facts and circumstances in view I am of the considered opinion that there is no merit in the writ petitions. The same are hereby dismissed. Rule in both the writ petitions are discharged.
6. It is further submitted by the Counsel for the petitioner that the tenant is an old lady. She is also stated to be a widow. It is also stated that she is an extremely poor lady and would not be in a position to pay the market rent in any alternative accommodation. Keeping the aforesaid facts and circumstances in view and on compassionate grounds the petitioner is directed to hand over the vacant and peaceful possession of the suit premises to the landlord on the expiry of a period of 2 years from today. Counsel for the petitioner undertakes to file the normal undertaking within a period of 8 weeks.
In the event the said under taking is not filed within a period of 8 weeks it is directed that the possession shall be delivered to the respondent-landlord forthwith.
7. Petition dismissed.