Bombay High Court
Peter Joseph Bhonsale, Since Deceased ... vs Poona Diocesan Corporation Pvt. Ltd. ... on 17 November, 1994
Equivalent citations: 1995(3)BOMCR540, 1995 A I H C 3425, (1995) 2 RENCJ 523, (1995) 1 MAH LJ 698, (1996) 1 RENCR 139, 1995 BOMRC 95, (1995) 3 BOM CR 540
JUDGMENT A.V. Savant, J.
1. This is a petition by the tenant under Article 227 of the Constitution of India challenging the concurrent findings of fact that the monthly rent of the premises in dispute was Rs. 50/- and that for a period of nearly four years, the petitioner tenant had failed and neglected to make payment of the rent and continued to do so until after expiration of the period of one month after the notice under sub-section (2) of section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, (for short the said Rent Act) was served on him. In short, there is a concurrent finding against the petitioner-tenant that he is defaulter and that his case is covered by the unamended provisions of section 12(3)(a) of the said Rent Act. The relevant facts may be stated as under :
2. The premises in dispute are a part of a bunglow, at 16, Ahmednagar Road, Pune. The original petitioner - Peter Joseph Bhonsale, since deceased, claimed to be the tenant since 1950. The premises consist of a three room block. They initially belonged to His Highness The Agakhan. Initially the petitioner's wife Martha Peter Bhonsale was staying in the premises and since the petitioner Peter Joseph Bhonsale was in Government service, he was residing in the Government quarters.
3. The first respondent - Poona Diocemon Corporation Pvt. Ltd., - is a registered public Trust established for the welfare of Catholic Christians. Respondent Nos. 2 to 4 were, at the relevant time, the trustees. Respondent No. 5 is the newly added party who seems to have purchased the property recently. On 17th March, 1976, the first respondent-Trust gave notice to the tenant, which is at Ex. 25. It was served on the tenant on 18th March, 1976, the very next day. The notice stated that the rent of the premises was Rs. 50/- p.m. The tenancy was a monthly tenancy commencing with the first day of every month according to English calender. It categorically stated that the tenant was a habitual defaulter and was in arrears of rent since 1st January, 1972 and inspite of repeated reminders to pay the said arrears, he had not paid the said amount. Under the circumstances, the first respondent-Trust terminated the tenancy by the end of April 1976 and called upon him to pay the entire arrears and costs. There is no dispute that the notice was duly served on the tenant.
4. On 22nd March, 1976, the tenant sent a reply which is at Ex. 59. It is relevant to note that, in this reply, the tenant did not come out with a case that the demand of rent was at an exhorbitant rate or that the agreed rent was only Rs. 25/- p.m. The tenant stated a totally different story which seems to be the basis of some other proceedings adopted by the tenant against the management of the Trust. It was stated in the reply at Ex. 59 that the tenant's wife had paid Rs. 30,000/- to one of the trustees in connection with the construction of the Church by demolishing the suit premises. This payment is alleged to be in the month of October 1962 when, admittedly, the premises belonged to H.H. The Agakhan. The first respondent - Trust purchased the property from H.H. The Agakhan in 1964. The reply Ex. 59, therefore, stated that the case made out in the notice at Ex. 25 that the tenant had to pay the monthly rent of Rs. 50/- was not correct. The case that the tenant was in arrears of rent from 1st January, 1972 was denied. In fact, there is denial of title of the landlord-Trust but I am not concerned with that aspect of the matter since both the courts have concurrently decreed the suit of the landlord only under section 12(3)(a) of the said Rent Act.
5. After sending this reply at Ex. 59 it appears that the tenant has also sent a letter dated 6th April, 1976 Ex. 29 to the Advocate for the first respondent-Trust namely Shri Castellino. The letter at Ex. 29 addressed to the Advocate finds fault with the Advocate issuing the notice to the tenant and a threat was given to the Advocate that a criminal case would be filed against him.
6. There is no dispute before me that before the expiry of the period of one month after the receipt of the notice at Ex. 25, the tenant did not make any application to the Court under sub-section (3) of section 11 of the said Rent Act for fixation of standard rent. There is also no dispute before me that the tenant did not tender or pay or deposit the amount of arrears on the 1st day of hearing of the suit so as to avail himself of the benefit of the provisions of section 12(3)(b) of the said Rent Act. Section 12(3) reads as under :
Section 12(1) : A landlord shall not ...
(2) : No suit for recovery of ...
(3)(a) where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increase are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-section (2), the (Court shall pass a decree) for eviction in any such suit for recovery of possession.
(b) In any other case, no decree for eviction shall be passed in any such suit, if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court."
Explanation (1) to section 12 of the Rent Act reads as under :
In any case where there is a dispute as to the amount of standard rent or permitted increases recoverable under this Act the tenant shall be deemed to be ready and willing to pay such amount if, before the expiry of the period of one month after notice referred to in sub-section (2), he makes an application to the Court under sub-section (3) of section 11 and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court."
It is not disputed before me that there was neither any application for fixation of standard rent under sub-section (3) of section 11 of the said Rent Act nor is there any tender or payment made on the 1st day of the hearing. The suit was filed on 5th September, 1976 claiming arrears of Rs. 2600/- being the rent payable from 1st January, 1972 to 30th April, 1976. The total amount claimed inclusive of education-cess, mesne profits, notice charges etc. at Rs. 3089.50. It was stated in para 4 of the plaint that notice under sub-section (2) of section 12 demanding the rent was issued on 17th March, 1976 and was served on 18th March, 1976 and there was neither any payment nor any deposit of rent within the prescribed period.
8. The tenant filed his written statement at Ex. 10 on 4th April, 1977. The tenant again contended that his wife had paid Rs. 30,000/- to Rev. Father Kestner and that afterwards Rev. Father Mascaranhas was incharge of the first respondent-Trust. In the written statement the tenant denied the contention that the rent was Rs. 50/- p.m. and contended for the first time that the rent was Rs. 25/- p.m. It was denied that the tenant was in arrears of rent from 1st January, 1972 as alleged and it was contended that he had paid the rent till 30th March, 1972.
9. On these pleadings, the trial Court framed the necessary issues including the question of validity of the notice; quantum of monthly rent, whether it was Rs. 50/- or Rs. 25/-; the question as to whether the tenant was a defaulter and the question as to whether the landlord was entitled to a decree under section 12(3)(a) of the said Rent Act. The evidence that was led consisted of P.W. 1 Edward Braganza, the administrator of the property belonging to the first respondent-Trust and the tenant examined himself in support of his case. Both the parties have also produced some documentary evidence. Whereas the tenant produced some receipts, the first respondent-Trust has produced some counter-foils of receipts.
10. On appreciation of the entire evidence on record, the learned trial Judge came to the conclusion that the suit notice Ex. 25 was valid. The monthly rent of the premises was Rs. 50. The tenant was a defaulter and that there was no bona fide dispute about the standard rent. In the result, it was held, that the case was squarely governed by the provisions of section 12(3)(a) of the said Rent Act. Reliance was placed on the decision of the Hon'ble Supreme Court in the case of Mranalini B. Shah and another v. Banalal Mohanlal Shah, to hold that if the tenant wanted to avail of the benefit of the provisions of section 12(3)(b) of the said Rent Act, he ought to have paid or tendered the standard rent and permitted increases on the first day of the hearing of the suit and then continued to pay or tender in Court "regularly" such rent and permitted increases till the suit was finally decided. Since, however, this was not done, the tenant could not claim the protection under section 12(3)(b) of the Rent Act and decree for eviction must necessarily follow. In the result, the trial Court decreed the suit of the first respondent-landlord and directed the tenant to hand over vacant and peaceful possession of the premises by the end of September, 1980. This decree was passed on 27th August, 1980 in Reg. Civil Suit No. 2325 of 1976.
11. Being aggrieved by the above decree, the tenant preferred Civil Appeal No. 10 of 1981. The Appeal Court framed the necessary points, namely, whether the monthly rent was Rs. 50 and whether the plaintiffs were entitled to decree under section 12(3)(a) of the said Rent Act. The Appeal Court also considered the tenant's case of payment of Rs. 30,000/- for the construction of the Church. The entire evidence inclusive of the receipts and the counterfoils was considered by the Appeal Court and on appreciation of the entire material on record, it came to the conclusion that the notice of termination of tenancy was valid and that the monthly rent was Rs. 50/-. Since the tenant was in arrears as alleged and since he had not taken any steps for raising a dispute as to standard rent under section 11(3) and for deposit of the standard rent and permitted increases as contemplated by section 12(3)(b), it was held, that the landlords were entitled to a decree for possession under section 12(3)(a) of the said Rent Act.
12. In arriving at the above conclusions, the Appeal Court placed reliance on the Division Bench decision of this Court in the case of Chhaganlal Mulchand Jain v. Narayan Jagannath Bangh, reported in 1983 Mah.L.J. 254. It has been held by the Division Bench in Chhaganlal's case, that whenever the Court has to consider a case under section 12(3)(a) of the Rent Act, the question of standard rent cannot be gone into unless the tenant had made an application for that purpose within one month from the receipt of the notice. In as much as the tenant is precluded from raising a dispute about the standard rent in the suit if he had not filed any application within one month from the receipt of the notice, it is clear that he cannot raise such a contention about the standard rent for the purpose of urging that he was all the while ready and willing to pay the standard rent and that he could not pay because the standard rent was not fixed. The Division Bench further observed that as far as the construction of the notice issued by a landlord to his tenant was concerned, a normal rule was that notices exchanged between the landlord and tenant should be construed liberally and not for the purpose of finding any fault. It is possible that in a particular case the landlord may exaggerate the demand. In such a case the tenant had an option to pay the undisputed amount of rent and give a reply that the rest of the claim was false one. Of course, in such a case the tenant takes the risk, if ultimately the Court finds that the demand of the landlord was just. Relying upon the above ratio of the decision in Chhaganlal's case, the Appeal Court also came to the conclusion that since there was no compliance with the provisions of section 11(3) of the Rent Act the case was squarely covered by the provisions of section 12(3)(b) of the said Rent Act. In the result, the appeal was dismissed on 28th July, 1983, but the petitioner-tenant was granted six months time to vacate the premises.
13. This petition was admitted on 2nd March, 1984 and the final hearing started yesterday. I have heard all the learned Counsel, namely, Shri Rane for the petitioners, heirs of the tenant Shri Dalvi for the first four respondents and Shri Sawant for the fifth respondent newly added party. Despite the concurrent findings of fact based on appreciation of the entire evidence on record, Shri Rane requested me to re-appreciate the evidence and in that endeavour took me through the oral and documentary evidence on record. As far as the oral evidence of the landlord namely evidence of P.W. 1 Edward Braganza at Ex. 32 is concerned, he has categorically stated that the rent was Rs. 50/- p.m. He has produced certain counterfoils at Ex. 33 and Ex. 34 which support has respondent's contention that the monthly rent was Rs. 50/-. Ex. 33 is the counterfoil of the receipt issued on 15th December, 1964 for Rs. 100/- which was the rent for October and November, 1964. Ex. 34 is the counterfoil of the receipt issued on 20th January, 1965 for Rs. 100/- towards the rent for December, 1964 and January, 1965. Edward Braganza denied the tenant's case that Rs. 30,000/- was paid to the Trust for purchase of the property. Though this witness has been cross-examined at length, there is nothing in the cross-examination which militates against the truthfulness of his version in the examination-in-chief. An attempt was made to criticise the evidence in the form of the two counterfoils at Exts. 33 and 34 on the ground that they do not bear the signature of the tenant. I am not much impressed by this criticism.
14. As far as the evidence of the tenant Peter Bhonsale is concerned, he admitted that he was staying in the Government Quarters and his wife was staying in the suit premises and she had paid Rev. Father Kestner a sum of Rs. 30,000/- for purchase of the property for construction of the Church. He, therefore, contended that no rent was to be paid to the Trust. As stated earlier, payment of Rs. 30,000/- is alleged to be of 9th October, 1962 when this property did not belong to the Trust but belonged to H.H. The Agakhan from whom the Trust purchased it some time in 1964. The tenant admitted that the rent was paid by his wife and he had never paid the rent himself. At the end of the cross-examination, he categorically stated that he was not willing to pay the rent but was willing to pay donation. He further categorically stated that all the receipts produced by him were in respect of the donation paid by him and not by way of rent. In his cross-examination, he has given several admissions wherein he has tried to change his stand more than once which creates a doubt about the truthfullness of the version of this witness.
15. Shri Rane then invited my attention to certain receipts at Ex. 47 to 53 issued during the period 5th December, 1968 to 30th August, 1970. They do suggest that payment was at the rate of Rs. 25/- p.m. However, it is not clear as to whether this payment was by way of rent or donation and secondly, whether there was any other premises to which the payment related and not the suit premises. Shri Rane contended that Rs. 25/- was the standard rent and demand for Rs. 50 was untenable in law and the suit based on such a demand was itself untenable since the demand itself was wholly illegal.
16. As against the above contentions Shri Dalvi and Shri Sawant have invited my attention firstly to certain Supreme Court decisions and cautioned me that it was not open to me to re-appreciate the evidence in this writ petition. Reliance was placed on the following Supreme Court decisions in that behalf.
i) Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, . Reliance was placed on the observations in para 16 at page 122 and para 21 at page 124 of the report.
ii) Venkatlal G. Pittie and another v. M/s. Bright Bros. (Pvt.) Ltd., ; and
iii) Mrs. Radhabai Dolatrai Dave and others v. Mrs. Padma Kilawala and others, .
17. Apart from the preliminary objection to this Court re-appreciating the evidence, on a pure question of fact as to whether the monthly rent was Rs. 50/- or Rs. 25/-, both Shri Dalvi and Shri Sawant placed reliance on the Division Bench decision of this Court in the case of Chhaganlal Mulchand Jain v. Narayan Jagannath Bangh, reported in 1983 Mh.L.J. 254, on which the Appeal Court has placed reliance. My attention was also invited by Shri Dalvi to the recent decision of the Supreme Court in the case of Chase Bright Steel Limited v. Shantaram Shankar Sawant and another, . Relying on this decision, it was contended that, in the first place, it is not open to this Court to re-appreciate the evidence on the pure question of fact where, on appreciating the entire material, the two courts below have concurrently recorded the findings of fact. Secondly, it was contended that even on appreciation of evidence, this Court can come to only one conclusion namely that the rent of the premises was Rs. 50/- p.m. and that there was no dispute regarding the amount of standard rent and the rent was not paid for nearly four years and even after the expiration of the period of one month after service of the notice as required by law. In the result, it was contended that the tenant's case was squarely covered by the provisions of section 12(3)(a) of the said Rent Act.
18. On consideration of the entire material, in the light of the decisions that were cited before me, I am inclined to agree with the contentions of the respondents-landlords. In the first place, as held by the Supreme Court in the abovementioned three cases, it is not open for me to reappreciate the evidence, even if another view of the evidence was possible. The Supreme Court has observed in para 16 at page 123 in case of Chandavarkar Sita Ratna Rao, (supra) as under:
"It is true that there were discrepancies in the evidence of the obstructionist and there was inconsistency in the conduct of the judgment debtor in resisting the suit. Yet all these are for the Court's finding facts and if such fact finding bodies have acted properly in law and if the findings could not be described as perverse in law in the sense that no reasonable person properly instructed in law could have come to such a finding, such findings should not be interfered with within the exercise of the jurisdiction by the High Court under Article 226 and 227 of the Constitution."
Further at the end of para 21 at page 124 of the said report, the Supreme Court has observed as under :
"In preferring one view to another of factual appreciation of evidence, the High Court transgressed its limits of jurisdiction under Article 227 of the Constitution. On the first point, therefore, the High Court was in error.
19. The head note of the report of Venkatlal G. Pittie and another v. M/s. Bright Bros. (Pvt.) Ltd., reads as under :
"If a proper Court has come to the conclusion on the examination of the nature of the structure, the nature of the duration of structure, the annexation and other relevant factors that the structures erected by the tenant on the demised premises were permanent in nature which were violative of section 13(1)(b) of the Rent Act as well as section 108 Clause (p) of Transfer of Property Act and such a finding, if possible, it cannot be considered to be perverse. In such a situation, the High Court cannot interfere with the finding of Court under Article 227. The mere fact that a different view could have been taken by the trial Court and Appellate Bench of Court of Small Causes, would be no ground to interfere with the findings by the High Court. Decision of Bombay HC D/-3/4 July 1979, reversed.
20. Again recently in the case of Mrs. Radhabai Dolatrai Dave and others v. Mrs. Padma Kilawala and others, , the Supreme Court observed thus in para 5 at page 1766;
"We have examined all the three judgments of the courts below with the aid of learned Counsel for the appellants and we observe that a categorical finding of fact has been recorded by the Appellate Court holding that the acquisition of the Andheri flat was also by the joint family of Dolatrai Dave. We do not find any reason to reverse the finding and the High Court appears to be right in not reappraising the evidence on record in its writ jurisdiction. In view of that finding there is no escape from the further conclusions as reached the Appellate Court that the case is squarely covered by section 13(1)(l)."
21. In view of the above, it is not possible for me to re-appreciate the evidence on record and disturb the concurrent findings of fact, even assuming that a different view on facts was possible.
22. That apart, since Shri Rane has taken me through the entire evidence, I have no hesitation in observing that the findings recorded by two courts below are proper and are fully born out by the oral and documentary evidence on record. In the first place, the tenant did not come out with a case of exhorbitant demand of rent and that the rent of the premises was only Rs. 25 p.m. when he replied the notice dated 17th March, 1976 Ex. 25, by his reply at Ex. 59 dated 22nd March, 1976. The tenant was obsessed by the fact that his wife had paid Rs. 30,000/- to one of the trustees and perhaps, therefore, he was not liable to pay any rent whatsoever. In fact, the tenant was very categoric in his assertion at the end of his cross-examination that he was not prepared to pay any rent but what he was prepared to pay was donation whether it was Rs. 25/- or Rs. 50/- per month. Admittedly, no application under sub-section (3) of section 11 of the said Rent Act as required by the explanation to section 12 of the said Rent Act had been filed. I have already reproduced section 12 of the Rent Act above. There is no dispute that the rent was payable by month and there was no dispute regarding the amount of standard rent or permitted increases. The only manner in which a dispute regarding the amount of standard rest and permitted increases can be raised and determined is by resorting to the provisions of section 11 of the said Rent Act as stated in Explanation (1) of section 12 of the said Rent Act. This is clear in view of the decision in Chhaganlal's case (supra). Recently the Supreme Court has also reiterated this position in the case of Chase Bright Steel Limited v. Shantaram Shankar Sawant and another, . Para 20 of the said decision at page 94 of the report reads as under:
"On September 14, 1983, the standard rent was fixed at Rs. 358/- per month and the permitted increases were fixed at Rs. 56 per month. The appellant continued to pay Rs. 358/- per month being the standard rent. He did not pay the permitted increases. The fact that he was depositing throughout Rs. 358 and even during the stage of writ petition can hardly relieve him from such an obligation. Under section 12(3)(b) of the Act, there is an obligation to deposit the permitted increases not only during the pendency of the standard rent application which in this case has come to be dismissed for default but even during the pendency of suit for eviction. As rightly held by the High Court, if this were not to be so, the tenant could claim protection on its showing that he had within a period of one month from the date of service of notice of demand under section 12(2) filed an application for standard rent and that he had obeyed that order; in this case the interim standard rent."
23. Reliance placed by Shri Rane on the receipts at Ex. 47 to Ex. 53 to contend that the rent was Rs. 25/- p.m. only is wholly mis-placed. In the first place, it is not clear whether the said payments were by way of donation or by way of rent. Secondly, it is not clear as to whether the payment related to the premises in dispute or to some other premises belonging to the Church. The conduct of the tenant shows that he was in no mood to pay any rent to the first respondent-Trust and insisted on contending that his wife had agreed to purchase the property from the Trust in 1962 when the Trust itself became the owner of the property in 1964. In 1962 the property belonged to H.H. The Agakhan and there was no question of any agreement of sale between the wife of the tenant on the one hand and the Trust on the other. The tenant went to the extent of giving threats to the Advocate who had given notice on behalf of the Trust. This is clear from the letter dated 6th April, 1976 at Exh. 29. In all these facts and circumstances, even if the evidence is to be re-appreciated, as it has been done, I do not think any other view is possible excepting the one taken concurrently by two courts below.
24. Shri Rane tried to place reliance on some observations made in the case of Ramchandra Appaji Hanjage, since deceased by his heirs and legal representatives v. Mahavir Gajanan Mug, . In my view, the matter is beyond any doubt in view of the recent Supreme Court decision in the case of Chase Bright Steel Limited, (supra). The tenant cannot claim any protection of section 12(3)(b) of the said Rent Act in the present case since he had taken no steps whatsoever to claim such a protection. The case is squarely covered by section 12(3)(a) of the Rent Act. Reliance placed by Shri Rane on the decision of the learned Single Judge of this Court in the case of Ramchandra Appaji Hanjage, (supra) is misplaced. Ratio of the said decision can have no application to the facts of the present case when the monthly rent is Rs. 50/- and there is no dispute about the standard rent.
25. In the result, the petition fails. Rule is discharged. There will, however, be no order as to costs.