Bombay High Court
Vasant Parsuram Sane vs Kamlakar Gajanan Chevade And Another on 7 July, 1994
Equivalent citations: AIR1995BOM416, 1995(2)BOMCR70, 1995(2)MHLJ44, AIR 1995 BOMBAY 416, 1995 (2) BOM CJ 384, 1994 BOMRC 464, (1996) 1 RENCR 146, (1995) 2 MAH LJ 44, (1995) 2 MAHLR 773, (1995) 2 RENCJ 596, (1995) 2 BOM CR 70
ORDER
1. Heard Shri Surana for the petitioner-tenant and Shri Pradhan for the respondents-Landlords. This is a petition filed by the original defendant-tenant against the judgment and decree passed by the two Courts below, decreeing the suit of the land lords on the ground that the petitioner-tenant was in arrears of rent for a period of 6 months or more and that, assuming that his case fell under the unamended provisions of clause (b) of sub-section (3) of Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, he had not 'regularly' paid or tendered in Court the rent that had fallen due during the pendency of the proceedings.
Having heard. Shri Surana and Shri Pradhan a few facts necessary for the disposal of the petition may be said as under:
2. The premises are room No. 4 which is a room in a chawl known as Tarabai Niwas behind Rationing Office, Murbad Road, Kalyan. The premises were let out to the petitioner in, 1966 and the contractual rent was Rs. 40/- (Rupees Forty only) per month. The petitioner had given a loan to the original landlady Tarabai, the predecessor in title of the present respondents. The said loan of Rs.3225/- (Three thousand two hundred twenty five only) was advanced on the 17th July, 1966 and the condition of repayment was that Rs. 20/- (Rupees Twenty only) per month were to be adjusted towards the payment of rent, with the result that the petitioner -- tenant was liable to pay Rs. 20/- per month plus the Education Cess till the loan of Rs. 3225/- was adjusted. This was also the understanding recorded in the agreement dated 16th September, 1966 which is produced at Exhibit 15. In accordance with this understanding at Exhibit 15 the loan stood fully repaid by the end of December, 1979. During the year 1980 the petitioner sent the rent by money orders which was accepted. On 15th June, 1981 the petitioner sent a money order for Rs. 138/- towards the rent for the 6 months from January to June, 1981. This was however refused by the respondents and the money order coupon is at Exhibit 31. On the I4th July, 1981 the petitioner sent another money order for the month of July, 1981 which was also refused. Similar was the case for month of August, 1981. On 7th November, 1981 the petitioner's money order for Rs. 92/- was also refused by the respondents and the coupon is at Exhibit 33. It appears that there was some dispute as to what should be the amount of rent to be sent by the petitioner after the adjustment of the loan. This dispute resulted in the money orders being refused by the respondents landlords.
3. Be that as it may, on the 2nd November 1981, the respondent issued the suit notice of demand under Section 12(2) of the Bombay Rent Act, demanding the total amount of Rs. 665/- towards the arrears of rent from January, 1980 to October, 1981 at the rate of Rs. 40/- plus Rs. 3/- towards Education Cess per month. This notice is at Exhibit 17. On the 23rd November, 1981 the petitioner sent a reply through his advocate and denied the allegations. This reply is at Exhibit 16. However the petitioner promptly filed an application for fixation of standard rent on 27th November, 1981 being misc. application No. 105 of 1981. Thus the application for fixation of standard rent was filed within the statutory period of 30 days. The respondents filed the suit for eviction on 16th December, 1981 being regular civil suit No. 565 of 1981. The ground for eviction was, principally, that the petitioner was in debt for more than 6 months. It was also alleged that the petitioner had carried out certain permanent construction and that he had committed an act contrary to the provisions of Section 108(c) of the Transfer of Property Act Thus a decree was prayed for also on the ground of Section 13(1)(a) and 13(1)(b) of the Rent Act as they stood at the relevant time.
4. On the 8th July, 1982 the petitioner filed a written statement at Exhibit 9 denying that he was a defaulter. He pointed out that he had raised bona fide dispute as to standard rent. The allegations under Section 13(1)(a) and 13(1)(b) were also denied by the petitioner. It may be mentioned that both the Courts have held against the landlords on the ground of 13(1)(a) and 13(1)(b) and the only ground on which the landlords have succeeded is the ground of arrears of rent for more than 6 months.
5. In the application for fixation of standard rent, which was filed on 27th November, 1981 as stated above i.e. even before the suit was filed on 16th December, 1981, interim standard rent was fixed by the Court on 29th January, 1983 at the rate of Rs. 30/-per month and the petitioner was directed to deposit all the arrears of rent at the rate of. Rs. 30/- per month on or before 19th February, 1983. There is no dispute before me that by the 19th February, 1983 the arrears to be deposited by the petitioner amounted to Rs. 1140/- as against this the petitioner had made deposits from 2nd March, 1982 onwards totalling to Rs. 1833.80. Thus the petitioner had deposited an excess amount of Rs. 693.80 by the 19th February, 1983. Shri Surana, the learned counsel for the petitioner has prepared a detailed table giving the date-wise position of the arrears due, the payments made, the progressive total of the payments made and the surplus that was deposited by the petitioner at the end of each of the relevant periods. The said statement along with the list of dates is taken on record and marked as 'X' for identification and shall form part of this judgment. It must be stated in fairness to Shri Pradhan that he has not disputed the correctness of the said statement showing the arrears of rent and the deposits made by the petitioner from time to time.
6. The trial Court framed the issues on 8th March, 1983. Assuming this to be first date of hearing of the suit within the meaning of the unamended clause (b) of sub-section (3) of Section 12 of the Rent Act, the petitioner was not in arrears of rent, but, in fact had deposited more than Rs. 650/- in excess. The excess payment as on 8th March, 1983 would come to Rs. 650.80 deducting the rent of Rs. 43.80 for the month of March, 1983 from the excess of Rs. 693.80 which was the excess as on 19th February, 1983.
7. Despite the above, however, the learned trial Judge on an erroneous construction of the relevant provisions and of the factual position decreed the suit of the respondents. The appeal Court by its judgment dated 27th October, 1986 confirmed the decree passed by the trial Judge erroneously assuming that though on the date when the order for fixation of interim standard rent was passed i.e., to say on 29th January, 1983, the petitioner had already deposited the entire arrears of rent in the Court, he had subsequently not deposited the arrears 'regularly'. Without considering the date-wise payment as reflected in the chart at Exhibit 'X' and the fact that, at all relevant times, the petitioner had deposited an excess amount and that at no point of time was he in arrears, the appeal Court also decreed the suit of the landlords.
8. As stated earlier Shri Surana has placed before me the detailed chart at Exhibit 'X'. It shows that on the date of passing of the order for fixation of interim standard rent, viz., 29th January 1983, as against the arrears of Rs. 1110/- the petitioner had already deposited Rs.1833.80 and had thus, deposited an excess amount of Rs. 723.80. Secondly, by the last date fixed for making the deposits in the application for fixation of standard rent, viz.; by 19th February, 1983, as against the arrears of Rs. 1140/- the petitioner had deposited Rs. 1,833.80 resulting in excess deposits to the tune of Rs. 693.80. Thirdly, on the date on which the trial Court decreed the suit, viz., 11th October, 1983, the arrears payable would have been Rs. 1697/- and as against this, the petitioner had already deposited, by that date, Rs. 2148.80 resulting in excess deposits to the tune of Rs. 451.80. Fourthly, on the date on which the appeal was dismissed by the District Court, viz., on 27th October, 1986, the arrears stood at Rs. 3245/-as against which the petitioner had already deposited, by that date, Rs. 3538.80 resulting in excess deposit of Rs. 293.80. It is not disputed before me that even today the petitioner is not in arrears of rent and in fact has deposited the amount in excess.
9. In view of the above, my attention has been invited to the decision of the Hon'ble Supreme Court in the case of Mohan Laxman Hede v. Noormohamed Adam Shaikh, . After having considered the earlier Supreme Court decision in the case of Mranalini Shah v. Bapalal Mohanlal Shah, reported in" AIR 1980 SC 955 the Supreme Court came to the conclusion that if the tenant had deposited the rent with reasonable punctuality, he can be said to have deposited the rent 'regularly' as contemplated by clause (b) of sub-section (3) of Section 12 of the Bombay Rent Act. It was held in the case of Mohan Laxman Hede that the Courts below were in error in taking the view that exact or mathematical punctuality was required in the deposited of rent by tenant to take advantage of the provisions of Section 12(3)(b) of the Rent Act. Even in the case of Mranalini Shah v. Bapalal Shah, what the Supreme Court has observed has been reproduced in para 6 of the judgment in Mohan Laxman Hede's case, at page 1114 of AIR 1988 SC. It has been observed that the word 'reguiarly' in clause (b) of sub-section (3) of Section 12 has a significance of its own and it enjoins a payment or tender characterised by reasonable punctuality i.e. to say on made at regular times or intervals. The regularity contemplated may not be a punctuality, of clock-wise precision and exactitude, but it must reasonably conform with substantial proximity to the sequence of times or intervals at which the rent falls due.
10. I need not elaborate on this point further because, in my view, the chart at Exhibit 'X', summarised by me above, clearly shows that the tenant had not only deposited the amount regularly but at all relevant times, he had deposited the amount in excess of what he was required to deposit. The tenant was thus never in arrears of rent after the initiation , of the proceedings for fixation of standard rent. As stated earlier he had initiated the proceedings within the statutory period of 30 days from the date of receipt of notice. The judgments and decrees passed by the two Courts below are, therefore, wholly erroneous in law and are contrary to the admitted position regarding the payment made by the tenant. The said two decisions are clearly contrary to the ratio of the Supreme Court decisions in Mohan Hede's case and Mranalini Shah's case referred to above. In my view the tenant is clearly entitled to the benefit of the provisions of clause (b) of sub-section (3) of Section 12 of the Rent Act and no decree for eviction can be passed against him on the ground of arrears of rent in the present case.
11. It must however, be mentioned in fairness to Shri Pradhan that he tried to urge an additional contention based on the alleged act of subsequent subletting. Unfortunately there are no pleadings on record in that behalf. Sub-letting was not one of the grounds on which eviction was sought in the Courts below. The petition which has been pending in this Court since 1986 has not been amended. Shri Pradhan no doubt, contended that the Supreme Court has all along taken a view that in proceedings for reasonable and bona fide requirement or for eviction on certain grounds under the Rent Act, if subsequent events having a bearing on that ground viz., the ground alleged in the suit, come to the notice of Court during the pendency of the proceedings; such subsequent events be taken into account so that the relief can be moulded in the light of the subsequent events. He tried to place reliance on the observations of the Supreme Court in the case of Pasupuleti Venkateswarlu v. Motor and General Traders . There can be no doubt the proposition of law laid down by the Supreme Court. However in my view the ratio of the said decision can have no application to the facts of the present case. It is one thing to say that that if aground of default is alleged in the original proceedings, a subsequent event having a bearing on that ground can be taken into account as was done in the case of Pasupuleti Venkateswarlu. However, in my view it is quite a different proposition to contend that a ground not alleged in any of the two Courts or even in the petition can be taken into consideration for the first time during the hearing of a writ petition without there being any pleadings or evidence on record. What is alleged before me is, only an oral submission. It is however, stated that in the application for fixation of this petition for hearing -- early, some reference to it was made, in the affidavit filed by the respondent -- landlords. I do not think, in the facts of the present case, the ratio of the decision in the case of Pasupuleli Venkateswarlu can have any application.
12. In the result the petitioner is entitled to succeed. He is entitled to the protection of provisions of Section 12(3)(b) of the Rent Act. The judgments and decrees passed by the two Courts below are quashed and set aside and the suit filed by the respondents --landlords is hereby dismissed with no orders as to costs. Rule made absolute accordingly.
13. Rule made absolute.