Bombay High Court
Hasan Alam Beg Jamdar vs Sardari Bagum Usman Dabir And Anr. on 25 October, 1996
Equivalent citations: 1997(2)BOMCR573, 1997 A I H C 623, (1997) 2 MAH LJ 173, (1997) 2 RENCJ 286, 1997 BOMRC 236, (1997) 2 BOM CR 573
JUDGMENT V.P. Tipnis, J.
1. The plaintiff landlady filed Regular Civil Suit No. 20 of 1979 in the Court of the Civil Judge, Junior Division, Roha, against the defendant-tenant for possession of premises and arrears of rent. The suit premises were let out to the defendant-tenant at the monthly rent of Rs. 30/- The defendant was in arrears for the period between 1-6-1976 and 31-3-1977 totalling to Rs. 300/-. A notice of demand was issued on 18-4-1977. According to the landlady, the defendant sent a reply dated 16-5-1977. The suit was filed on the ground that the defendant is a defaulter. The defendant resisted the suit by contending that the rent of Rs. 30/- is excessive and the standard rent should be fixed. In fact, the defendant contended that alongwith the reply to the notice, he had tendered all arrears amounting to Rs. 300/- to the learned Advocate for the plaintiff who issued the notice, but the learned Advocate accepted the reply but refused the amount of rent tendered. The defendant also brought to the notice of the Court that, in fact, soon after the receipt of the notice of demand of arrears, immediately he filed Misc. Application No. 4 of 1977 for determining the standard rent and also, as per the order of the Court, deposited all amounts from time to time in the Court. It is relevant to notice that though notice was issued on 18-4-1977, the suit was filed as late as 8-3-1979. The learned Judge of the trial Court held that the standard rent of the premises is Rs. 30/- and that the defendant is not shown to be a defaulter. The learned Judge, however, held that the plaintiff landlady is entitled to an amount of Rs. 1,020/- as arrears of rent and notice charges and that the defendant is entitled to adjustment of all the amounts which he had deposited in Court. Accordingly, by judgement and decree dated 10th December 1980, the plaintiff's suit for possession on the ground of default was dismissed and only the monetary decree was passed.
2. Being aggrieved by the said judgement and decree, the original landlady filed appeal, being Civil Appeal No. 144 of 1980. The learned Judge of the appellate Court recorded a finding that the plaintiff has proved that the defendant is not regular in payment of rent within the meaning of section 12(3)(b) of the Bombay Rent Act and on this ground, the learned Judge held that the plaintiff is entitled to the possession. Accordingly, by judgement and decree dated 1 7-3-1983, the learned Judge allowed the appeal, set aside the dismissal of the suit for possession and directed the defendant-tenant to deliver actual vacant possession of the suit premises and the order for adjustment was confirmed.
3. Being aggrieved by the said judgement and decree of the lower appellate Court, the defendant-tenant has preferred this writ petition.
4. Though served, none appears for the respondent-landlady. I have heard Mr. Rajiv Patil, learned Advocate appearing for the defendant-tenant in support of the petition. With the assistance of the learned Counsel, I have gone through the record and the judgements delivered by both the lower Courts. Mr. Rajiv Patil contended that the learned Judge, on the facts and circumstances of the case, was wrong in holding that the tenant is not a person ready and willing to pay the rent under section 12(3)(b) of the Bombay Rent Act and that he was liable to be evicted on that ground. Mr. Patil, therefore, submitted that the decree passed by the lower appellate Court being improper and illegal has to be set aside.
5. It is extremely relevant to notice that the learned Judge of the lower appellate Court has found that within one month from the date of receipt of the notice, the tenant had tendered the entire amount of arrears claimed in the notice, viz., Rs. 300/- to the Advocate who issued the notice on behalf of the plaintiff and that it is the learned Advocate for the plaintiff who has refused to accept the said amount. The learned Judge, therefore, expressly held that the case cannot fall under section 12(3)(a) of the Bombay Rent Act.
6. Considering the case under the provisions of section 12(3)(b), the learned Judge observed that the tenant had immediately made an application bearing No. 4 of 1977 in the Court for determination of the standard rent. The Court passed an order fixing interim rent at the rate of Rs. 25/- per month and the lower Court directed the tenant by its order dated 4-12-1978 to deposit an amount of Rs. 300/- in the Court within 25 days from the order and he was directed to deposit Rs. 25/- per month, the first instalment on or before 15-12-1978 and, thereafter, 10th of each month. The learned Judge of the lower appellate Court further observed that as per the order passed by the Court, the defendant went on depositing the rent in Court. The learned Judge has referred in para 12 of the judgement to details of exhibits of deposit receipts showing that the tenant had deposited the rent upto the end of November 1980. The rent for December 1980 was deposited on 23-1-1982 in the appeal. However, the learned Judge found that there are no deposits from February 1981 to August 1981 in respect of the rent to be deposited in the appellate Court and rent for September 1981 to December 1981 and January and February 1982 amounting to Rs. 180/- has been deposited in the appellate Court. The learned Judge of the lower appellate Court, therefore, felt that the defendant is not regular in depositing the rent in Court. The learned Judge held that even though the rent has been fixed at Rs. 30/-, the defendant has deposited the rent at the rate of Rs. 25/- per month for the period preceding January 1981. So the amount of deposit is less by Rs. 5/- per month. Further the defendant has not deposited rent in the lower appellate Court since March 1982 onwards. The learned Judge, therefore, held that conduct on the part of the defendant indicates that the defendant is not regular in depositing the amount of rent. Relying upon the decision of the Apex Court in Mrinalini D. Shah v. Bapalal Mohanlal Shah, , the learned Judge accepted the argument on behalf of the plaintiff landlady that the defendant is not regular in payment of rent and that even after taking into consideration the deposit of Rs. 1,500/- by the defendant in Court, an amount of Rs. 900/- is still due from the defendant and the said amount has not been deposited in the Court by the defendant till the date of the hearing of the appeal and, therefore, the plaintiff landlady will be entitled to claim possession from the defendant-tenant.
7. In the facts and circumstances of the case, it is difficult to appreciate the reasoning and the conclusions of the learned Judge of the lower appellate Court. It is extremely relevant to notice that admittedly, within a month of the date of receipt of notice of demand, the tenant had tendered the entire arrears claimed to the Advocate for the plaintiff. Not only this, but immediately he had filed an application for fixation of standard rent, obtained the order for interim rent and, in fact, has deposited the interim rent and all arrears as ordered till the end of November 1980. In fact, the learned Judge of the trial Court held that the defendant-tenant is not a defaulter and dismissed the suit for possession on 10-12-1980. Thus, when the suit was dismissed and during the pendency of the suit, on the basis of the aforesaid facts, it is crystal clear that the tenant has overwhelmingly demonstrated that he was ready and willing to pay the standard rent. Not only that, but he made an application for interim rent and till the end i.e. till the date of the dismissal of the suit, he has meticulously abided by the requirements of the provisions of section 12(3)(b) of the Bombay Rent Act.
8. When in such circumstances, the landlady prefers an appeal, there is no question of the tenant abiding by any conditions of section 12(3)(b) inasmuch as the tenant was already held not to be a defaulter and the suit on that count was dismissed. If there is any further default during the pendency of the appeal, obviously, the landlady would get a fresh cause of action for which she ought to serve a notice of demand as contemplated and proceed against the tenant, according to law. But by no stretch of imagination, the tenant who has demonstrated that he is not a defaulter till the passing of the decree by the trial Court can be held to be a defaulter merely by virtue of not depositing the rent thereafter in the appellate Court in the appeal filed by the landlady whose suit was already dismissed. It requires to be emphasized that section 12(1) of the Bombay Rent Act expressly provides that a landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy in so far as they are consistent with the provisions of the Act. Explanation (1) to sub-section (4) declares that in any case, where there is a dispute as to the amount of standard rent or permitted increases recoverable under the 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. In view of this express provisions of the law, it is impossible to uphold the decision of the learned Judge of the lower appellate Court that the present tenant, in the facts and circumstances of the case, can be held to be a person who is not ready and willing to pay the standard rent. On the basis of material on record and in the facts and circumstances of the case aforesaid, no lawful decree could have passed against the petitioner.
9. In the result, the petition succeeds and the judgement and decree dated 17-3-1983 passed by the learned Assistant Judge, Raigad, in Civil Appeal No. 144 of 1980 so far as it sets aside the decree of the trial Court dismissing the suit for possession and orders the defendant to deliver vacant possession of the suit premises is quashed and set aside and the judgement and decree dismissing the suit of the plaintiff for possession passed by the trial Court is restored and confirmed. The rule is made absolute in the aforesaid terms. There shall be no order as to costs.