Bombay High Court
Sriniwas Babulal vs Ramakant S/O Shivnarayan Jaiswal on 15 October, 2010
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 1752 OF 2010.
Sriniwas Babulal,
Aged about 56 years, Occupation
Service, r/o. Buty Building,
Main Road, Sitabuldi, Nagpur. ....PETITIONER.
ig VERSUS
Ramakant s/o Shivnarayan Jaiswal,
aged about 41 years, Occupation
Business, resident of Buty Building,
Main Road, Sitabuldi, Nagpur. ....RESPONDENT
.
-----------------------------------
Mr. S.P. Kshirsagar, Advocate for Petitioner.
Mr. R.M. Sharma, Advocate for Respondent.
-----------------------------------
CORAM : B.P. DHARMADHIKARI, J.
Date of reserving the Judgment. - 20.09.2010.
Date of Pronouncement. - 15.10.2010.
JUDGEMENT.
1. Tenant has filed this petition invoking both Articles 226 and ::: Downloaded on - 09/06/2013 16:32:32 ::: 2 227 of the Constitution Of India challenging the judgment and order dated 27/4/2006 passed by Second Additional Small Cause Court, Nagpur in Civil Suit No.458/2003 as also judgment order dated 21/11/2006 by District Judge-4, Nagpur in Regular Civil Appeal No.377/2006. Matter has been heard finally as jointly requested by making Rule returnable forthwith.
2. Both the Courts have found that Respondent / Plaintiff has proved that Tenant is in arrears of rent and he is entitled to recover possession under Section 15(3) of the Maharashtra Rent Act, 1999, hereinafter referred to as Rent Act. Landlord's bonafide need is also held established under Section 16(1)(g) thereof and issue of the comparative hardship is also answered in his favour by both the Courts.
3. Before this Court the Landlord has given up the "need" and hence validity of that part of order/judgment does not fall for consideration here. That part of judgment therefore, does not operate to the prejudice of Petitioner Tenant. Said part granting decree of eviction on account of the bonafide need is therefore unsustainable and therefore, same is accordingly quashed and set aside. Hence, the Tenant has only ::: Downloaded on - 09/06/2013 16:32:32 ::: 3 argued the issue of validity of notice under Section 15 of Rent Act.
4. Shri S.P. Kshirsagar, learned Counsel for tenant has assailed the finding of both the Courts on the ground that in statutory notice under Section 15 of Rent Act the amount of rent demanded as outstanding includes that claim also which is admittedly time barred and hence, that notice is bad. It can not support the suit before the Small Cause Court and a decree for eviction. Such notice has to be valid in all respects and considering its effect as also scheme of Section 15 of Rent Act, this requirement must be fulfilled. The provision is penal and all efforts must be made to interpret it in favour of Tenant. In the alternative, he submits that as arrears are already deposited, the eviction can not be ordered. He has placed reliance upon (2009) 9 SCC 359- (Arjunan vs. Universal Fertilizer Corporation), 1998(3) Mh.L.J. 237 -
(Lalji Lachhamandas vs. Amiruddin Amanulla) and 2006(1) RCJ 149 (Union of India vs. Jethalal Ladhuram Maniar).
5. Shri R.M. Sharma, learned Counsel for Landlord has supported the judgments. He argued that expiry of limitation only denies the remedy but the default or arrears can be used by the landlord for seeking ::: Downloaded on - 09/06/2013 16:32:32 ::: 4 a decree of eviction under Section 15 of Rent Act. He has also urged that if the tenant disputes the correctness of the demand made by landlord, law obliges him to pay him arrears at rate and for period accepted by him to show his bonafides. That omission by him and his default therefore is fatal for him. He has pointed out the Pursis placed on record in High Court to justify the figure of Rs. 1160. 96 arrived at by the Courts and the decree of eviction passed on its basis. He contends that provisions are neither in favour of tenant nor in favour of landlord and law contemplates its unbiased and impartial implementation. He has relied upon Narayan Bhoite vs. Smt. Rampyari Gupta - (2001(3) Mh.L.J. 234), Sri Bhimseri Gupta vs. Sri Bishwanath Prasad Gupta -- (AIR 2004 SC 1770=2004(1) RCJ 70 (SC), Vasant Raghoseth Tambe vs. Bholadasji Mandir - (2008(4) Mh.L.J. 275), Hari Bhuraji Mahajan vs. Rajendra Shankar Dawknor -(2009 (6) Mh.L.J. 483) and Lalji Ramnath Pande vs. Smt. Hawabi Abdulla Shaikh - (2004 (4) Mh.L.J. 1020).
6. The calculations placed on record by Landlord vide Pursis stamp No.6838/2010 on 2/7/2010 is not even disputed by the Tenant.
He is not denying non-payment of rent at all. The said Pursis and accounts as shown therein as also judgments reveal that statutory notice dated ::: Downloaded on - 09/06/2013 16:32:32 ::: 5 7/5/2003 at Exh. 28 under Section 15 claimed rent arrears at Rs. 24.61 per month from 1/5/1973 to 30/4/2003 and total amount claimed is Rs.
8859.60 for 360 months. Tenants acknowledgment thereof, which is Ex.
30 dated 10/5/2003, and Suit is filed on 4/9/2003. In Suit as filed claimed arrears are of Rs. 885. 96 for period of prior 3 years i.e. from 1/9/2000 to 31/8/2003. Tenant received suit summons on 15/10/2003, he deposited amount of Rs. 275/- on 7/9/2004 and of Rs. 450/- on 1/3/2006. This deposit is therefore not as per Section 15(3) and even entire amount as claimed and within limitation has not been deposited with interest. There is no deposit from time to time during pendency of suit. Hence, only question rightly argued by his advocate is about alleged illegality in notice and fatal consequences thereof. Question is of effect of time barred rent claimed in such notice. Relevant provision i.e. Section 15 reads as under :--
"15. No ejectment ordinarily to be made if tenant pays or is ready and willing to pay standard rent and permitted increases. -
(1) 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, ::: Downloaded on - 09/06/2013 16:32:32 ::: 6 if any, and observes and performs the other conditions of the tenancy, insofar as they are inconsistent with the provisions of this Act.
(2) No suit for recovery of possession shall be instituted by a landlord against the tenant on the ground of nonpayment of the standard rent or permitted increases due until the expiration of ninety days 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.
(3) No decree for eviction shall be passed by the Court in any suit for recovery of possession on the ground of arrears of standard rent and permitted increase if, within a period of ninety days from the date of service of the summons of the suit, the tenant pays or tenders in Court the standard rent and permitted increases then due together with simple interest on the amount of arrears at fifteen per cent, per annum; and thereafter continues to pay or tenders in Court regularly such standard rent and permitted increases till the suit is finally decided and also pays cost of the suit as directed by the Court.
(4) Pending the disposal of any suit, the ::: Downloaded on - 09/06/2013 16:32:32 ::: 7 Court may, out of any amount paid or tendered by the tenant, pay to the landlord such amount towards the payment of rent or permitted increases due to him as the Court thinks fit."
7. Contention as arrears are deposited by now, the eviction can not be ordered, is based on Arjunan vs. Universal Fertilizer Corporation (supra) where the Hon'ble Apex Court has accepted payment made in pursuance to its directions as sufficient and set aside the eviction.
Although the conduct of the tenant was held contumacious and far from satisfactory insofar as payment/deposit of rent is concerned and the view of the High Court was found to be not totally unjustified but since the amount of Rs. 34,400/- had been deposited by the appellant as per its order dated 12-11-2007 in the interest of justice, Hon'ble Apex Court directed that the time granted by the High Court in its order dated 19.05.2007 for deposit of the amount of Rs. 34,400/- stood extended up to the date of deposit. Facts there show that the amount was to be deposited as condition for setting aside ex-parte order as directed by the rent control authority. Thus, no statutory provision like Section 15 of Rent Act here stipulating compliances and consequences fell for consideration and the field was open for use of discretion and question ::: Downloaded on - 09/06/2013 16:32:32 ::: 8 also related to its use only. This judgment therefore does not lay down any law relevant for present matter.
8. Similarly, Lalji Lachhamandas vs. Amiruddin Amanulla (supra) is the judgment of learned Single Judge where arrears were claimed in statutory notice under Section 12(2) of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947 (Bombay Act, hereafter) @ Rs.
13.56 per month, instead of standard rent of Rs. 12/-pm. Notice is held not bad in law and tenant was found to have an option to pay @ Rs. 12/-
per month and raise dispute as per law in relation to balance. Earlier judgment of Division Bench is also relied on in it. In para 12 it is noted :--
"12. Similar view was expressed by the Division Bench in Chaganlal v/s. Narayan Jagannath, 1983 Mah. L.J. page 251. It was held that whenever
------------------------------------------------------------------ was covered by section 12(3)(a) of the Rent Act. As regards the issue of validity of notice the Division Bench observed:
"The normal rule is that a notice exchanged between the landlord and the tenant should be construed liberally and not for the purpose of finding any fault. A notice under section 12(2) of the Bombay Rent Act is a ::: Downloaded on - 09/06/2013 16:32:32 ::: 9 communication between the landlord and the tenant and both the parties know the rights and liabilities about the payment of rent. Hence any mistake in making a demand for the larger amount would not render the notice invalid. Any mistake as regards quantum of rent would not make the notice bad. It is possible that in a particular case the landlord may make a false and untenable demand of a certain amount along with a claim about which there would be no dispute. In such a case the tenant will have an option to pay the undisputed amount of rent and to give a reply that the rest of the claim was a false one. If in due course of time when the suit is decided the claim is proved to be false the tenant obviously would be protected as he had made the payment of the amount that was actually due but he will not be able to resist the same if within one month from the notice, he had not paid even the amount to which the landlord was entitled. Even in such a case the tenant is under an obligation to remit within the prescribed time the permissible amount payable by him. Of course he will have to take the risk if ultimately the Court finds that such payment would not cover all the arrears. In case of such a finding the landlord would be entitled for a decree for possession. There would not be such a decree if the payment was sufficient to clear of all the arrears which were payable to the landlord. Everything, thus, ::: Downloaded on - 09/06/2013 16:32:32 ::: 10 will depend upon the facts of each case but primarily one has to proceed on the basis that the notice should be construed liberally and not with a view to find fault with it".
Union of India vs. Jethalal Ladhuram Maniar (supra) is the other judgment of learned Single Judge of this Court which takes the similar view. It draws support from Lalji Lachhamandas vs. Amiruddin Amanulla (supra).
9. In Narayan Bhoite vs. Smt. Rampyari Gupta (supra), arrears from 1/9/1960 till date of suit notice i.e. till 4/12/1970. This Court through its learned Single Judge has applied the law to these facts as under :--
"29. Considering the submissions made at the bar by the learned Counsel for the parties, this Court finds that in view of the facts and circumstances which are not in dispute viz. that the tenant was in arrears of rent from 1-9-1960 till the filing of the suit and on the date of notice dated 4-12-1970, and therefore, the tenant having failed to make payment of rent within a period of one month from the receipt of the said notice, the Plaintiff landlord was entitled ::: Downloaded on - 09/06/2013 16:32:32 ::: 11 for a decree of eviction under Section 12(3)(a) of the Bombay Rent Act. The Apex Court in the case of Raju Kakara Shetty vs. Ramesh Prataprao Shirole and another - (1991) I Supreme Court Cases 570, while dealing with the provisions of Section 12(3)(a) and
(b) of Bombay Rent Act in reference to the amendment by Section 25 of the Act 18 of 1987-----"
"36. As rightly argued by Mr. Rege, the contention of Mr. Walawalkar, the learned Counsel appearing for the legal heirs that the Plaintiffs suit was barred by limitation, cannot be accepted. According to Mr. Rege, the case of the Petitioner would be governed by Article 66 of the Limitation Act, 1963 which prescribes 12 years period for filing the suit for possession of immovable property when the plaintiff had become entitled to possession by reason of any forfeiture or beach of condition. As the suit filed by the Plaintiff is for possession of the suit premises in default on the part of the Defendants tenants to pay rent in terms of the notice of demand, Article 52 of the Limitation Act would not be attracted. It is clear that the suit of the Plaintiff was not for arrears of rent, but the suit of the Plaintiff was for possession of the suit premises, and therefore, it was not barred by limitation as the prescribed period for filing the suit for possession of immovable property under Article 66 and 67 is of 12 years."::: Downloaded on - 09/06/2013 16:32:32 ::: 12
This question whether it is Article 52 or then Article 66 of Limitation Act, 1963 applies is not very relevant here as ultimately Suit filed by the Landlord was for arrears of three years only and law expected Petitioner tenant to deposit at least rent within time-limit as per his defence to show his bonafides. He got that opportunity twice viz. first when statutory notice before filing of suit was served upon him and later when the suit-summons was received by him. Section 15 of the Rent Act enabled him to make payment as prescribed in its sub-section 15(2) or (3) on both the occasions to escape the consequences of his wrong. He did not care to avail it by depositing any amount and invited the decree for eviction.
10. In Sri Bhimseri Gupta vs. Sri Bishwanath Prasad Gupta (supra), Hon'ble Apex Court considers Section 11(1)(d) of the Bihar Buildings (Lease, Rent and Eviction) Control Act (4 of 1983) and Article 52 of the Limitation Act (36 of 1963). It finds that said section 11 deals with eviction of tenants. It begins with non obstante clause and states that notwithstanding anything contained in any contract or law to the contrary no tenant shall be liable to be evicted except in execution of a decree ::: Downloaded on - 09/06/2013 16:32:32 ::: 13 passed by the Court on one or more of the grounds mentioned in Section 11(1)(a)(f). Section 11(1)(d) states that where the amount of two months' rent, lawfully payable by the tenant and due from him is in arrears by reason of non-payment within the time fixed by the contract or in the absence of such contract by the last day of the month next following that for which rent is payable, then such default would constitute ground for eviction. Hon'ble Apex Court notes that the expression used in Section 11(1)(d) is "lawfully payable" and not "lawfully recoverable" and, therefore holds that Section 11(1)(d) has nothing to do with recovery of arrears of rent. On the contrary Section 11(1)(d) provides a ground for eviction of the tenant in the eviction suit.
It states a well settled law that limitation bars the remedy of the claimant to recover the rent for the period beyond three years prior to the institution of the suit, but that cannot be a ground for defeating the claim of the landlord for decree of eviction on satisfaction of the ingredients of Section 11(1)(d) of the said Act of 1982. Therefore eviction suit filed by landlord on ground of default in payment of rent by tenant for period more than three years prior to institution of suit is declared maintainable by it. In facts before me as the Suit is expressly with grievance about rent payable for 3 years prior to its institution, the difference between ::: Downloaded on - 09/06/2013 16:32:32 ::: 14 "lawfully payable" and "lawfully recoverable" is not very relevant.
Nothing prevented Tenant from paying lawfully recoverable rent either before or after the institution of Suit if he wanted to avail of the protection granted by Section 15 above.
11. Vasant Raghoseth Tambe vs. Bholadasji Mandir(supra) is the case covered by Section 12(3)(b) of Bombay Act, as it stood prior to the amendment. It is held that the tenant can avoid decree of eviction if, on the first date of hearing of the suit or on or before such other date as the Court may fix tenant pays or tenders in the Court standard rent and permitted increases, which is due and thereafter continues to pay or tender in the Court regularly such rent or permitted increases till the suit is finally decided. If any one of these condition was not fulfilled, the tenant can not get the protection of not passing the decree of eviction. In Hari Bhuraji Mahajan vs. Rajendra Shankar Dawknor (supra), also under Bombay Act, default in above obligation to continue to pay even during pendency of Appeal is held sufficient to deny the protection to tenant and appellate court is found competent to take cognizance of such subsequent default. In Lalji Ramnath Pande vs. Smt. Hawabi Abdulla Shaikh (supra), also under Bombay Act, the appellate court was held justified in ordering ::: Downloaded on - 09/06/2013 16:32:32 ::: 15 eviction in view of conduct of tenant in depositing rent irregularly.
12. Similar provision in Section 12(3)(b) of the Bombay is construed by the Hon'ble Apex Court in Mohan Laxman Hede v.
Noormohamed Adam Shaikh, reported at AIR 1988 SC 1111 where the tenant did deposit the rent, but not on the due dates. The Hon'ble Apex Court here quotes from an earlier judgment in case of Mranalini B. Shah v. Bapalal Mohanlal Shah reported at AIR 1980 SC 954, wherein it is held as under :
"13. 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 characterized 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 ::: Downloaded on - 09/06/2013 16:32:32 ::: 16 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 it 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 judgment was pronounced all the arrears had been cleared by the tenant."
In 2002 (5) SCC 397 between Joginder Pal vs. Naval Kishore Behal, Hon'ble Apex Court states that the Rent Control Legislations are heavily loaded in favour of the tenants treating them as weaker sections of the society requiring legislative protection against exploitation and unscrupulous devices of greedy landlords. The Legislative intent needs to be respected by the Courts while interpreting the laws. But it also held that it is being uncharitable to Legislatures if they are attributed with an intention that they lean only in favour of the tenants and while being fair to the tenants go to the extent of being unfair to the landlords. The ::: Downloaded on - 09/06/2013 16:32:32 ::: 17 Legislature is fair to the tenants and to the landlords-both. The Courts have to adopt a reasonable and balanced approach while interpreting Rent Control Legislations starting with an assumption that an equal treatment has been meted out to both the sections of the society. Hon'ble Apex Court observes that in spite of the overall balance tilting in favour of the tenants, while interpreting such of the provisions as take care of the interest of landlord the Court should not hesitate in leaning in favour of the landlords. Such provisions are en-grafted in rent control legislations to take care of those situations where the landlord too are week and feeble and feel humble.
13. I, therefore, find that the legislature has extended a further opportunity to tenant in arrears or habitually in default to clear the same and to avoid action of eviction by making payment of the admitted dues at admitted rate within 90 days of service upon him of statutory notice under Section 15(2) of the Rent Act. One more opportunity is given to him to clear all such arrears similarly within 90 days of receipt of suit summons by him. But then at that stage, he has to clear said amount not as per claim in notice but till date of deposit with 15% interest and thereafter continue to pay or tender in Court regularly such admitted sum ::: Downloaded on - 09/06/2013 16:32:32 ::: 18 till the suit is finally decided and also pay cost of the suit as directed by the Court. In case of any dispute about quantum of rent or period of arrears, he has to deposit admitted amounts and the dispute can then be resolved as per law. If he raises a frivolous dispute only to harass the landlord, he also takes with it the risk of consequences. Here, there is no effort to pay the admitted amount and arrears as adjudicated upon concurrently are not in dispute. Rent for over 30 years was not paid. From 1/5/1973 till 1/3/2006 amount paid is only Rs. 725/-. Arrears within limitation and claimed in Suit for period of three years prior to its institution i.e. from 1/9/2000 to 31/8/2003 are Rs. 885.96. So this amount due and recoverable on date of institution of Suit also is not cleared. Definitely intention to condone even such lapses can be drawn from express language and scheme of Section 15. If payment made by tenant as per his sweet will as and when he made is to be accepted as enough to deny such landlord a decree for eviction, it is nothing but rewriting the said provisions. Section 15 giving concessions to Tenant can not be construed as a penal provision or more liberally to confer upon him some benefit not envisaged by the legislature. Precedents above rightly construe it strictly and I, do not find anything in present facts to enable me to relax its rigour. Law of limitation does not prohibit tenant from ::: Downloaded on - 09/06/2013 16:32:32 ::: 19 making payment of even time-barred rent. Demand thereof in notice under Section 15 by Landlord is not wrong and in any case, it is not fatal.
The Petitioner Tenant could have ignored that part of demand and shown his bonafides by depositing rent due as per his calculations. I do not find said notice illegal and decree of eviction based upon it is perfectly legal and valid.
14. With the result, petition is without any merit and same is dismissed. Rule discharged with no order as to costs.
JUDGE Dragon.
15. Shri Kshirsagar, learned Counsel for petitioner at this stage requests for grant of 8 weeks time to approach the Hon'ble Apex Court.
Shri Sharma, learned Counsel for respondent is opposing the request. I do not find any merit in the request. Request of Shri Kshirsagar, learned Counsel is rejected.
JUDGE Rgd.
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