Bombay High Court
Hari Bhuraji Mahajan vs Rajendra Shankar Dawknor on 28 April, 2009
Author: V.R. Kingaonkar
Bench: V.R. Kingaonkar
(1)
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 22 OF 2002
1. Hari Bhuraji Mahajan
(Died through his L.Rs.)
2. Vimal w/o Hari Mahajan
3. Ravi s/o Hari Mahajan
4. Narendra s/o Hari Mahajan
5. Kiran s/o Hari Mahajan
All r/o Godhwani, Tq.
Shrirampur, Dist. Ahmednagar PETITIONERS
VERSUS
1. Rajendra Shankar Dawknor
2. Sanjay Shankar Dawknor
3. Sunita d/o Shankar Dawknor
All r/o Shrirampur, Dist.
Ahmednagar. RESPONDENTS
.....
Mr. A.S. Bayas, advocate for the petitioner. Mr. A.H. Kasliwal, advocate for respondents No. 1 & 2.
.....
[CORAM: V.R. KINGAONKAR, J.] DATE : 28th April, 2009
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ORAL JUDGEMENT :
1. By this petition, petitioners seek to impugn judgement rendered by the learned Additional District Judge, in Regular Civil Appeal No. 311/1986) whereby appeal preferred by the respondents came to be allowed and decree for dismissal of their suit for eviction (R.C.S. No. 448/1983) was reversed.
2. Indisputably, the petitioners are tenants in respect of a house property bearing city survey no.
2286, to the extent of one (1) room as described in the claim clause, situated in ward No. 1 at ::: Downloaded on - 09/06/2013 14:33:40 ::: (2) Shrirampur. The respondents are the original plaintiffs and are landlords of the house property.
The standard rent is Rs. 30/- p.m. The tenancy month commences from first day of each calender month.
3. The respondents filed suit for eviction alleging that the petitioners had committed willful default in payment of the rent. They asserted further that they were in need of the suit premises for bonafide and personal use. They issued quit notice dated 30-08-1983 and called upon the petitioners to vacate the suit premises by end of the next calender month.
The petitioner No. 1 gave reply to the quit notice on 29-09-1983 and separately filed an application for fixation of standard rent. The petitioners denied that the agreed rent was Rs. 40/-
p.m. as alleged. They further denied that they were willful defaulters. They contended that they had paid the rent from 01-09-1981 till February, 1983, but the respondents did not issue rent receipts. They were not in the arrears of the rent, nor ground of bonafide requirement is legal and proper. Consequently, they sought dismissal of the suit.
4. The trial Court held that the standard rent was of Rs. 30/- p.m. and the petitioners were in arrears of rent w.e.f. 01-09-1998 as alleged. The trial Court further held that the respondents failed ::: Downloaded on - 09/06/2013 14:33:40 ::: (3) to establish bonafide requirement of the suit premises for personal use and occupation. The trial Court came to the conclusion that since the petitioners deposited the arrears of the amount of rent within period of one month of filing of the suit, they were protected in view of section 12 (3) (b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short, "the Bombay Rent Act"). The suit was, therefore, dismissed.
5. Feeling aggrieved, the respondents preferred the appeal (R.C.A. No. 311/1986). The first appellate Court reversed finding of the trial Court on the question of the default. The 1st appellate Court held that the defendants/ petitioners herein were ineligible to claim protection under section 12 (3)
(b) of the Bombay Rent Act. The first appellate Court held that the nonpayment of the standard rent fixed by the Court during pendency of the appeal could be considered as sufficient ground to evict the petitioner in as much as the appeal is continuation of the original suit. The first appellate Court noticed the irregularity committed by the petitioners (tenants) while depositing the rent during the pendency of the appeal. It was found that they had not deposited the rent for period of 79 months. It was noticed that after 1994, the rent was not deposited regularly and that the petitioners committed ::: Downloaded on - 09/06/2013 14:33:40 ::: (4) significant defaults. Consequently, the appeal was allowed.
6. Heard learned counsel for the parties.
7. The material question to be considered is whether finding of fact rendered by the first Appellate Court regarding nonpayment of the rent by the petitioners during the proceedings of the first appeal can be regarded as perverse and that the petitioners would be entitled to seek protection under section 12 (3) (b) of the Bombay Rent Act.
8. Mr. Bayas would strenuously argue that the irregularity in the payment of rent or nonpayment of the rent during pendency of the appeal could not be the ground for eviction. He would submit that such defaults may give rise to separate cause of action but the same could not have been taken into account by the first appellate Court. He would further submit that the question of default is restricted to the averments in the complaint and the scope of the issues involved in the suit could not have been expanded by the first appellate Court. He contended that there is substantial compliance of section 12 (3) (b) of the Bombay Rent Act. The learned counsel, therefore, urged to allow the petition and quash the impugned judgement. Per contra, learned counsel for the ::: Downloaded on - 09/06/2013 14:33:40 ::: (5) respondents supports the impugned judgement. It is contended that the appeal is continuation of the suit and, therefore, the petitioners/defendants were required to continue to pay the standard rent in order to seek protection of the relevant provision.
9. Before I appreciate the rival contentions, let it be noted that the standard rent was fixed by the Court. The petitioners were, therefore, under obligation to pay the standard rent in order to show their bonafides. The rent at rate of Rs. 30/- p.m. ought to have been deposited for each month. The petitioners have failed to deposit the rent for period of 79 months during pendency of the appeal. The first Appellate Court observed that there was no dispute about the fact that the petitioners failed to deposit the standard rent for period of 79 months as per the chart submitted by the landlords/respondents vide Exh-40 dated 10-08-2000. The chart filed by the respondents indicated that no rent was deposited after end of 1994. The finding of the first Appellate Court that the petitioners have failed to pay the rent regularly as required, is, therefore, unassailable.
It is amply clear, therefore, that the petitioners were irregular in making the payments and were found in arrears of rent for 79 months' period during pendency of the appeal. Mr. Kasliwal makes a statement that even in this Court, during pendency of ::: Downloaded on - 09/06/2013 14:33:40 ::: (6) the writ petition, the petitioners did not deposit the standard rent. Both the Courts concurrently found that the ground of bonafide requirement was unavailable to the respondents. This ground is not agitated before this Court.
10. Mr. Bayas seeks to rely on certain observations in "Hasan Hasan Alam Beg Jamdar v. Sardari Begum Usman Dabir & another" 1997 (2) Mh.L.J. 173.
173 A Single Bench of this Court observed that there was no question of tenant abiding by any condition of section 12 (3) (b) during pendency of the appeal in as much as the tenant was already held not to be a defaulter and the suit, on that count, was dismissed. In the given case, the landlady had issued demand notice on 18-04-1977, demanding arrears of rent from the tenant for period between 01-06-1976 till 31-03-1977. The tenant replied that notice on 16-05-1977 and immediately had filed Misc. Application for determination of the standard rent. The landlady had thereafter filed a suit for recovery of possession on the ground that the tenant was in arrears of the rent.
The trial Court dismissed the suit for recovery of possession though decreed the same with regard to arrears of rent. The learned Single Judge held that the tenant had demonstrated that he was not a defaulter till the passing of the decree by the trial Court and could not be held to be a defaulter merely ::: Downloaded on - 09/06/2013 14:33:40 ::: (7) by virtue of not depositing the rent thereafter in the appellate Court. That was a case wherein the standard rent was not fixed. In the wake of fact situation of the said case, the learned Single Judge held that if there was any further default during the pendency of the appeal, the landlady would get a fresh cause of action for which she could serve a notice of demand as contemplated and proceed against the tenant according to law. It appears that the judgement of the Apex Court in "Kulkarni Kulkarni Patterns Pvt. Ltd. and others v.
Vasant Baburao Ashtekar and others" (AIR 1992 S.C.
1097) was not brought to the notice of the learned
Single Judge
ig in the above mentioned case. The Apex
Court in that case noticed that the defendant - tenant did not deposit the entire arrears on the first date of hearing and did not deposit the further rent during the pendency of the appeal. Thus the defendant persistently committed defaults during the pendency of the suit and also the appeal in paying the rent. The Apex Court was pleased to confirm the decree for possession under section 12 (3) (b) of the Bombay Rent Act.
11. In "Bhaskar Bhaskar Bhagwant Shinde v. Sou. Vasudha Madhukar Kadam and another" 2005 (3) Mh.L.J. 428, 428 another Single Bench of this Court (Smt. Ranjana Desai, J.) held that it was not possible to accept interpretation that due to failure of the tenant to ::: Downloaded on - 09/06/2013 14:33:40 ::: (8) deposit the rent during course of the appeal, the landlord may have another cause of action to institute suit for eviction. It is held :
"It is not possible to accept this
interpretation because that will lead to
absurdity. It will make the pending appeal
redundant and make the Appellate Court
powerless. It will rob the Appellate Court of
its authority to deal with a callous tenant.
It is true that the proviso seeks to offer
relief against forfeiture to tenants. But the
rent
ig legislation is not intended to merely
offer protection to tenants. It also seeks to
protect landlords from unscrupulous tenants.
It attempts to strike a balance. If the
landlord is made to rush to file a second suit during the pendency of the appeal for the tenants' failure to pay arrears during the pendency of the appeal that would make mockery of this provision. It would lead to multiplicity of suits. Where appeal is filed, it would necessarily be extension of the suit for the purpose of section 12 (3). It is not possible to hold that now there is a drastic change in the law to the extent that the earlier view of the Supreme Court in Mrinalini's case (supra) no longer holds the ::: Downloaded on - 09/06/2013 14:33:40 ::: (9) field. To canvass this submission, reliance is placed on the Supreme Court's judgement in Damle's case (supra). In my opinion, this reliance is misplaced."
12. The Apex Court in "Mranalini Mranalini B. Shah and another v. Bapalal Mohanlal Shah" (AIR 1980 S.C.
353),
353) considered the expression "regularly" as used in section 12 (3) (b) of the Bombay Rent Act. The Apex Court held 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 Apex Court further observed that if the tenant persistently defaults during the pendency of the suit or appeal in paying the rent, the Court has no discretion to treat what were manifestly irregular payments as substantial compliance.
13. In "Lalchand Lalchand Jematmal v. Ramchhodbhai Shankerbhai Patel and others" (AIR 1968 GUJARAT 172),
172) the Full Bench of the Gujarat High court interpreted section 12 (3) (b) of the Bombay Rent Act. The Full Bench of the Gujarat High Court observed as under :
"In the light of the above discussion we hold that section 12 (3) (b) of the Rent Act ::: Downloaded on - 09/06/2013 14:33:40 ::: (10) applies even at the appellate stage and the words "till the suit is finally decided"
occurring in section 12 (3) (b) refer also the decision of the suit in appeal by the Appellate Court when an appeal is preferred by the landlord against a decree passed by the trial Court dismissing his suit and the question arises before the Appellate Court whether the tenant is entitled to the protection of section 12 (3) (b), the Appellate Court would have to consider whether the tenant has, after paying or tendering in Court the arrears of standard rent and permitted increases on the first day of hearing of the suit or on or before such other date as might have been fixed by the Court, continued to pay or tender in Court regularly the standard rent and permitted increases till the decision of the appeal."
There cannot be duality of opinion that the appeal is continuation of the suit. It is imperative, therefore, that cause of action for the suit would continue even during pendency of the appeal. The Appellate Court is entitled to take cognizance of the subsequent developments. It is difficult to countenance the argument, therefore, that nonpayment of the standard rent during pendency of the appeal ::: Downloaded on - 09/06/2013 14:33:40 ::: (11) would give rise to separate cause of action and such an event cannot be taken into account so as to pass decree under section 12 (3) (b) of the Bombay Rent Act.
14. Mr. Bayas invited my attentio to "Narhar Narhar Damodar Wani v. Narmadabai T. Nave deceased through L.Rs." (1984 Mh.L.J. 313) and "Shivlingappa Shivlingappa Virappa Alange deceased through L.Rs. Siddheshwar Shivlingappa Alange v. Malappa Chanmallappa Shetti deceased through L.Rs. Ambawabai Malappa Shetty and others" 1999 (3) Mh.L.J. 602.
602 In case of
"Shivlingappa
Shivlingappa
ig Virappa Alange"
Alange (supra), the question
was regarding habitual defaults of the tenant wherein
the learned Single Judge of this Court held that the
case was governed by section 12 (3) (a) of the Bombay
Rent Act. In "Narhar
Narhar Damodar Wani"
Wani (supra), the legal
position prior to the amendment of the Rent Act was
taken into account by the Division Bench. In the
given case, provisions of section 12 (3) (b) of the
Rent Act was held to be inapplicable because the
landlord was disabled from filing of the suit due to
immediate compliance of the demand notice. The
present case, however, stands on different footing.
The landlord duly established that the petitioners
were irregular in payment of the rent during pendency
of the appeal. They did not deposit rent and the
interest amount for 79 months' period. Needless to
::: Downloaded on - 09/06/2013 14:33:40 :::
(12)
say, the tenancy could be forfeited in view of section 12 (3) (b) of the Bombay Rent Act. The Appellate Court was right, therefore, in decreeing the suit by allowing the appeal.
15. In the result, the petition is without merit and as such, is dismissed. No costs.
[ V.R. KINGAONKAR ] JUDGE NPJ/WP22-02 ::: Downloaded on - 09/06/2013 14:33:40 :::