JUDGMENT Anoop V. Mohta, J.
Page 162
1. The petitioner-tenant has invoked Article 227 of the Constitution of India and sought to challenge the impugned judgment and order dated 21st March, 1992, passed by the Additional District Judge, Pune, (for short appellate Court), thereby, the appeal preferred by the respondents-landlord was allowed and suit for recovery of possession was dismissed. The Cross-appeal No. 147/64 Page 163 filed by the petitioner was also dismissed. Therefore, the present writ petition filed by the tenant.
2. Heard the learned Counsel Mr. C.R. Dalvi with Mr. S.M. Mhamane for the petitioner. None for the respondents 2A to 2F, though served. None for the receiver. The writ petition was on the board of final hearing on 23/6/2005, 20/6/2005, 11/7/2005 and lastly on 13/7/2005.
3. The premises in question are situated in "Udyan Prabhu" at C.T.S. No. 6298/A-2, Shivajinagar, Pune-2. The suit premises comprises of (A) Flat on first floor-Hall Brooms W.S. (B) Flat on Second floor-Hall, Bedroom, Kitchen, W. C. (C) Flat on first floor- Hall, 1 room (D) Flat on ground floor- 2 rooms W.C. and contracted rent of the premises (A) flat Rs. 160 per month, (B) Flat Rs. 160 Per month, (C) Flat Rs. 70 per month and (D) Flat Rs. 40 per month. Total rent Rs. 430/- per month inclusive of all taxes etc.
4. On 22nd December, 1952 the petitioners filed Misc. Application No. 963 and 964 for fixation of standard rent of the premises. Both the applications were decided on 2/9/1955. Therefore, the standard rent was fixed at Rs. 285/- per month. The petitioner filed an Inter Pleader Suit No. 384 of 1969 on 2/4/1969. The said suit was decided on 27/2/1980. In the meantime, in that interpleader suit, the petitioners, to avoid further complications and until the decision of the matter in respect of ownership or the liability of the tenant to make the payment to the particular landlord, made regular deposits in the Court. By 7th December, 1977 the tenant had deposited Rs. 47297. The petitioner has regularly made payments to the Corporation, towards the taxes, as contemplated under Section 140 of Bombay Provincial Municipal Corporation Act. As the Court Receiver was appointed in respect of the suit property, by the demand notice Exh.33, dated 7/12/1977 the Court Receiver terminated the tenancy on the ground of defaulter and also called upon the petitioner tenant to pay the arrears of rent, education cess amounting to Rs. 53085.65. On 4/7/1979 the Court Receiver filed Civil Suit No. 1521 of 1979 in the Court of Small causes, Pune, against the petitioner for possession of the suit premises and to recover the arrears of rent and education cess. The learned Trial Judge, after considering the material on the record held that the notice of demand was not legal and valid. The petitioner was not defaulter, and therefore, the respondent was not entitled to claim the possession of the suit premises in question. However, it was ordered that the petitioner-tenant paid Rs. 15515/- with the proportionate cost of the suit to the Receiver towards the arrears of rent and education cess. It was also ordered that the monetary part of the decree be first executed against the deposit of the rent by the defendant in the Interpleader Suit No. 384/69.
5. The respondent therefore, preferred an appeal No. 157 of 1984. The petitioner tenant also preferred an appeal No. 147/1984 in so far as, order to pay Rs. 15,515/- towards the arrears of the rent in Court. The appellate Court after considering the rival contentions between the parties, by the impugned Judgment and order allowed the appeal of the respondent-tenant and decreed the suit for possession. The counter appeal filed by the petitioner-tenant was also dismissed. Therefore, the present petition only by the petitioner-tenant.
Page 164
6. In view of undisputed position on the record there was interpleader suit pending, till 1980. In the said interpleader suit, petitioner admittedly, deposited the rent upto 7/12/1977 to the extent of Rs. 47296/-. There is no further dispute about the payment of corporation taxes by the petitioner to the extent of Rs. 17574.70. Therefore, in all total deposit on the record at the relevant time was 64,870,70. The demand notice dated 7/12/1977, in this background for the arrears of rent from 3/4/1968 to 31/12/1977 amounting to Rs. 24,515, arrears of rent from 1/1/1973 to 30/11/1977 amounting to Rs. 25370/- along with education cess totalling to Rs. 53,085.65, as claimed, appears to be incorrect. The requirement of law is, that the tenant must pay the rent regularly. The readiness and willingness of the tenant must reflect his bonafide need. In the present facts and circumstances of the case, of interpleader suit, in question, itself, demonstrate so called dispute between the parties. In this background, if the tenant chose to file and or deposit the rent, in the Court, in the interpleader suit proceeding and as recorded above, it cannot be said that the tenant was not ready and willing to make the payment regularly. The bonafide of the tenant can be gathered from the fact that on the record, the amount to the extent of Rs. 47297 have been deposited in the Court from time to time.
7. The liability of the occupier to make the payment of Municipal taxes, as contemplated under the Act is also another facet, which goes in favour of the tenant. The tenant-occupier, if makes payment regularly to the corporation, and in the present case there is an interpleader suit pending, the said taxes being paid by the tenant, in absence of any agreement, to the contrary, needs to be taken into consideration while considering the demand notice dated 7/12/1977 in question. Apart from the ground for recovery of the possession on that foundation, the petitioner has already deposited with the Corporation the taxes to the extent of Rs. 17574/-. The demand of taxes in the said notice, is also not correct. The notice in this background, cannot be said to be valid notice for the purpose of consideration of eviction, as contemplated in the Act.
8. If this, with the above finding is taken note of which is borne out from the record, I am of the view that the reasoning given by the trial Court is correct. In so far as, dismissal of the suit of recovery of the respondent on the ground of arrears of rent, by the appellate Court, according to me is incorrect in reversing the trial Court's judgment. The following reasoning given by the trial Court, according to me are sufficient to allow the present petition.
"The Nazir's report (Exh.112) produced by the defendant in Civil Suit No. 3309/1968 shows the deposit of the rent amounting to Rs. 62,696/-in the said suit by the defendant. In the Judgment, the Civil Court has held that the Receiver appointed by the High Court is entitled to withdraw the rent deposited by the defendant. By the demand notice Exh.33 dated 7/12/1977, the plaintiff has called upon the defendant to pay the total Rs. 53,085.65 Whereas the defendant has deposited total Rs. 62,686/- in the interpleader suit and paid Rs. 18,374.70 in the Corporation. Needless to say that the defendant has deposited much more amount than demanded by the plaintiff. The crucial question is whether the defendant was at all Page 165 in arrears of rent as claimed by the Plaintiff vide demand notice (Exh.33) dated 7/12/1977. As I have already pointed above vide demand notice the plaintiff has demanded the arrears of rent from 3/4/1968 to 30/11/1977 total amounting to Rs. 49,880/-and education cess of Rs. 3205.65 total Rs. 53,085.65 from the defendant. Till 7/12/1977 the defendant had paid total Rs. 17,574.70 in the Corporation towards the taxes and deposited total Rs. 47,296/- in the interpleader suit No. 384.69. The total of the (2) deposits i.e. in the Corporation and in the interpleader suit will till 7/12/1977 comes to Rs. 64,870/-. It is evident that the defendant has thus, deposited the amount in much excess than the demand in the Corporation as well as in the interpleader suit. In view of the said position, by no stretch of imagination, it could be said that on the date of the notice, the defendant was in arrears of rent much less at claimed by the plaintiff vide demand notice (Exh.33) dated 7/12/1977. Under the circumstances the plaintiff's demand notice was in fact, unwarranted and uncalled for".
9. The appellate Court in view of the above reasoning and also in view of admitted position on the record, completely overlooked the intent and mandate of Bombay Rent Act and for such provisions which deals and govern with the landlord-tenant relationship. In the present case, there is ample evidence and material on the record to justify, the deposit of the rent in the interpleader suit and also to make the payment to the corporation having made or deposited the said amount, the tenant definitely entitled to claim protection as contemplated under the Act. The tenant cannot be said to be defaulter merely, because, no such deposits were made immediately after the demand notice. The peculiarity of these facts ought to have taken note by the appellate Court, while reversing the reasoning of the trial Court.
10. The learned Counsel appearing for the petitioner in support of this submission also relied on Raju Kakara Shetty v. Ramesh Prataprao Shirole and Anr., the aspect of defaulter of payment of standard rent, "permitted increases" in relation to the "education cess" payable by tenant in addition to the standard rent, under the Bombay Rent Act, in reference to Section 12(3)(a) and 3(b) have been considered by the Apex Court in that judgment. The principles as laid down by the Apex Court need no discussion, specially in view of the following extracted paras;
"It is therefore, obvious that the landlord has a statutory right to recover the amount of education cess paid by him in respect of the demised premises from the tenant-occupant and such recovery shall not be an unlawful increase under of Section 7 of the Act but would squarely fall within the expression "permitted increases" as defined by Section 7(5) of the Act. This statutory right to recover the amount of education cess in respect of the demised premises from the occupant-tenant can be quantified by agreement of parties so long as the amount quantified does not exceed the total amount actually paid by the owner by way of education cess."
Page 166 "It therefore, seems to be well settled that education cess is a part of 'rent' within the meaning of the Act and when the same is claimed in addition to the contractual or standard rent in respect of the demised premises it constitutes a permitted increase within the meaning of Section 5(7) of the Act and being payable on a year to year basis, the rent ceases to be payable by the month within the meaning of Section 12(3)(a) of the Act. But the question still survives whether the parties can by agreement quantify the said amount and make it payable on a month to month basis provided of course the said amount does not exceed the tax liability of the landlord; if it exceeds that liability it would infringe Section 7 of the Act and the excess would not be allowed as permitted increase within the meaning of Section 5(7) of the Act. A right to recover a certain tax amount from the tenant-occupant under the provisions of a statute can be waived by the owner or quantified by agreement at a figure not exceeding the total liability under the statute. If by agreement the amount is so quantified and is made payable by the month notwithstanding the owner's liability to pay the same annually to the local authority, the question is whether in such circumstances the 'rent' can be said to be payable by the month within the meaning of Section 12(3)(a) of the Act?"
The petitioner-tenant in view of the above observation is also entitled to claim adjustment of the amount paid toward education cess/tax.
11. The last aspect of the concurrent finding by the Courts below, to the extent of direction to the petitioner tenant to pay Rs. 15,515/-, the proportionate cost of the suit of the plaintiff, in view of the above, reasoning also supports the submission made by the learned Counsel appearing for the petitioner, as admittedly, as recorded above, the petitioner tenant had deposited Rs. 64817.70. The demand was 15075.75, both the Courts therefore, failed to take into consideration, as per the deposited amount by the petitioner. Therefore, the order of payment of Rs. 15,515/- in the facts and circumstances of the case, in no way can be said to be correct. Therefore, the order of direction to pay Rs. 15515/- is also incorrect and unsustainable. However, the trial Court need to adjust the said amount and pass such order for recovery of the arrears of rent only. As observed above, petitioners are not defaulters, as contemplated under the Bombay Rent Act. It may be observed here that the landlord is entitled to claim the arrears of balance of rent, if any, of this proceeding, by filing an appropriate proceeding for the recovery of the same. The obligation of tenant to pay rent, including the arrears, if any, shall continue.
12. For the above reasons the impugned judgment and order dated 21/3/1992, is quashed and set aside. The respondents suit for possession is dismissed. However, the order against the petitioner to pay Rs. 15515/-with proportionate cost of the suit to the respondent-plaintiff is quashed and set aside. The matter is remanded to the trial Court for deciding after adjustment of the amount as, referred above and to pass the appropriate order on recovery of arrears of rent only. The rest of the order passed by the trial Court dated 30th April, 1983, is maintained. The Writ petition is partly allowed. Rule made absolute in terms of prayer (a) and (b) subject to above order. No order as to cost.