Pandurang Sambhaji Jondhale And ... vs Suchita Deokaran Navandhar
2002 Latest Caselaw 778 Bom

JUDGMENT

A.M. Khanwilkar, J.

1. Both these writ petitions can be disposed of by common Judgment. The respondent in both the writ petitions is the landlady who had instituted two separate suits against the respective petitioners. Both the suits have been decreed in favour of the respondent; the petitioners in the respective petition preferred separate appeals before the District Court and the Appellate Court by common Judgment and Decree has dismissed the appeals. The present writ petitions have been, therefore, filed by the tenants. The Writ Petition No. 828 of 1990 arises out of R.C.S. No. 223 of 1983, whereas Writ Petition No. 829 of 1990 arises out of R.C.S. No 225 of 1983. Since the question of law argued in both the writ petitions is common and the relevant dates for deciding the controversy in both the writ petitions are also common, therefore, these writ petitions are disposed of by this common Judgment.

2. The main question that arises for consideration in both these writ petitions is whether the respondent-landlady could have instituted the suit for eviction against the petitioners-tenants on the ground of default within the meaning of Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1949 on the premise that the tenants were in arrears in respect of amount towards rent prior to the period on which the respondent-landlady purchased the suit property.

3. It is not in dispute that the respondent-landlady purchased the suit property on 10th January, 1983. Immediately thereafter, on 2nd February, 1983, the respondent-landlady issued demand notice to the tenants in both the writ petitions demanding arrears of rent commencing from 1st April, 1979 to 10th of January 1983 at the rate of Rs. 40/- per month. It is not in dispute that the demised premises were let out to the tenants on monthly rent basis. In response to the said notice the tenants gave reply on 20-2-1983 disputing the fact that they are in arrears of rent as alleged. Besides, the tenants filed standard rent application on 24th February, 1983 claiming standard rent in respect of the demised premises was Rs. 20/- p.m. and not Rs. 40/- as demanded. It is also not in dispute that no orders much less any interim order has been passed in this proceeding directing the tenants to deposit or pay interim rent. It is common ground that eventually respondent-landlady filed two separate suits referred to above against the respective tenants for possession of the suit property on the ground of default as well as on the ground of bona fide requirement. The Trial Court decreed both the suit on each of the above ground. Against this decision the tenants preferred separate appeals before the District Court. It is relevant to note that, before the District Court, the learned counsel appearing for the landlady did not press the ground of bona fide requirement. In other words, Appeal Court was called upon to adjudicate only the ground of default. On the basis of the rival contentions, the Appellate Court proceeded to decide the ground of default and has answered the same against the petitioners holding that the petitioners were in arrears of rent for more than 6 months and, therefore, defaulters within the meaning of Section 12(3)(a) of the Act.

4. Having considered the rival submissions, to my mind, the main question that will have to be considered is whether the suits instituted by the respondent-landlady can be said to be maintainable within the meaning of Section 12 of the Bombay Rent Act as the same is founded on the claim in respect of outstanding rent prior to 10-1-1983. It will be apposite to straight way advert to the decision of this Court in Narendra Singh Virdi reported in 1979 Mh.LJ. Page 851. In Para 11 of the said decision, this Court examined the contentions as to whether the transferee landlord can institute the suit for possession under Section 12 of the Rent Act on the basis of arrears of rent pertaining to pre-transfer period. In this backdrop, the Court observed as follows:

"Even assuming that there was either before, simultaneously with or after the said release deed, an assignment of their share in the rent by respondent Nos. 2 to 5 in favour of respondent No. 1, that assignment could not be of rent but only of a debt which was due to them from the petitioner. Therefore, on 8-6-1967, assuming that there was an assignment of their share in the rent due till then, what respondent No. got was only the amount of debt due to respondent Nos. 2 to 5 and no rent as such".

It is not in dispute that this decision went in appeal before the Apex Court and the Apex Court has approved the same in Judgment in the case of N. M. Engineer and Ors. v. Narendra Singh Virdi and Anr. The Apex Court in Para 22 of the said decision has observed that, as per Section 109 of the Transfer of Property Act, the assignee was not entitled to rent before the assignment. The Apex Court has further observed that the rent is merely a debt. In Para 23, the Apex Court has further observed as follows:

"Therefore, whatever might have been due prior to deed of lease dated 8-6-1967, could not constitute arrears of rent. It was mere actionable claim. That being so, the notice does not satisfy the requirements of Section 12(3)(a), more so in this case, as stated above, the arrears at the rate of Rs. 87/- had been deposited. It is not open to the Appellant to call upon Section 12(3)(b)".

In other words, the Apex Court has approved the view taken by this court in Narendra Singh Virdi's case and all the observations in Para 11 of the said decision will have to be held as having been approved by the Apex Court by applying the doctrine of merger.

5. Accordingly, the purchasee-landlord cannot institute a suit for possession on the basis of the demand notice which relates to rent for the period prior to the date of purchase or assignment. No doubt, the learned counsel for the respondent has placed heavy reliance on the another decision of the Apex Court in the case of Satti Krishana Reddy v. Nallamilli v. Tulshiram Kalu Kumawat . However, that decision is of learned Single Judge (Vacation Judge). Whereas, the decision being a later one and by two Judges Bench of the Supreme Court, the same would, therefore, be binding on this Court. Once this position is reached then this Court has no option but to hold that it was not open to the respondent to maintain the suit against the petitioners-tenants on the ground of default within the meaning of Section 12 of the Bombay Rent Act as there was no cause of action to institute that suit. The petitioners would be, therefore, right in contending that only amount towards rent claimed by the respondent-landlady, was for the period between 10th January 1983 and 2nd February, 1983, i.e. the date of purchase of the property and the date of the suit notice; and that amount being for a period less than 6 months, the same cannot be the basis for prosecuting the suit under Section 12 against the tenants. The petitioners have rightly relied on the series of decisions of this Court which have taken the view that there is no cause of action to institute the suit under Section 12(3)(a) then such a suit will have to be dismissed and the Court cannot proceed to decree the suit under Section 12(3)(b) of the Act. That view is enunciated by the Division Bench of this Court in N. D. Want's case reported in 1984 Mh.LJ. Page 313 (See Para 11). Besides, it is relevant to note that even the Apex Court in the case of N. M. Engineer (supra) has observed in Para 12, which reads thus:

"The appellant having failed in his case under Section 12(3)(a), cannot seek to rely on Section 12(3)(b). Under Section 12(3)(a), there was a dispute about the amount of rent. There were no arrears of six months outstanding and there is no negligence on the part of the respondent-tenant, in making the payment thereof. That notice is bad on that account. The notice referred to under Section 12(3)(b) is entirely different Thus, no exception could be taken to the impugned Judgment".

In the same decision the Apex Court again in Para 23 has accepted the said contention by observing that;

"That being so, the notice does not satisfy the requirements of Section 12(3)(a)" - more so in this case, as stated above, the arrears at the rate of Rs. 87/- had been deposited. It is not open to the appellants to call upon Section 12(3)(b)".

6. In this view of the matter, the suits as instituted by the respondent-landlady are clearly barred by the provisions of Sub-section (2) of Section 12 of the Act which mandates that no suit can be instituted for recovery of possession by landlord against the tenant on the ground of non payment of standard rent or permitted increases due, until the expiration of 1-month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant. In this case, the demand being invalid, the suit could not proceed as there was no cause of action. In such a situation, the Court would not consider granting of relief under Section 12(3)(b). Hence, both these writ petitions succeed. The impugned Judgment and decree passed by two Courts below are set aside. No order as to costs.

7. While parting. I may record a word of appreciation for Mrs. J. P. Muzumdar, Advocate for the industry shown and for the able assistance given by her. She made thorough research and traced all the relevant decisions. In spite of being a junior Member of the Bar she conducted the matter very ably.