Iranna Gundel A Partnership Firm vs Satchidanand Santianath Maharaj
2002 Latest Caselaw 559 Bom

JUDGMENT

A.M. Khanwilkar, J.

1. This Writ Petition under Article 227 of the Constitution of India takes exception to the order passed by the 5th Additional District Judge, Solapur dated January 24, 1986 in Regular Civil Appeal No. 419 of 1983.

2. Briefly stated, the Petitioners are tenants in respect of premises situated in property bearing Municipal House 885, Solapur. The Respondents are the trustees of a public trust, the owner of the suit property. The Respondents instituted suit against the Petitioners before the Court of Civil Judge, Junior Division, Solapur being Regular Civil Suit No. 241 of 1979 for possession of the demised premises. As has been observed by the trial Court as well as the Appellate Court, the Respondents clearly assert that the Petitioners were statutory tenants paying a rent of Rs. 460/- per year. In that sense the plaint proceeds on the premise that the Petitioners were yearly tenants and not liable to pay rent by the month.

3. Be that as it may, the said suit was filed for recovery of possession on the ground of default. The trial Court by judgment and order dated March 11, 1983 was pleased to dismiss the suit taking the view that the respondents failed to establish that the petitioners were defaulters within the meaning of section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the Act"). The Respondents carried the matter in appeal before the District Court. The appellate court has reversed the view taken by the trial court and allowed the appeal preferred by the Respondents. As a consequence of this order, the suit has been decreed in favour of the Respondents ordering eviction of the Petitioners on the ground of default. The only default noted by the appellate court as having been established by the Respondents is, default in payment of permitted increases. It is not necessary to elaborate on the correctness of the view taken by the appellate court in that behalf in as much as the foundation on the basis of which the appellate court has proceeded to decide the matter itself is wrong and unavailable to the Respondents for a decree under Section 12(3)(a) can be validly passed against the tenant only when it is found that the tenant is liable to pay the rent by the month and that he has committed default as provided under section 12(3)(a). In other words, if the tenant is not liable to pay rent on monthly basis, Section 12(3)(a) cannot be invoked against him. That, however, does not mean that such a tenant cannot be evicted at all inspite of the default. But, then, proceedings against that tenant, who is liable to pay rent on yearly basis, just as in the present case, can be instituted and validly pursued under the provisions of Section 12(3)(b) of the Act. This is the fundamental mistake committed by the Courts below though it has noted in its order that the case of the plaintiff is that defendant no. 1 is a statutory tenant paying rent of Rs. 460/- per year. However, at the same time, the appellate court in the opening sentence of para. 10 records that the defendant is a monthly tenant. This assumption is completely inconsistent with the stand of the plaintiffs.

4. In this view of the matter, the decree passed by the appellate court under section 12(3)(a) cannot be sustained in law. However, since the appellate court has not addressed itself to the issue as to whether the Petitioners can be said to be defaulters within the meaning of Section 12(3)(b) of the Act, the appropriate course would be to remit the matter for reconsideration on this issue. The requirement under Section 12(3)(b) is no more res integra. Mr. Kumbhakoni however, contends that even that ground was not available in the present case as the Petitioners had deposited the entire arrears of rent before the first date of hearing of the suit and were regularly depositing the rent in the Courts below during the pendency of the suit, appeal as well as this writ petition. However, instead of examining this factual aspect of the matter for the first time before this Court, I think it appropriate to remand the matter to the appellate court to examine the issue as to whether it is possible to decree the suit against the petitioners for having committed default within the meaning of section 12(3)(b) of the Act.

5. The parties may appear before the appellate court on 19.8.2002. The appellate court may thereafter hear the parties and decide the above said question and pass final order in accordance with law uninfluenced by any of the observations made in the previous orders which are subject matter of this writ petition.

6. The writ petition partly succeeds to the above extent. No order as to costs.