Maroti Mahadu Bharade And Anr. vs Martand Rambhau Holam And Ors.
2005 Latest Caselaw 852 Bom

JUDGMENT

S.P. Kukday, J.

1. In this petition, the petitioners seek to quash the orders dated 29-6-1995 in Regular Civil Suit No. 416 of 1980 passed by the learned IInd Joint Civil Judge, Junior Division, Sangamner and the order dated 18-12-1989, in Regular Civil Appeal No. 385 of 1985 passed by the learned IIIrd Additional District Judge, Ahmednagar, confirming the decree of eviction on the ground of default in payment of rent.

2. Brief facts giving rise to this petition are that:

The petitioners are the tenants of suit shop consisting of two khans out of house bearing Municipal House No. 804 belonging to the respondents. The tenancy is a monthly tenancy. Initially the rent was Rs. 10/- but was then increased to Rs. 20/- per month. The petitioners were in arrears of rent from 1-1-1979. Besides, the respondents required the suit premises for their personal occupation for running a grocery shop and therefore, they served the petitioners with a notice dated 21-6-1980 calling upon them to pay the arrears of rent and claimed possession of the suit premises on the ground of default and bona fide requirement. The petitioners failed to comply with the notice, therefore, the respondents filed Regular Civil Suit No. 416 of 1980 in the Court of learned IInd Joint Civil Judge, Junior Division, Sangamner, for possession of the property. The petitioners contested the claim adopting a defence that initially the rent was Rs. 10/- per month and was not Rs. 20/- at any time. The petitioners, therefore, challenged the validity of the notice in respect of the ground of default in payment of rent. Claim regarding bona fide requirement of the respondents was controverted by pointing out that half portion of the suit house was sold by the respondents, therefore, their requirement is not bona fide.

3. At the trial, learned Civil Judge recorded a finding that the petitioners are wilful defaulters but negatived claim for possession on the ground of bona fide requirement. In conformity of these findings, the suit was decreed on the ground of default in payment of rent under Section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, (as it stood prior to the amendment) (for short, hereinafter referred to as "the Bombay Rent Act").

4. This order was carried in appeal by the petitioners. The lower Appellate Court upheld order and Decree passed by the learned trial Judge and dismissed the appeal with costs on 18-12-1989. The petitioners are challenging the legality of these orders in the present petition.

5-6. Heard both learned counsel for both sides. Learned Counsel for the petitioners contends that after receipt of the notice, rent was tendered by money-order. It is also contended that the petitioners had paid rent upto 30-5-1980. However, the receipts were not issued by the landlord. According to the learned Counsel, these facts were ignored by the Courts below, therefore, the conclusions arrived at by these Courts cannot be sustained. Learned Counsel contends that the petition be allowed and the judgments passed in Appeal No. 385 of 1985 and Regular Civil Suit No. 416 of 1980 be quashed and set aside and the suit filed by the respondents be dismissed with costs.

7. Learned Counsel for the respondents has argued the matter at length. According to learned Counsel, the decree is passed for default under Section 12(3)(a) of the Bombay Rent Act as it stood in the year 1979. Learned Counsel contends that there was no dispute between the parties regarding the standard rent. The rent due was not paid within one month from the date of receipt of the notice. The validity of the notice is upheld by both the Courts below. It is a concurrent finding of fact. Therefore, such a finding cannot be disturbed in a petition under Article 227 of the Constitution of India. In support of his contention learned Counsel for the respondents has relied upon the ruling of the Apex Court reported in Jaywant S. Kulkarni and Ors. v. Minochar Dasabhai Shroff and Ors., 1988 Mh.L.J. (SC) 828 : 1989 Bom.R.C. 89. According to learned Counsel, both the orders are passed after discussing the evidence on record, the conclusions arrived by both the Courts below are supported by the evidence, no legal infirmities are pointed out and therefore, the petition deserves to be dismissed.

8. The mandate of Section 12(3)(a) of the Bombay Rent Act is that the arrears are to be paid within one month from the date of receipt of notice. In case of default, the suit for eviction has to be decreed. Section 12(3)(a) reads as under :

"(3)(a) Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if suchrent and increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in Sub-section (2), the Court shall pass a decree for eviction in any such suit for recovery of possession."

9. Learned Counsel for the respondents has rightly contended that the law in this behalf is not well-settled. According to learned Counsel, if there is no dispute in respect of the standard rent and the tenant is in arrears of rent for more than six months, the decree for eviction has to be passed. For this purpose, reliance is placed on the ruling of the Apex Court in Jaywant S. Kulkarni 's case (supra). In that case, their Lordships made a reference to the decision in Harbanslal Jagmohandas and Anr. v. Prabhudas Shivlal, . It was held that in the absence of dispute in respect of the standard rent, the arrears are to be paid within the stipulated period of one month and failure to do so, would entail eviction. The Apex Court in paragraph 3 of the report observed thus :

"It was held by this Court that under Section 12 of the Act the landlord is not entitled to recover possession of the premises so long as the tenant pays or is ready and willing to pay the amount of standard rent and permitted increases. Section 12(2) provides that no suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non-payment of the standard rent until the expiration of one month next after notice in writing of the payment of the standard rent. This Court held that the view of the Bombay High Court was erroneous and the view of the Gujarat High Court was correct. Sub-section 3(a) of Section 12 categorically provided that where the rent was payable by the month and there was no dispute regarding the amount of standard rent or permitted increases, if such rent or increases were in arrears for a period of six months or more and the tenant neglected to make payment thereof until the expiration of period of one month after notice referred to in subsection (2), the Court shall pass a decree for eviction in such suit for recovery of possession."

10. Reference can also be made to the judgment of the Apex Court in the matter of Mahendra Raghunathdas Gupta v. Vishwanath Bhikaji Mogul and Ors.. In that case, while considering this aspect, the Apex Court observed in paragraph 5 of the report that:

"5. Thus, it could be seen that two conditions must be satisfied for eviction of a tenant on the ground of default in the payment of rent or permitted increases. Firstly, there must be a default in the payment of rent. The default may continue for six months or more. Secondly, before filing a petition for eviction, a notice in writing under Section 106 of the Transfer of Property Act shall be given to the tenant giving one month's time. Then, it shows that the tenant was not ready and willing to pay rent and if he neglects to pay the rent within 30 days from the date of the receipt of the notice, on expiry of one month next after notice in writing and the payment of the standard rent or the permitted increases has been served upon the tenant, the landlord is entitled to file the suit for ejectment. In such event, the Court is empowered to order eviction."

11. Applying this principle to the present case, it can be seen from the judgments of both the courts below that the petitioners never raised a dispute regarding the standard rent. The contention that initial rent was Rs. 10/- which was subsequently increased to Rs. 20/-, is discussed by both the Courts below. The petitioners did acquiesce and did not raise any dispute when the rent was raised to Rs. 20/- by the landlord. It is, therefore, clear that the petitioners never raised any dispute regarding the standard rent.

12. Learned Counsel for the petitioners contends that the rent was paid by money-order. According to the learned Counsel for the petitioners, This payment has to be treated as legal tender of the rent within the stipulated period. It is contended that the Courts below did not consider this aspect of the controversy. This contention cannot be sustained. The evidence in respect of tender of rent by money - order is discussed by the Courts below. The payment was not in conformity with the demand made by the eviction notice dated 21-6-1980 at the rate of Rs. 20/- per month from 1-1-1979. Secondly, part payment was also not within the period of 30 days. Therefore, the contention that this payment shows that the tenants were ready and willing to pay the standard rent and permitted increases, therefore, decree should not have been passed, cannot be sustained.

13. Learned Counsel for the respondents has rightly contended that the concurrent findings of facts are recorded by the Courts below. These findings of facts should not be disturbed while exercising the jurisdiction under Article 227 of the Constitution of India. In support of this contention, reliance is placed on the ruling of the Supreme Court reported in the matter of Khimji Vidhu v. Premier High School, 2000 AIR SCW 2333. In paragraph 5 of the report, the Apex Court has observed that:

"These findings of fact could not have been interfered by the High Court in exercise of its jurisdiction under Article 227 of the Constitution. Jurisdiction under Article 227 of the Constitution must be sparingly exercised and may be exercised to correct errors of jurisdiction and the like but not to upset pure findings of fact, which falls in the domain of an Appellate Court only. The High Court, thus, exceeded the jurisdiction vested in it by upsetting finding of fact and the impugned order, suffers from a jurisdictional defect."

14. Having regard to the law laid down by the Apex Court, unless the impugned orders suffer from legal defects, this Court will not interfere with the concurrent findings of facts. In the present case, it can be seen that the so-called tender of rent was not within the prescribed period of 30 days from the date of receipt of notice, therefore, this tender of rent by money-order does not help the petitioner. The Courts below have discussed the evidence on record and have come to the correct conclusion that there was no dispute regarding the standard rent and the payment was not made within 30 days as required by Section 12(3)(a) of the Bombay Rent Act. Therefore, no interference with the impugned orders is called for. The writ petition, therefore, deserves to be dismissed.

15. In the result, the writ petition is dismissed. Rule is discharged. However, in the facts and circumstances of the case, there shall be no order as to costs.