Bombay High Court
District Akola vs Akola Zilla Shram Wahtuk Sahakari on 23 October, 2012
Bench: B. P. Dharmadhikari, A.P. Bhangale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
LETTERS PATENT APPEAL NO.307 OF 2012
IN
WRIT PETITION NO.1101 OF 2007 (D)
Chandiram Dariyanumal Ahuja,
Aged about 67 yrs, Occ. Business,
r/o. House No.50, Gandhi Nagar,
Sindhi Camp, Akola, Tq. and
District Akola. .......... APPELLANT
// VERSUS //
Akola Zilla Shram Wahtuk Sahakari
Sanstha, Regd. Co-operative Society,
Shram Shakti Bhavan, Near Akola
Urban Co-operative Bank Ltd.,
Akola, Old Cotton Market, Akola,
Through its Manager Shri Vijay
s/o. Baburao Ishwarkar, Aged
about 50 yrs., Occ. Service, r/o.
State Bank Colony, Near Hedgewar
Rakta Pedhi, Jatharpeth, Akola, Tq.
and Distt. Akola. ........... RESPONDENT
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Mr. C.A.Joshi, Advocate for the Appellant.
Mr. A.S.Chandurkar, Advocate for the Respondent.
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Date of reserving the Judgment : 12.09.2012.
Date of pronouncing the Judgment : 23.10.2012.
CORAM : B.P. DHARMADHIKARI
ig & A.P. BHANGALE, JJ.
JUDGMENT (Per A.P. Bhangale, J) :
1. Appellant Chandiram is tenant while
respondent/Akola Zilla Shram Wahatuk Sahakari Sanstha is
landlord in respect of premises i.e. shop block in a building
situated on Nazul Plot No.7, Sheet No.27/C, Old Cotton Market,
Akola. Appellant/tenant was inducted in the suit premises under
a Lease deed, dated 4th February, 1986 on a monthly rent of
Rs.500/- payable in advance. Appellant had kept security
deposit of Rs.1,00,000/- with the respondent-landlord.
Appellant had actually occupied the tenanted premises with
effect from 1st August, 1986. Tenancy month is governed as per
English Calendar Month. Parties had agreed under the Lease
deed that rent of the tenanted premises would be increased @
20 % after every five years. Copy of Lease deed is on record
which contains various terms and conditions.
2. The respondent-landlord filed Civil Suit No.22 of
2003 for eviction alleging inter alia that the appellant-tenant
paid rent regularly till 31.1.1991. However, thereafter, the
appellant-tenant adopted practice of remaining in arrears of
rent. It was also averred that the appellant-tenant did not pay
municipal taxes and the respondent-landlord had to pay the
same. When the appellant-tenant fell in arrears of six months'
rent and Municipal Corporation taxes amounting respectively to
Rs.49,968/- and Rs.43,460/- (total Rs.93,428/-), the
respondent-landlord recovered and adjusted the same from the
amount of security deposit of Rs.One lakh. The landlord
restricted the claim for recovery of rent for a period from
1.2.1992 to 31.3.2003 amounting to Rs.21,740/-. The landlord
claimed ejectment of tenant on the ground that he defaulted in
payment of rent. Secondly, it was averred that the respondent-
landlord was working for weaker section of the Society and it is
in need of funds. There are number of people who approach the
respondent with a request to let them some shop block and there
are offers for higher amount of rent. Since the appellant-tenant
is a rank defaulter and the respondent-landlord is in need of
funds, eviction of tenant was sought on the ground of bona fide
need also. The respondent-landlord sent legal notice dt.7.8.2000
terminating tenancy of the appellant expiring with the midnight
of 30.11.2000. The respondent-landlord further pleaded that
the suit premises was located at a prime location and it could
fetch minimum rent of Rs.3,000/- per month and, therefore, the
appellant-tenant be directed to pay rent @ Rs.3,000/- per month
during pendency of the suit. The respondent-landlord also
prayed for enquiry into mesne profits.
3. The appellant-tenant failed to file Written Statement
and an order was passed by the trial Court for proceeding with
the suit without Written Statement of appellant-tenant. This
was not challenged in the Appellate Court.
4. The learned trial Judge, after going through the
evidence led by the respondent-landlord, decreed the suit partly
directing the appellant-tenant to pay arrears of rent amounting
to Rs.9,980/- for thirty-six months due since prior to the
institution of suit. The learned trial Judge held that though the
rent was deposited in the Court by the tenant, he failed to
comply with the condition laid down in Section 15 (3) of the
Maharashtra Rent Control Act, 1999 (hereinafter referred to as
"the Maharashtra Rent Act"). The trial Court further held that
the landlord has proved its bona fide need in relation to the suit
premises and, therefore, directed the tenant to deliver vacant
possession of the suit premises to the landlord. The learned trial
Judge directed enquiry into mesne profit under Order XX, Rule
12 of the Code of Civil Procedure. It also directed that the
decretal amount shall carry interest @ 15 % per annum from the
date of institution of the suit till its realization.
5. The appellant-tenant carried an appeal under
Section 34 of the Rent Act being Regular Civil Appeal No.19 of
2005. Learned Principal District Judge, Akola maintained the
order of the trial Court directing the appellant-tenant to pay
arrears of rent of Rs.9,980/- to the respondent-landlord and the
decree of eviction for want of compliance of the provisions of
Section 15 (3) of the Maharashtra Rent Act. The learned
Appellate Judge, however, was pleased to set aside the finding
as regards the ground of bona fide need which was held
established by the landlord as recorded by the trial Court.
6. The appellant-tenant assailed the Judgment and
Order of the trial Court and the Appellate Court by filing Writ
Petition (being Writ Petition No.1101 of 2007) before the
learned Single Judge of this Court. The learned Single Judge of
this Court, after hearing both the parties, dismissed the Writ
Petition of the appellant-tenant vide Judgment and Order, dated
25th June, 2012 and this is how the appellant-tenant is before
this Court in Letters Patent Appeal filed under Clause XV of the
Letters Patent.
7. The contention of the appellant-tenant is that the
suit was not tenable as the cause of action did not accrue in
favour of the respondent-landlord because the tenant had
complied with the demand made by the landlord in the demand
notice dt. 7.8.2000. According to the tenant, Demand draft of
Rs.27,000/-, dt.23.10.2000 was sent along with notice dt.
18.10.2000. It is, thus, contended that - when Section 15(2) is
complied with, the provisions of Section 15(3) cannot come in
operation. In our view, this contention need to be appreciated in
view of the provisions contained in Section 15. The right of the
landlord to file suit for ejectment of the tenant on the grounds
available under the general law is restricted by a Special law i.e.
the Maharashtra Rent Control Act in a limited way to certain
grounds for seeking eviction. The restriction is specific and not
of omnibus nature. As long as tenant is ready and willing to pay
rent, he is protected under Chapter III of the Act. Let us look
into the relevant provisions of the Maharashtra Rent Act.
"CHAPTER III :
RELIEF AGAINST FORFEITURE :
15. No ejectment ordinarily to be made if tenant
pays or is ready and willing to pay standard rent
and permitted increases.
(1) A landlord shall not be entitled to the recovery
of possession of any premises so long as the tenant
pays, or is ready and willing to pay, the amount of
the, standard rent and permitted increases, if any,
and observes and performs the other conditions of
the tenancy, in so far as they are consistent with
the provisions of this Act.
(2) No suit for recovery of possession shall be
instituted by a landlord against the tenant on the
ground of non-payment of the standard rent or
permitted increases due, until the expiration of
ninety days next after notice in writing of the
demand of the standard rent or permitted
increases has been served upon the tenant in the
manner provided in section 106 of the Transfer of
Property Act, 1882.
(3) No decree for eviction shall be passed by the
court in any suit for recovery of possession on the
ground of arrears of standard rent and permitted
increases if, within a period of ninety days from
the date of service of the summons of the suit, the
tenant pays or tenders in court the standard rent
and permitted increases then due together with
simple interest on the amount of arrears at fifteen
per cent per annum; and thereafter continues to
pay or tenders in court regularly such standard
rent and permitted increases till the suit is finally
decided and also pays cost of the suit as directed
by the court.
(4) Pending the disposal of any suit, the court
may, out of any amount paid or tendered by the
tenant, pay to the landlord such amount towards
the payment of rent or permitted increases due to
him as the court thinks fit.
8. Section 15 clarifies that the landlord is not entitled
to recover possession of the premises as long as the tenant is
ready and willing to pay the rent due and perform the
conditions of the tenancy (consistent with the provisions of the
Act) and it provides for the institution of the suit against the
tenant to recover possession on the ground of non-payment of
the standard rent and permitted increases due, after the period
of 90 days next after the notice of demand is served upon the
tenant in the prescribed manner as required under Section 106
of the Transfer of Property Act, 1882. Such suit would not lie if
the tenant has fully complied with the demand notice issued and
served under Section 15 (2) of the Act. No decree of eviction is
to be passed in any such suit if the tenant has paid the arrears of
standard rent and permitted increases due, within 90 days after
the suit summons is served upon the tenant. Tenant can move
the Court and pay the entire arrears due along with interest and
costs, as may be ordered by the Court. This is how the tenant
can claim relief against the forfeiture of tenancy from the Court.
9. The object of the Act is to protect such tenant who is
ready and willing to pay the amount of rent (standard rent and
permitted increases) and who observes and performs the other
conditions of tenancy which are consistent with the provisions of
the Act. The Act has made it mandatory for the landlord
intending to sue the tenant on the ground of default in payment
of rent to serve a pre-suit demand notice upon the tenant who
may have remained in arrears of the rent (standard rent and
permitted increases). The landlord intending to sue the tenant
on the ground of arrears of rent has to serve such notice in the
manner as prescribed in Section 106 of the Transfer of Property
Act and has to wait to file suit until expiry of 90 days from the
date of service of such notice upon the tenant in writing or duly
typed. Once the suit is instituted after compliance with Section
15(2) and the suit summons is served upon the tenant, he gets
additional opportunity in the Court which is limited to 90 days
from the date of service of the suit summons upon the tenant, to
pay or tender the amount of rent in arrears plus simple interest
at the rate of Rs.15% p.a in the Court.. The tenant must be
vigilant thereafter also to continue paying the rent (including
the permitted increases) till such suit is finally decided. The
tenant shall also pay costs of the suit as directed by the Court.
The protection-relief against forfeiture - which is available to
the statutory tenant is not absolute but conditional depending
upon the tenant paying or tendering the rent, interest and, costs
of the suit in the Court as directed by the Court. The Court can
exercise the discretion to pay the appropriate amount due, to
the landlord out of the amount deposited in the Court by the
tenant in such a suit. It is not out of place to discuss the relevant
provision of the erstwhile Bombay Rent Act in the light of the
judicial precedents concerning the default in payment of rental
arrears by the tenant.
10. The provision of the Bombay Rent Act considered in
Shah Dhansukhlal Chhaganlal v. Dalichand Virchand Shroff,
(1968) 3 SCR 346 by Hon'ble Apex Court is as under :-
"9. In order to appreciate the first contention it is
necessary to set out Section 12 of the Act as it
stood at the relevant time:
"12.(1) A landlord shall not be entitled to the
recovery of possession of any premises so long as
the tenant pays, or is ready and willing to pay, the
amount of the standard rent and permitted
increases, if any, and observes and performs the
other conditions of the tenancy, insofar as they are
consistent with the provisions of this Act.
(2) 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 or
permitted increases due, until the expiration of one
month next after notice in writing of the demand
of the standard rent or permitted increases has
been served upon the tenant in the manner
provided in Section 106 of the Transfer of Property
Act, 1882.
(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 such rent
or 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 may pass a decree for eviction in
any such suit for recovery of possession.
(b) In any other case, no decree for eviction shall
be passed in any suit, if, on the first day of hearing
of the suit or on or before such other date as the
Court may fix, the tenant pays or tenders in Court
the standard rent and permitted increases then due
and thereafter continues to pay or tender in court
regularly such rent and permitted increases till the
suit is finally decided and also pays costs of the
suit as directed by the court.
(4) Pending the disposal of any such suit, the
Court may out of any amount paid or tendered by
the tenant pay to the landlord such amount
towards payment of rent or permitted increases
due to him as the Court thinks fit.
Explanation.-- In any case where there is a
dispute as to the amount of standard rent or
permitted increases recoverable under this Act the
tenant shall be deemed to be ready and willing to
pay such amount if, before the expiry of the period
of one month after notice referred to in sub-section
(2), he makes an application to the Court under
sub-section (3) of Section 11 and thereafter pays
or tenders the amount of rent or permitted
increases specified in the order made by the
Court."
11. For the present purposes, the legal position is not
materially different than Section 15 of the Maharashtra Rent Act.
Section 12 stipulateed the ground of "non-payment of the
standard rent or permitted increases due" in s/s (2) and the
ground in Section 12(1) is that the " tenant pays, or is ready and
willing to pay". Both these grounds apparently do not convey same
thing and are not the same. The Hon'ble Apex Court has co-
related Section 12(1) with explanation of that Section and no
ratio to further the cause of respondent-tenant before us is to be
found in it. Hon'ble Apex Court has observed thus :-
"10. It appears to us that there is no substance in
the contention put forward on behalf of the
appellant. Section 12(1) must be read with the
Explanation and so read it means that a tenant
can only be considered "to be ready and willing to
pay" if, before the expiry of the period of one
month after notice referred to in sub-section (2),
he makes an application to the court under sub
section (3) of Section 11 and thereafter pays or
tenders the amount of rent or permitted increases
specified by the court. We have already noted that
the tenant made no payment within the period of
one month of the notice of ejectment and although
in his written statement he raised a dispute about
the standard rent he made no application in terms
of Section 11(3) of the Act. The readiness and
willingness to pay has therefore to be judged in the
light of the facts of the case. Where as here a suit is
filed on the ground that the tenant was in arrears
for a period of more than 6 months and although
raising a dispute as to the standard rent or
permitted increases recoverable under the Act, the
tenant makes no application in terms of Section
11(3) he cannot claim the protection of Section
12(1) by merely offering to pay or even paying all
arrears due from him when the court is about to
pass a decree against him. In Vora Abbasbhai
Alimahomed v. Haji Gulamnabi Haji Safibhai it
was pointed out that Section 12(1) of the Act
applied to a tenant who continued to remain in
occupation even after the expiry of the contractual
tenancy so long as he paid or was ready and
willing to pay the amount of the standard rent and
permitted increases. The protection was however
available to a tenant subject to the provisions of
Section 13 and to the limitations contained in
Section 12(2) and Section 12(3)(a) of the Act."
12. The case of Vora Abbasbhai Alimoahomed .vs. Haji
Gulamnabi Haji Safibhai, AIR 1964 SC 1341 is on power or scope
of interference under Section 115 of the Code of Civil Procedure
by High Court. However, following observations therein,
particularly at the end of paragraph 16 read thus :
" Section 12(1) does not affect the jurisdiction of the
Court to entertain and decide a suit in ejectment
against a tenant. It merely confers a protection upon a
tenant if certain conditions are fulfilled, and Clauses
(2), (3)(a), (3)(b) and the explanation deal with
certain specific cases in which readiness and
willingness to pay standard rent., may either be
presumed or regarded as proved. "
The above observations show that finding on whether
tenant "pays" or "is ready and wiling to pay" is required to
be recorded independently while considering the
compliances with or the conduct of tenant after service of
pre-suit notice or service of suit summons upon him.
13. The portion underlined by us in paragraph above
shows that Section 12(1) of the Bombay Rents, Hotel and Lodging
House Rates Control Act, 1947 (hereinafter referred to as "the
Bombay Rents Act") may be invoked independently i.e., separately.
It operates in altogether different field not covered by Sub-sections
(3a) and (3b). Thus, in the like manner full effect needs to be
given to all the three sub-sections of Section 15 of the
Maharashtra Rent Act as considered under Section 12 of the
Bombay Rents Act and this shows that grievance that "tenant does
not pay" or "is not ready and willing to pay" and therefore, he
should be evicted is only cognizable under sub-section (1). A
tenant habitually in arrears and always irregular in payment of
rent may not succeed in avoiding the eviction by paying all
arrears either in response to initial notice or then in the Court
after filing of the suit if such suit does not seek his eviction only on
the ground of non-payment of standard rent and permitted
increases. A tenant who is inadvertantly or casually but not
deliberately in arrears or in arrears for stipulated number of
months may not always be branded as a tenant who can be
classified as habitually irregular.
14. "Tenant pays"- the material words in Section 15(1) are
preceded by words "so long as" and independently or even
without their support, convey a conclusion to be drawn from the
conduct of tenant or a state of affairs spread over a reasonably
long time. Payment of rent of one or two months or on few
occasions by a tenant will not be sufficient to deduce that this
tenant "pays" the rent. Similarly, its non-payment for such short
duration or once or twice may not imply that he does not pay.
Burden obviously will be on the landlord initially to demonstrate
that his tenant "does not pay". Legal notice or threat of eviction
coercing that tenant to pay and consequential payment will not
show that "tenant pays". If the tenant wants to enjoy protection
under Section 15(1) of the Maharashtra Rent Act, he will have to
prove that he pays and had been paying rent voluntarily and not
only when coerced. In a given contingency, he may prove his
readiness and willingness to pay. Thus, ingredients of Section
15(2) and (3) are not germane when landlord's grievance is that
his tenant does not pay or is not ready and willing to pay.
Conversely the tenant will be required to prove that he was/is
ready and willing to pay rent i.e. that quantum of rent which
formed subject matter of landlord's grievance. Thus, characteristics
or factors which are relevant for finding out whether "the tenant
pays," equally apply to concept implicit in "is ready and willing to
pay." Thus, factors relevant for deciding the mental habit of
tenant to commit defaults are determinative under said sub-
section (1) of Section 15 of the Maharashtra Rent Act.
15. In Sitaram Maruti Nagpure v. Fakir, (2008) 3 Mh.L.J.
610, the Division Bench of this Court observed thus :--
"14. After having heard the learned Counsel for
both sides in the above and after perusal of all the
aforesaid judgments, it is very clear that Section
12 makes it abundantly clear that if tenant pays
or ready or willing to pay standard rent or
permitted increases, then no ejectment will be
made. To put it in other words, the landlord will be
entitled to recover possession of the premises only
if the tenant fails to pay the standard rent and
permitted increases. In fact the said section 12
clearly contemplates in a negative manner that no
suit for recovery of possession shall be instituted by
the landlord unless the landlord satisfies that the
tenant was not ready and willing to tender and
had not paid the standard rent and permitted
increases for over a period of six months and in the
event, the tenant was not ready and willing to
tender standard rent and permitted increases, and
that he has been in arrears of over a period of six
months, then the landlord has to issue notice
terminating the tenancy and demand the standard
rent and permitted increases within a month after
service of the notice.
Even section 12(3)(a) makes it clear that
where the rent is payable by the month and there
is no dispute regarding the amount of standard
rent or permitted increases, if such rent or
increases are in arrears for a period of six months
or more and the tenant neglects to make payment
thereof until the expiration of period of one month
after the notice as referred in sub-section (2), the
Court may pass a decree for eviction in any such
suit for recovery of possession. By way of
explanation, in the said section, it is provided that
in any case where there is dispute as to the amount
of standard rent or permitted increases recoverable
under this Act the tenant shall be deemed to be
ready and willing to pay such amount if, before the
expiry of the period of one month after notice
referred to in sub-section (2), he makes an
application to the Court under sub section (3) of
Section 11 and thereafter pays or tenders the
amount of rent or permitted increases specified in
the order made by the Court. To put it in other
words, the explanation is with regard to the
procedure, when there is a dispute with regard to
the standard rent. Where there is no dispute with
regard to the standard rent, the tenant has to
show that he was always ready and willing to
tender rent and he must not be in arrears for more
than six months and in the event, the tenant was
in arrears for more than six months, the landlord
has the right to serve notice of termination and
demand rent and permitted increases, and if the
tenant does not pay the same within one month, in
such a case, the landlord will be entitled for a
decree of eviction."
16. Meaning of phrases "Ready and willing" and its effect
on "tenant pays" used in S. 15 (1) is also important. In Mistry
Premjibhai Vithaldas v. Ganeshbhai Keshavji, [(1977) 3 SCC
11], at page 17, the Hon'ble Apex Court observes as under :
"14. The readiness and the willingness of the
tenant to pay could be found only if he had
complied with the provisions of the Act. The Act
does not cover the case of a person who is unable
to pay owing to want of means but is otherwise
"ready and willing". Such a case is no doubt a
hard one, but, unfortunately, it does not enable
courts to make a special law for such hard cases
which fall outside the statutory protection.
15. We understand that the defendant-respondent
is a Carpenter. If he is unable to find means to pay
rent we cannot dismiss the suit for his eviction on
the ground of non-payment of rent. In view of his
disability, on account of alleged illness, we
propose to modify the decree of the appellate court
to the extent "that he will have four months" time
from April 5, 1977, before the eviction order can
be executed against him provided he deposits
within a month from today all the arrears due
and goes on depositing Rs 30 p.m. regularly, in
advance, before the 5th of each month on which
his tenancy begins. He must, however, vacate the
premises before August 5, 1977, and may leave it
earlier if he is unable to pay the required rent
regularly in advance. The decree for eviction will
become executable on breach of the conditions
laid down, or, after August 5, 1977."
In P. R. Deb And Associates v. Sunanda Roy, (1996) 4 SCC
423) , at page 429,
the Hon'ble Apex Court has observed thus :
"8. In the case of Chand Rani v. Kamal Rani1 a
Bench of five Judges of this Court considered a
similar situation, where the contract stipulated that
a sum of Rs 98,000 would be paid by the purchaser
to the vendor within a period of ten days only.
Despite notices of the vendor, the vendee was not
willing to pay the said amount unless vacant
possession of a part of the property was given by the
vendor to the vendee. The Court said that in view of
the express terms of the contract coupled with the
conduct of the vendee, it was clear that the time
was of the essence of the contract and the vendee
was not ready and willing to perform the contract.
In these circumstances, this Court upheld the refusal
of the High Court to grant specific performance."
17. We, therefore, find that - a tenant, by either not
paying or not being ready and willing to pay the rent due, is liable
to be evicted by the landlord because of his blameworthy conduct
subsequent to the pre-suit statutory notice demanding rental
arrears and also during pendency of the suit instituted by the
landlord on the ground of non-payment of arrears of rent. In the
present suit, the landlord has sought to recover possession
claiming relief of eviction on the ground that tenant is habitually
irregular in payment of rent actionable in view of Section 15 (1)
because tenant can be evicted from the premises if he is not ready
and willing to pay the standard rent and permitted increases and if
he violates conditions of tenancy (consistent with the provisions of
the Maharashtra Rent Act). In defence, the tenant is obliged to
prove his readiness and willingness to pay standard rent and
permitted increases. Proof may be by payment of entire rental
arrears pursuant to service of demand notice within 90 days and
during pendency of the suit pursuant to service of suit summons.
Thus, time is allowed for the tenant to show his readiness and
willingness to pay the rental arrears. The obligation to pay
standard rent and permitted increases regularly is implicit in the
contract between the landlord and the tenant.
18. The entire Scheme of Chapter III - relief against
forfeiture, as provided under the provisions of Section 15,
indicates that a tenant can perform his obligation and then claim
protection in the form of relief against forfeiture as forfeiture
occurs in accordance with general law governing lease under the
Transfer of Property Act. The provision protects the tenant from
the forfeiture when the tenant is paying rent or has proved his
readiness and willingness to pay it. Section 15(3) added further
obligation upon the tenant to pay entire arrears till date with
interest and costs, as may be ordered by the Court. If tenant is
continuing to pay rent due during the pendency of the suit
instituted against him on the ground of non-payment of standard
rent and permitted increases, then such tenant is entitled to claim
relief against forfeiture of tenancy. To put it otherwise, when
tenant does not pay rent as agreed or pays rent only when legal
notice is served upon him or Court summons is issued against him,
the landlord is not helpless because sub-section (1) of Section 15
enables the landlord to insist upon the tenant to pay rent and
perform the conditions of tenancy. The tenant who disobeys legal
provisions u/s.15(1) of the Act can be evicted independently,
though such tenant may not necessarily be in arrears of rent on
the date of institution of the suit. A tenant who is prompted or
induced to pay only after service of legal notice or after service of
Court summons cannot be viewed as a tenant who either pays or is
ready and willing to pay standard rent and permitted increases.
Section 15 of the Maharashtra Rent Act has extended protection to
a tenant after the landlord seeks to exercise his right to forfeit the
tenancy in accordance with the provisions of general law. A
tenant, in order to claim relief against forfeiture of tenancy, gets a
period of 90 days after service of pre-suit statutory demand notice
by the landlord calling upon the tenant to pay entire arrears of
standard rent and permitted increases payable to the landlord.
Thereafter when suit is filed, the tenant gets additional
opportunity to pay entire arrears of rent and permitted increases
demanded after the suit summons is served upon him. Such a
tenant has a period of 90 days from the date of service of suit
summons to pay or tender the arrears of rent with simple interest
thereupon @ 15 % p.a. During pendency of the suit, the
protection is available as above to the tenant to claim relief against
forfeiture of tenancy provided that the tenant shall continue to be
regular in payment of standard rent and permitted increases
payable during the pendency of the suit as also costs of the suit as
directed by the Court. The Court cannot be oblivious of landlords
who may have to survive only on rental income. Habitual irregular
payment of rent and permitted increases by the tenant will
prejudice and jeopardize very survival of such landlords who
survive on rental income only. Therefore, such a tenant who may
be habitually irregular in payment of standard rent and permitted
increases can invite eviction in view of Section 15(1) of the
Maharashtra Rent Act when the Court considers the case of such a
tenant who commits breach of conditions of tenancy as also
remains habitual in rental arrears. In such exceptional case,
provisions of Section 15 (1) are applicable and procedural
compliances u/s.15(2) and 15(3) will not apply.
19. In the present matter, the landlord had filed initially a
dispute under section 91 of the Maharashtra Co-operative
Societies Act against present appellant/tenant to recover rent for
the period from 1.8.1987 to 31.1.1992. Civil Suit No. 22 0f 2003
out of which this L.P.A. arises points out non-payment of rent for
the period from 1.2.1992 till 31.3.2003. Claim therein is however
restricted to Rs. 21,740/-. Landlord has also pointed out how he
was constrained to adjust rent arrears of Rs. 49,968/- + tax
arrears of Rs. 43,460/- i.e. total Rs. 93,428/- out of security
amount of Rs. 1 Lac deposited by the tenant. His notice dated
7.8.2000 issued prior to institution of suit also makes grievance
about habitual irregularity and huge arrears. Suit is filed on
2.5.2003 and the trial Court has granted landlord decree of Rs.
9,980/- towards arrears of rent of past 36 months. Thus, the
arrears granted are for period even prior to issuance of the notice.
This grant of decree and findings supporting it are not assailed
before the learned Single Judge or before us. Tenant's contention
of compliance with said notice or of not being in arrears on
2.5.2003, is, therefore, misplaced. Even otherwise, when
compliance by landlord with Section 15(2) is not necessary for
filing suit against tenant under Section 15(1) of the Maharashtra
Rent Act, alleged compliance by tenant with notice dated 7.8.2000
is immaterial or inconsequential. Perusal of judgment dt.16.1.2007
delivered by the Principal District Judge, Akola in R.C.A. 19 of
2005 shows that issue no. 4 framed therein reads -- "Whether it is
proved by plaintiff that defendant is habitual defaulter ?" It has
been answered in affirmative by the Appellate Court from
paragraphs 32 to 44 of its judgment. That discussion and finding
is not even urged to be erroneous by the Appellant. Issue no. 1
decided by trial Court on 17.12.2004 is -- "Does the plaintiff prove
that the defendant is a habitual defaulter and in arrears of rent
within meaning of Section 15 of the M.R.C. Act,1999?". Even this
was answered in the affirmative. Thus, finding that the
appellant/tenant is a habitual defaulter is concurrent one. This
concurrent finding upheld by the learned Single Judge is sought to
be wrongly projected by associating it with requirements of
Section 15(2) and (3) to an undue extent. That co-relation can
be only to the limited extent of judging conduct of the tenant
during pendency of Suit as it is relevant to return finding on
habitual defaults.
20. With the result, we do not find any case made out
warranting interference by this Court. For the reasons recorded by
us, dismissal of appellant's petition by the learned Single Judge is
upheld. The Letters Patent Appeal is accordingly dismissed. Rule
is discharged with no order as to costs.
JUDGE JUDGE
cont'd.........
21. Mr.C.A.Joshi, learned Counsel for the appellant prays
for grant of stay to the operation of this order. Mr.A.S.Chandurkar,
learned Counsel for the respondent makes a statement that the
respondent will not execute the decree for a period of eight weeks.
The statement is recorded accordingly.
JUDGE JUDGE
jaiswal
