Bombay High Court
Shri Madankumar Kanji Joshi vs Kailas S/O Ramlal Shriwas And ... on 4 July, 2016
Bench: T.V. Nalawade
1 CRA 253 of 2015
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Civil Revision Application No.253 of 2015
* Madankumar Kanji Joshi,
Age 64 years,
Occupation: Business,
R/o Aryaniwas, Modern Road,
Bhusawal, District Jalgaon. .. Petitioner.
Versus
1)
Kailas s/o Ramlal Shriwas.
Died, respondent Nos.3,4 & 7
are already on record as his
legal representatives.
2) Nirmala Ramlal Shriwas
(deleted as per Court order
dated 29-1-2016).
3) Kamla Ramlal Shriwas,
Age 55 years,
R/o Shani Mandir Ward
Modern Road, Bhusawal
District Jalgaon.
4) Vimala Ramlal Shriwas
Age 53 years,
R/o Shani Mandir Ward
Modern Road, Bhusawal
District Jalgaon.
5) Sushila Ramlal Shriwas
(deleted as per Court order
dated 29-1-2016).
6) Urmila Ramlal Shriwas
(deleted as per Court order
dated 29-1-2016).
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2 CRA 253 of 2015
7) Ravindra s/o Vasant Choudhari,
Age 45 years,
Occupation: Business,
R/o Shani Mandir Ward
Modern Road, Bhusawal
District Jalgaon. .. Respondents.
--------
Shri. Mukul S. Kulkarni, Advocate, for petitioner.
Shri. P.R. Katneshwarkar, Advocate, for respondent
Nos.3,4 and 7.
--------
ig CORAM: T.V. NALAWADE, J.
DATE : 4th JULY 2016
JUDGMENT:
1) Revision is admitted. Notice after admission
made returnable forthwith. Heard both sides by consent
for final disposal.
2) The proceeding is filed against the judgment
and decree of Rent Suit No.206/1999 which was pending
in the Court of the Civil Judge, Junior Division, Bhusawal
and also against the judgment and decree of Rent Appeal
No.60/2014 which was pending in the Court of the District
Judge-1, Bhusawal. The suit was filed by the present
appellant, landlord for eviction under the provisions of the
Bombay Rents, Hotel and Lodging House Rates Control
Act, 1947. The trial Court has dismissed the suit and the
3 CRA 253 of 2015
first appellate Court has confirmed the findings of the trial
Court.
3) In short, the facts leading to the institution of
the revision can be stated as follows :-
4) The suit property is a shop premises. It is in
two pieces. One piece has the size of 10 ft x 10 ft and the
other piece has the size of 3 ft x 4 ft. It is part and parcel
of CTS No.1538 situated at Bhusawal and it is given
Municipal House No.3394 (old) and 258 (New) in the
assessment record of the municipal council.
5) It is the case of the plaintiff that the property
was given on monthly rent basis to the father of the
defendant Nos.1 to 6 and at present the defendant No.1 is
in actual possession of the portion having size of 10 ft x 10
ft. It is contended that in the portion admeasuring 3 ft x 4
ft sub-tenant is doing some business. It is contended that
initially the property was given for running hair cutting
saloon but now there is no such saloon and the sub tenant
is running a tea stall. Defendant No.7 is said to be the
said sub tenant.
4 CRA 253 of 2015
6) It is the case of the plaintiff that in the past
Rent Application No.33/1976 was filed by the defendants
for fixing standard rent and the standard rent was fixed at
Rs.17.50 in respect of the portion in which hair cutting
saloon was run and it was fixed at the rate of Rs.5.00 per
month in respect of the other portion having size of 3 ft x
4 ft. It is contended that the defendants, tenants, are
liable to pay the municipal taxes separately. It is
contended that since the decision of the rent application
which was given in the year 1982, no rent has been paid
by the defendants of the suit premises.
7) In the plaint particulars of the municipal taxes
are given and they are starting from the year 1982 till the
year 1999. It is the case of the plaintiff that the
defendants are liable to pay municipal taxes also for the
period mentioned and the total amount of the taxes of the
portion of the defendants is Rs.2616.58. It is contended
that as the rent is not paid from the year 1982 the
defendants are in arrears of rent of Rs.4815/-.
5 CRA 253 of 2015
8) It is the case of the plaintiff that aforesaid
amount was demanded by him many times to the
defendants but they did not pay the amount and they are
willful defaulters. It is the case of the plaintiff that he sent
demand notice dated 29-9-1999 and in this notice tenancy
was terminated on the ground of default. The tenancy was
terminated by the end of October 1999. It is contended
that even after receipt of the notice, the defendants have
not paid the rent to the plaintiff and so the plaintiff is
entitled to get decree of eviction on the ground of default.
9) The suit was filed on the ground of bona fide
requirement for personal use. It is the case of the plaintiff
that for starting the business for the sons, the plaintiff
needs the suit premises and he has no such separate
premises for starting business for his sons. The ground of
sub tenancy was also taken and thus the suit was filed for
eviction on aforesaid three grounds. Relief of recovery of
arrears of rent and taxes recoverable under law for the
preceding three years was also claimed.
6 CRA 253 of 2015
10) The defendant Nos.1,3 and 4 filed joint written
statement. They admitted that the plaintiff is the owner of
the suit property. They contended that, the father of the
plaintiff was collecting the rent from the defendants and
he was acting as landlord. They denied the allegations of
sub tenancy in favour of defendant No.7. They have
denied the allegations that the rent and taxes were not
paid for the period starting from the year 1982. They
contended that after receipt of the notice of demand they
filed Civil Application No.69/1999 for determining the
taxes payable by the defendants.
11) It is the case of the defendants that they had
sent rent and taxes amount in the past by money order but
the plaintiff had refused to accept the amount. It is
contended that one money order of Rs.135./- was accepted
by the plaintiff. It is their case that they have paid rent for
the period ending 31-8-1991 and this amount was
accepted by the father of the plaintiff.
12) It is the case of the defendants that they have
replied the notice of demand and in the reply they had
7 CRA 253 of 2015
requested the plaintiff to give particulars of the taxes
which fall to the share of the defendant and such demand
was made under section 21 of the Bombay Rents, Hotel
and Lodging House Rates Control Act, 1947 (hereinafter
referred to as "the Act"). It is the case of the defendants
that the plaintiff has not supplied the particulars of the
taxes. It is also contended that they had sent money order
in respect of arrears for the period starting from 1-9-1991
but this money order is refused by the plaintiff and so the
defendants cannot be treated as defaulters. It is the case
of the defendants that they were always ready and willing
to pay the rent and they are still ready and willing to pay
the rent but the demand made is excessive.
13) The notice of demand was sent on 29-9-1999
and it is admitted that it was served on the defendants. It
is the case of the defendants that after service of notice on
7-10-1999 they filed application under section 11 of the
Act on 28-10-1999 and they had requested the Court to
determine permitted increases. They also contended that
after decision of the application bearing No.33/1976 filed
by them no particulars of taxes were informed by the
8 CRA 253 of 2015
plaintiff. It is contended that the standard rent fixed by
the Court in the said proceeding is Rs.22.50 per month
and the defendant was sending this amount to the father
of plaintiff namely Kanji Joshi. It is contended that Kanji
then started refusing to accept rent sent by money order.
It is contended that the plaintiff did not demand rent from
the defendants and he avoided to collect rent from the
defendants for the period of 17 years to create a ground
and then he sent the notice of demand dated 29-9-1999. It
is the case of the defendants that before filing application
for determining the permitted increases that they had
made inquiry with the local body about the taxes payable
and they have realized that the demand made by the
plaintiff is excessive. To the rent application reply was
filed by the landlord and the aforesaid contentions were
denied by him. The landlord contended that as the
standard rent was already fixed in the previous
proceeding, no application under section 11 of the Act is
tenable. He also contended that the tenant knew the rate
of taxes and the liability to pay the taxes but the tenant
has avoided to pay the taxes and also the standard rent.
9 CRA 253 of 2015
14) The Civil Application No.69/1999 was heard
along with the suit by the trial Court. Issues were framed
on 1-4-2005. The application under section 11 of the Act
was made within 30 days of the receipt of the demand
notice but as per the record no prayer was made by the
tenant to allow him to deposit even the interim rent in the
case. No readiness and willingness was shown to deposit
the amount demanded in the notice of demand by the
landlord. The record shows that first time on 15-9-2006
the tenant moved application and prayed to the Court in
the Rent Application No.69/1999 to determine the rent
and allow the tenant to deposit the rent. In this
application the tenant did not show readiness and
willingness to deposit entire amount demanded but he
contended that he is liable to pay the rent for the period
starting from 1-9-1991. The tenant did not request the
Court to determine interim permitted increases and the
tenant did not show readiness and willingness to deposit
the taxes of which demand was made by the landlord in
the demand notice. On 15-9-2006 itself say was filed by
the landlord and it was submitted for the landlord that the
Court may pass appropriate order on the application. The
10 CRA 253 of 2015
Court made order on 15-9-2006 and directed the tenant to
deposit standard rent as fixed in the previous proceeding
No.33/1976 which was at the rate of Rs.22.50 per month.
The amount was to be deposited within 15 days and then
the tenant was to deposit further rent at the same rate for
every month before 10th of next month. This order was
complied with on 19-9-2006.
15) The oral evidence given by the plaintiff is as
per the aforesaid pleadings in the plaint. It can be said
that one of the defendants has given evidence in rebuttal
but this defendant has not disputed the case of plaintiff
and the evidence given by the plaintiff on many material
points. The plaintiff has produced the relevant record of
assessment of taxes made by the local body. He has
produced the bills of demand issued by the local body and
he has given evidence that he has paid entire tax which
was demanded by the local body.
16) During arguments, learned counsel for the
appellant did not press the ground of sub letting. There is
also no convincing record to prove this ground. In view of
11 CRA 253 of 2015
this circumstance only the material available on the
remaining two grounds viz. the ground of default and the
ground of bona fide requirement for personal use need to
be considered.
17) On the ground of default, plaintiff has given
substantive evidence that rent was not paid from the year
1982, the year in which application filed for fixing
standard rent was decided. The defendant has come with
the case that the rent was paid to Kanji, father of the
plaintiff and it was paid upto the period ending 31-8-1991.
There is specific case that after this period Kanji refused
to accept the payment sent by money order and so the
defendant is not the defaulter. In view of this rival
contention, burden was on the defendants to prove that he
was ready and willing to pay rent but it was not accepted
by the landlord. From the record it can be said that even if
the case of the defendant in respect of payment of rent
made prior to 31-8-1991 is accepted as it is, the defendant
tenant has failed to prove that after that date, rent was
tendered even to the father of the plaintiff and the father
had refused to accept the rent. For proving that the tenant
12 CRA 253 of 2015
was ready and willing after 31-8-1991 to pay rent, it was
necessary to prove the refusal to accept the rent from the
side of the landlord.
18) Kamla, defendant No.3, has given evidence for
all defendants. No substantive evidence is given by her
that any rent was paid or tendered by the defendants after
31-8-1991. She has only denied the case of the plaintiff
that rent was not paid after that period. She has given
evidence that application for fixing standard rent was
made by the tenant in the Court and in that proceeding
rent was deposited by the tenant for the period ending
December 2007. The evidence also does not show that she
was ready and willing to pay the tax demanded by the
landlord. This lady has relied only on two receipts showing
deposit of the rent in the Court in the suit filed for
eviction.
19) In the cross-examination of plaintiff, copies of
some money orders were confronted to him. He has
admitted signatures of his father appearing on those
receipts. So those documents are exhibited as Exhibits 62
13 CRA 253 of 2015
to 68. There are only seven receipts and on many receipts
amount of rent of Rs.135/- can be seen. The first receipt is
of the year 1987 and the last receipt is of 3-9-1991. The
last receipt is of Rs.135/-. All these receipts show the
money orders sent by the defendant for payment of the
rent which was on most of the occasions for the period of
around 6 months was accepted by the father of the
plaintiff. Thus there is no record with tenant to prove that
entire standard rent as fixed by the Court was paid upto
31-8-1991. No money order is produced on the record to
show that either the plaintiff or his father had refused to
accept the rent sent by money orders prior to issue of
demand notice. There is one money order of 31-10-1999
which was sent after termination of the tenancy and after
demand of the arrears and this document needs to be
considered separately. Thus there is no record with the
tenant to show that from 3-9-1991 till 31-10-1999 on any
occasion any amount was sent by money order to the
landlord or to his father and they had refused to accept
that amount.
14 CRA 253 of 2015
20) There is one money order dated 31-10-1999
which is for Rs.2205/-. On this money order there is
mention that the rent was for the period from 1-9-1991 to
31-10-1999 but no evidence is given for proving the
endorsement made on this document and this document is
not exhibited by the trial Court. If this amount is
compared with the amount demanded by the landlord in
the demand notice even in respect of the standard rent, it
can be said that this amount was not as per the demand
made by the landlord. In any case this document would
not have shown that there was tender of tax amount of the
share of the defendant. In the reply sent by the tenant,
copy of which is at Exhibit 70 also it is mentioned that the
tenant was sending only the standard rent for the
aforesaid period.
21) The record shows that in the year 1999 after
receipt of demand notice, application under section 11 of
the Act was made. No readiness and willingness was
shown till 15-9-2006 to deposit any amount in this
proceeding. First time on 15-9-2006 readiness and
willingness was shown to deposit the standard rent but no
15 CRA 253 of 2015
readiness and willingness was shown to pay the permitted
increases, taxes. The Court made order in view of this
prayer and in view of the order made in the previous rent
application and directed to pay standard rent as fixed in
the previous proceeding. Only after the order, amount of
Rs.4,140/- was deposited by the defendant and it was for
the period from 1-9-1991 to 31-12-2006 and it was the
standard rent fixed by the Court. At Exhibit 75 there is
another receipt showing that on 4-11-2006 Rs.270/- was
deposited as standard rent for the period from 1-1-2007 to
31-12-2007. Thus, at any time no readiness and
willingness was shown in the trial Court or in the
appellate Court by the tenant to pay the permitted
increases.
22) The landlord gave oral evidence to prove his
entitlement in respect of the permitted increases. For that
he produced relevant record also. The record includes the
assessment record prepared by the Bhusawal Municipal
Council for the period 1980-81 to 2005-2006 at Exhibits
50 to 55. This record shows that in the house property
there are only two shops. For one shop name of defendant
16 CRA 253 of 2015
is entered and for other shop the name of one
Ganeshprasad Rambharose was entered. On the basis of
rateable value in respect of two shops the tax was
imposed. The tax was under heads like general tax,
education cess, water tax, special education tax etc. The
tax was imposed for the years 1980 to 1984 of Rs.375/-.
The ratable value of the shop of Ganesh was Rs.780/- at
that time and that of the defendant was Rs.480/-. Under
different heads the tax separately levied was also
mentioned. For the years 1997-98 to 2001-2002 the total
tax payable was Rs.504/-. In those years the rateable value
of the shop of Ganesh was Rs.780/- and the rateable value
of the shop of the defendant was Rs.504/-. Few bills issued
by the local body in respect of aforesaid taxes are
produced by the landlord at Exhibits 46 to 49. Certificate
at Exhibit 45 shows that for the year ending 2006 entire
property tax was paid by the plaintiff.
23) In the pleadings and in the reply to the notice,
the defendants had contended that they had made inquiry
with the local body to ascertain the tax recoverable. The
aforesaid record was also available to the defendants. In
17 CRA 253 of 2015
the demand notice standard rent starting from the year
1982 was demanded and the house tax, permitted
increase in proportion to the property of the defendants
was also demanded and that tax was for every year from
1982. In the notice itself particulars like general tax,
special education tax, eduction cess, water tax were given
by the landlord and that can be seen from Exhibit 56.
Thus there was contention of the tenant that he had made
inquiry and there was the record of aforesaid nature to
establish the case of landlord of entitlement to recover the
tax. In spite of these circumstances the Courts below have
held that the particulars which were demanded under
section 21 of the Act were not given. These circumstances
show that there was non application of mind by both the
Courts below and they failed to consider the aforesaid
record and the nature of defence taken by the tenant.
Further, there was no substantive evidence from the
defendants that the defendants had tendered rent or tax
in the past and the landlord had refused to accept the
same. In view of these circumstances there is no other
alternative than to hold that both the Courts below have
committed error in giving finding on this point against
18 CRA 253 of 2015
the landlord. This record and the admissions given by the
tenant are sufficient to infer that the tenant had no
intention to pay at least the permitted increases. There
was virtually no record to prove that after 3-9-1991 any
rent or tax was paid or tendered till the date of reply given
to the statutory notice. Due to these circumstances the
only finding which can be given is that the tenant was not
ready and willing to pay standard rent and permitted
increases and the tenant had become defaulter by not
paying the rent continuously after 3-9-1991.
24) Both the sides have placed reliance on some
reported cases in support of their submissions made on
the ground of default. The notice of demand was issued
on 29-9-1999 and so in the present matter the law as
amended in the year 1987 needs to be considered and
applied.
25) It is not disputed that in the Rent Application
No.33/1976 standard rent was fixed and the decision was
given on 9-11-1982 (Exhibit 44). Entitlement of the land
lord to get permitted increases is not disputed by the
19 CRA 253 of 2015
tenant. Further in law also the tenant could not have
disputed such entitlement. In section 5(7) of the Act
definition of "permitted increase" is given and section 10
makes it clear that the tenant is liable to pay house tax as
permitted increase. The tax which needs to be paid by the
tenant is to be in the proportion to the premises which is
in his possession. The provisions of the Act have not given
any procedure for ascertaining the increase by the Court
before issue of demand notice and so the landlord can
simply send bill, make demand of permitted increases
according to the practice of recovery of rent. If the tenant
does not take proper steps after such demand, the tenant
is liable to make payment as per the demand to avoid the
consequences of non payment.
26) In the present matter the tenant sent reply to
the demand notice given by the landlord and asked to
supply particulars as provided in Section 21 of the Act.
The aforesaid discussion shows that particulars were
supplied by the landlord in the demand notice itself.
Further, there is oral evidence to show that in the past
also the demand was made. In the reply given at Exhibit
20 CRA 253 of 2015
70 the tenant contended that the demand of tax was
excessive in comparison to the taxes which were payable
in the year 1982-83. This contention shows that in the
year 1982-83 also such demand was made by the landlord
and tenant had made inquiry with the local body to
ascertain his liability. Thus, the tenant gave false reply in
Exhibit 70 that there were no particulars given to him.
27) The rights of the landlord and tenant when
there is default in making payment of rent or permitted
increases can be found in sections 11 and 12 of the Act.
Provision of section 12 as amended in the year 1987 runs
as under :-
"12. 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 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
21 CRA 253 of 2015
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 any, 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 together with
simple interest on the amount of arrears of such
standard rent and permitted increases at the rate of
nine 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.
Provided that, the relief provided under this sub-
section shall not be available to a tenant to whom
relief against forfeiture was given in any two suits
previously instituted by the landlord against such
tenant.
(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 increase due to him as
the Court thinks fit.
Explanation I.-- In any case where there is a dispute
as to the amount of standard rent of 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.
Explanation II.-- For the purposes of sub-section (2),
reference to "standard rent" and "permitted
increase" shall include reference to"interim standard
rent" and "interim permitted increase" specified
under sub-section (3) or (4) of section 11.
22 CRA 253 of 2015
Explanation III.-- For the purposes of this section
where, a tenant has deducted any amount from the
rent due to the landlord under section 173C of the
Bombay Municipal Corporation Act for recovery or
any water tax or charges paid by him to the
Commissioner, the tenant shall be deemed to have
paid the rent to the extent of deductions so made by
him."
Relevant portion of section 11 which is section 11(2),(3)
and (4) runs as under :-
"11. Court may fix standard rent and permitted
increases in certain cases.
(1) . . . .
(2) If there is any dispute between the landlord
and the tenant regarding the amount of
permitted increases, the Court may determine
such amount.
(3) If any application for fixing the standard rent
or for determining the permitted increases, is
made by a tenant who has received a notice from
his landlord under sub-section (2) of section 12,
the Court shall forthwith specify the amount of
rent or permitted increases which are to be
deposited in Court by the tenant, and make an
order directing the tenant to deposit such
amount in Court or at the option of the tenant
make an order to pay to the landlord such
amount thereof as the Court may specify,
pending the final decision of the application. A
copy of the order shall be served upon the
landlord. Out of any amount deposited in Court,
the Court may make an order for payment of
such reasonable sum to the landlord towards
payment of rent or increase due to him as it
thinks fit. If the tenant fails to deposit such
23 CRA 253 of 2015
amount or, as the case may be, to pay such
amount thereof to the landlord, his application
shall be dismissed.
(4) Where at any stage of a suit for recovery of
rent, whether with or without a claim for
possession of the premises, the Court is satisfied
that the tenant is withholding the rent on the
ground that the rent is excessive and standard
rent should be fixed, the Court shall, and in any
other case if it appears to the Court that it is just
and proper to make such an order the Court may
make an order directing the tenant to deposit in
Court forthwith such amount of the rent as the
Court considers to be reasonably due to the
landlord, or at the option of the tenant an order
directing him to pay to the landlord such amount
thereof as the Court may specify. The Court may
further make an order directing the tenant to
deposit in Court periodically, such amount as it
considers proper as interim standard rent, or at
the option of the tenant an order to pay to the
landlord such amount thereof as the Court may
specify, during the pendency of the suit. The
Court may also direct that if the tenant fails to
comply with any order made as aforesaid, within
such time as may be allowed by it, he shall not
be entitled to appear in or defend the suit except
with leave of the Court, which leave may be
granted subject to such terms and conditions as
the Court may specify."
The provision of section 11 (4) of the Act is made to
protect the rights of landlord. The aforesaid provisions
show that it is necessary for tenant to apply to the Court
to show his readiness and willingness to make payment
rent (standard rent) or the permitted increase of which
24 CRA 253 of 2015
demand is made. When demand is already made, he needs
to show readiness and willingness by making the payment
or by applying to the Court as provided under interim
order which Court can make under the aforesaid
provisions. It is already observed that such steps were not
taken by the tenant till the year 2006.
28)
It appears that the Courts below ultimately held
that the application filed under section 11 was not tenable
as in the past standard rent was fixed by the Court.
Provision of Section 11-A was referred to give such
decision. Provision of section 11-A runs as under :-
"11A. No new application for standard rent, etc.,
to be entertained if already duly fixed by a
competent Court at the instance of other parties.
No Court shall upon an application or in any suit
proceeding, fix the standard rent of any premises
under section 11, or entertain any plea that the rent or
increases are excessive, if the standard rent or the
permitted increases, in respect of the same premises
have been duly fixed by a competent Court on the
merits of the case, without any fraud or collusion or
any error of the facts, and there has been no structural
alterations or change in the amenities or in respect of
any other factor which are relevant to the fixation of
the standard rent, or change in such increase,
thereafter in the premises."
25 CRA 253 of 2015
The aforesaid provision shows that the bar is not
applicable when there is change in increase or there is
demand of permitted increase which is disputed by the
tenant. In any case it was necessary for the tenant to pay
or tender the amount demanded in respect of permitted
increases or pay the amount which the Court could have
determined as interim payment. This did not happen and
so ultimate result of the application of rejection cannot be
used by the tenant in the present matter.
29) Provision of section 12(3) gives one more
opportunity to the tenant to pay or tender in the Court the
standard rent or permitted increase. He can deposit such
amount on the first date of hearing or before such other
date as the Court may fix. In the present matter issues
were framed on 1-4-2005. On application given on 15-9-
2006 by the tenant the order was made by the Court on
the same day and opportunity was given to the tenant to
make payment within 15 days of the amount due (as
standard rent) and continue to make payment before 10th
of every month of completed month. In the case reported
as 2002 BRC 489 SC (Vasant Ganesh Damle v. Shrikant
26 CRA 253 of 2015
Trimbak Datar) the Apex Court has laid down that the
meaning of condition of "first date of hearing" used in
section 12(3) of the Act cannot be stretched to any date
beyond the date when the issues are framed in the suit. It
is laid down by the Apex Court that at last stage the
provision of section 12(3) of the Act cannot be used if it
was not availed at the proper stage, on or before the first
date of hearing.
30) The learned counsel for the tenant placed
reliance on a case reported as 2008 (3) Mh.L.J. 610
(Sitaram v. Fakirchand) and submitted that if the landlord
had refused to accept the rent tendered, he cannot be
allowed to say that the tenant had not paid the rent and
he had become defaulter. This proposition cannot be
disputed. Facts and circumstances of each and every case
are always different and in the present matter there is no
hesitation to hold that the tenant had not paid or tendered
the rent after 3-9-1991, till receipt of demand notice of
1999.
27 CRA 253 of 2015
31) The learned counsel for the landlord placed
reliance on the case reported as (2015) 6 SCC 526
(Yusufbhai Noormohammed Jodhpurwala v. Mohmmed
Sabir Ibrahim Byavarwala). The facts of the reported case
show that rent was not paid from 1-3-1986 and notice of
termination and demand was issued on 9-3-1987. The suit
was filed in the year 1987. In view of the facts of the case
provision of section 12(3)(a) and 12(3)(b) which were
there prior to amendment of 1987, were considered and
applied. Now there is only one provision like section 12(3).
It is similar to the previous provision of section 12(3)(b).
In this case two principles are laid down by the Apex
Court like (1) the date of framing of issues is the date of
first hearing; and (2) the Court has no discretion to hold
that the tenant has substantially complied with condition
laid down in section 12(3)(b) if the tenant has not paid the
entire amount due and he has not strictly complied with
the conditions given in section 12(3)(b). It is made clear
that if there is no compliance of these conditions, decree
of eviction must be given against the tenant. There
cannot be dispute over this proposition. Considering the
facts of the present matter this Court holds that the
28 CRA 253 of 2015
aforesaid ratio needs to be used in the present case. Thus,
on the ground of default, the landlord is entitled to decree
of eviction and the Courts below have committed grave
error in ignoring the aforesaid relevant material and the
position of law.
32) On the ground of bona fide requirement
mentioned in section 13(1)(b) of the Act there is specific
pleading in the plaint and the substantive evidence given
is consistent with the pleadings. The plaintiff has
contended that he wants to start separate business for his
two sons in the suit property. In rebuttal, the defendant
has given evidence that the two sons are already doing
separate business. However, there is no specific case or
evidence that they have separate business. Evidence is
also given by the defendant that the plaintiff is a rich
person and the defendants have no other accommodation.
33) In the cross-examination, the defendant has
admitted that the plaintiff has two sons and one of the two
sons is handicapped. She has admitted that place of
residence of the plaintiff is on the back side of the suit
29 CRA 253 of 2015
property. These circumstances suggest that the suit
property will be convenient for the business which can be
started for the handicapped son as it is adjacent to the
residential place.
34) In the cross-examination of the plaintiff it is
brought on the record that the plaintiff has two brothers
and partition has not taken place amongst the three
brothers. He has also admitted that he is running
Aryaniwas Restaurant of joint family and one son is
assisting in that business. He has admitted in the cross
examination that sons of one brother, Gangadhar are
running one lodge and the said sons of Gangadhar are
also shown as owners of the said property. The plaintiff
has admitted in the evidence that son of his third brother
runs other lodge. Vague admissions are brought on the
record that his family possesses space which is more than
requirement. This admission is not sufficient to infer that
space suitable for starting business for handicapped son is
available with the plaintiff which is other than the suit
property.
30 CRA 253 of 2015
35) Much was made out by the Courts below on the
basis of aforesaid admissions given by the plaintiff in the
cross examination. It is already observed that there is no
substantive evidence that the two sons of the plaintiff
have separate business. No record in that regard is
produced by the defendant. The assessment record which
is available shows that in the name of the plaintiff there is
only one house in which there are two shops and the
plaintiff is claiming possession of one such shop which is
shown in two pieces in the plaint.
36) No evidence is given by the defendants that the
defendant-tenant searched for alternative premises when
the defendants learnt that the plaintiff was in need of the
suit premises for the use of his sons. The evidence on the
record shows that in the past hair cutting saloon was run
in the suit property and now one tea stall is run. It was
necessary for the defendants to create probability that the
plaintiff has other alternative accommodation. No such
probability is created. No evidence is given that
alternative accommodation is not available in that locality
or other locality for starting tea stall as there is no
31 CRA 253 of 2015
evidence that such search was made by the defendants. In
the case reported as 1997 (1) Mh.L.J. (S.C.) 121 (Meenal
Eknath Kshirsagar v. Traders & Agencies) it is laid down
by the Apex Court that :
"the landlord is the best judge of his requirement and it is
up to him to decide how and in what manner he should
live or use his premises. If the landlord proves that he
requires that premises, then the Court cannot dictate him
to occupy other premises."
Thus the Apex Court has laid down that the suitability
point needs to be left with the landlord. In view of this
position of law the contention of the tenant made on the
basis of aforesaid vague admissions given by the landlord
could not have been considered in favour of the tenant.
The aforesaid position of law is not considered by the
Courts below. This Court holds that on the ground of bona
fide requirement also the landlord is entitled to decree of
eviction.
37) In the result, the civil revision application is
allowed. the judgment and decree of the trial Court and
32 CRA 253 of 2015
the first Appellate Court are set aside. The suit for
eviction filed by the landlord is decreed on the grounds of
bona fide requirement and default committed by the
respondents. Time of three months is given to the
respondents to vacate the suit properties.
Sd/-
(T.V. NALAWADE, J. )
rsl
