Shila Ramchandra Sachdeva vs Vinod Harchamal Santani
2017 Latest Caselaw 994 Bom

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 drp
         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                    BENCH AT AURANGABAD

         CIVIL REVISION APPLICIATION NO.113 OF 2016

 Shila Ramchandra Sachdeva                                  APPLICANT
 Age - 54 years, Occ - Teacher                    (Original Defendant)
 R/o 1479, Sindhi Building,
 Vanjar Lane, Ahmednagar

          VERSUS

 Vinod Harchamal Santani                                   RESPONDENT
 Age - 35 years, Occ - Business,                       (Original Plaintiff)
 R/o C/o Ajay Mandal Kukreja,
 Pankaj Colony, T. V. Center,
 Ahmednagar
                                .......

Mr. Ajit M. Gholap, Advocate for the applicant Mr. R. R. Mantri, Advocate for the respondent .......

[CORAM : SUNIL P. DESHMUKH, J.]

DATE : 23rd MARCH, 2017

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally with

consent of learned advocates for the parties.

2. This civil revision application has been preferred by

defendant in Regular Civil Suit No. 260 of 2007. Regular Civil

Suit No. 260 of 2007 had been instituted by present respondent

claiming to be owner and landlord of suit premises.

3. Suit premises are two room admeasuring about 300

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square feet, situated on first floor of a building situated in CTS

No.1513 and 1514/2 at Wanjar Lane, in Ahmednagar city.

4. Suit premises were let out to one Savitri Ramchandra

Sachdeva, on rent at the rate of Rs.80/- per month. However,

she had been in arrears of rent since November, 2004 onwards.

She died on 16th March, 2005.

5. The applicant - defendant is daughter of Savitri Sachdeva.

She occupies suit premises after death of Savitri.

6. The respondent - plaintiff had issued notice dated 13 th

March, 2007 by registered post to defendant and demanded

arrears of rent up to 16th March, 2005 and compensation at the

rate of `.1000/- per month alleging illegal occupation after death

of Savitri and, possession on various other grounds, inter alia,

for reasonable and bona fide requirement.

7. According to plaintiff, neither the notice had been

responded to nor possession had been handed over, as such,

aforesaid suit ensued.

8. Defendant, in response to suit summons, had in defence

filed written statement denying all the averments in the plaint

excluding rate of monthly rent and her possession over suit

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premises. It was contended by the defendant that she was and

has always been ready and willing to pay rent, however, the

plaintiff had not accepted payment of rent from her. She had

sent a sum of Rs.2160/- by a cheque dated 21 st March, 2007 to

plaintiff along with reply to the notice. However, same had been

received back. The defendant has deposited rent in court under

an application and as such, she has not committed any default in

making payment of rent. It is the contention of the defendant

that she has not changed user of suit premises, as alleged.

Students come to her for consultation and queries in respect of

their studies and she is providing guidance and knowledge to

them. She further denied that suit premises were in dilapidated

condition. It is contended by her that plaintiff is a permanent

resident of Shrirampur and has business at Babhaleshwar and

has no intention to settle down at Ahmednagar. Suit premises

are not, as such, required reasonably and bona fide by the

plaintiff. There are other rooms, which are lying vacant in the

building. The plaintiff is not using those rooms. The defendant is

staying alone in suit premises and have no other premises in

possession providing accommodation and as such, would suffer

greater hardship, if decree of eviction is granted against her.

9. Trial court, with reference to the pleadings, had framed

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necessary issues. Trial court had dismissed the suit, inter alia,

holding that the defendant is not a defaulter, tenancy is not

terminated by notice and also holding in the negative that the

plaintiff requires suit premises reasonably and bona fide and it

had considered that relationship of landlord and tenant had not

ceased after death of mother of the defendant.

10. In the circumstances, the plaintiff - landlord had been

before appellate court in Regular Civil Appeal No.140 of 2011,

wherein points for determination in respect of default being

willful in making payment of rent and reasonable and bona fide

requirement of the landlord along with concomitant point

regarding greater hardship between parties had also been

framed. The appellate court found that there has been default,

which has been willful and that the requirement of the landlord

being reasonable and bona fide and comparatively hardship

suffered by the plaintiff would be greater than that of the

defendant. The appellate court, as such, set aside the dismissal

of the suit of the landlord and had decreed the same directing

vacation of suit premises by the defendant - tenant.

11. It is, as such, against aforesaid reversal of decision of trial

court by the appellate court present civil revision application has

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been preferred by the defendant.

12. Mr. Gholap, learned advocate appearing for the applicant -

defendant forcefully submits that the matter gives rise to host of

questions. In the first place, whether the suit could be

maintained for eviction under provisions of the Maharashtra Rent

Control Act, 1999 in the face of the situation that the landlord

has refused to consider the applicant - defendant as his tenant.

According to learned advocate, in the circumstances, a suit

under section 33 of the Maharashtra Rent Control Act, is not

maintainable. The plaintiff in his capacity as owner of suit

premises may have to approach a different forum as he himself

on his own volition denies relationship of landlord and tenant

between the parties. He submits that section 33 of the

Maharashtra Rent Control Act is available for resolution of

disputes between landlord and tenant and not otherwise. While

landlord having contested status of the defendant as "tenant",

suit under provisions of Maharashtra Rent Control Act would not

lie and the appeal, which is continuation of the suit is much less

tenable pursuant to provisions of the Maharashtra Rent Control

Act.

13. Mr. Gholap further contends that even assuming for the

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sake of arguments that such a suit may be possible, yet it is not

a case wherein it can be said that grounds on which eviction has

been directed by the appellate court would be available for the

respondent - landlord. He submits that the notice issued by

landlord cannot be said to be a legal notice and it cannot be

termed a notice in accordance with law, it having demanded an

amount much more than deserved by way of rent. He submits

that it is an admitted position that rate of rent had been Rs.80/-

per month, whereas from March, 2005 demand has been for an

amount of Rs.1000/- per month, which is far more than the rate

of rent. He contends, it cannot be said that the notice is as

contemplated in law and is not in accordance with law and that

such a demand is illegal demand. He submits that section 10 of

the Maharashtra Rent Control Act would evince that the demand

being made under the notice is not legal and as such, the notice

is rendered illegal.

14. He further submits that despite notice being illegal, the

applicant bona fide had tendered an amount of Rs.2160/-

through a cheque along with reply to the notice to the plaintiff.

However, the plaintiff had avoided to receive the tendered

amount and response to the notice, as would emerge from

evidence on record. He submits that there is a categorical

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endorsement of the postal department depicting that while the

notice was tried to be served, in the first attempt, the remark

shows that "addressee had been absent" and on the second

occasion the remark shows that "addressee is not traceable".

This according to him, shows that the plaintiff has been resident

of Shrirampur whereat the response to the notice had been sent

by the defendant.

15. Learned advocate further purports to point out that the

response to the notice had to be sent to Shrirampur, for, the

plaintiff had not been resident of Ahmednagar and it surfaces

from evidence that he had in fact not been residing at

Ahmednagar. For said purpose, he purports to refer to the

statement of plaintiff in his cross examination, according to him,

which depicts that he is not resident of Ahemdnagar since he has

stated that he does not know about his address on the ration

card or for that matter voters' list and further intriguingly that he

did not know name of his landlord where he was supposed to be

residing in Ahemdnagar. He submits that overall position, as

such, emerges that the defendant is justified in sending response

to the notice to Shrirampur.

16. He, therefore, submits, it is a case wherein it is easily

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discernible that the notice has been complied with removing the

very cause against the defendant and once this has emerged,

the suit on the ground of default is absolutely untenable.

17. Mr. Gholap submits that it is likely that a counter argument

in this respect would be advanced with reference to section 15

(3) of the Maharashtra Rent Control Act that after institution of

the suit and service of summons on the defendant, there had

been no tender of rent in the stipulated prescribed period under

section 15 (3) of the Act. He submits that, may be ostensibly,

tender of rent is not within stipulated period. Yet, there is only a

marginal delay and it is readiness and willingness which should

be taken into account. He submits that provisions of section 15

of the Maharashtra Rent Control Act prominently show that while

tenant is ready and willing to pay amount of rent, ordinarily no

eviction on the ground of default would be possible. One will

have to flex the provision accommodating little delayed

payment, as tenant is ready and willing to pay, no decree for

eviction shall be passed by court in a suit for recovery of the

possession on ground of arrears of rent.

18. Learned advocate further submits, so far as other ground

of reasonable and bona fide requirement is concerned, it had

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glaringly emerged that the plaintiff does not at all require suit

premises reasonably or bona fide and that the same is testified

in his cross examination. The plaintiff has unequivocally stated

that two rooms are in possession of the defendant and rest of

the six rooms are in his possession and there is no documentary

evidence to show that he is occupying those six rooms and has

further stated that said rooms have been presently locked. He,

therefore, submits that even on the ground of reasonable and

bona fide requirement, suit, as such, could not have been

decreed and the appellate court on both the counts has erred in

granting decree of eviction.

19. In support of his submissions, Mr. Gholap, learned

advocate, relies on a clutch of judgments tendered across the

bar during the course of hearing. He refers to and relies on a

judgment of this court in the case of "Vinayak Narayan Deshpande V/s

Deelip Pralhad Shisode" reported in 2010 (3) Mh.L.J. 807, in support of

his submission that as in the case of notice pursuant to section

12 of the Bombay Rents, Hotel and Lodging House Rates

(Control) Act, notice under section 15 of the Maharashtra Rent

Control Act, shall have to be strictly construed and since notice,

as referred to above, being illegal, in his submission, suit

seeking decree of recovery of possession on the ground of non

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payment of rent, was not maintainable. He for said purpose

refers to paragraphs No.14 and 17 of said judgment.

20. Mr. Gholap, further refers to a decision of this Court in the

case of "Ganpat V/s Motilal Champalal Lunawat" reported in [1977] 0 AIR

(Bom) 344, which according to him rules that a defective notice is

fatal.

21. He further purports to rely on the judgment in the case of

"Ramchandra Govind Palekar and Others V/s Ramesh Nana Jangam and

Another" reported in 1992 Bom. C. R. 310. He draws attention to this

citation for the purpose that since the defendant had made an

attempt to tender arrears of rent and tender having not been

accepted and returned, very cause for eviction on the ground of

default stands removed. According to him, situation in the

present matter is very similar to the one as observed in

paragraph No.4 in said judgment, reading, thus -

" 4. the admitted and proved facts in this petition clearly show that within one month, the tenant on March 11, 1975 remitted the entire arrears of Rs.2421.14 paise by a Demand Draft. A look at the envelope shows the necessary postal endorsements that the landlord not having been found at the delivery time. The fact clearly show that the landlord, plaintiff No.1 has admitted that the envelope bears his correct address. It is common that the postal authorities in the matter of addressee not being found at delivery time consecutively sent intimation and then keep

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the registered envelope for a period of a week to enable the addressee to collect the envelope personally attending the post office. The envelope (Exhibit-35) in the instant petition bears all the necessary endowments and the learned counsel appearing for the petitioners has not raised any dispute in regard thereto. In law, failure on the part of the addressee in collecting the envelope on intimation in spite of the fact that the postal authorities retaining the envelope for a period of one week, as has been placed on evidence in this matter, cannot but would amount to a refusal on the part of the landlord. This court in P.A. Kowli V. Narayan Jagannath Mahale, Mah LJ 1981, P.355 has already taken such a view in regard to the fact and not found at delivery time in regard to the notice of demand amounting to refusal. "

22. He then cites another judgment of the Supreme Court in

the case of "Mohan Laxman Hede Vs. Noormohamed Adam Shaikh"

reported in AIR 1988 SC 1111 in order to buttress his submission

that delay caused in making payment of rent pursuant to

provisions of section 15 (3) of the Maharashtra Rent Control Act

will have to be liberally construed and it may not be said to be

fatal irregularity so far as defendant is concerned.

23. The other citation he relies on is in the case of "Bismilla Bee

Sk Chand and Another Vs. Mohd. Anwar Modh. Akhtar" reported in 2010 (2)

Mh.L.J. 829 to urge that section 16 (2) of the Maharashtra Rent

Control Act has cast an injunction on the court against passing a

decree of eviction if greater hardship would be caused to the

tenant.

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24. Countering aforesaid submissions of Mr. Gholap, Mr.

Mantri, learned advocate appearing for the respondent, at the

outset submits that it is not the case that the court lacks

jurisdiction. Decree has been passed by a civil court having

jurisdiction to deal with the case either under section 33 of the

Maharashtra Rent Control Act or for that matter pursuant to

section 9 of the Code of Civil Procedure or for that matter even

under section 5 of the Specific Relief Act. Apart from aforesaid,

he relies on a case decided by a three judges' bench of the

Supreme Court in the case of "Babulal Bhuramal and Another Vs.

Nandra Shivram and Others" reported in AIR 1958 SC 677, and submits

that the Supreme Court had been considering scope of section

28 of the Bombay Rents, Hotel and Lodging Houses Rates

(Control) Act and section 28 of said Act is pari materia with

section 33 of the Maharashtra Rent Control Act. As such, having

regard to observations in paragraph No.7, the wind is taken out

of sail, resisting suit on the ground of jurisdiction. Paragraph

No.7 is reproduced hereinbelow for ready reference:

" 7. In a suit for recovery of rent where admittedly one party is the landlord and the other the tenant, S. 28 of the Act explicitly confers on courts specified therein jurisdiction to entertain and try the suit and expressly prohibits any other court exercising jurisdiction with respect thereto. Similarly, in a suit relating to possession of premises where the

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relationship of landlord and tenant admittedly subsists between the parties, jurisdiction to entertain and try such a suit is in the 374 courts specified in s.28 and no other. All applications made under the Act are also to be entertained and disposed of by the courts specified in s.28 and no other. In all such suits or proceedings the courts specified in s.28also have the jurisdiction to decide all claims or questions arising out of the Act or any of its provisions. The words employed in s. 28 make this quite clear. Do the provisions of s. 28 cover a case where in a suit one party alleges that he is the landlord and denies that the other is his tenant or vice versa and the relief asked for in the suit is in the nature of a claim which arises out of the Act or any of its provisions ? The answer must be in the affirmative on a reasonable interpretation of s. 28. Suit No. 483/4400 of the Court of Small Causes, Bombay was admittedly by a landlord. Eviction of the tenant and those to whom he had sublet the premises was sought on the ground that the latter were trespassers and the former was not entitled to remain in possession, that is to say, that none of the defendants to that suit were protected from eviction by any of the provisions of the Act. The suit, in substance, was a denial of the right of the defendants as tenants. The claim of the defendants was that they were protected by the provisions of the Act. In such a suit the claim of the defendants was one which arose out of the Act or any of its provisions and only the courts ,specified in s.28 and no other could deal with it and decide the issue. "

25. Learned advocate, therefore, submits that section 33 of

the Maharashtra Rent Control Act takes within its fold even the

case where landlord denies relationship that defendant is his

tenant and the Supreme Court, as referred to above, is very

explicit on that and as such, there is no substance in the

objection, in the first place for not having taken defence on this

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ground and further having regard to aforesaid ruling on the

point.

26. Next, he submits that the decision being relied upon by

the applicant in the matter of "Vinayak Narayan Deshpande"

(Supra) is a decision which has been held to be per incuriam,

under a reasoned decision of this court by Hon'ble Single Judge

and submits that a strict construction of notice is not

contemplated as is contended on behalf of the applicant. He

submits that the notices are to be construed reasonably, rather

liberally, giving allowance to parties concerned.

27. For aforesaid purpose, he refers to and relies on a decision

of this high court in the case of "Fahemeeda Begum Mahamood Khan

Pathan Vs. Abdul Hafiz Sheikh Anwar" reported in 2013 (2) Mh.L.J. 524 and

refers to paragraph No.6 which is being reproduced hereinbelow-

" 6. On hearing the learned counsel for the parties and on a perusal of the judgments referred herein above, it appears that the first appellate Court was not justified in reversing the decree passed by the trial Court in favour of the landlady. The first appellate Court was not justified in holding that the notice issued by the landlady under Section 15 of the Maharashtra Rent Control Act, 1999 was bad in law as the landlady claimed the arrears of rent at the rate of rupees four hundred and fifty per month instead of seeking the rent at the rate of rupees two hundred per month, which was admitted. The first appellate Court while relying on the judgment reported in 2010 (3) Mh.L.J. 807 (Vinayak Narayan

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Deshpande and others. v. Deelip Pralhad Sisode), failed to consider the subsequent judgment of this Court reported in 2011 (2) Mh.L.J. 156 (Sriniwas Babulal V. Ramakant s/o Shivnarayan Jaiswal) which in turn had referred to the judgments reported in 1983 Mh.L.J. 254 (Chhaganlal Mulchand Jain v. Narayan Jagannath Bangh) and 1998 (3) Mh.L.J. 237 (Lalji Lachhamanadas Vs. Amiruddin Amanulla and Another). It appears that when the learned Single Judge was considering the question of validity of the notice under Section 15 of the Maharashtra Rent Control Act, 1999 in the judgment reported in 2010 (3) Mh.L.J. 807 (Vinayak Narayan Deshpande and others. v. Deelip Pralhad Sisode), the judgment of the Division Bench reported in 1983 Mh.L.J. 254 (Chhaganlal Mulchand Jain Vs. Narayan Jagannath Bangh) and the judgment of the learned Single Judge reported in 1998 (3) Mh.L.J. 237(Lalji Lachhamanadas Vs. Amiruddin Amanulla and Another) were not brought to the notice of the learned Single Judge. It was held by the Division Bench of this Court in the judgment reported in 1983 Mh.L.J. 254 (Chhaganlal Mulchand Jain v. Narayan Jagannath Bangh) that a notice seeking arrears of rent should not be construed strictly and if the notice seeks an amount higher than the admitted rent, it would be open to the tenant to send such amount as according to him is due subject to the liability that if ultimately a larger amount is found to be due, he could not be said to have complied with the requirements of the notice. A similar view was expressed in the judgment reported in 1998 (3) Mh.L.J. 237 (Lalji Lachhamandas Vs. Amiruddin Amanulla and another) wherein this Court has held that the notice of demand by a landlord seeking arrears of rent at the rate of Rs.13.56 per month as against the standard rent at the rate of Rs.12.00 per month was not bad-in-law and the tenant had an option to pay the undisputed amount at the rate of Rs.12.00 per month and raise a dispute as regards the claim made by the landlord. Admittedly, in the instant case the respondent-tenant had not paid the arrears of rent at the rate of rupees two hundred per month within a period of ninety days from the receipt of the notice. So also, the tenant

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had admittedly not deposited the arrears of rent at the rate of rupees two hundred per month within ninety days from the receipt of the suit summons in the trial Court. The trial Court, therefore, rightly held that the landlady was entitled to possession under Section 15 of the Maharashtra Rent Control Act, 1999. The first appellate Court, however, relied on the judgment reported in 2010 (3) Mh.L.J. 807 (Vinayak Narayan Deshpande and others. v. Deelip Pralhad Sisode) to hold that the notice was bad-in-law and the suit was not maintainable. It is clear from the various decisions of this Court that the notice was not bad-in- law and it was open for the respondent-tenant to deposit the admitted arrears of rent. The tenant, having failed to deposit the admitted rent, was liable to hand over the possession of the property to the landlady under Section 15 of the Maharashtra Rent Control Act, 1999. "

28. He submits that the gist of the notice is that the tenant

had fallen in arrears and that he should make good by paying

arrears of rent. He further points out that high court in aforesaid

paragraph No. 6 reproduced has clearly considered, if notice

seeks amount higher than the admitted rent, it would be open to

the tenant to send such amount as according to him is due

subject to the liability that if ultimately a larger amount is found

to be due, he could not be said to have complied with the

requirement of the notice. He therefore, submits that as such, in

the ground being taken that the notice is defective or illegal or

for that matter fatal there is no water.

29. He submits that it had never been intended to receive

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amount from the date of death of Savitri as rent, as such, said

ground is not at all available to render the notice illegal or

unlawful or fatal.

30. He submits that even the contended tender of amount,

which had never been received at the end of the plaintiff, cannot

be said to be genuine and bona fide. He submits, tender of rent

by cheque is not at all a legal tender and that sending reply to

the notice to Shrirampur was merely an attempt to create a

piece of evidence showing tendering of rent. However, according

to him, evidence shows that, it was a lame excuse being taken

and the appellate court has rightly appreciated that it did not

comply with the statutory requirement of response to the notice

pursuant to relevant provisions. He, with reference to a decision

of the Supreme Court in the case of "Gopi Chand Gupta V/s Jain

Plastic Industry" reported in 2002 AIR (SC) 2276 makes aforesaid

submission drawing attention to contents of paragraphs No. 8

and 9 therein.

31. He thereafter submits that it is not at all a case wherein it

can be said that decree of eviction can be arrested, since there

has been blatant disregard to comply with the statutory and

mandatory stipulations under section 15 (3) of the Maharashtra

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Rent Control Act. He submits that even it is not at all a case of

the defendant that the tender of payment of rent made in the

court had been, as per prescription under section 15 (3). He

submits, it is an accepted position by the defendant that the

tender of rent had been delayed by fifty three days beyond the

ninety days stipulation under section 15 (3) of the Maharashtra

Rent Control Act. He submits, coupled with that it is further an

accepted position by the defendant that the tender of rent

beyond the period had not been along with 15% interest as is

obligatory under said provision. He, therefore, submits that on

this count alone, eviction decree was inevitable and has

accordingly been passed and no fault can be found with the

same.

32. As far as reasonable and bona fide requirement of the

landlord is concerned, according to Mr. Mantri, it has been

specifically pleaded by the plaintiff that he is an educated person

looking out for carrying on some business and for the same he

needed suit premises. He submits, it is not the case that the

plaintiff has not occupied suit premises at all. What has been

stated in his deposition was a position as had been subsisting

while giving deposition. He further submits that the suit

premises had become dilapidated. He submits that evidence

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sufficiently shows the dilapidated condition of suit premises. It is

not a case, in Ahmednagar plaintiff is carrying on business at

other place.

33. He further submits, so far as comparative hardship is

concerned, it is not the case that the defendant is occupying suit

premises for the purpose for which those were occupied by her

mother. It is being utilized for commercial purpose according to

him. It emerges on record that the defendant is resident of a

different address altogether and according to him, it is evident

from record that the defendant is occupying premises in Vijaya

Residency and even while Savitri died, she had been residing

along with the defendant in said Vijaya Residency. As such,

according to him, while appellate court has taken proper stock of

the situation and found that greater hardship would be caused to

the landlord and it being a finding of fact on appreciation of

evidence, is not open for to be meddled with under the revisional

powers.

34. He submits that the appellate court has rightly adjudged

that the landlord is the best judge of his requirement and

requirement is not to be equated with dire need. The court has

also appreciated the legal position that neither the court nor the

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tenant can dictate the landlord to occupy particular premises.

The appellate court has rightly considered that though the suit

has been filed in 2007 for recovery of possession, the defendant

has not taken any effort to find out alternate house or

accommodation and further she has not made out a case that it

is impossible for her to get alternate premises. It is in the

circumstances, the appellate court has rightly adjudged that the

landlord would suffer greater hardship than the tenant.

35. Having heard learned advocates as aforesaid, pertinent for

consideration is that there is no denial by the defendant that suit

premises has come in her occupation through her mother, who

was tenant of suit premises and further that the defendant does

not dispute rate of rent fixed between landlord and her mother.

36. The appellate court has observed in its judgment in

paragraphs No. 27, 28, 30 and part of 31 thus -

" 27. Thereafter, the plaintiff has filed present suit on 10/7/2007 for decree of eviction against the defendant. The suit summons was served to defendant on 30/9/2007. It is the duty of defendant either to pay or tender in court the arrears rent together with simple interest @ 15% p.a. within 90 days and thereafter continue to pay or tender in the court, regularly till the decision of the suit. The defendant has tendered the arrears of rent Rs.3120/- on 21/2/2008 vide receipt Exh.28. Said arrears were at the rate of Rs.80/- p.m. for the period November 2004 to January

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2008. The defendant has failed to pay or tender in the court, the arrears of rent within 90 days, from service of suit summons, as provided in section 15 (3) of the Maharashtra Rent Control Act. She has deposited arrears of rent in the court after 143 days from the date of receipt of summons. She has caused delay of 53 days after the mandatory period of 90 days.

28. It is further noted that as per sec. 15 93) of the Maharashtra Rent Control Act, the defendant is liable to pay the standard rent then due, together with simple interest @ 15 % p.a. In the present matter, the defendant has deposited arrears of rent only. The defendant has failed to deposit the interest @ 15% p.a. on the arrears of rent. The amount of Rs.3120/- was deposited for 39 months rent @ Rs.80/- p.m. (Rent Rs.80/- p.m. X 39 months = 3120/-). However, the defendant has failed to pay the interest of Rs.456/0 @ 15% p.a. on the arrears of rent.

30. In the conclude, the defendant has failed to pay the standard rent in respect of suit premises regularly. She has committed default to pay the rent from time to time. She was irregular to make the payment of rent. She is not entitled to get protection of sec. 15 91) of the Act.

31. It is further noted that after receipt of suit summons i.e. on 30/9/2007, the defendant has neither paid nor tendered in the Court, the arrears of rent with interest @ 15% p.a. within 90 days, as provided sec. 15 (3) of the Act. She has tendered only the arrears of rent after 143 days after receipt of suit summons. She has not tendered the interest @ 15% p.a. on the arrears of rent. Therefore, she is not entitled to get protection of sec. 15 (2) and (3) of the Act. "

37. A further indisputable position has emerged that after

institution of the suit for eviction by the plaintiff, the defendant

had faltered in complying with mandatory prescription stipulated

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under section 15 (3) of the Maharashtra Rent Control Act making

deposit of arrears of rent along with interest within the period of

ninety days from the date of service of suit summons and the

arrears of rent were deposited with fifty three days delay,

without interest @ 15% as required. Judgment in the case of

"Vinayak Narayan Deshpande" (Supra) relied upon on behalf of

the applicant, in paragraph No. 14 makes reference to that if the

tenant chooses not to pay arrears of rent as required under

section 15 (3) of the Maharashtra Rent Control Act, the landlord

cannot be denied a decree for ejectment on the ground of

default in making payment of rent, if he proves that the tenant is

in arrears of rent.

38. Jurisdiction of the court being questioned is a plea being

taken in revision for the first time. It does not appear that such

objection had been taken while the suit had been defended. No

issue on that ground had been framed. Nor does it appear that

this contention had ever been urged before the appellate court.

It is not a case wherein it can be said that the court which had

dealt with the proceedings, had no jurisdiction to try suits

pursuant to section 33 of Maharashtra Rent Control Act, 1999 or

Section 9 of the Civil Procedure Code or for that matter section 5

of the Specific Relief Act.

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39. So far as jurisdiction of court is concerned, it appears that

the situation is no longer res integra and appears to be amply

covered by the Supreme Court judgment in the case of "Babulal

Bhuramal" (supra) relied upon on behalf of the respondent.

40. In respect of arguments advanced that notice by landlord

being defective and illegal with reference to section 10 of the

Maharashtra Rent Control Act, it appears to be a case wherein it

cannot be said that the same would be rendered fatal in view of

the decision of learned Single Judge in the case of "Fehameeda

Begum" (Supra) which points out that the case of "Vinayak

Narayan Deshpande" (Supra) being per incuriam, in the face of

division bench judgment and the observations of the division

bench coupled with the fact that the notice had been for arrears

of rent along with compensation for the period which is

contended to be in illegal occupation after the demise of original

tenant Savitri. Contention now being pressed into service is a

newfound objection only in the revision. It is not the case where

it can be said that notice per se is either illegal or for that matter

not in accordance with law.

41. In view of aforesaid, since a decree of eviction can be

possible on any one ground, it may not be necessary in the

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present matter to dwell upon other grounds including that of suit

premises being required reasonably and bona fide by plaintiff

and incidental finding with regard to greater hardship.

42. In the facts and circumstances of the case and the legal

position as emerging, it does not appear that the situation calls

for exercise of revisional powers of this court. Civil Revision

Application as such, fails and is dismissed. Rule stands

discharged.

43. At this stage, learned advocate for the applicant requests

that time of six months to vacate the suit premises be granted.

In the facts and circumstances of the case, the request appears

to be reasonable. As such, the applicant shall vacate suit

premises peacefully within a period of six months from today,

without creation of any third party interest or encumbrance or

transfer in any way and he himself shall hand over vacant

possession of suit premises to the respondent without demur

and without creating any hurdle, and on the condition that he

shall continue to pay to the landlord compensation for

occupation of this period of three months at the same rate as

rent was being paid. Time of six months for vacating suit

premises is being granted subject of course to filing of an

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undertaking to aforesaid effect. Undertaking be filed within a

period eight weeks from today in this court. In case of failure to

file undertaking within stipulated period, it would be open for the

plaintiffs to proceed with the execution.

[SUNIL P. DESHMUKH, J.] drp/cra113-16