Bombay High Court

Altaf Saddruddin Gilani Through ... vs Sunil Madhukarrao Papalkar And ... on 16 January, 2018

Bench: Z.A. Haq

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                                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                  NAGPUR BENCH : NAGPUR

                                                       WRIT PETITION NO.1640/2015

Altaf Saddruddin Gilani, 
aged about 49 Yrs., Occu. Business, 
through its POA, father, Saddruddin 
Alibhai Gilani, R/o A-57, Shahid 
Society at Yavatmal, Tq. & Distt.
Yavatmal.                                                                                                                                                     ..Petitioner.

                          ..Vs..

1.         Sunil Madhukarrao Papalkar,
           aged about 47 Yrs., Occu. Business.

2.         Sau. Sneha Sunil Papalkar,
           aged about 45 Yrs., Occu. Housewife, 
           Both R/o Om Colony, Arni Road
           Yavatmal, Tq. Distt. Yavatmal.                                      ..Respondents.
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            Shri Abhay Sambre, Advocate for the petitioner.
            Shri Abhay Bhide, Advocate for the respondents.
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                                                                 CORAM :  Z.A. HAQ, J.

                                                                 DATE  :     16.1.2018.

ORAL JUDGMENT

1. Heard Shri Abhay Sambre, Advocate for the petitioner and Shri

Abhay Bhide, Advocate for the respondents.

2. Rule. Rule made returnable forthwith.

3. The petitioner / landlord has challenged the judgment and decree

passed by the District Court by which the appeal filed by the respondents /

tenants is allowed and the judgment and decree passed by the trial Court for

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eviction of tenants is set aside.

4. It is undisputed that the respondents had been tenants of the

premises in question owned by the petitioner and that the rent had been

Rs.500/- per month. The landlord claims that in addition to rent of Rs.500/-

per month, the tenant was required to pay municipal taxes. The tenants

dispute this and contend that the amount of Rs.500/- payable by the tenants

included the amount of taxes payable in respect of the premises in question.

5. The landlord had filed proceedings under the provisions of C.P. and

Berar Letting of Premises and Rent Control Order, 1949 seeking permission to

terminate the tenancy of the tenants under Clauses 13(3)(i), (ii), (iii) and (iv).

In the application filed by the landlord before the House Rent Controller, the

landlord pleaded that the tenants were in arrears of rent for more than 3 years

and were habitual defaulters. These proceedings were filed in 1999 - 2000.

The Maharashtra Rent Control Act, 1999 (for short "Act of 1999") came into

force on 31st March, 2000 and on enforcement of the Act of 1999, the landlord

had withdrawn the proceedings under the Rent Control Order, 1949 and had

filed the Civil Suit No.48/2002 seeking decree for eviction, possession and

other reliefs. The landlord sought decree under Section 16(1)(a),(e),(g) and

Section 26 of the Act of 1999. The tenants opposed the claim of the landlord.

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The trial Court conducted the trial and by the judgment dated 2 nd February,

2008 concluded that the landlord has proved that the tenants were in arrears of

rent since June, 1997 amounting to Rs.31,000/- and as the civil suit was filed

in 2002, the decree for arrears of three years prior to filing of the suit, for

Rs.18,000/- was granted. The trial Court held that the tenants are liable to be

evicted as they failed to pay / deposit the standard rent with permitted

increases. The learned trial Judge also accepted the claim of the landlord that

the premises in question are required by him for his bona fide use. Being

aggrieved by the judgment and decree passed by the trial Court, the tenants

had filed appeal which is allowed by the District Court by the impugned

judgment.

6. The learned Advocate for the petitioner / landlord has pointed out

from the memorandum of appeal, which was filed by the landlord before the

District Court, the fact that the tenants accepted the liability of paying

Rs.18,000/- towards arrears of rent (see paragraph No.2 of memorandum of

appeal at page Nos.71 and 72 of the paper book). Apart from the fact that the

tenants accepted the liability of paying Rs.18,000/- towards arrears of rent, the

tenants have filed Civil Application No.2704/2017 seeking permission to

amend the submission filed before this Court. Alongwith the civil application,

the tenants have filed a chart showing the payments / deposits made by them

from 4th August, 2009 till June, 2016 and to support the chart, photocopies of

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receipts showing the deposits of amount are also filed. This chart shows that

the tenants deposited an amount of Rs.1,000/- on 4 th August, 2009,

Rs.66,575/- on 17th August, 2009, Rs.3,000/- towards rent for January, 2010

till June, 2010, Rs.3,000/- towards rent for July, 2010 to December, 2010,

Rs.3,000/- towards rent for January, 2011 to June, 2011, Rs.3,000/- towards

rent for July, 2011 to December, 2011, Rs.3,000/- towards rent for January,

2012 to June, 2012, Rs.3,000/- towards rent for July, 2012 to December, 2012,

Rs.3,000/- towards rent for January, 2013 to June, 2013, Rs.3,000/- towards

rent for July, 2013 to December, 2013, Rs.3,000/- towards rent for January,

2014 to June, 2014, Rs.6,000/- towards rent for July, 2014 to June, 2015 and

Rs.6,000/- towards rent for July, 2015 to June, 2016. The above details show

that the tenants were in arrears of rent of Rs.67,575/- in August, 2009 and this

amount is paid in two instalments of Rs.1,000/- on 4th August, 2009 and

Rs.66,575/- on 17th August, 2009. Thus, it is clear that apart from accepting

the liability of Rs.18,000/- towards arrears of rent for 3 years, the tenants

were admittedly in arrears of rent for more than 11 years.

7. Section 15 (3) of the Act of 1999 reads as follows:

"15. No ejectment ordinarily to be made if tenant pays or is ready and willing to pay standard rent and permitted increases.

     (1)             .....

     (2)             .....

     (3)             No decree for eviction shall be passed by the court in any suit


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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."

The above provision casts an obligation on the tenant to pay the

amount of standard rent and permitted increases, if any, within 90 days from

the date of service of summons of the suit and if the amount of arrears of rent

is paid or tendered in Court within 90 days, then he is not liable to suffer

decree for eviction. Section 15(3) of the Act of 1999 further casts an

obligation on the tenant to continue to pay or tender in Court regularly the

standard rent and permitted increases, if any, till the suit is finally decided. In

the present case, the civil suit is filed on 16 th October, 2002. Admittedly, the

tenants were in arrears of rent. Admittedly, the tenants have not paid or

deposited the amount of rent during the pendency of the civil suit which is

decided on 2nd February, 2008. It is only during the pendency of the appeal

before the District Court, the tenants have deposited the arrears of rent of more

than 11 years and this deposit is made by the tenants in compliance with the

order passed by the District Court on application filed by the tenants under

Order 41 Rule 5 of the Code of Civil Procedure. As recorded above in

paragraph No.37 of the judgment passed by the District Court, the tenants were

required to deposit arrears of rent and subject to deposit, the execution of

decree was stayed. In the above facts, it is clear that the tenants have failed to

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comply with the requirements of Section 15(3) of the Act of 1999. The

learned trial Judge had rightly granted decree for eviction in favour of the

landlord, against the tenants. The learned District Judge has committed an

error by setting it aside.