Bombay High Court
Krishnakumar Hariprasad Pandit ... vs Smt. Rasila Nandlal Bhatt (Decd. ... on 21 September, 2023
Bench: Abhay Ahuja
2023:BHC-AS:27841
50-WP-12368-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.12368 OF 2022
KRISHNAKUMAR HARIPRASAD PANDIT )
(deceased) Through his legal representatives and )
heirs )
1. KUNTALKUMAR PANDIT )
Aged 54 years, Indian Inhabitant, )
Residing at 203, Shabri, 2nd Floor, )
Ashok Nagar, Ashok Chakravorty Cross )
Road No.3, Kandivli East, Mumbai - 101 )
)
2. MEDHAVINEE HIREN DAVE )
Aged 48 years, Indian Inhabitant, )
nd
Residing at 2 Floor, Sapna Building )
Raj Sapna Co-operative Housing Society )
Ltd., Next to Sundervan, 179B, S.V.Road )
Vile Parle (West), Mumbai - 400 056. )
)
3. PRITEE RAMESH SHARMA )
Aged 58 years, Canadian Habitant, )
Residing at 5673, Condor Place, )
Mississauge, Onterio, L5V2J4, Canada )
)
4. SWATI PARESH VYAS )
Aged 52 years, Americal (USA Resident) )
Residing at 18, Lyon lane, Franklin Park )
New Jersey 08823 USA )...PETITIONERS
V/s.
SMT.RASILA NANDLAL BHATT (deceased) )
Through her legal representatives and heirs )
1. VIBHA ASHOK BHATT )
Age Adult, Indian Inhabitant, Residing at )
Vimal Cottage, Ground Floor, Bearing )
House No.41, S.V.Road, Vile Parle (West) )
Mumbai - 400056 )
)
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2. SHRI. SMIT ASHOK BHATT )
Age Adult, Indian Inhabitant, Residing at )
Vimal Cottage, Ground Floor, Bearing )
House No.41, S.V.Road, Vile Parle (West) )
Mumbai - 400 056 )
)
3. SMT. NEELIMA CHANDRAKANT BHATT )
Age Adult, Indian Inhabitant, Residing at )
Vimal Cottage, Ground Floor, Bearing )
House No.41, S.V.Road, Vile Parle (West) )
Mumbai - 400 056. )
)
4. SMT. MEET CHANDRAKANT BHATT )
Age Adult, Indian Inhabitant, Residing at )
Vimal Cottage, Ground Floor, Bearing )
House No.41, S.V.Road, Vile Parle (West) )
Mumbai - 400 056. )
)
5. ARUN NANDLAL BHATT )
Age Adult, Indian Inhabitant, Residing at )
A/10, Abhishek, Samarth Lane No.2, )
Lokhandwala Complex, Andheri (West), )
Mumbai - 400 053. )...RESPONDENTS
Mr.Anilkumar K. Patil a/w. Ms.Sonal Naik, Advocate for the Petitioners.
Ms.Apurva Gupte a/w. Mr.Parth Jasani i/by M/s.Purnanand & Co.,
Advocate for the Respondents No.1 to 4.
CORAM : ABHAY AHUJA, J.
RESERVED ON : 7th AUGUST 2023
PRONOUNCED ON : 21st SEPTEMBER 2023
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JUDGMENT :
1. This Petition filed under Article 227 of the Constitution of India
impugns the judgment and order dated 11th November 2021 passed by
the Small Cause Court, Mumbai, dismissing the application filed below
Exhibit 42 in RAE Suit No.491/839 of 2012 for striking off defence of
the Respondents, who are the original Defendants in the suit and also
allowing the application filed by the Respondents below Exhibit 49 in
the said suit to deposit permitted increases and additional Municipal
taxes in the said suit by another order of the same date.
2. The Petitioners are heirs and legal representatives of original
deceased Plaintiff. The Petitioners claim to be the owners and landlords
of the property known as Vimal Cottage, bearing House No.41, situated
at S.V. Road, next to Sapna Building, Vile Parle West, Mumbai-400 056.
The Respondents are the statutory tenants of Petitioners in respect of a
unit comprising of six rooms situated in the said building, being the
heirs and legal representatives of deceased tenant Rasila Nandlal Bhatt.
The said unit/premises is hereinafter referred to as the "suit premises".
3. Mr.Anil Kumar Patil, learned Counsel for the Writ Petitioners, has
submitted that since the Respondents had been in arrears of rent due
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from 1st November 1999 and permitted increases from 1 st November
1974 and were not ready and willing to pay the same though
demanded several times and also because the Petitioners required the
suit premises for their own use and occupation, reasonably and
bonafide, that RAE Suit No.491/839 of 2012 came to be filed against
the Respondents on various grounds including default in payment of
arrears of rent, permitted increases and taxes, breach of terms of
tenancy, committal of acts of waste and other grounds to which written
statements have been filed. Issues have also been framed on 1 st July
2014. Petitioners were allowed to be substituted in place of the
deceased Plaintiff by order dated 3rd August 2016.
4. Learned Counsel for the Petitioners would submit that earlier the
Respondent No.2 had taken out an application for deposit of arrears of
rent in the Court under Exhibit 34 alleging that payment of rent was
not accepted by the Petitioners and the following order was passed on
18th April 2018 :
" ORDER
Heard.
The plaintiff has claimed rent @ of Rs.335/- p.m. on date of
filing the suit.
Hence defendant to deposit arrears of rent from 1 st October
2015 till May 2018 at the rate of Rs.335/- p.m. with 4% p.a.
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increase and this share of taxes and water bills by next date.
The Defendant shall proceed to deposit the monthly rent on
or before 10th of every month and the taxes and water bills as
and when they fall due till disposal of the suit."
5. Learned Counsel submits that the Respondents filed an
Application for condonation of delay in depositing the rent and for
extension of time to comply with the order dated 18 th April 2018 which
was allowed on 14th January 2019.
6. Learned Counsel would submit that the Defendants deposited
rent till September 2019. Learned Counsel would submit that the
Respondents failed to pay the arrears of Rs.5003.42 in breach of the
order dated 18th April 2018. That, the Respondents not only delayed in
payment of rent but also failed to pay additional property taxes and
permitted increases pursuant to the order dated 18 th April 2018. The
Plaintiffs viz. the Petitioners herein, therefore, filed the application for
striking off defence of the Defendants on 26 th April, 2018. It was the
case of the Petitioners that the Respondents had deposited a lesser
amount as per their calculation, and therefore, the defence be struck
out.
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7. Learned Counsel would also submit that in reply to the said
application, the Respondents have falsely stated in paragraph 1(e) of
the reply dated 25th June 2019 that no orders were passed in respect of
the additional amounts to be paid by the Respondents on account of
Municipal taxes whereas the order dated 18 th April 2018 as can be seen
clearly refers to the same, and therefore, the impugned order rejecting
Petitioners' application for striking off the defence should be set aside.
8. Referring to the impugned order, learned Counsel for the
Petitioners would submit that, therefore, in line with the decision of the
Hon'ble Supreme Court in the case of Balgopal Maheshwari and Others
vs. Sanjeev Kumar Gupta1 as well as of this Court in Bhimrao
Laxmanrao Nihare vs. Natwarlal Ratansi Thakkar 2, the defence of the
Respondents be struck off.
9. Learned Counsel would submit that the Small Causes Court has
presumed that the Defendants are not persistent defaulters although
they are clearly in violation of the order dated 18 th April 2018 of the
Small Cause Court, and therefore, the said order deserves to be set
aside, in view of the aforesaid decisions of the Hon'ble Apex Court and
this Court.
1 (2013) 8 Supreme Court Cases 719
2 2003 (4) ALL MR 249
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10. Mr.Patil, learned Counsel, also draws the attention of this Court
to Order XV-A of the Code of Civil Procedure ('CPC') as applicable to
the State of Maharashtra and would submit that the said provision
clearly provides that this Court may strike off the defence in the event
of default of making deposit in any suit for eviction.
11. On the other hand, Ms.Gupte, learned Counsel for the
Respondents, would firstly submit that the Respondents have paid the
entire rent until September 2023 and draws the attention of this Court
to a receipt issued by the Court of Small Causes at Mumbai at page
316, at the rate of Rs.335/- per month with 4% per annum increase,
albeit late, but the same was permitted pursuant to order dated 14 th
January 2019 which condoned the delay in deposit of amount of rent
as per order dated 18th April 2018 and allowed the Respondents to
deposit the rent. As far as the share of taxes and water bills is
concerned, which the Petitioners have argued have not been paid,
learned Counsel would firstly submit that the said bills and taxes were
to be submitted by the Petitioners and only then the Respondents could
make payment of the same. Learned Counsel would further submit
that, infact, the Respondents, as recorded by the Small Cause Court in
paragraph 8 of the order below Exhibit 49 have deposited arrears of
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rent along with cheque of Rs.78,119/- which is not disputed by the
Petitioners and draws the attention of this Court to page 339 in support
of her contention. Learned Counsel for the Respondents would,
therefore, submit that the Petition deserves to be dismissed and the suit
pending in the trial Court be proceeded with.
12. Ms.Gupte points out that the impugned decisions clearly hold
that the Petitioners could not point out what was the increase in
Municipal taxes and also that the Respondents have made payments
and deposited the same till September 2023, and therefore, the Small
Causes Court has correctly held that the Respondents are not persistent
defaulters. Learned Counsel submits that the decisions relied upon by
the learned Counsel for the Petitioners do not assist the case of the
Petitioners in as much as in the present case the Court has not found
that there was any default in the payment of arrears of rent.
13. Having heard the learned Counsel and having considered the
rival contentions, I do not find any error or illegality or perversity in
exercise of jurisdiction by the trial Court in passing the two impugned
orders dated 11th November 2021. As can be seen from the receipt
issued by the Small Causes Court, Mumbai, the Respondents have paid
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the entire rent until September 2023 at the rate of Rs.335/- per month
with 4% increase. Admittedly, the Petitioners have not provided any
details of Municipal taxes for enabling compliance by the Respondents.
No fault, therefore, can be found with the Small Causes Court when it
holds that the Petitioners could not point out what were the increase in
Municipal taxes and also that the Respondents had made payments till
September 2023, and that, the Respondents are not persistent
defaulters.
14. Mr.Patil has relied upon Order XV-A of the CPC. For the sake of
convenience, Order XV-A of the CPC is quoted as under :
" ORDER XV-A
STRIKING OFF DEFENCE IN A SUIT BY A LESSOR
(1) In any suit by a lessor or a licensor against a lessee or a
licensee, as the case may be, for his eviction with or without
the arrears of rent or licence fee and future mesne profits
from him, the Defendant shall deposit such amount as the
Court may direct on account of arrears up to the date of the
order (within such time as the Court may fix) and thereafter
continue to deposit in each succeeding month the rent or
license fee claimed in the suit as the Court may direct. The
Defendant shall, unless otherwise directed, continue to
deposit such amount till the decision of the suit.
In the event of any default in making the deposits, as
aforesaid, the Court may subject to the provisions of sub-
rule(2) strike off the defence.
(2) Before passing an order for striking off the defence, the
Court shall serve notice on the Defendant or his Advocate to
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show cause as to why the defence should not be struck off
and the Court shall consider any such cause, if shown in
order to decide as to whether the Defendant should be
relieved from an order striking off the defence.
(3) The amount deposited under this Rule shall be paid to
the plaintiff-lessor or licensor or his Advocate and the receipt
of such amount shall not have the effect of prejudicing the
claim of the Plaintiff and it shall not also be treated as a
waiver of notice of termination.
Explanation : The suit for eviction shall include suit for
mandatory injunction seeking removal of licensee from the
premises for the purpose of this Rule.
(Emphasis supplied)"
15. In the facts of this case, Mr.Patil's reliance on Order XV-A of the
CPC would not be of much assistance as rent has already been
deposited in advance. Further, what is observed from Order XV-A of
the CPC is that it is only in the event of default in making the deposit of
rent that the defence can be struck off, which is not the case here.
Nowhere the provision refers to Municipal taxes or water bills and
therefore, the said provision would not be applicable to the case of the
Petitioners. Also, the reliance, therefore, by the learned Counsel for the
Petitioners on the decisions in the case of Balgopal Maheshwari and
Others vs. Sanjeev Kumar Gupta (supra) and Bhimrao Laxmanrao
Nihare vs. Natwarlal Ratansi Thakkar (supra) would not be of any
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assistance in the facts of this case as the said decisions are clearly
distinguishable.
16. The impugned orders, therefore, do not require any interference
of this Court. The Writ Petition is hereby dismissed. The trial Court is
directed to hear and dispose of the suit, preferably within a period of
one year from the date of uploading of this order.
(ABHAY AHUJA, J.)
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Signed by: Mrs.Arti V. Khatate
Designation: PS To Honourable Judge
Date: 21/09/2023 15:12:28
