[Cites 23, Cited by 0]
Bombay High Court
Ramdas Bhagwan Choudhary. vs Dhule Madhyawarti Sahakari Grahak ... on 19 December, 2025
2025:BHC-AUG:37046
1 WP / 2121 / 1996
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 2121 OF 1996
Dr. Ramdas Bhagwan Chaudhary
Age : 63 years, Occu. Medical Practitioner,
Residing at Ranade Smriti,
Nagarpatti, Dhule
Since deceased through LRs.
1-A) Smt. Vinabai Ramdas Chaudhari,
Age 53 years, Occu. Household,
R/o Near Ranade Smruti, Khol Galli,
Dhule
1-B) Dr. Bhushan Ramdas Chaudhari,
Age 23 years, Occu. Doctor,
R/o. Near Ranade Smruti, Khol Galli,
Dhule
1-C) Dr. Monica Ashish Tarate,
Age 26 years, Occu. : Business (Doctor)
R/o 5, Prabhuprasad Apartments,
Kirti Society, Krushi Nagar,
Near H.P.T. College, College Road,
Nasik - 5 .. Petitioners
(Orig. Plaintiff)
VERSUS
Madhyavarti Sahakari Grahak
Bhandar Limited, Dhule
Ranade Smriti, Nagarpatti,
Dhule .. Respondent
(Orig. Defendant)
...
Advocate for petitioners : Mr. P.R. Katneshwarkar, Senior Advocate
i/b. Mr. Aummaheshwari S. Jadhav and Y.G. Gujrati
Advocate for the respondent : Mr. S.B. Deshpande, Senior Advocate
i/b. Mr. C.R. Deshpande
...
CORAM : SACHIN S. DESHMUKH, J.
DATE : 19 DECEMBER 2025
2 WP / 2121 / 1996
JUDGMENT :
Rule was issued in this petition on 07.10.1993 which is
presented by the landlord seeking possession of the premises, on
account of default committed by the tenant. However on appeal, the
appellate Court reversed the decision of the trial Court, maintaining the
finding of default of some lapses. Aggrieved by the same, the
petitioner has approached this Court.
2. Mr. Katneshwarkar, learned Senior Counsel for the
petitioners submits that the notice below Exhibit - 69 dated 11.05.1979
was served on the respondent indicating the default committed by the
tenant coupled with notice for payment of the amount towards the
education cess. It is further submission on behalf of the petitioners that
the default on the part of the tenant is apparent that the tenant has
failed to deposit the amount of rent even, as mandated by the statutory
provision, more particularly, to be read with section 12(1) of the
Maharashtra Rent Control Act, 1999 (hereinafter referred to as 'Rent
Control Act).
3. It was further submitted that the finding of lapse / default
rendered by the appellate Court, is not assailed by the respondent, as
such, has attained finality. Therefore, the statutory protections are not
3 WP / 2121 / 1996
available to the tenant in view of the default on the part of the tenant.
As such, prayed to restore the decree of trial Court.
4. The petitioners has further presented an affidavit stating
that the tenant has breached the mandate of explanation appended
under section 12(1) since, 'C' number register maintained by the trial
Court indicates and establishes the default, rather persistent default by
the tenant, as such, the statutory protection is not available to the
tenant.
5. In the process, learned counsel for the petitioners places
reliance on the following judgments of the Hon'ble Apex Court :
(i) Kalidas Bhavan V. Bhagvandas Sakalchand 1958 SCC
OnLine Bom 108,
(ii) Shah Dhansukhlal Chhaganlal V. Dalichand Virchand Shroff
(Dead) by his LRs; AIR 1968 SC 1109,
(iii) Ganpat Laddha V. Shashikant 1978 (2) SCC 573;
(iv) Mranalini B. Shah and another V. Bapalal Mohanlal Shah
(1980) 4 SCC 251,
(v) K. Subramaniam (Died) through LRs K.S. Balakrishnan and
others V. M/s. Krishna Mills Pvt. Ltd. (Civil Appeal No. 2561 of
2025)
Further reliance is placed on the reference answered by a Full
Bench of this Court dated 12.06.2017 in case of Babulal S/o
Fakirchand Agrawal V. Suresh S/o Kedarnath Malpani another
(Civil Revision Application No. 76 of 2010).
4 WP / 2121 / 1996
6. Per contra, Mr. Deshpande, learned Senior Counsel has
submitted that the notice at Exhibit 69, served upon the tenant is
confined to the amount of education cess, which was not payable by
the month. Since it includes a portion which was not payable by month
and same is dependent upon determination by the local planning
authority. As such, it cannot be regarded as default attributable to the
tenant. Therefore, in absence of notice of default, the landlord had no
cause of action to present the suit itself. Hence, the error committed by
the trial Court is corrected by the appellate Court while reversing the
decision.
7. The learned Senior Counsel for the respondent placed
reliance on the judgment of this Court in case of Madhavsingh
Tulsidas since deceased through LRs V. Bhaktiben Narandas
Paleja since deceased through LRs.; 2006 (5) Bom.C.R. 604 and
further submitted that if the notice under section 12(2) of the Rent
Control Act, does not satisfy the legal requirements, there is no cause
of action for initiating the eviction proceedings.
8. It is further submitted that at the most, the proceedings
presented by the landlord, can be regarded as the recovery
proceedings for arrears of employment guarantee cess. Therefore,
5 WP / 2121 / 1996
prayed to dismiss the petition, endorsing the order of the appellate
Court.
9. Heard the respective counsel for the litigating sides,
perused the record made available and the judgment on which reliance
is placed by the litigating sides.
10. The landlord inducted the respondent - tenant, in suit
premises on an agreed rent. On account of the default of payment, a
notice terminating tenancy was served on 11.05.1979, calling upon the
respondent to hand over the possession of the suit premises.
Thereafter, Regular Civil Suit No. 476 of 1979 was presented before
Court of Joint Civil Judge Junior Division, Dhule for recovery of the
possession and arrears of rent, employment guarantee scheme cess,
education cess, taxes etc. future mesne profit.
11. The respondent resisted the suit by presenting written
statement and denied the claim of the petitioners and prayed for
dismissal.
12. The trial Court, after considering the rival claims put forth
by the litigating sides, the statutory provisions, has held that the
defendants has committed default since 01.04.1979. The issue in
relation to defendant being in arrears of land and permitted increase
with eventual default was answered in affirmative, upholding the
6 WP / 2121 / 1996
entitlement of the plaintiff for possession. Resultantly, the trial Court
decreed the suit. It was further held that the employment guarantee
cess, education cess, are to be considered as part of rent and those
are required to be paid. Non-payment of the same would constitute
default.
13. The appellate Court in an appeal, reversed the decision of
the trial Court on the ground that the cess would be payable only upon
determination of the same by the municipal council. Therefore, non-
payment of the same, cannot be regarded as default by the tenant and
the refusal to pay cess monthly, cannot be regarded as default,
maintaining a finding that there are some lapses here or there, on
average, the payment is regular.
14. When confronted with the finding rendered by the
appellate Court and whether it has been subjected to challenge by the
tenant, the learned Counsel fairly concedes that no challenge to that
effect is raised. However, it was submitted that the appellate Court was
basically considering the notice below Exhibit - 69 and the amount
claimed therein. As such, stray observations may not be construed as
a default committed by the tenant. Further attempt is made to submit
that since the notice below Exhibit - 69 itself is invalid and illegal,
therefore, the petitioner had no cause to present the suit.
7 WP / 2121 / 1996
15. At this juncture, it would be appropriate to refer to the
judgment of the Hon'ble Apex Court in the case of K. Subramaniam
(Died) through LRs K.S. Balakrishnan (supra) in paragraph no. 27
thereof, held as under : -
"27. Thus, on consideration of the proposition of law laid down by
the majority in Sundaram Pillai (supra), this Court is not
persuaded to accept the contention of the appellants that the
absence of a two months' notice under the Explanation to Section
10(2)(i) of the Rent Control Act, 1960 would ipso facto disentitle
the landlord from maintaining the proceedings for eviction on the
ground of wilful default. The statute, when read as a whole, does
not render such notice an indispensable condition precedent to
the assumption of jurisdiction by the Rent Controller. The
Explanation merely provides an additional instance where,
service of notice and continued non-payment, the default may be
presumed to be wilful; it does not, by necessary implication,
obliterate the discretion vested in the Controller under the proviso
to determine wilfulness even in the absence of such notice."
The Hon'ble Apex Court in the case of Mranalini B. Shah and another
(supra) in paragraph nos. 12 and 13 thereof, held as under :-
"12. We have perused the recent judgment of this Court in
Ganpath Ladha v. Shashikant Vishnu Shinde 19 G.L.R. 502.
In our opinion, the point raised by the appellants before us is
fully covered by that judgment. The following observations of
Beg, C.J., who spoke for the Court, are apposite :
...We think that the problem of interpretation and
application of Section 12(3)(b) need not trouble us after the
decision of this Court in Shah Dhansukhlal Chhaganlal's
case (supra) (9 G.L.R. 759) followed by the more recent
decision in Harbanslal Jagmohandas and Anr. v. Prabhudas
Shivlal which completely cowers the case before, us.
It is clear to us that the Act interferes, with the landlord's
right to property and freedom of contract only for the limited
purpose of protecting tenants from misuse of the landlord's
power to evict them, in these days of scarcity of
accommodation, by asserting his superior rights in 'property
or trying to exploit his position by extracting too high rents
8 WP / 2121 / 1996
from helpless tenants. The object was not to deprive the
landlord altogether of his rights in property, which have also
to be respected. Another object was to make possible
eviction of tenants who fail to carry out their obligation to pay
rent to the landlord despite opportunities given by law in that
behalf, But where the condition of Section 12(3)(b) are not
established, there is a further opportunity given to the tenant
to protect himself against, eviction. He can comply, with the
conditions set out in Section 12(3)(b) and defeat the landlord
claim for eviction. If, however, he does not fulfil these
conditions, he cannot, claim the protection of Section 12(3)
(b) and in that event, there being no other protection
available to him, a decree for eviction would have to go
against him. It is difficult to see how by any judicial valour
discretion exercisable in favour of the tenant can be found in
Section 12(3)(b) even where the conditions laid down by it
are satisfied to be strictly confined within the limits
prescribed for their operation. We think that Chagla, C.J.,
was doing nothing less than legislation in Kalidas Bhman's v.
Bhagwandas (supra) 60 Bom.LR. 1369. In converting the
provisions of Section 12(3)(b) into a sort of discretionary
jurisdiction of the Court to relieve tenants from hardship. The
decisions of this Court referred to above, in any case, make
the position quite clear' that Section 12(3)(b) does not create
any discretionary jurisdiction in the Court. It provides
protection to the tenant or certain conditions and these
conditions have to be strictly observed by the tenant who
seeks the benefit of the section. If the statutory provisions do
not go far enough of relieve the hardship of the tenant, the
remedy lies with the legislature. It is not in the hands of
Courts.
13. The above emaciation, clarifies beyond doubt that the
provisions of Clause (b) of Section 12(3) are mandatory, and
must be strictly complied with, by the tenant during the
pendency of the suit or appeal if the land lord's claim for
eviction on the ground of default in payment of rent is to be
defeated. The word "regularly" in Clause (b) of Section 12(3)
has a significance of its own. It enjoins, a payment offender
characterised by reasonable punctuality that is to say, one
made at regular times or intervals. The regularity
contemplated may not be a punctuality, of clock like
precision and exactitude, but it must reasonably conform
with substantial proximity to the sequence of times or
intervals at which the rent falls due. Thus, where the rent is
9 WP / 2121 / 1996
payable by the month, the tenant must, if he wants to avail of
the benefit of the latter part of Clause (b), tender or pay it
every month as it falls due, or at his discretion in advance. If
the persistently defaults during the pendency of the suit or
appeal in paying the rent, such as here he, pays it at
irregular intervals of 2 or 3 or 4 months as is the case before
us the court has no discretion to treat what were manifestly,
irregular payments, as substantial compliance with the
mandate of this clause irrespective the fact that by the time
the judgment was pronounced all the arrears had been
cleared by the tenant."
Similarly, the Hon'ble Apex Court in case of Shah Dhansukhlal
Chhaganlal (supra) in paragraph nos. 9, 10, 12 and 13 thereof, held as
under :-
9. In order to appreciate the first contention it is necessary to
set out section 12 of the Act as it stood at the relevant time :
"12(1) A landlord shall not be entitled to the recovery of
possession of any premises so long as the tenant pays, or is
ready and willing to pay, the amount of the standard rent and
permitted increases, if any, and observes and performs the
other conditions of the tenancy, 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 a tenant on the ground of non-payment
of the standard rent or permitted increases due until the
expiration of one month next after notice in writing of the
demand of the standard rent or permitted increases has
been served upon the tenant in the manner provided in
section 106 of the Transfer of Property Act, 1882.
(3)(a) Where the rent is payable by the month and there is
no dispute regarding the amount of standard rent or
permitted increases, if such rent or increases are in arrears
for a period of six months or more and the tenant neglects to
make payment thereof until the expiration of the period of
one month after notice referred to in sub-section (2), the
Court may pass a decree for eviction in any such suit for
recovery of possession.
10 WP / 2121 / 1996
(b) In any other case, no decree for eviction shall be
passed in any suit, if, on the first day of hearing of the suit or
on or before such other date as the Court may fix, the tenant
pays or tenders in Court the standard rent and permitted
increases then due and thereafter continues to pay or tender
in court regularly such rent and permitted increases till the
suit is finally decided and also pays costs of the suit as
directed by the court.
(4) Pending the disposal of any such suit, the Court may
out of any amount paid or tendered by the tenant pay to the
landlord such amount towards payment of rent or permitted
increases due to him as the Court thinks fit.
Explanation. - In any case where there is a dispute as to
the amount of standard rent or permitted increases
recoverable under this Act the tenant shall be deemed to be
ready and willing to pay such amount if, before the expiry of
the period of one month after notice referred to in sub-
section (2), he makes an application to the Court under sub-
section (3) of Section 11 and thereafter pays or tenders the
amount of rent or permitted increases specified in the order
made by the Court."
10. Learned counsel drew our attention to a judgment of this
Court in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v.
Subbash Chandra Yograj Sinha. There the landlord had filed
a suit for possession of the premises on April 25, 1957, the
period of tenancy fixed under the rent note having expired
on March 14, 1957. Under s. 6 of the Act a notification was
issued applying Part II of the Act to the area where the
property was situate. The appellants claimed protection of s.
12 of the Act and the main question which engaged the
attention of this Court was, whether by virtue of the first
proviso to s. 50 of the Act, all the provisions in Part II
including s. 12 were made expressly applicable to all suits;
and secondly, whether by virtue of s. 12(1) of the Act the suit
was rendered incompetent. This Court turned down the
contention of the respondent that the operation of s. 12(1)
was limited to suits filed after it came into force in a
particular area and observed that under s. 12(1) the landlord
was not to be entitled to recover possession and the point of
time when the sub-section would operate was when the
decree for recovery of possession would have to be passed.
11 WP / 2121 / 1996
12. In Mrs. Manorama Masurekar v. Mrs. Dhanlaxmi G. Shah
and another, rent was in arrears for a period of more than six
months and the tenant neglected to make payment of the
same within one month of the notice under s. 12(2). There
the rent was payable by the month and there was no dispute
regarding the amount of the rent. It was held that if the
conditions of sub-s. (3)(a) of s. 12 were satisfied the tenant
could not claim any protection from eviction by tendering the
arrears of rent after the expiry of one month from the service
of notice under sub-s. (2). It was observed :
"It is immaterial whether the tender was made before or
after the institution of the suit. In a case falling within sub-s.
(3)(a), the tenant must be dealt with under the special
provisions of sub-s. (3)(a), and he cannot claim any
protection from eviction under the general provisions of
sub-s. (1)."
13. As already noted, if sub-s. (3)(a) is not attracted, the
tenant, if he is in arrears, cannot sit quiet and offer to pay all
the amount due from him at the time of the hearing of the
suit so as to get the protection of s. 12(1). To be within the
protection of sub-s. (1) where he raises a dispute about the
standard rent payable, he must make an application to the
court under sub-s. (3) of s. 11 and thereafter pay or tender
the amount of rent and permitted increases, if any, specified
in the order made by the Court. If he does not approach the
court under s. 11(3), it is not open to him thereafter to claim
the protection of s. 12(1). (Emphasis supplied.)"
16. So far as reliance placed by the learned Senior Counsel
for the petitioners on the reference by the Full Bench of this Court in
case of Babulal Agrawal Vs. Suresh Malpani (supra), wherein the
issue i.e. the tenant's compliance to notice issued by the landlord and
pays the amount within the time stipulated under section 15(2) of the
Rent Control Act and whether the landlord can still file a suit for eviction
12 WP / 2121 / 1996
on the ground of arrears of rent, whether eviction can be ordered by
invoking the provisions of section 15(3) of the Rent Control Act.
17. While answering the said issue, the Full Bench in clear and
unequivocal terms held that once the tenant pays the amount indicated
in the notice, or tenders the same, the landlord has no right to institute
a suit for possession for recovery of possession for non-payment of
those arrears or continue with such proceeding for eviction and no
decree for possession can be asked for, is not within the contemplation
of provisions of section 15 of the Act and, therefore, the provision does
not interfere with the right of the landlord to initiate proceeding for
eviction, however, sub-section (2) of section 15 prescribes a
pre-condition for presentation of suit.
18. Thus, it is evident that there is no embargo to present a
suit, however, the only stipulation is that the notice by the landlord and
further fulfilment of the conditions stipulated in sub-section (1) and (3)
of section 15 of the Rent Control Act. It would be appropriate at this
juncture, to refer to provisions of section 15 of the Rent Control Act,
which reads as under :-
" 15. No ejectment ordinarily to be made if tenant pays or its 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.
13 WP / 2121 / 1996
(2) No suit for recovery of possession shall be instituted by a landlord
against the tenant on the ground of non-payment of the standard rent
or permitted increases due, until the expiration of ninety days next after
notice in writing of the demand of the standard rent or permitted
increases has been served upon the tenant in the manner provided in
section 106 of the Transfer of Property Act, 1882 (IV of 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 increase if, within a period of ninety days from the date of
service of the summons of the suit, the tenant pays or tenders in court
the standard rent and permitted increases then due together with
simple interest on the amount of arrears at fifteen per cent. per annum;
and thereafter continues to pay or tenders in court regularly such
standard rent and permitted increases till the suit is finally decided and
also pays cost of the suit as directed by the court.
(4) Pending the disposal of any suit, the court may, out of any amount
paid or tendered by the tenant, pay to the landlord such amount
towards the payment of rent or permitted increases due to him as the
court thinks fit."
19. Thus, the perusal of the statutory provision makes it
abundantly clear that the entitlement of landlord for recovery of
possession of any premises exists, so long as tenant fails to pay or is
not ready and willing to pay the amount of standard rent and permitted
to increase and fails to observe and perform the other conditions of the
tenancy. Thus, the obligation of the tenant to comply with and observe,
perform, the other requisites of tenancy are not to be ignored.
20. Equally, the explanation appended to section 12(3) also
confers the protection to the tenant from decree of eviction only in the
event where tenant pays or tenders in the Court the standard rent and
permitted increase then due and even thereafter continues to pay or
14 WP / 2121 / 1996
tender rent regularly and permitted increase till the suit is finally
decided and also pays the cost of the suit as directed by the Court.
21. Thus, the reading of section 12 and the explanation
thereunder is to be considered that the tenant can only be considered
to be ready and willing to pay if before the expiry of period of ninety
days after notice referred to in sub-section 2, presents an application to
the Court under sub-section 3 of section 12 and can thereafter, tenders
the amount of rent or permitted increase specified by the Court. In the
present case, attempt of the respondent - tenant to dispute, whether
the rent amount is inclusive of the employment guarantee cess or
otherwise. Admittedly, the respondent - tenant has not presented an
application as contemplated under sub section (b) of section 12,
therefore is not open for the tenant to raise the dispute in relation to the
issue of inclusivity of education cess along rent.
22. Nonetheless, as is evident from the 'C' number register
maintained by the trial Court that the default is apparent. Even under
the statutory provisions, the tenant is under an obligation to pay or
tender in Court regularly such rent till the suit is decided. Thus, the
reliance placed by the learned counsel for the petitioners on the
judgment of the Hon'ble Apex Court in case of Mranalini B. Shah and
another V. Bapalal Mohanlal Shah (supra) that the protection
available to the tenant, as contemplated under section 15(3) does not
15 WP / 2121 / 1996
confer any discretionary jurisdiction to the Court. However, it provides
protection to the tenant on certain conditions and those conditions have
to be strictly observed by the tenant, seeking the statutory protection.
23. The persistent default during the pendency of the
proceeding in paying the rent, as is evident from the extract of 'C'
number register, cannot be regarded as the compliance with the
statutory provisions. Although the affidavit is presented by the
petitioner pointing out default by the tenant, same is not countered by
the respondent - tenant.
24. Thus, the default on the part of tenant is rather evident. In
the wake of established default, the case of tenant does not fall within
the ambit of section 15(3) which confers protection. In order to seek
statutory protection, the tenant must not only pay all the arrears due
from him on the first date of hearing of the suit and even thereafter rent
due to pay or tender in the Court regularly till the proceedings are
decided finally.
25. Thus, the attempt of the tenant to assert that the plaintiff -
landlord had no cause of action on the ground of invalidity of the notice
of eviction, is fallacious. Having failed to comply to deposit the amount
constitutes a default and even the appellate Court has categorically
held that there is default, may be here and there, that by itself does not
salvage the situation contending that notice is invalid, does not warrant
16 WP / 2121 / 1996
consideration in the backdrop of the settled legal position. The non-
compliant approach on the part of the tenant, disentitles to claim
benefit of the statutory provisions.
26. In that view of the matter, it can be held that the finding of
the appellate Court, in the backdrop of a positive finding, there are
lapses on the part of the tenant which, is illegal and contrary to the
statutory provisions, and is unsustainable in law. Hence, the petition is
allowed. Rule is made absolute in aforesaid terms.
27. Pending Civil Application no. 264 of 2025, also stands
disposed of.
[ SACHIN S. DESHMUKH ]
JUDGE
arp/
