Bombay High Court
Yamunabai L. Argade And Abasaheb L. ... vs Tilwan Teli Samaj Trust Through Shri. ... on 25 July, 2025
2025:BHC-AUG:19495
1 942.CRA No.27-2017.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 27 OF 2017
1) Yamunabai Lahanu Argade
2) Abasaheb Lahanu Argade
since both deceased Through their legal heirs
2A) Mangal W/o. Abasaheb Argade
Age-55 Years, Occu-Household,
2B) Mohan S/o. Abasaheb Argade
Age. 35 years, Occu. Service
2C) Sham S/o. Abasaheb Argade
Age. 34, Occu. Service
All R/o- City Survey No. 1827,
Ashok Chowk,Sangamner,
Tq - Sangamner, District-Ahamadnagar. ..Applicants
VERSUS
1) Tilwan Teli Samaj Trust Through
Shri. Baburav Mahadu Karpe
Age. 87 Years, Occu. Business
R/o. Main Road, Tq. Sangamner,
Dist. Ahmednagar
2) Mr. Mahadev S/o. Laxman Kardile
Age. 73 Years, Occu. Service
R/o. Gayatri Housing Society, Sangamner
Tq. Sangamner, Dist. Ahmednagar
2 942.CRA No.27-2017.doc
3) Mr.Dilip S/o. Kacharu Ambekar
Age. 67 Years, Occu. Business
R/o. Ganesh Nagar, Sangamner
Tq. Sangamner, Dist. Ahmednagar
4) Mr.Somnath S/o. Ravji Walzade (Dead)
5) Mr.Bramhadev S/o. Dagadu Walzade
Age.70 years, Occu. Service
R/o. Chaitanya Nagar, Sangamner
Tq-Sangamner, District-Ahmadnagar. ...Respondents
*****
Advocate for Applicants : Mr. Satyajeet S.Dixit
Advocate for Respondents : Mr. A.Z.Gandhi
******
CORAM : SHAILESH P. BRAHME, J.
RESERVED ON : 16th JULY 2025
PRONOUNCED ON : 25th JULY 2025
FINAL ORDER :
1. Heard both sides finally with their consent.
2. Revision applicants are the tenants who are challenging
decree of eviction passed by trial court in R.C.S No. 216 of 1992 on
are incomplete on the ground under Section 13(1)(b),12(1) of 'The
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947'
(hereinafter referred to as 'Act' for sake of brevity and convenience)
vide judgment and decree dated 21.08.2002 which is confirmed by
the lower appellate court in Regular Civil Appeal No.80 of 2002 by
judgment and order dated 31.08.2016.
3. Respondent is the trust who is owner of municipal house
No.1504 having C.T.S No.1827 situated within municipal limits of
Tq.Sangamner,Dist.Ahmednagar. A room was let out to Applicant
No.1's husband/Lahanu for residential purpose on the rent of Rs.12/-
per month. Applicants failed to pay rent. Hence, a notice was issued
on 19.10.1991 which was duly served upon them, but no compliance
was made. Hence, on 10.06.1992, respondents filed suit for arrears
of rent and eviction under Section 12(1), 13(1)(b) and 13(1)(g) of the
Act. It was pleaded that without soliciting any permission,
applicants constructed a permanent wall dividing a room. The suit
property was needed for the construction of hostel. It had become
dilapidated and the local body had instructed to demolish the
structure. Applicants were alleged to have sold the timber of the
structure, illegally.
4. Applicants contested the suit by filing written statement and
denied all the contentions. They denied monthly rent as well as
arrears. It is contended that property was let out for Rs.3/- per
month. Applicants paid rent as well as taxes. Respondent/trust did
not need any premises because they already had other properties.
5. Respondents adduced oral evidence of four witnesses.
Applicants adduced oral evidence of Applicant No.1/ Yamunabai.
PW-1 was the trustee. PW-2 was the Secretary of the trust. PW-3
was a photographer, who proved photographs which are at
Exhibit-93 to 98. PW-4 was a postman who proved the service of
notice.
6. Trial court passed decree of eviction on the ground of
default under Section 12(1) and under Section 13(1)(b) of Act for
having constructed a wall without written permission. But the
decree on the ground of requirement, was refused. Appellate court
upheld the findings of the trial court but reversed the findings on
the requirement. On all counts, the suit was decreed by the lower
appellate court.
7. Learned counsel Mr.Dixit for the applicants submits that
both the courts below did not frame issue of hardship which is
mandatory but decree was passed for requirement, which is error
of jurisdiction. There is no discussion on the issue of hardship. He
would submit that the alleged construction was a repairy work.
The photographs at Exhibit-93 to 98 are doubtful. In the absence
of cogent evidence, findings are recorded for the issue under
Section 13(1)(b) against the applicants which is patent illegality.
He would submit that in fact there was a permission granted in
the proceedings of R.C.S No. 335 of 1991 at Exhibit-39. It is
vehemently contended that decree of default is unsustainable as a
notice at Exhibit-21 was not valid. Respondents failed to prove
that rent was Rs.12/- per month whereas concurrently it is found
to be Rs.3/- per month.
8. Learned counsel further submits that cross-examination of
PW-1 and PW-2 is not appreciated in the correct perspective. It is
contended that trust has already acquired the premises as other
tenants vacated it and the requirement no longer subsists. Lastly,
it is submitted that decree passed by both the courts below is
unsustainable and liable to be quashed.
9. Per contra, learned counsel Mr.Gandhi for the respondents
submits that there are concurrent findings of facts founded on
evidence on record which can not be faulted. He would submit
that demand notice Exhibit-21 was received by the applicants but
it was not replied. The arrears even at the rate of Rs.6.50/- per
month have not been paid or punctually deposited in the Court.
My attention is adverted to the admissions given by DW-1/
Yamunabai. It is submitted that a permanent construction has
been made without seeking permission and which is changing the
nature of the property. It is submitted that requirement of the
trust is rightly appreciated by the court. The findings have been
recorded by the lower appellate court, which is sufficient
compliance of Section 13(2) of the Act.
10. I have considered rival submissions of the parties. With the
assistance of both the counsels, I have gone through the judgment
passed by courts below. The relevant record has been perused.
There is no dispute that the respondents are the owner of the
same and suit property was let out by them. Applicants had
neither paid arrears of the rent nor deposited anything in the
courts below. The demand notice dated 19.10.1991 which is at
Exhibit-21 has been served upon applicants. The decree on the
ground of requirement under Section 13(1)(g) was refused by the
trial court but it was granted by lower appellate court.
11. Parties are disputing quantum of monthly rent. Both the
courts below recorded that neither the rent was Rs.12/- per month
nor Rs.3/- per month but it would be Rs.6.50/- per month.
Applicants did not apply for fixation of the standard rent. They
only contended in the written statement that rent was Rs.3/- per
month. Applicants did not resort to the remedy provided by
Explanation-1 to Section 12 of the Act. Therefore, merely claiming
the rent to be Rs.3/- per month would not enure to the benefit of
the applicants.
12. Respondents examined postman at PW-4. A demand notice
dated 19.10.1991 was served upon the applicants. In pursuance of
that they did not pay arrears at least at the rate of Rs.3/-per
month. No amount was deposited by them during pendency of the
suit as well as appeal. Only inference possible to be drawn is that
applicants can not be said to be ready and willing to pay the
amount and they are defaulters.
13. It is vehemently contended by the applicants that demand
notice dated 19.10.1991 at Exhibit-21 is bad in law which is
founded on exorbitant monthly rent, which was not agreed
between the parties. Applicants have claimed monthly rent at
Rs.3/- whereas respondent/Trust claimed it to be Rs.12/- per
month. Trial court arrived at the conclusion that it is Rs.6.50/-
per month. The applicants did not make any endeavour even to
pay and deposit either Rs.3/- per month or Rs.6.50/- per month.
The notice issued by the respondents can not be said to be bad in
law in its entirety. Applicants failed to pay or deposit the
agreeable amount. The decree of the eviction is not vitiated by the
notice claiming higher amount.
14. A useful reference can be made to the judgment of the
Division Bench in the matter of Chhaganlal Mulchand Jain
Vs. Narayan Jagannath Bangh reported in (1983) Mh.L.J.254.
In that case suit was filed by the respondent/landlord on the
ground of default, claiming rent Rs.35/- per month. Applicant/
tenant had challenged the quantum. Trial court held that it
would be Rs.11/- per month and suit was dismissed. Being
aggrieved, Respondent approached appellate court and his appeal
was allowed. Hence, applicant had filed said application before
High Court. Learned Single Judge referred the matter to the
Division Bench. The Division Bench thus considered issue on
validity of the notice demanding large amount. Following are the
relevant observations:
"10. It was also submitted that the notice under Section 12(2) of the Rent
Act is bad because the demand is not for the standard rent and permitted
increases and because the demand was at the agreed rate though the
standard rent was later on determined by the Court below at a lesser
amount, i. e. at Rs. 11/- per month. The argument is that the notice under
Section 12(2) should be construed strictly and the tenant should be given
an advantage of any mistake that may be appearing in the notice. In our
opinion, it will not be possible to accept this contention of a strict
construction of the notice in favour of the tenant. The notice is a
communication between the landlord and the tenant and both the parties
know their right and liabilities about the payment of rent. The notice is a
communication between the landlord and the tenant and both the parties
know their rights and liabilities about the payment or rent. Hence any
mistake in making a demand for the larger amount would not render the
notice invalid. This has been so held by the Supreme Court in an
unreported decision of the case of Raghunath Ravji Dandekar v. Anant
Narayan Apte, (Civil Appeal No. 387 of 1964, decided on 5-4-1966).
Similarly this Court in the case of Lalshankar Mulji v. Kantilal. : (1972) 74
Bom LR 241 : (AIR 1972 Bom 373), has held that a notice is not invalid
simply because by mistake or oversight the landlord has demanded the
rent more than it was due. It was further held that a liberal construction
should be put upon the notice to quit in order that it should not be
defeated by inaccuracies.
11. Reliance was placed on behalf of the tenant on the decision of
Aggarwal, J., in the case of Ganpat v. Motilal, AIR1977Bom344 . In that
case a grossly untenable claim of permitted increases and municipal
taxes amounting to over Rs. 500/- was made in the notice and the
question arose as to whether such a notice and the question arose as to
whether such a notice was bad. Aggarwal, J., held that having regard to
the fact and circumstance of the case the demand as was made by the
notice was fatal and such a notice could not form a basis for eviction
proceeding. Certain observations in paragraph 17 of the said judgment
were relied upon for the purpose of construed liberally. In our opinion, this
will not be a correct proposition. The normal rule is that a notice
exchanged between the landlord and the tenant should be construed
liberally and not for the purpose of finding any fault. This has been so held
by the Supreme Court in the case of Bhagvandas Agarwalla v.
Bhagwandas and others [1977]3SCR75. We have already observed that
the landlord and the tenant both are presumed to know as to what is the
quantum of rent and permitted increases that had remained unpaid and
hence when the landlord claimed the payment of such arrears by a notice,
any mistake as regards the quantum of rent would not make the notice
bad. It will be very difficult to accept the contention that a mistake here or
a mistake there in the demand notice would entail the dismissal of the suit.
It is possible that in a particular case the landlord may make a false and
untenable demand of certain amount along with the claim about which
there will not be any dispute. In such a case the tenant will have an option
to pay the undisputed amount of rent and to give a reply that the rest of
the claim was a false one. If in due course of time at the stage of the suit
the claim is proved to be false, the tenant obviously would be protected as
he has made the payment of the amount that was actually due. But he will
not be able to resist the same if within one month from the notice he has
not paid even the arrears to which the landlord is entitled. The view
expressed in the case of Ganapat v. Motilal :AIR1977Bom344 (supra) that
the notice would be bad if the notice includes untenable claim is too
general a statement and we disagree with it. Even in such a case the
tenant is under an obligation to remit within the prescribed time the
permissible amount payable by him. Of course, he will have to take the risk
if ultimately the Court finds that such payment would not cover all the
arrears. In case of such a finding the landlord would be entitled to a decree
for possession. But there would not be such a decree if the payment was
sufficient to clear off all the arrears which were payable to the landlord.
Thus everything will depend upon the fact of each case, but primarily one
has to proceed on the basis that the notice should be construed liberally
and not with a view of find fault in it."
15. In this regard, learned counsel Mr.Dixit for the applicants
relied on the judgment of Learned Single Judge of this Court in
the matter of Ramchandra Appaji Hanjage,since deceased
by his heirs and legal representative vs. Mahavir Gajanan
Mug reported in 1991(4) Bom.C.R.381. In that case, the notice
was challenged on the count that exorbitant amount was
demanded when contractual rent was Rs.7/- per month.
Ultimately it was held that notice was invalid and a decree of
eviction was set-aside. My attention is adverted to observations in
paragraph Nos.13,15 and 16 of the judgment.
16. The judgment rendered by the division bench in case of
Chhaganlal Mulchand Jain (supra) was also considered. It was
sought to be distinguished on the ground that the statement of
law propounded by the Division Bench, was not complete
statement of law. It was observed that Division Bench did not
consider all aspects of the matter and it was treated to be decision
per incuriam.
17. The decision of the learned single judge can not persuade
me for the reason that learned single judge had no jurisdiction to
observe that decision rendered by the Division Bench is per
incuriam. It was binding on the learned single judge. This Court
is bound by the decision of the Division Bench in the matter of
Chhaganlal Mulchand Jain (supra). The facts before the
Division Bench are more closer to the facts of the matter at hand.
18. Applicants also relied on the judgment of Learned Single
Judge in the matter of Vinayak Narayan Deshpande and
others vs. Deelip Prahlad Shisode reported in (2010) 3 Mh.LJ
807. In that case, the decree on ground of default was confirmed.
A notice was held to be untenable. The rent was demanded from
the time when there was erstwhile landlord. On facts, the
decision is distinguishable. The ratio can not be made applicable
to the present case. I propose to apply the ratio laid down by the
division bench to the present case. In the case at hand, applicants
had option to pay undisputed amount of rent i.e Rs.3/- per month.
They failed to do so. No reply was given to the notice. No
endeavour was made either to pay arrears in the courts or to raise
the dispute.
19. DW-1/Yamunabai admits that she did not deposit rent in
the Court which is rightly pointed out by learned counsel for the
respondents. I find that the notice Exhibit-21 issued by the
respondents is valid and there is non-compliance of the same. The
decree on the ground of default passed by both the courts below
needs to be confirmed.
20. To prove ground under Section 13(1)(b) of the Act, oral
evidence of PW-1 to PW-3 was adduced by the respondents.
Besides that photographs of the subject matter were produced at
Exhibits-93 to 98. Considering the evidence on record, both the
courts below concurrently held that applicants constructed a wall
which is permanent in nature without securing any permission
from the respondents/landlord. I have gone through the
depositions of PW-1 and PW-2. Due to construction of wall, two
rooms are created which amounts to permanent structure. A vital
admission is secured in the cross-examination of
DW-1/Yamunabai that only one room was given on rent.
21. In this regard learned counsel for the respondents has taken
me through depositions of PW-3/Sudhakar. In cross-examination
DW-1/Yamunabai almost admitted the photographs. The
submission of learned counsel Mr.Dixit that photographs are not
that of suit property can not be accepted. I find that findings
recorded by both the courts below for issue under Section 13(1)(b)
needs to be upheld.
22. The issue of hardship as contemplated by Section 13(2) of
the Act was framed by the trial court but it was recorded to be
redundant. As the trial court answered the issue of requirement
of the property in the negative, lower appellate court did not
frame points for determination pertaining to Section 13(2),
though Point No.6 was framed for requirement of the trust as
contemplated by Section 13(1)(g). It is settled law that the cross-
examination or cross appeal is not required for challenging
findings or observations. Respondents rightly challenged the
observations of the trial court on the issue of requirement of the
trust and hardship.
23. Lower appellate court recorded findings on the point Nos.5
to 8 together in paragraph Nos.17 to 19. No observations are
recorded in respect of hardship while dealing with the ground of
requirement under Section 13(1)(g) of the Act. It is mandatory to
answer issue of hardship as per Section 13(2) of the Act which has
not been followed. I find that the decree of eviction on the ground
of requirement for constructing a hostel can not be granted.
24. Learned counsel Mr.Gandhi for the respondents relied on
the judgment of the Supreme Court in the matter of Padam
Roshnalal Ghai and Others vs. Balasaheb Wasudeorao
motghare (Dr.) reported in 2021(13)SCC 68. On facts the
decision is distinguishable and would not enture to the benefit of
the respondents. He also relied on the decision of Tarun Kumar
Krishna Chandra Bhattacharya vs. Ganga wd/o Prabhudas
Mandnani and another reported in 2009(5) Mh.L.J. The said
decision has a persuasive value and can be helpful to the
respondents. Further reliance is placed on the decision of this
Court in the matter of Sara Raut and Anr.vs. Durgashankar
G.Shroff (Deceased Thru L.Rs) reported in 2007 (3) ALL MR
534. The proposition laid down by Learned Single Judge in
paragraph Nos.10 and 26 can not be disputed. But in the case at
hand, respondents failed to make out ground of requirement and
hardship. Hence, the reported judgments are not helpful.
25. Learned counsel for the respondents further relied on the
judgment of Lalaji Lachhamandas vs. Amiruddin Amanulla
and another reported in 1998(3) Mh.L.J. In that case standard
rent was fixed at Rs.12/- per month. The arrears were claimed
from the tenant at Rs.13.50/- per month. The demanded rent was
on higher side. Hence, notice was sought to be challenged. The
decision of division bench in the matter of Chhaganlal
Mulchand Jain (supra) was considered and following the said
decision it was held that tenant had option to pay undisputed
amount of rent instead of raising dispute vide reply to the notice
of demand. I propose to follow the decision.
26. For the reasons stated above, there are concurrent findings
of facts on the grounds under Section 12(2) and Section 13(1)(b) of
the Act and the applicants are liable to be evicted.
27. Civil Revision Application (C.R.A) sans merit. Hence, it is
dismissed. However, there shall be no order as to costs.
[ SHAILESH P. BRAHME, J.]
vsj
