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Ganpat Vs. Motilal Champalal Lunawat and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 1745 of 1972
Judge
Reported inAIR1977Bom344
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 12, 12(1), 12(2), 12(3) and 20; Constitution of India - Article 227; Transfer of Property Act
AppellantGanpat
RespondentMotilal Champalal Lunawat and anr.
Appellant AdvocateK.Y. Mandlik, Adv.
Respondent AdvocateV.V. Karmarkar, Adv.
Excerpt:
.....the notice invalid. 6900/- were due and therefore the notice under section 12(2) of the bombay rent act demanding rupees 7050/- as arrears of rent was held bad. --we have not been able to understand how the notice to quit under the transfer of property act would be bad because by mistake or oversight more was demanded in the notice under section 12(2) of the act than was due. but if there is a mistake in the amount specified in the notice, that does not in our opinion make the notice under section 12(2) bad or because of that make the notice to quit under the transfer of property act bad. it is also observed in that case that a liberal construction should be put upon a notice to quit in order that it should not be defeated by inaccuracies either in the description of the premises or..........laid down the foundation for ejectment on the ground of -arrears of rent. we have noticed that the demand notice is excessive to the extent of rs. 592.09 being the aggregate amount of permitted increases and municipal taxes. the trial court has held that the petitioner had failed to produce any receipt of payment and, therefore, he is not entitled to claim the same. the appellate court relied upon the petitioner's admission which disclosed that instead of the municipal taxes being enhanced, they were reduced on his application. all these facts were to the special knowledge of the petitioner. notwithstanding this position, he chose to make a demand of rupees 592.09 which he could not sustain --not because he failed to prove but he had no case. the demand was, therefore, patently mala fide.....
Judgment:
ORDER

1. The present writ petition under Art. 227 of the Constitution is filed by the petitioner-landlord who has lost in the trial Court as well as in the appellate Court The suit for eviction was filed on the grounds of arrears of rent and reasonable and bona fide personal requirement under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as 'the Bombay Rent Act'). The respondent is the tenant. In order to understand the nature of the controversy between the parties, it is necessary to refer to some details.

2. The respondent has been a tenant of the suit premises for several years. Prior to December 1958 he was paying monthly rent of Rupees 50/- to the then owner. Between December 1958 and April 1964, the owner was different. The present petitioner purchased the suit property in April 1964. The petitioner's predecessor-in-title had filed Regular Civil Suit No. 245 of 1962 against the respondent, in which the standard rent was fixed at Rs. 16/- per month. A sum of Rs. 1475/- was paid on account of rent in that suit. That suit came to be dismissed on 28th December 1963. The petitioner's predecessor-in-title preferred an appeal being Civil Appeal No. 407 of 1964. That appeal was prosecuted by the petitioner, but it came to be dismissed, on 28th September 1965.

3. The petitioner then proceeded to issue a notice dated 7th December 1967 (Ex. 66) for determining the contractual tenancy and for demanding the arrears of rent from 1st April 1962 to 17th January 1968 at the rate of Rs. 16/- per month aggregating to Rs. 920/-, Rs. 69/- by way of permitted increases for the said period and Rs. 412.91 by way of municipal taxes and thus in all Rs. 1401.91. The said notice was served on 15th December 1967. On 8th January 1968, a sum of Rupees 989/- was remitted by the respondent by Money Order, but the petitioner refused to accept the same. This was followed by a reply dated 13th January 1968 (Ex. 67) from the respondent recording the fact that the money order was refused and that the petitioner was not entitled in law to recover Rs. 412.91 by way of municipal taxes. The petitioner did not choose to send a reply to the said letter.

4. There was a lull till the petitioner once again issued a notice dated 22nd November 1968 (Ex. 48) terminating the tenancy of the respondent and making a demand for arrears of rent. The present demand consisted of Rs. 1288/- by way of arrears of rent from 1st April 1962 to 17th December 1968 at the rate of Rs. 16/- per month, Rs. 96.60 by way of permitted increases and Rs. 495.49 by way of municipal taxes, and thus in all for Rs. 1880.09. The notice was served on 29th November 1968. The respondent remitted a sum of Rupees 1900/- by two money orders, one of Rs. 900/- and the other of Rupees 1000/-. Both these money orders were refused by the petitioner. The coupon in respect of money order of Rs. 900/- is Ex. 58 and the other coupon relating to the money order of Rs. 1000/- is Ex. 59. The contents of both the coupons are in these words:--

Ex. 58.

'Saprem Namaskar to Shri Ganpatrao alias Gajanan Sambhuappa Ghongade residing at Latur from Motilal Champalal Lunawat on behalf of Motilal Champalal. Your notice dated 22-11-68 is received on 29-11-68. As demanded in your notice, a total sum of Rupees Nineteen Hundred in two Money Orders respectively for Rupees Nine Hundred and Rupees One thousand is sent herewith. You are requested to accept the same and acknowledge the receipt thereof.

Yours

Sd/-

Motilal Champalal Lunawat

26-12-68.'

The respondent by letter dated 1st March 1969 (Ex. 68) placed on record the fact of refusal of the said two money orders. On 3rd March 1969, the petitioner filed the present suit for ejectment.

5. The trial Court calculated the arrears from 18th December 1959 to 22nd December 1968 at the rate of Rs. 16/- per month and arrived at the figure of Rs. 1712/-. The Court save credit for Rs. 1475/- paid by the respondent in the former suit No. 245 of 1962. After taking into consideration the further arrears till 3rd March 1969, the trial Court found that the arrears due were to the tune of Rs. 290.80. The trial Court found that the petitioner failed to prove that he had in fact incurred liability in respect of permitted increases and municipal taxes. The petitioner failed to produce receipts showing that he was required to pay the tax at increased rates as demanded by him from the respondent. Therefore, the trial Court held that the petitioner was not entitled to increase in rent, much less to recover the amount claimed in suit. As regards the remittance of Rs. 1900/- within one month from the service of the notice, the trial Court held that the petitioner refused to accept the money orders and observed that he did so in order to allow the respondent to remain in arrears of rent for a period of more than six months and to take advantage of that fact. In these circumstances, the trial Court passed a decree for a sum of Rs. 290.80 only and dismissed the suit as regards recovery of possession.

6. The appellate Court took the view that if the respondent wanted to adjust the payment of Rs. 1475/- made by him to the previous landlord before the present suit, he could have done so only within six months from the date of the payment in view of the provisions contained in Section 20 of the Bombay Rent Act and, therefore, the respondent was not entitled to get credit for the payment of Rs. 1475/-. As regards the demand for municipal taxes, the appellate Court referred to the evidence of the petitioner and pointed out his admission showing that the municipal tax was reduced on the basis of his application, though he did not know the extent of reduction. It appears that in these circumstances the Advocate for the petitioner did not argue that the petitioner was entitled to claim any increase in rent over and above Rs. 16/- per month on any ground. Regarding the remittance of Rs. 1900/-, the appellate Court in para. 9 of the judgment considered various aspects of the matter and believed the respondent's case that he had sent the two money orders in question which covered the entire demand of the petitioner and that the said amount was remitted within one month as required by law. The Court also considered the various payments made after the filing of the suit and came to the conclusion that the respondent was not a defaulter and, therefore, the petitioner could not evict him on that ground. In the result, the appeal was dismissed.

7. The validity and correctness of the order dated 22nd March 1972 dismissing the petitioner's Civil Appeal No. 86 of 1971 is under challenge.

8. Two points are raised by Mr. Mandlik, the learned counsel for the petitioner. Firstly, the present case is governed by Section 12(3)(a) of the Bombay Rent Act because the respondent neglected to make payment within one month from the date of the service of the notice dated 22-11-1968 served on 29-11-1968. Secondly, the respondent is not entitled to relief against forfeiture of tenancy as there is no compliance with the provisions of Section 12(3)(b). According to Mr. Mandlik, the respondent did not make the payment on the day when the issues were framed and thereafter he continued to be irregular in making the payment into Court.

9. Mr. Karmarkar, learned Counsel for the respondent, on the other hand, submitted that the respondent did not neglect to pay the arrears. The entire amount of arrears as demanded was remitted by moneyorders, but the petitioner refused to accept the same. The notice contained a false demand. It was to the knowledge of the petitioner that the respondent had paid Rs. 1475/- towards the arrears of rent for the period 18-12-1959 to 22-11-1968 and the balance due was only Rs. 237/-. It was further contended that in the notice of demand the petitioner knowingly made a false demand in respect of permitted increases to the extent of Rs. 96.60 and municipal taxes to the extent of Rs. 495.49. Even as regards the arrears of rent, the petitioner falsely demanded the arrears with effect from 1-4-1962, whereas actually the amount could be claimable from 2-6-1962 and, therefore, the demand for Rs. 1288/- towards the arrears was deliberately inflated and the actual amount could have worked out to Rs. 1240/- for the period 2nd June 1962 to 17th December 1968. In these circumstances, the notice of demand is not valid. The petitioner, therefore, could not bring the present suit for ejectment on the ground of arrears of rent.

10. In support of the first contentention, it was argued by Mr. Mandlik that the two coupons, Exs. 58 and 59, do not show when the money-orders were sent and on what date they were refused. The arrears of Rs. 1880.09 were sent in part. Therefore, the petitioner was entitled not to accept part payment. There is no evidence that the postman went with the two money orders at the same time or that the two money orders reached the petitioner at the same time and through the same postman. Assuming they were sent on 26-12-1968, there is no evidence that the two money orders were tendered on or before 28th December 1.968. These contentions have no merit in view of the contents of Exs. 58 and 59 and the finding of fact arrived at by the Courts below.

11. In this connection, Mr. Mandlik next urged that it was the duty of the respondent to examine the postman as the petitioner had denied that he had refused to accept the money orders. Mr. Karmarkar pointed out that this point was neither taken in the memo of appeal nor raised before the appellate Court, nor is it made a ground of attack of the impugned order in the present petition. He submitted that both the Courts have come to a concurrent finding that the two money orders were sent to the petitioner on 26-12-1968 and they were refused.

12. I think that the petitioner ought not to be allowed to raise this contention at this stage. From the discussion of the evidence by the appellate Court, it appears that the petitioner went out of Latur without making arrangements for receiving the rent or for accepting money orders during his absence. The Court also considered the previous conduct of the petitioner in persistently refusing the money orders. Both the Courts have believed the say of the respondent in this behalf. It appears that the respondent had been vigilant and careful in remitting not only the whole amount of Rs. 1880.09 as demanded but rounded off the figure at Rs. 1900/-. This was done by him despite the fact that a year before the petitioner had sought to make a demand for arrears of rent as well as for permitted increases and municipal taxes, out of which he had remitted Rs. 989/- by money order and had challenged the demand for permitted increases and municipal taxes by his letter dated 13-1-1968. The present demand also contained a demand for permitted increases and municipal taxes to the extent of Rs. 502.09. But nevertheless the respondent chose to square up the demand and did not enter into any controversy about the same. Having regard to the fact that this point was not raised by the petitioner in the lower appellate Court and the two Courts have given a concurrent finding, he cannot be allowed to raise it at this stage.

13. It is convenient now to examine the Question of the validity of the demand made by the petitioner under Section 12(2) of the Bombay Rent Act, on the basis of which he has laid down the foundation for ejectment on the ground of -arrears of rent. We have noticed that the demand notice is excessive to the extent of Rs. 592.09 being the aggregate amount of permitted increases and municipal taxes. The trial Court has held that the petitioner had failed to produce any receipt of payment and, therefore, he is not entitled to claim the same. The appellate Court relied upon the petitioner's admission which disclosed that instead of the municipal taxes being enhanced, they were reduced on his application. All these facts were to the special knowledge of the petitioner. Notwithstanding this position, he chose to make a demand of Rupees 592.09 which he could not sustain --not because he failed to prove but he had no case. The demand was, therefore, patently mala fide and dishonest. The demand was also inflated with regard to the arrears of rent because the actual dues ought to have been Rs. 1240/- as found by the appellate Court and not Rs. 1288/- as demanded by the petitioner.

14. Mr. Mandlik submitted that the notice of demand is to be construed liberally and a mistake like making a demand for a larger amount would not render the notice invalid. In support of his submission, he placed reliance on an unreported decision of the Supreme Court in the case of Raghunath Ravji Dandekar v. Anant Narayan Apte, Civil Appeal No. 387 of 1964 decided on 5-4-1966 (SC). Before I go to the relevant observations of Their Lordships of the Supreme Court relied upon by Mr. Mandlik, it is necessary to bear in mind the circumstances in which the plaintiff in that case had made a mistake. In that case, there was a demand of Rs. 7050/- in the notice though actually as found by the Courts below only Rs. 6900/- were due and therefore the notice under Section 12(2) of the Bombay Rent Act demanding Rupees 7050/- as arrears of rent was held bad. The mistake might have arisen in that case because three years according to the British Calendar would have 37 months according to the Hindu Calendar because there was an intercalary month in the Hindu Calendar once in three years of the British Calendar. The following observations were quoted by Mr. Mandlik:--

'We have not been able to understand how the notice to quit under the Transfer of Property Act would be bad because by mistake or oversight more was demanded in the notice under Section 12(2) of the Act than was due. All that Section 12(2) requires is notice by the lessor for payment of arrears of rent. It is true that such a notice generally contains the amount due as arrears of rent. But if there is a mistake in the amount specified in the notice, that does not in our opinion make the notice under Section 12(2) bad or because of that make the notice to quit under the Transfer of Property Act bad.'

15. Reliance was also placed on 'a decision of this Court in Lalshankar Mulji v. Kantilal 74 Bom LR 241: AIR 1972 Bom 373. It is held in that case that a notice under Section 12(2) of the Bombay Rent Act is not invalid simply because by mistake or oversight the landlord has demanded the rent for the month for which it was not due. It is also observed in that case that a liberal construction should be put upon a notice to quit in order that it should not be defeated by inaccuracies either in the description of the premises or the name of the tenant or the date of the expiry of the notice and that the test of its sufficiency is not what its contents would mean to a stranger ignorant of all the facts and circumstances touching the premises to which the notice purports to refer but what they would mean to tenants presumably conversant with all those facts and circumstances, and the mistakes, if any, should not be construed with a desire to find faults, but they should be construed liberal-ly. In that case, the landlord was under a mistaken belief while asking for rent for the period from 15-8-1965 to 15-9-65 because he thought that he could demand such rent since he was terminating the tenancy on and from 15-9-1965. Thus in that case, the demand for rent of one month could be said to have been made on account of a genuine mistake.

16. The view expressed in these two cases seems to be that having regard to the facts of a particular case, if there is an error in calculations which can be connected with circumstances in which a mistake can genuinely creep in, then such a mistake would not invalidate the notice so as to non-suit the plaintiff-landlord. The view seems to be that the Court should look out for substantial accuracy and discourage technical objections. A landlord should not be penalised for innocent or harmless mistakes. For our purposes, the angle from which the validity or invalidity of the notice is to be examined is 'the demand of arrears of standard rent and permitted increases' and not matters like name and address of the tenant, description of property, date of expiry of the notice, etc. I do not think that these two authorities are for the benefit of a landlord who makes a false demand or makes a demand of a part of rent and permitted increases to which he is not entitled. A demand which is fictitious or untenable cannot be excused on the ground of mistake or oversight. Such serious infirmities will invalidate the notice. In my judgment, the demand for rent and permitted increases must be honest and accurate. In the present case, there was no misunderstanding or inadvertence on the part of the petitioner in making a demand for permitted increases and municipal taxes to the extent of Rs. 592.09 and rent of Rs. 48.00 for the period 1-4-1962 to 2-6-1962. If demands were allowed to be inflated in this manner and the notices are to be held as good under Section 12(2), I think such an approach would defeat the protection afforded by this special enactment. It is one thing that in the present case the respondent had means to pay even the 30 per cent inflated demand, but take a case where a tenant is poor and has limited means. If he does not comply with the notice within a period of one month from the date of service, he cannot enjoy the protection and safeguard which the Legislature has been giving from time to time for nearly one third of a century by extending the life of the Act.

17. In my view, the construction on a notice of demand of arrears of rent and permitted increases issued under Section 12(2) must not be liberal. It is vital that a landlord should make a correct demand unless he chooses not to specify the amount. He can simply demand arrears of rent as suggested by the Supreme Court in Raghunath's case. In such a case, it would be left to the tenant to make the payment on the basis of his calculation. A landlord cannot sit on the fence whereby the rigour of protection secured to the tenant is rendered illusory. The rigour of the law under the Bombay Rent Act is that a tenant must pay up within one month from the date of service of the notice of demand or otherwise face eviction. It is true that a tenant can still file an application for fixation of standard rent within one month from the receipt of the notice of demand and avert the course of ejectment proceedings. But that would be in a case where the standard rent or permitted increases is in dispute. In a case of the present type where the standard rent has already been fixed in a previous proceeding and the respondent had no means to verify about his liability for permitted increases and municipal taxes, he had no other alternative but to make the payment in order to save his home. Had he omitted to remit the amount as demanded, he could have been a victim of 'neglect' under Section 12(3)(a) or accused of not being 'ready and willing' to pay up under Section 12(1) assuming that concept can be introduced under Section 12(3)(a).

18. Having regard to the facts and circumstances of the present case, the mistakes in the notice dated 22nd November 1968, Ex. 48, relating to the demand under Section 12(2), are fatal and that notice could not be the basis of a decree for possession on the ground of arrears of rent as contemplated under Section 12.

19. In my opinion, the present case is not governed by Section 12(3)(a) as urged by Mr. Mandlik as there was no 'neglect' on the art of the respondent in making the payment of arrears of rent within one month from the date of service of the notice. The two Courts below have accepted the respondent's case that they had in fact remitted the entire amount of arrears within one month from the date of service of the notice, but it was the petitioner who refused to accept the money-orders.

20. Coming to the second contention that the respondent is not entitled to relief against forfeiture of tenancy on account of non-compliance with the provisions of Section 12(3)(b) of the Bombay Rent Act, it is to be noted that the respondent had deposited Rs. 1600/- as against Rupees 1648/- which were found due. The lower appellate Court had given an opportunity to the respondent to pay the remaining amount. I do not propose to interfere with the order of the appellate Court in the exercise of my supervisory jurisdiction under Article 227 of the Constitution on the peculiar facts of this case. As pointed out above, the respondent had paid Rs. 1475/- in Civil Suit No. 245 of 1962. The trial Court in the present suit had given them credit for that amount, but the appellate Court chose to differ. The appellate Court overlooked the fact that the petitioner had been made a party in Civil Appeal No. 407 of 1964 since he purchased the property on 7-4-1964. The respondent ought to have been given credit for the amount paid by them in that suit. In these litigations, the respondent had to pay the amount of Rs. 1475/- twice for the same period. The conduct of the petitioner seems to be to eject the respondent from the suit premises anyhow.

21. In the result, the petition fails. The rule is discharged. As regards costs, the petitioner to pay to the respondent the costs of Civil Appeal No. 86 of 1971 and the costs of this petition.

22. Petition dismissed.


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