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Suka Ishram Chaudhari Vs. Jamnabai Ranchodas Gujarathi and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 1098 of 1967
Judge
Reported inAIR1972Bom273; (1972)74BOMLR220; 1972MhLJ477
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 12(3) and 13(1); Constitution of India - Article 227
AppellantSuka Ishram Chaudhari
RespondentJamnabai Ranchodas Gujarathi and ors.
Appellant AdvocateS.A. Desai and ;P.G. Bhimrao, Advs.
Respondent AdvocateV.M. Limave, Adv.
Excerpt:
.....73(1)(b).;a landlord terminated the tenancy of his tenant by a notice on the ground that he was in arrears of rent for a period of six months and thereafter filed a suit for ejectment under section 12(s)(a) of the bombay rents, hotel and lodging house rates control act, 1947. prior to the notice the tenant had sent by money order to the landlord tr. e rent due for the aforesaid period, but the landlord refused to accept it. on the question whether the tenant could be said to be not ready and willing to pay rent and whether he was in arrears of rent for a period of six months and therefore liable to be evicted :;that on the facts of the case, the tenant could not be evicted because he was neither in arrears of rent nor could he be said not ready and willing to pay rent.;manorama v...........v. dhanalaxmi, g. shah 68 bom lr 412. that was a case where also a notice was served demanding rent in arrears for more than six months. in that case the amount of rent was sent after one month after notice but before the suit was filed. that was not a case, where rent was paid, as we have seen in the instant case, by money orders before notice for the period for which the landlord says the petitioner was in arrears. in that case the notice was dated 22nd december 1966 demanding rent in arrears. the other side alleged that standard rent was tendered on 22nd january 1967 but not accepted. money order was then sent on 4th february 1967, which was refused. in these circumstances, patel. j. who heard the civil revision application, was of the view that under section 12(3) (a) of the rent.....
Judgment:

1. The petitioner here is a tenant in respect of the suit premises belonging to the respondent in village Chopda, District Jalgaon. A vacant plot of land bearing S. No. 7543 and admeasuring 32' x 12' was leased out to the petitioner on 2-11-57 at a monthly rent of Rs. 4/-. The petitioner used it for running a shop after constructing a tin shed on it. It appears that in the year 1963 there was a theft in the shop and, therefore the petitioner constructed a wall in brick and mortar on the side touching the road, from where there was a possibility of the shop being broken open. There was exchange of notices at that time between the landlord and the tenant. There was also some litigation in which the landlord won. On 1-6-65 the respondent - landlord terminated the tenancy of the petitioner by a notice on the grounds that he is in arrears of rent from 1-11-64 to 1-5-65; that he had built another wall in brick and mortar on the southern side of the structure and had also built another wall in brick and mortar to partition the tin shed. The petitioner denied the allegations of the respondent and the suit followed on 15-7-65. The trial Court held in favour of the petitioner but the District Court did not agree and reversed the order passed by the trial court and decreed the respondent's suit for possession of the suit plot. This decree of the learned Assistant Judge, Jalgaon, is sought to be corrected here by this petition under Article 227 of the Indian Constitution.

2. We are here concerned with two grounds taken up by the respondent for evicting the petitioner. The first ground is that the petitioner was in arrears of rent from 1-11-64 till 1-5-65 and the second ground is that the petitioner had constructed a wall in brick and mortar on the southern side of the tin shed : that he has also constructed another partition wall to divide the tin shed into two. The respondent, therefore, relies on Section 12 and Section 13 of the Bombay Rents, Hotel and Lodging House Rates Control Act (hereinafter called 'Rent Act'). In order to understand the legal effect of certain facts and circumstances for the purpose of recording whether the petitioner has neglected to make the payment of rent it will be necessary to mention certain facts.

3. We have on record Exhs. 58 to 61, which are money order coupons. These were the money orders which were sent by the Petitioner between 24-4-63 to 29-6-64 to the respondent from time to time. The respondent refused to accept these money orders sent by the petitioner as and by way of rent between April 1963 and June 1964. The money order coupons on record also show that the petitioner had sent in lump sum Rs. 24/- towards rent at the rate of Rs. 4/- per month for the period beginning from 1-11-64 to 1-5-65. The petitioner has examined himself and stated that he had sent these money orders towards rent at the rate of Rs.4/- for the period from 1-11-64 to 1-5-65, which were refused by the respondent. In this case we are concerned with the notice dated 8-6-65 given by the respondent to the petitioner terminating the tenancy because the petitioner was in arrears from 1-11-64 to 1-5-65. Thus, we have seen that the petitioner did send rent by money orders but it was refused. The point, therefore, that is raised here for consideration is whether the petitioner could be said in these circumstances to be not ready and willing to pay rent and whether he was in arrears of rent for a period of more than six months.

4. The learned Assistant Judge while considering this point held that the payment of rent by money orders for the period from 1-11-64 to 1-5-65 absolutely irrelevant. He held that the money orders prior to the notice cannot be taken into consideration under Section 12(2) of the Rent Act. In support of this proposition he has relied on Manorama S. Masurekar v. Dhanalaxmi, G. Shah 68 Bom LR 412. That was a case where also a notice was served demanding rent in arrears for more than six months. In that case the amount of rent was sent after one month after notice but before the suit was filed. That was not a case, where rent was paid, as we have seen in the instant case, by money orders before notice for the period for which the landlord says the petitioner was in arrears. In that case the notice was dated 22nd December 1966 demanding rent in arrears. The other side alleged that standard rent was tendered on 22nd January 1967 but not accepted. Money order was then sent on 4th February 1967, which was refused. In these circumstances, Patel. J. who heard the civil revision application, was of the view that under Section 12(3) (a) of the Rent Act the Court should pass a decree if tender of rent was made after a month's notice under Section 12(2) of the Rent Act. The fact that tender of rent was made before the suit for ejectment was filed by the landlord does not give protection to the tenant under Section 12(1). The learned Assistant Judge relied on these observations and held that these observations would apply to the facts and circumstances of the instant case. In my view the learned Assistant Judge has erred in applying this law to the facts and circumstances before us which are quite different from the facts and circumstances, which were before Patel, J.

5. Section 12 of the Rent Act provides for ejectment of the tenant by the landlord. It is divided into four clauses. The first clause prohibits a landlord from recovering possession of any premises so long as tenant pays and 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 the Rent Act. Therefore, as long as the tenant is ready and willing to pay and as long as he observes the conditions of tenancy, landlord cannot recover possession of the premises. The second clause directs the landlord to give a notice before a suit on the ground of non-payment of rent is filed. A landlord under this clause cannot file a suit until expiration of one month next after the notice of the demand of standard rent. The third clause deals with two kinds of arrears, Sub-clause (a) deals with a tenant who is in arrears for a period of six months or more; sub-clause (b) deals with a tenant, who is in arrears for less than six months and sub-clause (c) provides that if a tenant raises a dispute regarding the amount of standard rent or permitted increases he is allowed to raise that dispute; and if the tenant makes the payment of which he is arrears within one month of the notice, then the landlord cannot recover possession of the premises. But if he does not raise any dispute and if he neglects to pay until expiration of the period of one month after the notice then the Court has no other alternative but to pass a decree for eviction. So far as sub-clause (b) is concerned the tenant is asked to pay the arrears on the first date of the hearing of the suit or before such other date as the Court may fix and if he continues to pay rent regularly in Court, then no decree can be passed against him but if after notice and after filing of the suit he neither pays the arrears on the first date of the hearing of the suit nor before such other date as the Court may fix, then a decree for eviction shall have to be passed. We are not concerned with the fourth clause because that clause merely deals with disbursement of the amount paid by the tenant in Court.

6. Now, therefore, under Section 12 of the Rent Act this Court has to see whether the tenant was ready and willing to pay rent; whether the landlord had given him necessary notice; whether in this case, which is governed by Section 12(3)(a), the tenant is in arrears of rent for a period of six months or more and whether the tenant has neglected to make payment of the same. We have seen that the respondent had been refusing to accept rent sent to him by money orders. The arrears of rent according to the notice given by the landlord is for a period from 1-11-64 to 1-5-65. The question, in view of the fact that the tenant had sent rent by money orders and is whether the tenant was still in arrears of rent. If the landlord had accepted rent, the tenant would certainly not have been in arrears and there could not have been any cause of action for the notice to be served by the landlord on the tenant. Because the landlord had been refusing to accept rent for the period for which he was said to be in arrears the cause of action arose. In my view the landlord cannot take advantage of his conduct in not accepting rent sent by the tenant and then give a notice saying that the tenant is in arrears of rent for more than six months. The intention of the legislature when enacting Rent Act could not have been to protect the landlord who refuses to accept rent and after six months turns round to say that the tenant is in arrears of rent for a period of six months or more. In my view, therefore the facts and circumstances of the instant case show that the petitioner - tenant was ready and willing to pay rent. The facts also show that the tenant was not in arrears of rent voluntarily. It is because of the conduct of the landlord that he fell in arrears at all. If that is so, then, in my view, the view of the learned Assistant Judge in inferring that the petitioner can be evicted under Section 12(3)(a) of the Rent Act is erroneous. On the other hand the inference and the legal effect of these proved facts is that the tenant cannot be evicted because he was neither in arrears of rent nor can be said to be not ready and willing to pay rent.

7. I am supported in this view of mine by a judgment of Chandachud J. while deciding Civil Revision Application No. 1450 of 1961 on 16th April 1964. He had before him facts similar to the facts of the instant case and he has taken the same view as I am now taking.

8. Another ground taken by the landlord is that the tenant had erected on the premises a permanent structure and therefore he is liable to be evicted. Under Section 13(1)(a) notwithstanding anything contained in the Rent Act but subject to the provisions of Section 15, which deals with sub-letting a landlord shall be entitled to recover possession of any premises if the Court is satisfied that the tenant has without the landlord's consent in writing erected on the premises any permanent structure. What the landlord has been pleading is that the petitioner has erected on the premises a permanent structure viz. a wall on the southern side and partition wall dividing the tin shed. The learned Assistant Judge in his judgment relied upon the fact that the petitioner has nowhere denied the fact of constructing the wall in brick and mortar on the southern side. That is true. But the shed was there from the beginning. It is only in 1963 that the wall was constructed because of a theft. The judgment gives an impression that the whole house was constructed at the time when this was constructed. That is not so. The learned Assistant Judge is of the view that because the tenant has erected a house like structure consisting of two compartments with the southern wall and partition wall in brick and mortar with a foundation of about 1-1/2' x 2-1/2' therefore it is an erection of a permanent structure. According to the learned Assistant Judge if the contention of the tenant in erecting the wall was to protect himself from the thieves, that will not help him and this fact according to him is quite irrelevant for deciding the issue. In that view of the matter he found that the tenant has contravened the provisions of S. 13(1)(b). The trial Court, however, differed from him. According to the trial Judge, who had the advantage of inspecting the site, this was a temporary structure; the shed was no better than a temporary shed; the wall was constructed to protect the shed from the road side; according to trial Court the wall was constructed to save himself from thefts being committed from that side. He says that in these circumstances the wall cannot be said to be a permanent structure.

9. Now, the expression used in Section 13(1)(e) is 'permanent structure'. So far as the wall is concerned, admittedly it is built for the purpose of protecting his goods from theft from the road side, it is built for the purpose of protecting his goods from theft from the road side; it is only a part of the whole temporary shed. He has constructed the wall sloping towards the east. He has also constructed a partition wall dividing the tin shed into two. On one side the goods are kept and the other side there is a shop. It is brought in the cross-examination that the foundation of this wall was about 1-1/2'x 2-1/2'. The point, therefore, that arises here for consideration is what is the legal effect of the facts here It is contended on behalf of the respondent that this Court cannot correct a finding of fact. After all according to Mr. Limaye, the learned advocate for the respondent the wall cannot but be a permanent structure.

In my view this is not a finding of fact but is an inference as to the legal effect of certain proved facts. The Court has to infer on the basis of proved facts, whether these facts lead to the legal conclusion that the structure is or is not a permanent structure. In my view if the Court draws an improper inference as to the legal effect of proved facts, this Court could correct because that is a question of law. In Gujarat Ginning and . Ahmedabad v. Motilal Hirabhai Spinning and . Ahmedabad , Their Lordships have observed that the High Court in a second appeal is bound by the District Judge's finding of fact. But where the matter in question is as to the proper effect of legally proved facts that is a question of law. Now, it is true that this Court has to interfere only when there is a manifest and patent error of law on the face of the proceeding. when there is clear ignorance or disregard of provisions of law. In my view the legal effect of an inference as regards a provision of law can also be looked into by this Court in its supervisory jurisdiction. This will have to be done in the interests of justice if the subordinate Court has stepped beyond its bounds. This will therefore be a fit and proper circumstance to intervene. The contention raised by Mr. Limave, the learned advocate for the respondent, therefore appears to be without basis.

10. The petitioner has taken on lease only the plot of land. He has not taken any premises. After taking this open plot of land he had in the beginning constructed a temporary tin shed. In 1963 theft was committed from the southern side, and, therefore, in order to protect himself as well as his goods, he constructed the wall in brick and mortar. He has also constructed a partition wall to divide for his convenience and for his beneficial use. The rest of the construction is a tin shed. Now, can it be said that the petitioner has erected any permanent structure by constructing the southern wall and the partition wall? After all while determining the permanent character of a structure it is always necessary to see the nature of the structure and mode and degree of annexation. It may also be necessary to see the intention of the party who puts up the structure. The nature of the structure on the whole is temporary structure except for this wall. If the landlord finds reasons to eject the petitioner, in my view, it will not be difficult for the petitioner to vacate the open plot of land without causing any injury to it. Construction of the wall in my view therefore will not cause any injury to the open plot of land which was leased to him. This is not a case where substantial improvement was made by the petitioner to the premises, which were leased out to him and which, if removed, will cause injury to the open plot of land.

11. What is the nature of these walls and the degree of annexation? What was the intention of tenant when he constructed these walls The nature and mode therefore of annexation of its degree can be gathered by the intention with which the tenant had built the wall though in brick and mortar. It is done to prevent the thieves from breaking open the shed which was exposed to the road. The intention therefore was not to have a permanent structure but to save himself and his goods in that temporary shed. The whole shed is still there. It is all of a temporary character. The walls are but small annexations. The open plot of land will never lose its identity in the process of the removal of the wall. The wall is but an insignificant part of the temporary shed. The original nature of the open plot of land is not materially altered or interfered with. In this view of the matter, therefore, it appears to me that the legal inference drawn by the learned Assistant Judge from the proved facts is not correct. On the other hand the inference should be that the wall in the peculiar circumstances of the case cannot be said to be permanent structure erected by the tenant within the purview of Section 13(1)(b) of the Rent Act. If this is so, then the order passed by the learned Assistant Judge has to be set aside.

12. I, therefore, allow this petition set aside the Assistant Judge's order and restore the trial Court's order.

13. No order as to costs.

14. Rule made absolute.

15. Petition allowed.


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