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Lalshankar Mulji Joshi Vs. Kantilal Mohanlal Parikh and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 3015 of 1967
Judge
Reported in1972MhLJ459
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 12(2); Transfer of Property Act, 1882 - Sections 106
AppellantLalshankar Mulji Joshi
RespondentKantilal Mohanlal Parikh and anr.
Advocates:K.J. Abhyankar, Adv.
Excerpt:
.....act (bom. lvu of 1947), section 12(2) -- notice under section 12(2) whether invalid because rent demanded for month not due.;a notice under section 12(2) of the bombay rents, hotel and lodging house rates control act, 1947, is not invalid simply because by mistake or over-sight the landlord has demanded the rent for the month for which it was not due.;raghunath ravji dandekar v. anant narayan apte (1966) civil appeal no. 387 of 1964, decided on april 5, 1966 (supreme court) followed.;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. the test of its sufficiency is not what its contents would mean to a stranger..........was or was not in arrears of rent for a period of more than six months on the date of the notice of demand issued on 17-8-1965 and whether he was not ready and willing to pay the arrears of rent.4. the trial court decided against the petitioner on the issue regarding the bona fide requirement by the petitioner as also the issue regarding the respondents not using the premises and keeping them locked. these findings of the trial court were confirmed by the appellate court, who dismissed the appeal with costs. this order of the learned assistant judge, poona, is now challenged here by the petitioner - landlord.5. it is argued by mr. abhyankar, learned advocate for the petitioner, that the learned assistant judge has committed an error in holding the notice invalid inasmuch as the.....
Judgment:
ORDER

1. This is a landlord's petition challenging the order passed by the Extra Assistant Judge, Poona. the respondent is a tenant of the suit premises belonging to the petitioner at a rent of Rs. 17/- per month. Because he was in arrears of rent for more than six months, therefore the petitioner had to serve a notice on the respondent. The notice was dated 17-8-1965 and the respondent was asked to quit by 30-9-1965. The petitioner claimed a sum of Rs. 176 - 90p. As the notice was not complied, the suit was filed claiming arrears of rent and possession on three grounds, the first being arrears of rent for more than six months, the second was that the suit premises were required for personal use by the landlord and the third was that the respondent - tenant was keeping the premises locked and had not been using them.

2. The trial Court framed a number of issues on the pleadings of the parties and held that the petitioner had established that the respondent was a defaulter for a period of six months or more. He was of the view that the tenancy of the respondent - tenant was validly terminated under Section 106 of the Transfer of Property Act, though not under Section 12(2) of he Bombay Rent Act. Accordingly, therefore, the trial Court dismissed the petitioner's suit for possession, but passed a decree for arrears of rent. Against this decree the landlord went in appeal.

3. The appellate Court considered several issues and found that the notice served by the petitioner is not valid, the demand therein being excessive. According to him, the notice being invalid, the tenant cannot be said to be not ready and willing to pay the arrears of rent accrued due upto the date of the notice. He, therefore, did not consider as to whether the respondents was or was not in arrears of rent for a period of more than six months on the date of the notice of demand issued on 17-8-1965 and whether he was not ready and willing to pay the arrears of rent.

4. The trial Court decided against the petitioner on the issue regarding the bona fide requirement by the petitioner as also the issue regarding the respondents not using the premises and keeping them locked. These findings of the trial Court were confirmed by the appellate Court, who dismissed the appeal with costs. This order of the learned Assistant Judge, Poona, is now challenged here by the petitioner - landlord.

5. It is argued by Mr. Abhyankar, learned advocate for the petitioner, that the learned Assistant Judge has committed an error in holding the notice invalid inasmuch as the notice did not ask for any excessive rent from the tenant. The petitioner - landlord had already obtained a decree from the Small Cause Court, Poona, for a sum of Rs. 207/- and that the tenant was still in arrears of Rs. 293/-. The notice mentioned the amount of Rs. 511 - 90p. The tenant had paid Rs. 335/-. Therefore, the petitioner - landlord claimed Rs. 176 - 90p. by this notice. The notice is dt. 17-8-1965. The learned Asstt. Judge while considering the validity of the notice observed during the course of his judgment that by the notice of demand the petitioner not only claimed rent upto 15-8-1965, but also claimed rent upto 15-9-1965. It is contended by Mr. Abhyankar on behalf of the petitioner that this notice was proper and legal since the tenancy was sought to be terminated by the end of 15th September 1965. The learned Assistant Judge was, however, of the view that the demand was excessive because the rent claimed for the period 15-8-1965 to 15-9-1965 had not become due and payable to the petitioner - landlord at the time of the said notice of demand. According to him, therefore, the demand was not lawful and the respondent - tenant was under no obligation to comply with the demand. According to the learned Assistant Judge as the demand was not lawful, the notice is illegal and the respondent - tenant cannot be said to be not ready and willing to pay the arrears of rent. Now, the point here for consideration is whether in the facts and circumstances of the case the view taken by the learned Assistant Judge is correct.

6. It is now well - settled that a liberal construction is 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 desire to find faults, but they should be construed liberally. In the instant case it appears that the petitioner - landlord was under a mistaken belief while asking for rent for the period from 15-8-1965 to 15-9-1965. It is not that he meant that the rent would not be due to him on 15-9-1965. It may be that he remained under a wrong impression and thought that he could demand such rent since he was terminating the tenancy on and from 15-9-1965. In my view, therefore, this appears to be a mistake on the part of the petitioner committed while giving the notice. The Supreme Court in Civil Appeal No. 387 of 1964, decided on 5-4-1966, while considering validity of a notice, which demanded Rupees 7,000/- when actually, according to the Courts below only Rs. 6,900/- were due, observed that they were not able to understand how the notice to quit under the Transfer of Property Act will be bad because of a mistake or over - sight in demanding more than was due under Section 12(2) of the Rent Act. Their Lordships held that all that Section 12(2) of the Rent Act requires is the notice by the lessor for payment of arrears of rent. Their Lordships further observed that it was true that such a notice shall contain the figure of the amount due as arrears of rent, but according to their Lordships, if there was a mistake in the amount specified, in the notice, that did not, in their opinion, make the notice under Section 12(2) bad or because of that mistake the notice to quit under the Transfer of Property Act bad. It appears tome that simply because my mistake or over - sight the landlord had demanded the rent for the month for which it was not due, that would certainly not make the notice invalid. The view taken by the learned Assistant Judge is therefore not correct.

7. For the aforesaid reasons I set aside the decree passed by the learned Assistant Judge, Poona, remand the record and proceedings back for finding on two issues which were framed by him and disposing of the appeal according to law.

8. Rule made absolute. Costs costs in the cause.

9. Rule made absolute.


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