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Venkatrao Anant Pai Vs. Narayanlal Bansilal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 2839 of 1967
Judge
Reported in(1969)71BOMLR607; 1969MhLJ808
AppellantVenkatrao Anant Pai
RespondentNarayanlal Bansilal
Excerpt:
.....referred to.;section 12(2) of the act requires a notice in writing of the demand of the standard rent or permitted increases and no more. therefore, a previous suit filed by a landlord against his tenant for recovery of arrears of rent will be sufficient notice of demand under section 12(2) for a subsequent suit for recovery of possession filed by the landlord against the tenant one month after the filing of the previous suit. - - i am satisfied from the evidence on record in this case that defendants have not complied with the provisions of section 12(3)(b) of the bombay rent act by paying the arrears of rent at the rate of standard rent of rs. if the tenant fails to deposit such amount or, as the case may be, to pay such amount thereof to the landlord, his application shall be..........be filed under that sub-section for possession, a notice in writing of the demand of the standard rent or permitted increases and no more. by reason of the earlier two suits demand has been made previous to that date. the only other condition required is the expiry of one month after the demand. courts have held that before applying sub-section (2) of section 12 of the rent act the contractual tenancy must be terminated in accordance with section 106 of the transfer of property act. that tenancy had already been terminated prior to the filing of suit no. 835/4635 of 1958. in our view, therefore, inasmuch as the defendants had not continued as contractual tenants no question of terminating their tenancy arose. so far as the notice of demand was concerned, the two suits themselves were.....
Judgment:

Patel, J.

1. This matter was heard by us on October 18, 1968. It arises out of a decree made by the Small Cause Court at Bombay directing delivery of possession by the defendants to the plaintiffs for non-payment of rent under Section 12(5)(a) of the Bombay Kent Act. For the reasons given in our interlocutory judgment we held that, in view of the peculiar facts of the case, Section 12(5)(a) of the Bent Act was not attracted. As, however, there was a finding by the learned trial Judge and the appellate Court that even if Section 12(3)(b) of the Rent Act applied, the defendants had not complied with the terms of that section and were therefore not entitled to the protection of the said Act and as we did not consider the finding satisfactory, we remitted that issue to the trial Court to be certified by the appellate Court to us.

2. After the remand the trial 'Court permitted the defendants to lead additional evidence on this issue if they so desired and the defendants examined defendant No. 1. The learned trial Judge after considering the evidence summarised the whole position thus:.I am satisfied from the evidence on record in this case that defendants have not complied with the provisions of Section 12(3)(b) of the Bombay Rent Act by paying the arrears of rent at the rate of standard rent of Rs. 581-90 p.m. of the premises in dispute confirmed by the High Court, as required by Section 12(8)(b) of the Bombay Rent Act.

As he found that the defendants had not deposited the amount of the standard rent as fixed in the judgment of the High Court against which an appeal is pending in the Supreme Court, as and when it fell due, he held that the defendants were not entitled to the protection of Section 12(3)(b) of the Rent Act. The learned appellate Judges agreed with the finding of the learned trial Judge and certified that finding to this Court with the following observations;

Thus it will be found that as against the rent or compensation due from March 1, 1952 at a monthly rent of Rs. 581-00, the first defendant is only entitled to credit for a sum of Rs. 20,936-25 and Rs. 1,150-00.

3. Defendant No. 1 has now taken a contention that in order that a decree for possession should be made there has to be a notice under Section 12(2) read with Section 12(5)(b) of the Rent Act. The other defendants have not cared to appear at either stage. In fact, the application is only by defendant No. 1. He says, inasmuch as, as stated in our interlocutory judgment, there is no such notice, a decree in eviction cannot be made. There is no substance in this contention. Section 12(2) of the Bent Act requires a notice to be given in the first place to terminate the tenancy as required by Section 106 of the Transfer of Property Act and if advantage of the provisions of Section 12(3)(a) of the Rent Act has to be taken then the provisions of that section must be strictly complied with. In the present case, there have been several suits filed against the defendants from time to time, these being Suit No. 835/4635 of 1958 for recovery of arrears of rent from March 1, 1952 to February 28, 1958; Suit No. 52/404 of 1961 for recovery of arrears of rent from March 1, 1958 to December 31, 1960; Suit No. 71/489 of 1964 is the present suit for recovery of arrears of rent from January 1, 1961 to December 31, 1963 and even thereafter there is another Suit No. 626/6661 of 1965 for recovery of the further amount of arrears of rent. Section 12(2) of the Rent Act requires, for a suit to be filed under that sub-section for possession, a notice in writing of the demand of the standard rent or permitted increases and no more. By reason of the earlier two suits demand has been made previous to that date. The only other condition required is the expiry of one month after the demand. Courts have held that before applying Sub-section (2) of Section 12 of the Rent Act the contractual tenancy must be terminated in accordance with Section 106 of the Transfer of Property Act. That tenancy had already been terminated prior to the filing of Suit No. 835/4635 of 1958. In our view, therefore, inasmuch as the defendants had not continued as contractual tenants no question of terminating their tenancy arose. So far as the notice of demand was concerned, the two suits themselves were enough of demand to enable the plaintiffs after .the expiry of the period of one month to file a suit for recovery of possession.

4. It is then argued that the findings made by the learned Judges below that the defendants had not complied with the provisions of Section 12(3)(b) of the Rent Act are erroneous. The Courts below have considered the evidence led by the defendant in support of the contention and on his evidence have arrived at the conclusion that the defendants had not fulfilled the terms of Section 12(3)(b) of the said Act.

5. Section 12 of the Rent Act, so far as relevant, reads as follows:

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...

(3) (b). In any other case, no decree for eviction shall be passed in any such 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 I.-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 (3), 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.

Explanation II.-For the purposes of Sub-section (2), reference to 'standard rent' and to 'permitted increase' shall include reference to 'interim standard rent' and 'interim permitted increase' specified under Sub-section (3) or (4) of Section 11

The two Explanations were added by Maharashtra Act XIV of 1963. At the same time, extensive amendments were made to Section 11 also by addition of Sub-sections (3) to (6) to Section 11. Sub-sections (5) and (4) are relevant for the present purposes. They read as follows:

11. (3) If any application for fixing the standard rent or for determining the permitted increases is made by a tenant who has received a notice from his landlord under Sub-section (2) of Section 12, the Court shall forthwith specify the amount of rent or permitted increases which are to be deposited in Court by the tenant, and make an order directing the tenant to deposit such amount in Court, or at the option of the tenant make an order to pay to the landlord such amount thereof as the Court may specify, pending the final decision of the application. A copy of the order shall be served upon the landlord. Out of any amount deposited in Court, the Court may make an order for payment of such reasonable sum to the landlord towards payment of rent or increases due to him, as it thinks fit. If the tenant fails to deposit such amount or, as the case may be, to pay such amount thereof to the landlord, his application shall be dismissed,

(4) Where at any stage of a suit for recovery of rent whether with or without a claim for possession of the premises, the Court is satisfied that the tenant is withholding the rent on the ground that the rent is excessive and standard rent should be fixed, the Court shall, and in any other case if it appears to the Court that it is just and proper to make such an order the Court may, make an order directing the tenant to deposit in Court forthwith such amount of the rent as the Court considers to be reasonably due to the landlord, or at the option of the tenant an order directing him to pay to the landlord such amount thereof as the Court may specify. The Court may further make an order directing the tenant to deposit in Court periodically, such amount as it considers proper as interim standard rent, or at the option of the tenant an order to pay to the landlord such amount thereof as the Court may specify, during the pendency of the suit. The Court may also direct that if the tenant fails to comply with any order made as aforesaid, within such time as may be allowed by it, he shall not be entitled to appear in or defend the suit except with leave of the Court, which leave may be granted subject to such terms and conditions as the Court may specify.

6. These sections without amendment were construed by the Supreme Court in Ablmlhai v. Gulamnabi : [1964]5SCR157 . It was held that interim rent fixed by the Act under Section 12(5) was not the standard rent and no liability arose to pay the same until it was actually fixed. If it was fixed by the judgment, the Court was bound to give time to the defendant to pay the same. If the appeal or revisional Court altered it by increasing it, further time had to be given by that Court. The amendments now made clearly require the tenant to pay the interim rent fixed by the Court as by the Explanation it is deemed to be the standard rent. The effect of the judgment is, therefore, modified, and the amendments require that interim rent must be paid as if it were the standard rent as it fell due. If this is so in a pending case, a fortiori, therefore, when the trial Court has fixed in its judgment the standard rent it would be obligatory on the tenant to pay the said amount during the pendency of the appeal and non-payment of the rent fixed by the trial Court cannot be defended by saying that he filed an appeal or revision and that the question was still under dispute. Commonsense suggests that such disputes may go on for years and ten years' period is by no means unusual and it could not be intended by the Legislature to punish the landlords by keeping them out of the rents because of the disputes. As held in Gumming v. Damson [1942] 2 All E.R. 653 the provisions of the Bent Restrictions Act were intended to protect tenants and not punish landlords. If the standard rent is fixed and is pending in revision before the District Court, High Court or in appeal before the Supreme Court, the tenant must continue to pay the standard rent then determined and increases as determined by the operative judgment and if he does not do so, Sections 11(4) and 12(3)(b) read with the Explanation are not satisfied and he is not entitled to the protection.

7. The standard rent is fixed by this Court in the earlier suit No. 835/4635 of 1958 in revisional application No. 50 of 1963 and the matter is pending before the Supreme Court. It is hardly possible to construe the provisions aa enabling the defendants-tenants not to pay the standard rent because there is a dispute pending before the highest Court and thereafter frustrate the remedy of the landlords to obtain the amount due from them. The learned Judges below, after considering the evidence in the case, Game to the conclusion that the defendants had not fulfilled the terms of Section 12(3)(b) of the Bent Act. In a writ petition, as in a revisional application, it is not permissible to go into questions of fact under Article 226 or 227 of the Constitution. This remedy is not intended to take the place of an appeal so as to enable the defendants to argue all questions of fact. We doubt very much whether even in second appeal any such question could be argued.

8. Defendant No. 1 contended that certain payments were not taken into account. It is sufficient to state that except the bare word of the petitioner no evidence was produced by him when he gave evidence on this issue. Much stress was laid on the deposit of the amount of Bs. 1,20,000 made by his co-defendants in the earlier suits in pursuance to the directions of the Supreme Court. The petitioner admits that the contention of the other defendants in those suits was that they were not tenants and were under no obligation to pay any amount of rent. The deposit was made by them not on behalf of defendant No. 1, nor because they were tenants, but, because they wanted to remain on the premises on their own account and obtain stay of the execution of the decree passed against them. It is admitted that no part of this deposit has been withdrawn as it was a conditional deposit. This does not amount to payment of arrears of rent by the tenants as required under Section 12(3)(6) of the Bent Act. It is convenient now to this defendant to argue that though they were not tenants as they were the partners of the petitioner they were liable as such. This is an issue of law and facts and in the absence of those parties no decision can be given in these proceedings there having been no issue on that question.

9. In this connection, it must also be pointed out that the previous money decrees which are still not satisfied cannot amount to payment within the meaning of Section 12(3)(6) of the Bent Act, which requires for its application not mere decrees but actual payment or tender in Court of the standard rent and permitted increases then due, which would include all such amounts as are in arrears whether or not decrees were made for those arrears. To give any other construction to these provisions would frustrate the application of Section 12 to the proceedings and expect the tenants to take advantage of their own defaults merely because decrees have been made against them and which decrees were not satisfied, and probably would never be satisfied.

10. Apart from this, there is another aspect to be considered. This is an application to this Court for exercising its extra-ordinary jurisdiction under Article 227 of the Constitution. The Court is not bound to exercise its powers except in the interest of justice. We are not satisfied that the interests of justice require that we should interfere with, the findings in this case. In this connection, it must be pointed out that when this application was made to this Court, an interim stay was applied for by this defendant. By an order dated December 5, 1967, this Court gave a conditional stay, the condition being that the petitioner should comply with such terms as were imposed by the Court below. The lower 'Court after hearing the parties directed the petitioner on January 5, 1968, to make a deposit of a sum of Rs. 28,175 being the arrears of compensation from the date of the suit until the date in question. No such deposit, however, was made by the petitioner. Thereafter the plaintiffs executed the writ on March 5, 1968, but the execution was resisted by the Columbia Chemicalcolours Industries Pvt. Ltd., and we understand that the Columbia Chemicalcolours Industries Pvt. Ltd. have now filed a suit in the Small Cause Court for a declaration that they are entitled to a legal right of tenancy in the suit premises. We do not see why the writ jurisdiction of this Court should be exercised to perpetuate the litigation between the parties when the tenant himself introduces persons after persons in the premises belonging to the landlords and thus abuses the provisions of the Rent Act.

11. In the result, the rule is discharged with costs. Costs to be in favour of respondents Nos. 1 and 2.


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