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Chhaganlal Mulchand JaIn Vs. Narayan Jagannath Bangh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpl. Civil Appln. Nos. 2439 and 2784 of 1978
Judge
Reported inAIR1983Bom212; (1982)84BOMLR537; 1983MhLJ254
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 11(3), 12(2) and 12(3)
AppellantChhaganlal Mulchand Jain
RespondentNarayan Jagannath Bangh
Appellant AdvocateM.A. Rane, Adv.
Respondent AdvocateJ.M. Baphna, Adv.
Excerpt:
.....12(3)(a), 11(3) - within one month from notice of demand under section 12(2) no dispute as to standard rent raised by application for fixation of standard rent -- question as to standard rent whether can be gone into by court when such dispute as to standard rent is raised in written statement -- question as to standard rent whether can be considered if not for purposes of section 12(3)(a) at least for purposes of section 12(1) and 12(2) -- notice of demand under section 12(2) whether bad if it includes untenable claim -- notice of demand whether should be construed strictly in favour of tenant.;whenever a court has to consider a case under section 12(3)(a) of the bombay rent act, the question of standard rent cannot be gone into unless the tenant has made an application for..........or more and the tenant neglects to make payment thereof until the expiration of the period of one month notice referred to in sub-section (2), the (court shall pass a decree) for eviction in any such suit for recovery of possession. (b) in any other case on 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 on 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'.8. shri rane submits that the above section would show that certain requirements must be fulfilled before the.....
Judgment:

Gadgil, J.

1. This petition was referred to the Division Bench by Masodkar, J., by his order dated September 21, 1982.

2. The matter pertains to the eviction proceedings taken out by the landlord (hereinafter referred to as 'the defendants') under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 Rent Act'). The premises in question consist of two rooms and an adjoining tin-shed in a house bearing C. T. S. No. 1276/B in Lane No. 3, at Dhulia. The house is owned by the plaintiff and on August 6, 1967, the defendants took the premises on a monthly rent of Rs. 35/-. The defendants fell in arrears from December 1, 1969, and hence the plaintiff gave a notice dated April 15, 1972, calling upon the defendants to deliver possession and asking him to pay all the arrears. The defendants did not give any reply. However, the sent Rs. 525/- by money order to the plaintiff. The plaintiff then filed Regular Civil Suit No. 237 of 1972 in the Court of the Civil Judge, Senior Division, Dhulia, for possession and claming arrears.

3. The suit was resisted by the defendants. He resisted a contention that the standard rent of the premises was less than the rent of Rs. 35/- per month. In addition, he also alleged that he was ready and willing to pay the rent and that there was no cause for the plaintiff to claim possession.

4. The trial Court determined the standard rent at Rs. 11/- per month and a decree for certain arrears was passed. However, the plaintiff claim for possession was dismissed. The plaintiff took the matter to the District Court in Civil Appeal No. 3 of the 1976. The learned District Judge by his judgment and decree dated August 17, 1978, allowed the appeal by granting decree for possession. It is this decree that is being challenged by the defendants-tenant in the present petition.

5. The main contention of Shri Rane, learned advocate for the petitioner, is that the standard rent was fixed at Rs. 11/- per month and that the amount of Rs. 525/- which the defendants-petitioner has sent immediately after the plaintiff's notice was sufficient to cover all the arrears and as such the learned District, Judge, should not have granted a decree for possession on the ground of default in payment of rent. As against this, Shri Baphna, learned advocate for the respondent, submitted that the determination of the standard rent by the trial about and by the District Court was not permissible as the plaintiff claim fell under Section 12(3)(a) of the rent Act. He also relied upon the decisions of the Supreme Court and of this Court for the purpose of contending that in a case falling under Section 12(3)(a), it is not permissible to raise a dispute about the standard rent unless the tenant makes an application for that purpose within one month from the receipt of the notice under Section 12 of the Rent Act. As far as this point is concerned. we do not think that the matter can be of any controversy. A similar question has arisen before the Supreme Court in the case of Harbanslal Jagmohandas v. Prabhudas Shivlal : [1976]3SCR628 and the relevant Head Note runs as follows:--

'In order to avoid the operation of S. 12(3)(a) of the Act the dispute in regard to standard rent or permitted increases must be raised at the latest before the expiry of one month from the date of service of notice under Section 12(2) of the Act and it is not enough to raise a dispute for the first time in written statement . ................... ....................

The view that disputing within one month of the service of the notice terminating the tenancy is one mode of raising a dispute and there is another mode of raising the dispute at any stage of the suit nullifies and provisions contained in Section 12 and Explanation thereto and confers a right on the tenant where the legislative does not contemplate such a right'.

6. This Court in the case of Jaypal Bandu Adake v. Basavali Gurulingappa Mhalank : AIR1982Bom563 , has also considered this question and the following Head Note makes the position clear:--

'The only way to prevent a decree for eviction being passed under the provisions of Section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act is that the tenant must make an application raising a dispute regarding rent and must ask for fixation of standard rent under Section 11(3) of the Bombay Rents, Hotel and Loading House Rates Control Act as required by Explanation I to Section 12. There is no other mode permissible for raising a dispute as to standard rent for the purpose of Section 12 of the Bombay Rents Act. By raising a dispute with regard to standard rent by the tenant in a reply to the demand notice before the expiry of one month without making an application under Section 11(3) read with Explanation 1 to Section 12, the Court will not be prevented from passing a decree for eviction under the provisions of S. 12(3)(a)..................'

It is thus clear that whenever a Court has to consider a case under Section 12(3)(a) of the r Act. the question of standard rent cannot be gone into unless the tenant has made an application for the purpose within one month from the receipt of the notice.

7. Shri Rane, however, submitted that the above decision would apply when only one has to consider the provisions of Section 12(3)(a) of the Rent Act and that these decision have no bearing while interpreting the provisions of Ss. 12(1) and 12(2) of the Rent Act. In order to understand the contention of Shri Rane was would like to reproduce the relevant portion of S. 12. It read 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 order conditions of the Tenancy, in so far as they are consistent with the provisions of this Act.

(2) No suit for recovery of possession shall be instituted by a landlord against tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served union the tenant in the manner provided in S. 106 of the Transfer of Property Act, 1882.

(3) (a) Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month notice referred to in sub-section (2), the (Court shall pass a decree) for eviction in any such suit for recovery of possession.

(b) In any other case on 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 on 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'.

8. Shri Rane submits that the above section would show that certain requirements must be fulfilled before the landlord can claim possession. For the sake of convenience, we would like to refer to these requirements as made out by Shri Rane:

(1) No decree for possession if the tenant is ready and willing to pay the amount of the standard rent and permitted increases.

(2) No suit unless the landlord gives a notice demanding the standard rent or permitted increases.

(3) Section 12(3)(a) does not apply; if the rent is not payable by month.

(4) Section 12(3)(a) would apply if there is no dispute about the standard rent.

(5) Section 12(3)(a) would apply if the arrears are for six months or more.

(6) The tenant must neglect to make payment within one month from the receipt of the notice under S. 12(2) of the Rent Act.

9. What is urged by Shri Rane is that the Supreme Court as also this Court in the abovementioned cases have considered the only Point NO. 4 above, and that the remaining points have not been touched by any of the decision. He therefore, submitted that though while considering the applicability of Section 12(3)(a) the dispute about the standard rent cannot be raised without making an application within one month from the receipt of the notice, still, even in the absence of such an application it will be necessary to find out as to whether the remaining points exist before passing a decree for possession. For example, he contends that Point No. 1 contemplates absence of readiness and willingness to pay the Standard rent. Similarly, Point No. 2, suggests that a notice must demand the standard rent or the permitted increases. He also urged that while considering the question as to whether the arrears are for six months or more, it will be necessary for the Court, in the fist place, to decide as to what is the standard rent and then make calculations in order to find out whether such arrears exist. He further submitted that while recording the finding as regards the neglect on the part of the tenant, it will be necessary to determine the amount of the standard rent. According to him. all this will have to be done if the tenant has raised a dispute about the standard rent in his written statement though he has not filed any application within one month from the receipt of the landlord notice. We do not think that these admissions of Shri Rane are well founded. If the tenant is precluded from raising a dispute about the standard rent in suit if he has not filed any application within the month from the receipt of the notice we fail to understand as to how he can still raise such a contention about the standard rent for the purpose of urging that he was all the while ready and willing to pay the standard rent and that he could not pay because the standard rent was not fixed. Similarly, it will not be possible for a tenant to contend that the notice did not demand the standard rent as the standard rent was not fixed. The various points enumerated above, will have to be decided in conjunction after bearing in mind the legal position that the disputed about the standard rent is not permissible to be raised in a suit if the tenant has not made any application within one month from the receipt of the notice. To say that such contention is permissible while considering the other points would be arguing in a circle, particularly when recording a finding on Point No. 4 one has to hold that there is no dispute about the standard rent. There is an obvious fallacy in the submissions of Shri Rane particularly when in view of the decision abvementioned, there will not be any dispute about the standard rent and the demand at the agreed rate of the rent would be quite legal and proper.

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 Bhagabandas Agarwalla v. Bhagwandas, : [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.

12. It was next urged by Shri Rane that in the present case a somewhat anomalous position might arise inasmuch as the trial Court and the District Court have fixed the standard rent at Rs. 11/- and even then the defendants-tenant would be liable to deliver possession. He argued that the payment of Rs. 525/- by the defendants within one month from the receipt of the notice was sufficient to cover all the arrears at the rate of Rs. 11/- per month and it is in this manner that the Court below should have recorded a finding that the defendants-tenant was ready and willing to pay the standard rent and that he was not in arrears when the suit was filed. He also contended that the payment of Rs. 525/- should be held to be sufficient compliance of Section 12(3)(a) of the Rent Act, forming payment of the arrears, within one month from the receipt of the notice. It is true that the two Court below have held that the standard rent was at Rs. 11/- per month. However, in view of the decision of the Supreme Court and of this Court the tenant was not entitled to raise any dispute in that respect and consequently there could not have been any issue before the trial Court and the District Court about the fixation of the standard rent. The finding recorded by both the Court below would thus, be in a matter where there cannot be an issue about the fixation of standard rent. Hence the fact that the trial Court and the District Court have fixed the standard rent at Rs. 11/- per month would not come to the help of the defendants for the purpose of contending that he had complied with the notice of the plaintiff asking the defendants-tenant to pay arrears within one month from the receipt of t notice. The finding of fixation of the standard rent recorded by the trial Court and the District Court was uncalled for. As a matter of fact, Shri Baphna is right in contending that entertaining a dispute about the standard rent and recording a finding thereon was without jurisdiction. The position, therefore, is that the tenant was not entitled to raise a dispute about the standard rent and as such the landlord has been rightly given a decree for possession on the basis that this case has been covered by Section 12(3)(a) of the Rent Act. In this background demand of agreed rent would not make the notice bad.

13. The result is, that the petition fails Rule is discharged with costs. In term stay granted in this proceeding stands vacated. Petitioner, however, is granted two months' time to vacate.

14. Rule discharged.


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