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Waman Deoram Sonawane Vs. Shri Ganesh Mandir, a Public Trust - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case Number Writ Petition No. 1437 of 1979 (Bom.)
Judge
Reported in(1984)86BOMLR40; 1984MhLJ791
AppellantWaman Deoram Sonawane
RespondentShri Ganesh Mandir, a Public Trust
Excerpt:
.....before day fixed by court--effect--conditions of section 12(3)(a) and of 12(3)(b) not satisfied by tenant--eviction decree whether must follow--suit for eviction on ground of default in payment of rent, permitted increases and on ground of reasonable and bona fide requirement of landlord--appeal court decree passed only on ground of default in rent challenged by tenant by writ-petition--at hearing of writ petition whether landlord can raise plea that decree can be maintained on ground of bona fide requirement of landlord.;even under clause (b) of section 12(5) of the bombay rent act, a tenant has to show that he has, on the first day of the hearing of the suit or on or before such other day as the court may fix, cleared all the arrears of the standard rent and permitted increases then..........cannot draw support from these judgments.11. it is ample to state that the cause of action for a rent suit is one that arises upon issuance of notice terminating the tenancy as contemplated by sub-section (2) of section 12 of the act. once the notice is given, a suit can be filed. in such suit, as to how relief of eviction can be granted, is provided for by sub-section (3) of section 12 of the act. that provision deals with the relief of possession to be decreed and conditions for the same. by reason of the conditions of clause (a) of sub-section (3) of section 12 of the act being not satisfied, it does not follow that even if the matters are covered by cl (b) of sub-section (3) of section 12 of the act, no decree can be passed. as is plain, both the provisions are operational and.....
Judgment:

Masodkar, J.

1. This is the original tenant's petition with regard to the decree made for eviction with reference to the provisions of Section 12(3)(a) and Section 12(3)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as 'the Act').

2. Respondent No. 1-landlord initiated proceedings for possession of the tenanted premises after giving due notice dated October 12, 1971 (Ex. 54) terminating the tenancy. The decree was sought both on the grounds of reasonable and bona fide need of the plaintiff-Trust as well as with regard to default in payment of rent. The trial Court made the decree holding in favour of the plaintiff-landlord with regard to the reasonable and bona fide need of the trust who have the tenanted property. It, however, refused to make a decree on the ground of default. The matter was taken up in appeal and the appeal Court affirmed the decree on the ground of default but not on the ground of reasonable and bona fide requirement of the landlord-trust. That decree so made with reference to Section 12 of the Act is under challenge in this Court.

3. For the petitioner, Mr. Karlekar submitted that the decree is solely based on the default of payment of education cess and as such not maintainable. Relying on the decision of this Court reported in the case of Bablu v. Ladharam [1977] 80 Bom. L.R. 310, he submits that such a decree could not have been made under Section 12(5)(a) of the Act. According to the learned Counsel, if the facts are taken into account, the total amount due from July 1, 1963 to January 31, 1971 was Rs. 3,185/- and the tenant had paid the sum in two ways, first paying 2,860/- to the municipal council towards the taxes and Rs. 325/- by remission by money order, the rent being Rs. 35/- per month and thus all the arrears were cleared. There could be no default with regard to the payment of rent so as to attract Section 12 of the Act. At the most, it can be said that the tenant was in arrears with a part of education cess, which was not paid by the landlord, and once this position is available, there could be no cause of action surviving so as to file a suit and have a decree. Further, reliance is placed on the unreported judgment of this Court in Ayodhyabai Shrivallagh Lahote v. Sumanchand Rupchand [1983] Writ Petition No. 156 of 1983 decided on July 1, 1983 by Dharmadhikari J. (Unrep.) and in the case of Shamrao v. Chaturbai [1982] M. L.j. 347.

4. As against this, Mr. Kamat argued that the landlord would be entitled to point out under the facts and circumstances that a decree is properly and legally made under the provisions of Section 12(3)(b) of the Act even when strictly Section 12(3)(a) of the Act was not available to landlord. Mr. Kamat submits that the decision of the Supreme Court in the case of Mranalini B. Shah v. B.M. Shah : AIR1980SC954 , which refers to the earlier judgments of the- Supreme Court, puts the matter beyond doubt and the petitioner's submissions are devoid of merit for he has not complied with the conditions of Section 12(3)(a) nor that of Section 12(3)(b) of the Act. According to Mr. Kamat, the judgments of the learned Judges of this Court do not take into account nor do they refer to the decision of the Supreme Court and, therefore, are clearly distinguishable. As far as the need of the landlord is concerned, Mr. Kamat argued that he should be entitled to raise that point in this petition itself and, therefore, this Court should consider the matters of bona fide need of the trust, so as to maintain the decree as is made.

5. These rival contentions have to be appreciated on the basis of the facts found. The tenancy is a monthly one. Rate of rent is Rs. 35/- per month. Right from July 1, 1963 to January 31, 1971 the amount of rent was due and was in default. The tenant paid that amount not every month but in the manner not in dispute, in that he paid Rs. 2,860/- towards the taxes for the suit property directly to the municipal council. That left the arrears of Rs. 325/-, which he sent by money order. Further, he paid the rent of four months and three months respectively to the plaintiff and while remitting three months' rent together, he remitted a sum of Rs. 10.50p. towards the education cess. The education cess for the period from October 1, 1962 to September 30, 1967 works out to Rs. 42/- while from October 1967 to December 1970, it works to Rs. 33.25p. making a total of Rs. 75.25p. It is not in dispute that the education cess is covered by the term 'permitted increases'. It is also not in dispute that this balance of education cess which was overdue was not deposited in spite of the notice in the Court when the suit was filed nor did the tenant continue to pay or deposit even the stipulated rent every month during the pendency of the suit or during the pendency of the appeal in the appeal Court. Admittedly, further due notice under Section 12(2) of the Act was served. on the tenant before suit and was replied to by the tenant (Ex. 58 and Ex. 57). On the basis of termination of tenancy for default in payment of rent and permitted increases, the suit was filed.

6. These being the admitted and found facts, it is indeed difficult to apply the ratio of the decision of this Court in Bablu's case (supra). There, the Court found that Section 12(3)(a) of the Act would not be applicable only to the claim of education cess. Had the matter been only under that provision, some other debate could have been raised and would be available, but herein the decree is also made under Section 12(3)(b) of the Act. Even under Clause (b) of Sub-section (3) of 12 of the Act a tenant has to show that he has, on the first day of the hearing of the suit or on or before such other day as the Court may fix, cleared all the arrears of the standard rent and permitted increases then due. Therefore, if the permitted increases, like the education cess, are due and proved to be so, to have the protection of Clause (b) of Sub-section (3) of Section 12 the Act, a tenant has to comply with this statutory condition. The failure on his part would result in finding that he was a defaulter in the matter of rent and was not ready and willing to discharge his liability. That would then be enough to make a decree for eviction.

7. A careful reading of the provisions of Section 12 of the Act does not lead to an inference -that such a decree cannot be made. Section 12(2) of the Act enables a landlord to file a suit after giving a notice in the manner provided in Section 106 of the Transfer of Property Act, 1882 on the ground of non-payment of rent or permitted increases due. Once such a notice is given, after the expiration of one month, the landlord is entitled to file a suit. In that, suit, if it is shown that the tenant has committed the statutory default, as is provided for by Sub-section (3)(a) of Section 12 of the Act, a decree has to be made under that provision for eviction. In all other cases, in such a suit, the tenant has to show that no such decree can be made because he has complied with the conditions of Sub-section (3)(b) of Section 12 of the Act, one of the conditions being deposit or payment of all the arrears.

8. This position with regard to the making of such a decree against a tenant in such suit filed under the Act is well-settled. The decision of the Supreme Court in Mranalini's case (supra) has authoritatively summarised this position following the earlier decisions of the Court in the case of Dhansukhlal v. Dalichand : [1968]3SCR346 ; Harbanslal v. Prabhudas : [1976]3SCR628 , and Ganpat v. Sashikctnt : [1978]3SCR198 . Quoting from the Ganpat's case, the position has been restated to be the one that where the conditions under Section 12(3)(a) of the Act are not satisfied there is a further opportunity given to the tenant to protect himself against eviction. He can comply with the conditions set out in Section 12(3)(b) of the Act and defeat the landlord's claim for eviction. If, however, he does not fulfil those conditions, he cannot claim the protection of Section 12(3)(b) of the Act and, in that event, there being no other protection available to him, a decree for eviction will have to be made against him.

9. The position, therefore, in law is that once the notice as contemplated by Section 12(2) of the Act is given and suit is filed, the landlord would be entitled to a decree if the conditions of Section 12(3)(a) of the Act are available and the Court will have no discretion in that regard. Further, unless a tenant complies with the provisions of Section 12(3)(b) of the Act, a decree in eviction would follow, there being no discretion in the Court to refuse to make such a decree.

10. The decisions on which Mr. Karlekar relied appear to be taking the view on the facts available in those cases. However, suffice it to say that with regard to the tenability of the suit, the observations available in those judgments do not take into account the decisions of the Supreme Court, particularly the decision in Mranalini's case (supra). That being plain, Mr. Karlekar cannot draw support from these judgments.

11. It is ample to state that the cause of action for a rent suit is one that arises upon issuance of notice terminating the tenancy as contemplated by Sub-section (2) of Section 12 of the Act. Once the notice is given, a suit can be filed. In such suit, as to how relief of eviction can be granted, is provided for by Sub-section (3) of Section 12 of the Act. That provision deals with the relief of possession to be decreed and conditions for the same. By reason of the conditions of Clause (a) of Sub-section (3) of Section 12 of the Act being not satisfied, it does not follow that even if the matters are covered by cl (b) of Sub-section (3) of Section 12 of the Act, no decree can be passed. As is plain, both the provisions are operational and applicative ones ; first dealing with the statutory default, while the second finding out the readiness and willingness of the tenant in the matter of his obligation to clear the rental liability since before and during the pendency of the Us. That is why even when under Clause (a) of Sub-section (3) of Section 12 of the Act a decree may not be available, a decree for eviction can be made if the tenant fails to protect himself by complying with the express conditions available in Clause (b) of Sub-section (3) of Section 12 of the Act. Truly stated, these clauses together are cognates as well as alternates. Upon both or upon either, a decree can be based. It is not as if that if first fails, other cannot be resorted to. This compact scheme is consistently applied to such types of litigations even by the Supreme Court pronouncements. The matter thus does not admit any debate or doubt. That being the position herein, the appeal Court was right in making the decree for eviction.

12. As far as Mr. Kamat's submission that this Court should consider the ground of reasonable and bona fide need of the landlord is concerned, it is indeed difficult to permit such a controversy being raised in the writ petition filed by the tenant. Writ petition is not an appeal against a decree. It is, in the very nature, an extraordinary remedy given to the party who feels aggrieved by the order in question. Furthermore, the remedy is not available as of course or as of right and the matter is well in discretion of the writ Court. There is no question of permitting respondent No. 1-landlord in such a matter to agitate the grievance by submitting that there is some other ground on the basis of which the decree could be sustained. Had a suitor felt aggrieved by the finding recorded, such a suitor was entitled to question that finding by filing appropriate writ petition, particularly because the relief of possession under Section 12 of the Act and that under Section 13 of the Act are mutually exclusive, having an independent format for judicial consideration. Though it is permissible to file a suit relying on both of those provisions, the eventual relief flows from different facts and upon making out of different statutory conditions. If in such a joint suit Court were to refuse decree under either of the sections, that would be a decree refusing relief under the given provision. It is for the aggrieved party to pursue the remedy by taking appropriate steps to question such refusal. Admittedly, respondent No. 1-landlord has not challenged the refusal recorded by the appeal Court with regard to the need set up by him by filing any such petition. It is too late, therefore, and as such impermissible for Mr. Kamat to urge that the decree, as was made by the trial Court on the ground of reasonable and bona fide need of respondent No. 1-landlord trust, that was reversed by the appeal Court, should now be restored.

13. In the result, rule discharged with no order as to costs. .


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