MOHANLAL JETHABHAI SOLANKI v. SAMUAL DAUDBHAI — 1994 DIGILAW 382 (GUJ)

M. S. PARIKH, J. ( 1 ) ). This revision application under Section 29 (2) of the Bombay Rents Hotel and Lodging House Rates Control Act hereinafter refer red to as the Rent Act is directed against the judgment and order dated 18-8-1981 passed by the learned Extra Assistant Judge Surat in Regular Civil Appeal No. 96 of 1979 dismissing the appeal filed by the present petitioner-original defendants against the judgment and order dated 31-3-1979 rendered by the Additional Judge Small Causes Court at Surat in Small Cause Suit No. 1578 of 1975 whereby the learned Trial Judge directed the defendants (present petitioners) to hand over vacant and peaceful possession of the suit premises to the respondent-plaintiff to pay to the plaintiff a sum of Rs. 1560. 00 and mesne profit at the rate of Rs. 60. 00 p. m. from the date of the suit till recovery of the possession fixing the standard rent of the suit premises at Rs. 60. 00 p. m. ( 2 ) ). The facts of the case may briefly be reproduced from the judgment of the learned Extra Assistant Judge. ( 3 ) ). The plaintiff filed the aforesaid suit alleging that the defendant No. 1 hired the suit premises from the plaintiff that he was the statutory tenant in the suit premises that the rent fell in ar rears from 1-7-1971 that the plaintiff required the suit premises reasonably and bona fide for their personal use and occupation that the defendant No. 1 acquired suitable residence and that the conduct of the defendants amounted to nuisance and annoyance to the neighbouring occupiers. The plaintiff therefore claimed possession of the suit premises coupled with the ar rears of rent and mesne profits in the suit. The defendants resisted the suit While denying the allegations made by the plaintiff in the suit they asserted that the plaintiff was in possession of sufficient space that the defendant No. 1 1 had taken on lease the suit premises for defendants No 2 and 3 that there was no question of defendant No. 1 acquiring suitable residence and as he had been residing in his own building form the time of his birth and that although the suit premises was hired In his name in fact it was hired for real tenants being defendants Nos. 2 and 3 The defendants contended that if decree for eviction is passed they would suffer greater hardship. They also disputed the legality and validity of the suit notice while asserting that the defendant No. 1 did not refuse to accept the notice. They finally contended that the standard rent the suit premises would be As 25/- per month. Both the Courts below held hat the defendant No. 1 was the tenant in respect of the suit premises that the standard rent of the suit premises would be Rs. 60. 00 p. m. that the defendant No. I was tenant in arrears for personal requirement and that the plaintiff would be entitled to possession on the ground of arrears of rent. It is against the aforesaid judgment and decree for eviction passed by the learned Trial Judge and confirmed by the learned Assistant Judge in appeal that has made the petitioners original defendants to move this Court as aforesaid. ( 4 ) ). I have heard Mr. S. H. Sanjanwala learned Advocate for the petitioners-defendants and Ms. Bella Yagnik learned Advocate on behalf of Miss V. P. Shah learned Advocate for the respondents. The first point of law submitted for consideration of this Court by Mr. Sanjanwala is in respect of service of notice of demand of rent by the plaintiffs to the defendants Nos. 2 and 3. It is interesting to note from even the facts pleaded by the defendants that the contract of taking on lease the suit premises was admittedly entered into by the first defendant. It is a different matter that the defendant No. 1 hired the suit premises for defendants Nos. 2 and 3and even if that stand appealing in the written statement is accepted the fact remains that qua the plaintiffs and the defendant No. 1 there is an admitted relationship of landlord and tenant. Merely because the suit premises was hired for use and occupation by defendants Nos. 2 and 3 it cannot be said that the defendants No. 2 and 3 became tenants of the plaintiffs. Therefore first part of the submission of Mr. Sanjanwala that the suit must fail on account of non-service of notice to defendants Nos. 2 and 3 must fail. Second part of submission of Mr. Sanjanwala is that the notice was not properly served to defendant No. 1. Therefore first part of the submission of Mr. Sanjanwala that the suit must fail on account of non-service of notice to defendants Nos. 2 and 3 must fail. Second part of submission of Mr. Sanjanwala is that the notice was not properly served to defendant No. 1. In this connection reference is made to various documents placed on record of this case. The relevant documents are at Exhs. 41 to 53. One of the covers containing the notice appears to have been refused and it therefore it has been argued that refusal would not amount to sufficient proof of service of notice. There is no force in this argument even on making a reference to a decision of the Honble Supreme Court on which Mr. Sanjanwala has placed reliance. It is in the case of M/s Madan and Co. v. Wazir Jaivir Chand reported in AIR 1989 SC 630 . Sections 11 and 12 of J and K Houses and Shops Rent Control Act (34 of 1966) were under consideration by the Apex Court in that case. The provisions relate to service of notice in case of demand of possession on the ground of arrears of rent and mesne profits. The proviso to Clause (e) of Section 11 (1) woud read as under: provided that no such amount shall be deemed to be in arrears unless the landlord on the rent becoming due serves a notice in writing through post office under a registered cover on the tenant to pay or deposit the arrears within a period of 15 days from the date of the receipt of such notice and the tenant fails to pay or deposit the said arrears within the specified period. The Supreme Court held as under: 9 We are quite conscious that the provision in regard to the notice contemplated by the statute is unsatisfactory- and hope that the Legislature would soon set it right. But on the provision as it stands we cannot but hold that a landlord must be held to have complied with the statutory requirement by sending a notice correctly addressed to the tenant by registered post. Also in the present case we are satisfied as indeed the Lower Courts were - that the landlord did his best to bring the notice to the knowledge of the tenant. He cannot be expected to do any more. Also in the present case we are satisfied as indeed the Lower Courts were - that the landlord did his best to bring the notice to the knowledge of the tenant. He cannot be expected to do any more. His petition for eviction cannot be dismissed on this score. Therefore the pronouncement of the Supreme Court in M/s Madan and Co. (supra) clearly runs counter to the submissions made by Mr. Sanjanwala. ( 5 ) ). Second point canvassed by Mr. Sanjanwala is that the Courts below have erred in holding that Section 12 (3) (a) of the Rent Act would be applicable inas- much as by virtue of the provisions contained in Education Cess Act the part of the rent would not be payable every month since the tenant would be liable to pay the education cess. Mr. Sanjanwala placed reliance upon a decision of this Court in the case of Dayalal Gangaram v. Bhimani Bhupatrai Chunilal and Anr. reported in 18 (1977) G. L. R. 349. After considering the provision contained in Section 19 read with Section 21 of the Gujarat Education Cess Act 1962 it was held that even in the absence of the contract between landlord and tenant as regards payment of education cess the education cess would form part of rent payable by the tenant to the landlord so as to enable the Court to decide under Section 12 (3) (a) of the Rent Act that the said rent was not payable by the month and therefore in the facts of the case before the Division Bench Section 12 (31 (a) of the Rent Act would not be attracted and in case there fell into any other case under Section 12 (3) (b) of the Rent Act. It is no doubt true that education cess will form part of the rent but there should first be a plea raised in that connection. It is not merely a question of law for the simple reason that the very provision contained in Section 19 of the Gujarat Education Cess Act confers right upon the landlord to recover half of the education cess paid by him in absence of an agreement to the effect that the landlord was alone to bear this tax. It is not merely a question of law for the simple reason that the very provision contained in Section 19 of the Gujarat Education Cess Act confers right upon the landlord to recover half of the education cess paid by him in absence of an agreement to the effect that the landlord was alone to bear this tax. It is in this arena that in my opinion the law stands clarified by a later Division Bench of this Court in the case of Bhikhabhai Bhovan v. Noormamad reported in 19 (1978) G. L. R. 249. For that purpose what is observed in para 8 may be reproduced: what is essential in such cases is that the landlord who goes to a court of law with a prayer only for rent claiming it to be payable every month immediately makes a statement that the only liability of the tenant is to pay the rent as demanded by the landlord. The fact that he does not demand any education cess in his notice preceding the suit and in his plaint would be prima facie evidence of the lack of tenants liability to pay the education cess to his landlord who is entitled to recover it only when he happens to pay the same to the local authority. If such an implied assertion of the landlord arising out of the to non-mention of such a claim is controverted by the tenant it is for him to raise the question so as to give a proper opportunity to the landlord to meet that case. This is a clear case where admittedly the plaintiffs have not made any demand of education cess at any stage. There is no whisper of such an allegation appearing in either of the pleadings. In that view of the matter the decision in the case of Dayalal Gangaram (supra) would not be of any assistance to the petitioners-defendants. A reference has been made by Mr. Sanjanwala to a decision of this Court in the case of Trikambhai M. Shah v. Musamiya reported in 33 (2) 1992 (2) G. L. R. at page 1014. Even this decision making a reference about the liability to pay education cess will not help the cause of the petitioners-defendants. Ms. A reference has been made by Mr. Sanjanwala to a decision of this Court in the case of Trikambhai M. Shah v. Musamiya reported in 33 (2) 1992 (2) G. L. R. at page 1014. Even this decision making a reference about the liability to pay education cess will not help the cause of the petitioners-defendants. Ms. Bella Yagnik rightly pointed out the distinction while referring to the following observations: so far as the present case is concerned apart from the fact that there was a continuous dispute with regard to permitted increase in the appeal itself and that admittedly the defendant was liable to pay education cess the defendant-tenant made only lapse of tendering or depositing the amount of rent for a period after filing of appearance in the appeal upto June 13 1978 therefore in Trikambhai M. Shah (supra) the facts with regard to tenants liability of education cess was an admitted fact and that is how the said decision is distinguished on the facts of the present case as stated above. ( 6 ) ). No other point has been urged on behalf of the petitioners. ( 7 ) ). With regard to granting of time to vacate the suit premises the facts of the present case particularly with regard to hiring of suit premises by defendant No. 1 for use and occupation by defendants Nos. 2 and 3 sometime to vacate the suit premises must be granted. It would be therefore just and proper to grant time to vacate the suit premises upto 30-9-1995 on usual terms. ( 8 ) ). In the result this petition deserves to be dismissed. However the petitioners-defendants are granted time to vacate the suit premises upto 30 on usual terms. ( 9 ) ). Subject to this rider rule is discharged with no order as to cost. .