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1995 DIGILAW 327 (GUJ)

Hasmukhbhai Shanabhai Patel v. Manjulaben Ambalal Shah

1995-07-18

J.N.BHATT

body1995
ORDER : J.N. Bhatt, J. 1. In this revision under Section 29(2) of the Bombay Rent Act, the petitioners have challenged the legality and validity of the eviction decree recorded in Civil Appeal No. 54/80 on 21.4.82 by the District Court, Baroda. 2. The petitioners are the original defendants-tenants and respondent is the original-plaintiff landlord. The parties are addressed to hereinafter as the plaintiff and defendants for the sake of convenience and brevity. 3. The plaintiff is the owner of residential premises situated in Udyognagar Co-operative Housing Society outside Panigate in the city of Baroda and the defendants are in possession of two rooms and a kitchen on the southern side with a verandah as tenants on a monthly rent of Rs.138/- inclusive of taxes which is hereinafter referred to as the demise premises. The plaintiff filed the suit on three grounds viz. (1) for bonafide and reasonable requirement of self occupation under Section 13(1)(g); (2) on the ground of arrears of rent under Section 12(3)(a); and (3) for nuisance and annoyance to the adjoining or neighbouring occupiers under Section 13(1)(c) of the Bombay Rent Act. The defendants appeared and resisted the suit by filing written statement Ex. 15. The tenants raised various contentions. They, inter alia, contended that the description of the suit premises is not proper. They denied the ground for eviction. According to the contention of the tenants, the agreed rent is not the standard rent and therefore the dispute of standard rent was raised by filing Civil Misc. Application No. 892/75. 4. In the light of the pleadings of the parties, issues were settled at Ex. 16. The Trial Court found that the notice for termination of the tenancy was not legal and valid. Though the Trial Court found that the plaintiffs are entitled to possession on the ground of arrears of rent for a period of more than six months as the tenant was not ready and willing to pay the rent, ejectment decree was refused on the ground that the notice was not legal and valid. The Trial Court held against the landlord under Section 13(1)(g) and 13(1)(c) of the Bombay Rent Act. However, the Trial Court fixed the standard rent at Rs.138/- per month inclusive of taxes. 5. The landlord challenged the judgment and decree of the Trial Court in Civil Appeal No. 54/80 before the District Court at Baroda. The Trial Court held against the landlord under Section 13(1)(g) and 13(1)(c) of the Bombay Rent Act. However, the Trial Court fixed the standard rent at Rs.138/- per month inclusive of taxes. 5. The landlord challenged the judgment and decree of the Trial Court in Civil Appeal No. 54/80 before the District Court at Baroda. On facts and circumstances and considering the evidence on record, the Appellate Court allowed the appeal and passed the decree for possession against the tenants on the ground of Section 12(3)(b) of the Bombay Rent Act. The Appellate Court found that the notice was legal and valid and the tenants liable for ejectment on the ground of non-payment of rent. It was also held by the Appellate Court that the tenants are not entitled to claim the protection of Section 12(3) of the Bombay Rent Act. The standard rent fixed by the Trial Court was upheld. The appellate court also found that the landlord is not entitled to eviction decree under Section 13(1)(g) of the Bombay Rent Act. Being aggrieved by the passing of eviction decree on the ground of non-payment of rent under Section 12(3)(b) of the Bombay Rent Act, the original defendants have filed this revision under section 29(2) of the Bombay Rent Act. 6. The revisional powers under Section 29(2) of the Bombay Rent Act are very much circumscribed. Under Section 29(2) although the High Court has wider jurisdiction, than the one under Section 115 of the Code of Civil Procedure, its revisional powers can only be exercised for a limited purpose with a view to satisfying itself that the impugned decision is according to law or not. This proposition is very well established in Bhai Chand Ratanshi v. Laxmishankar Tribhavan, AIR 1981 Supreme Court 1690. It may also be mentioned when two views are possible, it is not permissible in a revision under Section 29(2) of the Bombay Rent Act to substitute the view of the High Court in place of the view of the Trial Court or the Appellate Court. The Apex Court in Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri reported in AIR 1987 Supreme Court 1782 has held that if the view taken by the Trial Court in the impugned order or decree is possible, then it is not permissible for the High Court to take a different view and substitute its finding on facts. 7. The Apex Court in Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri reported in AIR 1987 Supreme Court 1782 has held that if the view taken by the Trial Court in the impugned order or decree is possible, then it is not permissible for the High Court to take a different view and substitute its finding on facts. 7. The appellate Court has recorded eviction decree against the petitioner's original defendants-tenants on the ground of non-payment of rent for more than six months under Section 12(3)(b) of the Bombay Rent Act. The finding of the Appellate Court is not shown to be perverse or illegal. The view taken by the appellate Court is quite reasonable and justified. Therefore, there is no fit case for interference. 8. The contention is raised that the Appellate Court has committed illegality in not considering the fact that the cheques for payment of rent were sent by the tenant. This submission is also not sustainable in light of the facts of the case. 9. Suit notice, is at Ex. 31. It is dated 9.4.75. The demand for arrears of rent at the rate of Rs. 135 per month for six months was made by the notice under Section 12(2). Before the notice at Ex. 31, the landlord has sent notice for payment of rent dated 14.2.75 which is produced, at Ex. 30. The reply to the notice Ex. 31 is produced at Ex. 25. The tenants had sent the cheques, viz. cheque for Rs.276/- dated 30.1.75 covering rent for two months at the rate of Rs.138/- per month; cheque for Rs.276/- dated 31st March, 1975 covering rent for two months; and a cheque for Rs.138/- dated 30.4.75 covering rent of one month. When the notice under Section 12(2) demanding rent of three months was sent, there was no full tender of rent. Again when notice Ex. 31 under Section 12(2) was sent, there was no tender of full amount as demanded. Rent was due from October 1974 up-to March 1975 when the notice Ex. 31 was sent to the tenant. There is no dispute about the fact that notice Ex. 31 was received by the tenant and the reply was given which is produced at Ex. 25. Three cheques were sent along with reply to the notice Ex. 25. Rent was due from October 1974 up-to March 1975 when the notice Ex. 31 was sent to the tenant. There is no dispute about the fact that notice Ex. 31 was received by the tenant and the reply was given which is produced at Ex. 25. Three cheques were sent along with reply to the notice Ex. 25. The total amount of cheques as aforesaid comes to Rs.690/- which covers the rent for a period of five months only at the rate of Rs.138/- whereas the rent was in arrears of Rs.966/-. The rent was due to seven months at the rate of Rs.138/-. Thus the total rent due was Rs.966/- out of which an amount of Rs.690/- came to be tendered by the tenant by sending three cheques. Thus, there was not full payment even as per the demand made in the notice earlier. Demand, in second notice under Section 12(2) was for rent of six months. The demand of rent in notice under Section 12(2) was for an amount of Rs.828/- being the rent of six months at the rate of Rs.138/- per month. As against the demand of arrears of rent of six months, the tenant had sent three cheques total amount whereof comes to Rs.690/-. Thus there was short payment of one month's rent and as a result, the plaintiff had returned the cheques. 10. It can very well be seen from the aforesaid facts and circumstances and the evidence on record that all the material condition attracting the rigours of the provisions of Section 12(3)(a) of the Bombay Rent Act, except the one that rent was payable by month, were satisfied. But for the fact of demand of taxes, the case would have been governed by the provisions of Section 12(3)(a). Since rent was not payable by month and the demand of taxes was made, the case will not be governed by the provisions of Section 12(3)(a), but the provisions of Section 12(3)(b) would be attracted. 11. But for the fact of demand of taxes, the case would have been governed by the provisions of Section 12(3)(a). Since rent was not payable by month and the demand of taxes was made, the case will not be governed by the provisions of Section 12(3)(a), but the provisions of Section 12(3)(b) would be attracted. 11. Section 12(3)(b) as it then stood will apply to the cases as follows: (1) Where the rent is not payable by month; or (2) Where the arrears of rent is for less than six months; or (3) Where a dispute about the standard rent or permitted increases is raised by application within one month after the receipt of the notice of demand under Section 12(2); or (4) Where there is a dispute between the parties regarding arrears of rent and/or dispute about the deductions from rent. In the present case, the rent was not payable by month as the amount of tax was demanded by the landlord. Therefore, the provisions of Section 12(3)(b) are attracted. In view of the aforesaid facts and circumstances emerging from the record of the present case, the appellate Court has rightly held that the tenants are liable to and the landlord is entitled to eviction decree under Section 12(3)(b) of the Bombay Rent Act. The finding of fact recorded by the appellate Court is justified. It is therefore required to be confirmed by dismissing this revision which is meritless. 12. It is contended on behalf of the petitioners original defendants tenants that two years time may be given for the purpose of vacating the premises. This submission is opposed on behalf of the respondent-plaintiff landlord. Considering the facts and circumstances, time is granted for vacating the premises up to 30th June, 1996. In other words, the landlord shall not be entitled to execute the decree for possession till then. Time for vacating the premises is granted on the usual terms and conditions to be incorporated in an undertaking to be filed in this Court on or before 28th August, 1995. The undertaking shall be filed by all the petitioners. In other words, the landlord shall not be entitled to execute the decree for possession till then. Time for vacating the premises is granted on the usual terms and conditions to be incorporated in an undertaking to be filed in this Court on or before 28th August, 1995. The undertaking shall be filed by all the petitioners. The undertaking to be filed by the petitioners shall include that they shall not sublet, transfer or assign or part with their interest in the demise premises in any manner whatsoever till 30th June, 1996 and that they shall hand over vacant and peaceful possession to the respondent original plaintiff landlord. It shall include the averment that the arrears of rent shall be paid within four weeks and thereafter they shall pay or deposit the mesne profit regularly till 30th June, 1996. 13. In view of the aforesaid facts and circumstances, the present revision is dismissed with no order as to costs. Rule discharged. Revision dismissed.