Judgment Heard. Rule. Rule returnable forthwith. By consent of parties, matter is finally heard at admission stage. The landlord is before this Court questioning the findings recorded by the learned District Judge-5, Nagpur in Regular Civil Appeal No.526/2006 whereby the learned Judge has set aside the decree dated 30-9-2006 of learned 2nd Additional Small Causes Court, Nagpur in R.C.S. No.100/2002. The landlord initiated the proceedings against the respondent-tenant on the grounds- (a) Change of business from the purpose for which it was let out; (b) Sub-letting of the premises; (c) Guilty of conduct which is a nuisance or annoyance to the adjoining or neighbouring occupier; (d) Arrears of rent; and (e) Not using the suit premises continuously for period of 6 months. 2. The learned counsel for the landlord and for tenant-respondent dwell upon two points, which ultimately germane after the judgment of the District Judge. The two points are - (1) Whether in the circumstances it is proved that the conduct of the respondent-tenant is a nuisance or annoyance to the adjoining or neighbouring occupier in terms of section 16(c) of the Maharashtra Rent Control Act, 1999; and (2) Whether the tenant was in arrears of the rent, giving scope in terms of section 15(2) and (3) of the said Act? 3. Learned counsel for the landlord-appellant read notice (Exh.63) which is nucleus in the matter to commence the eviction proceedings. Likewise, the learned counsel for the respondent dealt with the same to suit his way of submissions. The extracts of the notice relevant for the purpose of this case are illustrated as under - "6) THAT, you are also irregular in the payment of rent to my client. You do not pay the rent to my client in spite of repeated demands and requests made by my client to you so as to cause wrongful loss to him and wrongful gain to yourself. To recover the rent from you, my client had to file a Distress Warrant Application No.83/99 wherein rent for the period 25-8-1998 to 24-2-1999 was recovered. Thereafter my client had filed another DW Application No.150/2000 wherein rent was recovered from you from the period 25-10-1999 to 24-6-2000. Even you have paid the rent in the Court in lots of installments causing great trouble and harassment to my client. Thereafter my client had filed another DW Application No.150/2000 wherein rent was recovered from you from the period 25-10-1999 to 24-6-2000. Even you have paid the rent in the Court in lots of installments causing great trouble and harassment to my client. My client is therefore entitled to terminate your tenancy on account of non-payment of rental amount on time. After 25-6-2000 you have not paid the rent to my client in spite of repeated demands and earlier notice dated 11-1-2001. You have thus to pay the arrears of rent to my client as and from 25-6-2000 to 24-4-2001 i.e. for 10 months which at the rate of Rs.1,100/- per month comes to Rs. 11,000%." "By this notice, I do hereby called upon you the notice to immediately pay the arrears of rent amounting to Rs. 11,000% being the rent of 10 months from 25-6-2000 to 24-4-2001 within a period of fifteen days of the receipt hereof, failing which my client shall file distress warrant proceeding against you at your costs and consequences, which please note. Further my client also gets entitled to terminate your tenancy on this ground of non-payment of rent on time. My client accordingly terminates your tenancy on this ground also." "7) THAT, since past 8 months you and your subtenant have left the tenanted premises and have stopped the use and occupation of the tenanted premises for more than six months. During this time till today, you have not even visited the tenanted premises even once. Thus the premises have not been used by you without any reasonable cause for the purpose for which it was let for a continuous period of six months. It shows that you do not need the tenanted premises and have kept the same locked so as to cause harassment to my client. My client accordingly terminates your tenancy on this ground also." "Since you have breached the terms of agreement, my client does hereby terminate your tenancy over the said shop premises and you are hereby called upon to vacate the tenanted premises by 25-7-2001, failing which your occupation over the said shop would be treated as a trespasser, and my client shall be compelled to file appropriate proceedings against you for the recovery of possession of premises, damages, wrongful occupation charges entirety at your costs and consequences, which please note." 4. Learned counsel for the landlord submits that by virtue of provisions of section 15(2) and 15(3) of the Act, the notice at Exh.63 referred above is in tune and order. This has been disputed, as stated earlier, by the learned counsel for the respondent-tenant. 5. To assess the correct legal position, section 15 of the Maharashtra Rent Control Act, 1999 as a whole is reproduced - "Section 15. No ejectment ordinarily to be made if tenant pays or is ready and willing to pay standard rent and permitted increases. - (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, insofar as they are consistent with the provisions of this Act. (2) No suit for recovery of possession shall be instituted by a landlord against the tenant on the ground of non-payment of the standard rent or permitted increases due until the expiration of ninety days next after notice in writing of the demand, of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the Transfer of Property Act, 1882 (IV of 1882). (3) No decree for eviction shall be passed by the Court in any suit for recovery of possession on the ground of arrears of standard rent and permitted increases if, within a period of ninety days from the date of service of the summons of the suit, the tenant pays or tenders in Court the standard rent and permitted increases then due together with simple interest on the amount of arrears at fifteen per cent, per annum; and thereafter continues to pay or tenders in Court regularly such standard 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 suit, the Court may, out of any amount paid or tendered by the tenant, pay to the landlord such amount towards the payment of rent or permitted increases due to him as the Court thinks fit." The emphasis from the learned counsel for the landlord is to the terminology used in section 15(2) "No suit for recovery of possession shall be instituted by landlord ............ until the expiration of 90 days next after notice in writing of the demand...." The learned counsel submits that section 15(2) does not indicate any period to be specified in the notice for compliance. He also urged if effect of section 106 of Transfer of Property Act, 1882 is to be given, there must be a recital in the notice of demand `within a period of demand of 15 days from such demand'. 6. Learned counsel for the tenant, in order to establish that the notice of demand was not in consonance to the statutory provisions, took recourse to the judgment of this Court in the matter of Natwarlal Gokuldas Shah since deceased by his LRs. vs. Khanderao Balwant Lokhande since deceased by his LRs. and others, reported in 2003 (5) Mh.L.J. 184 . The learned Single Judge, observed in paragraphs 6 and 7 as under : "6. The law mandates that, prior to institution of suit, demand notice as required by the said provision has been duly served upon the tenant in accordance with requirement stated therein. The landlord is not only expected to plead that requirement has been fulfilled but is also obliged to prove the same. This is essential at least when the tenant in his written statement has disputed the factum of service of demand notice on him. Indeed the Courts would examine the issue only in the context of foundation laid during the trial in the pleadings and evidence which has been adduced by the parties. In the present case there is absolutely no evidence much less proof to establish the fact of service of purported notice on the tenant. If that be so, any other argument would be of no avail to the plaintiff as by virtue of mandate of sub-section (2), no suit for recovery of possession can be maintained in law. Viewed in this perspective, it was wholly unnecessary for the Court below to dwell upon other matters." "7. If that be so, any other argument would be of no avail to the plaintiff as by virtue of mandate of sub-section (2), no suit for recovery of possession can be maintained in law. Viewed in this perspective, it was wholly unnecessary for the Court below to dwell upon other matters." "7. Assuming that the landlord was justified in contending that the reply sent on his behalf on 16-12-1976 (Exh.21) was in the nature of demand notice, but it is seen from the materials on record that the said reply has been addressed to the Advocate and not to the tenant himself. Sub-section (2) of section 12 requires that demand notice has to be served on the tenant in the manner provided under section 106 of Transfer of Property Act. In such a situation, it was obligatory on the plaintiff to then establish the fact that the Advocate to whom the notice was allegedly sent and was intended to be served on the tenant was duly authorized to receive such a notice. As observed earlier there is absolutely no evidence whatsoever regarding the demand made muchless the manner or mode of service of purported notice. Even for this reason the reply notice (Exh.21) sent by landlord cannot be said to have been duly served on the tenant within meaning of section 106 of Transfer of Property Act read with section 12(2) of Bombay Rent Act. In this view of the matter it will not be necessary to examine any other aspect of the case because the suit as filed by the landlord was not maintainable and could not be proceeded by virtue of bar under section 12(2) of the Act." In the said case, as could be seen, there was no notice issued by the landlord making demand in terms of section 12(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The explanation given by the learned Single Judge in paragraph 8, even if read, as sought to be benefited by the learned counsel for the respondent, will not be coming to his rescue. The necessary portion in paragraph 8 reads as under - "It is well settled that section 12(2) of the Act requires the landlord to serve the demand notice on the tenant. That notice is required to be in writing of the demand of standard rent or permitted increases. The necessary portion in paragraph 8 reads as under - "It is well settled that section 12(2) of the Act requires the landlord to serve the demand notice on the tenant. That notice is required to be in writing of the demand of standard rent or permitted increases. The prerequisite of such notice is that the landlord makes a demand and calls upon the tenant to pay within the statutory period and puts him to further notice that if he fails to do so then, it would result in action of eviction in accordance with law. It that is lacking in the communication sent by the landlord then it is not possible to hold that it was valid demand notice within meaning of section 12(2) of the Act. Besides making that demand, the law also obligates the landlord to serve such notice on the tenant in terms of section 106 of Transfer of Property Act to determine the tenancy before proceeding to seeking eviction of the tenant ..... " "Instead of taking recourse to that measure the landlord has proceeded to institute the present suit without issuing such demand notice. To my mind, on reading this reply one is bound to be mislead and would expect that the landlord will send a proper demand notice within the meaning of section 12(2) of the act to take the matter to its logical end. Understood thus, by no stretch of imagination such communication can be said to be a demand notice, much less a valid demand notice, as is contended on behalf of the landlord." 7. The legal position is explained in the matter of Jaywant S. Kulkarni and others vs. Minochar Dosabhai Shroff and others, reported in AIR 1988 SC 1817 while dealing with the provisions of section 12(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 referred above. The Apex Court in paragraphs 3, 4 and 6 took recourse to judgment in case of Harbanslal Jagmohandas vs. Prabhudas Shivlal, (1976) 3 SCR 628 = 1976 Mh.L.J. 419 (SC) = AIR 1976 SC 2005 and also to the judgment of Gujarat High Court. The Apex Court found that tenant had neglected to make payment until the expiration of the period of one month after notice referred in sub-section (2). The Court was bound to pass a decree for eviction in such event for recovery of possession. 8. The Apex Court found that tenant had neglected to make payment until the expiration of the period of one month after notice referred in sub-section (2). The Court was bound to pass a decree for eviction in such event for recovery of possession. 8. In order to bring the legal position on record the provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 vis-a-vis provisions of section 15 of the Maharashtra Rent Control Act, 1999 are to be considered. Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 is reproduced in entirety - "12. No ejectment ordinarily to be made if tenant pays or is ready and wiling to pay standard rent and permitted increases. - (1) A landlord shall not be entitled to the recovery of possession of any premised 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 he tenancy, insofar 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 upon the tenant in the manner provided in section 106 of the Transfer of Property Act, 1882. (3) ......... (4) ......... Explanation I. ........ Explanation II. ........ Explanation III ........" Thus barring the words "one month" section 12(2) is identical to section 15(2) which incorporates 90 days if it is after the notice in writing of demand. 9. The learned counsel for the landlord placed reliance upon the judgment of Division Bench of Gujarat High Court reported in 1980 (2) All India Rent Control Journal 525, Sakerlal Nathubhai and others vs. Chhotubhai Navalbhai. A question was formulated for the reference before the Division Bench and it is answered after taking recourse to the legal position. 9. The learned counsel for the landlord placed reliance upon the judgment of Division Bench of Gujarat High Court reported in 1980 (2) All India Rent Control Journal 525, Sakerlal Nathubhai and others vs. Chhotubhai Navalbhai. A question was formulated for the reference before the Division Bench and it is answered after taking recourse to the legal position. The Division Bench observed : "It is difficult for us to agree with the learned Advocates for the tenants that sub-section (2) or subsection (3) of section 12 clearly implies that notice making demand of the rent in arrears must give time to the tenant of one month, and if a notice demanding to arrears of rent is for a shorter period, the notice will be held to be bad in law. This is really, in our opinion, an ingenious contention with which we cannot agree. The protection which a tenant enjoys under the statute is in pursuance of and subject to the conditions prescribed in the relevant section itself. It does not depend on necessarily how the demand is made by a landlord. If the landlord chooses to make a demand of the rent in arrears within the stated period, which may be less than the period of 30 days or one month during which a tenant has been. given right under the statute to tender the rent, and to absolve himself of the consequences, which he has incurred by making default in tendering or paying the rent, regularly, the demand of the landlord, in our opinion, would not affect prejudicially the right which a tenant has got under the statute." The observations of the Lordships of the Gujarat High Court when fixed to the facts of the present case and on reading the notice as a whole, no other meaning can be extracted that the landlord intimated the tenant to pay the rent within 15 days and in paragraph 7 he has informed to vacate the premises by 25-7-2001. 10. The learned counsel for the tenant invited my attention to the terminology "within a period of 15 days of receipt hereof, failing which my client shall file distress warrant proceedings against you, which please note". The learned counsel ought to have read the subsequent three lines which conceive "Further my client also gets entitled to terminate your tenancy on this ground of nonpayment. The learned counsel ought to have read the subsequent three lines which conceive "Further my client also gets entitled to terminate your tenancy on this ground of nonpayment. My client accordingly terminates your tenancy on this ground also". Notice in unequivocal terms illustrate to the knowledge of the tenant what was the demand of the landlord, what he contemplates if the notice is not adhered in its letter and spirit. It was an obligation cast on the tenant to make regular remittance of demand month to month and having failed, as could be seen in the notice, for the period from 25-6-2000 to 24-4-2001 i.e. for the period of 10 months; the tenant made landlord to issue the notice of demand warranting him of the consequences. In the matter of Tarunkumar Krishna Chandra Bhattacharaya vs. Ganga wd/o Prabhudas Madnani and another, reported in 2009 (5) Mh.L.J. 544 the learned Single Judge of this Court, observed in paragraph 2 as under: ".....The notice under section 15(2) contemplates only a demand of the standard rent or permitted increases and does not contemplate the termination of tenancy by fifteen days notice. Under the provisions of section 15(2) the notice is, however required to be served upon the tenant in a manner provided under section 106(4) of the amended provisions of the Transfer of Property Act......" This legal position also is applicable with force in present case. 11. During the courseof submissions it was informed, even after the notice the tenant did not comply the requisitions consequently the proceedings under Order XV-A of the Civil Procedure Code was initiated by the landlord, in the said civil suit an application (Annexure D). In spite of service of said notice and specific directions by the Court, the tenant defendant/respondent did not comply. It was subsequent application of plaintiff, for striking of the defence, the tenant got alarm, still failed to comply with the obligation of remittance of amount of Rs. 11,000/-, money order for a sum of Rs. 5,000/- was sent by him. This could not be in compliance of the demand. The money order was not sent within the stipulated period of demand, but it was on 3rd of August, 2001, while the notice was dated 23rd of April, 2001. 11,000/-, money order for a sum of Rs. 5,000/- was sent by him. This could not be in compliance of the demand. The money order was not sent within the stipulated period of demand, but it was on 3rd of August, 2001, while the notice was dated 23rd of April, 2001. The learned Judge of the Small Causes Court has also given referred to past conduct of the tenant when he forced the landlord to initiate an action in terms of distress proceedings. This portrays the attitude of the tenant in remittance of the rent which was an obligation cast on him. 12. The learned Judge, Appellate Court, misconstrued the notice (Exh.63) The learned Judge considered the claim of landlord under section 27-B of Provincial Small Causes Courts Act, 1887 which is obliterating to the fact that the latter part of notice covers what was the intention of issuance of notice and also indicates what the landlord desires for failure to comply the said notice. The learned District Judge did not consider specific pleadings of the landlord in paragraph 9 about the arrears, and there is no denial from the tenant in his written statement. In fact, the tenant did not traverse to paragraph 9 of the plaint. The subsequent casual reference in paragraph 14 of the written statement will not dilute situation. It is pointed out by the landlord that the notice was sent by R.P.A.D., it returned as 'not claimed', it was also sent by U.P.C. which was served. It carries a presumption. A copy thereof was affixed on the conspicuous place of the shop. Nothing more was required to effect the issuance of notice in terms of section 106 of the Transfer of Property Act. There is no denial from defendant to the demand notice. Thus the tenant is proved to be a defaulter in remittance of rent. 13. The other point that has been raised by the landlord is of nuisance. Nothing more was required to effect the issuance of notice in terms of section 106 of the Transfer of Property Act. There is no denial from defendant to the demand notice. Thus the tenant is proved to be a defaulter in remittance of rent. 13. The other point that has been raised by the landlord is of nuisance. Section 16(c) of the Maharashtra Rent Control Act, 1999 incorporates 'nuisance' as under : "(c) that the tenant, his agent, servant, persons inducted by tenant or claiming under the tenant or, any person residing with the tenant has been guilty of conduct which is a nuisance or annoyance to the adjoining or neighbouring occupier, or has been convicted of using the premises or allowing the premises to be used for immoral or illegal purposes or that the tenant has in respect of the premises been convicted of an offence of contravention of any of the provisions of Clause (a) of sub-section (1) of section 394 or of section 394-A of the Mumbai Municipal Corporation Act, 1888 (Bom.III of 1888), or of sub-section (1) or of section 376 or of section 376-A of the Bombay Provincial Municipal Corporations Act, 1949 (Bom. LIX of 1949), or of section 229 of the City of Nagpur Municipal Corporation Act, 1948 (C.P. and Berar II of 1950); or of section 280 or of section 281 of the Maharashtra Municipal Councils, Nagpur Panchayats and Industrial Townships Act, 1965 (Mah.XL of 1965) ". The provisions incorporate that the nuisance should be necessarily to the adjoining dwellers or the neighbours. During the course of submissions, it was informed by the learned counsel for the tenant that the landlord has no such shop abutting the shop of the tenant. The shop of the landlord is away after four shops. in the light of this position failure on the part of landlord to examine the adjoining persons or neighbouring occupier to support his contention; the learned Judge was justified in ignoring such theory of nuisance. It is pertinent, the tenant on the other examined three witnesses who are neighbouring occupier to prove that there was no nuisance or annoyance to them or to any adjoining occupant. The tenant has been carrying business in vending lotteries. It is pertinent, the tenant on the other examined three witnesses who are neighbouring occupier to prove that there was no nuisance or annoyance to them or to any adjoining occupant. The tenant has been carrying business in vending lotteries. It will not amount to change of user from his earlier business activities nor conducting business of lottery will amount to causing a nuisance to the plaintiff as the landlord. On this ground the plaintiff-landlord fails. In the result. civil revision application is allowed. The judgment and decree of the learned District Judge is set aside and the judgment of the learned Civil Judge (Senior Division), Nagpur in R.C.S. No.100/2002 is confirmed. The tenant-respondent to vacate the premises within 6 (six) months from this judgment. No costs.