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2013 DIGILAW 1193 (BOM)

Hemant R. Saple v. Kaloolal Pyarelal Jain

2013-07-02

R.C.CHAVAN

body2013
JUDGMENT 1. This petition questions the order passed by the Appellate Bench of the Court of Small Causes, reversing the decree of ejectment of respondent tenant passed by the learned Judge of the Court of Small Causes, on the ground of default in payment of rent. 2. Respondents were duly served, but have not cared to appear and contest the petition. 3. I have heard learned counsel for the petitioner. 4. The petitioner landlord filed suit for ejectment of the respondent tenant on the ground of arrears of rent, nuisance, annoyance and waste. The trial Court decreed the suit only on the ground of default in payment of rent in arrears. This decree was reversed by the Appellate Court in the following circumstances. 5. The parties were in correspondence about the rent and this possibly led the respondent tenant to file Application on 16th February, 1976 for fixation of monthly standard rent. The tenant claimed that rent was Rs.16.25 per month while the landlord claimed that rent was Rs.68.04. The learned trial Judge passed exparte interim order on 17th February, 1976 fixing standard rent at the rate of Rs.16.25 per month. Oblivious of this order passed by the Court, the landlord issued Notice dated 10th June, 1976 demanding arrears of rent as Rs.68.25 per month from 1.9.1975 till 31.5.1976. Since this notice was not complied, the landlord filed suit for recovery of possession on the ground of default of payment of rent as also other grounds as already mentioned. 6. The tenant appeared in this suit and contested the suit. After considering the evidence tendered before the learned trial Judge, he held in favour of the landlord on the ground of default in payment of rent and ordered ejectment of the tenant. Aggrieved thereby the tenant took up an appeal. 7. The Appellate Bench of the Court of Small Causes held that the tenant had already applied for fixation of standard rent even before the landlord issued notice of demand. The Court considering standard rent application, had fixed standard rent at the rate of Rs.16.25 per month. The tenant had deposited a sum of Rs.97.50 in that application for fixation of standard rent pursuant to the orders passed by the Court. The Court considering standard rent application, had fixed standard rent at the rate of Rs.16.25 per month. The tenant had deposited a sum of Rs.97.50 in that application for fixation of standard rent pursuant to the orders passed by the Court. Therefore, on the date of issuance of notice, tenant was not in arrears of rent and therefore notice itself could not have been issued as there was no occasion for the landlord to do so. The appellate Bench allowed the appeal and set aside the judgment. 8. A number of judgments were relied on by the Appellate Bench. The learned counsel for the petitioner has drawn my attention to those judgments. The earliest case in which sd/this Court had occasion to consider this question was Karamsey Kanji -vs- Velji Virji, reported in LVI 56 B.L.R. In that case, the tenant had applied for fixation of standard rent in March, 1949. The application was dismissed holding that Rs.28 was proper rent. An appeal was filed before the District Court which held that the standard rent was Rs.23.12.0. The landlord filed suit for ejectment of the tenant on the ground of arrears of rent from January 1, 1951 to December 31, 1951. The appeal in the application for fixation of standard rent had been decided on 17th April, 1951. In the suit for ejectment, the trial Court held in favour of landlord. The appellant Court came to the conclusion that the order of fixation of standard rent was retrospective in character and therefore, the landlord was not entitled to recover amount in excess of standard rent even for the period from December, 1950 to March, 1951. In this context after considering relevant provisions the Court observed as under, - “Now, the difficulty that Mr. Kapadia feels – and that is a difficulty undoubtedly of some substance is that under S. 11(3), looking to the language of that sub-section, the right of the Court to fix an interim rent only arises when a notice has been given by the landlord under S.12(2) and an application for fixing the standard rent is made by the tenant subsequent to the giving of the notice by the landlord. Therefore, it is urged that it would be difficult to apply sub-s.(3) to a case where the tenant has applied for fixing the standard rent before any notice has been given by the landlord. Therefore, it is urged that it would be difficult to apply sub-s.(3) to a case where the tenant has applied for fixing the standard rent before any notice has been given by the landlord. In my opinion, sub-s. (3) must be construed in the light of the other provisions of the Act. If a tenant applies for fixing of standard rent and stops paying rent, as Mr. Kapadia says he very often does, it is certainly open to the landlord to serve him with a notice under s.12(2). If after the period of one month has elapsed he fails to pay rent, he would be liable to be ejected under s.12(1). It would not be open to him to say that he is ready and willing to pay rent when he has failed to pay rent after the notice given by the landlord under s.12 (2) and after the time mentioned in that sub-section has elapsed. But he can do this. He can go to Court under s.11(3) and ask the Court to fix an interim rent which he would pay in order to avoid the liability of being ejected under s.12(1). Now, when he applies under s.11(3) after notice is given to him, strictly he would have to make an application for fixing the standard rent, but inasmuch as he has already made an application for fixing the standard rent and that application is already on the file of the Small Causes Court, it would be futile for him to make a subsequent application in order to get the benefit of sub-s. (3). Therefore, in my opinion, the Court has jurisdiction to make an order for interim payment of rent where an application for fixing the standard rent is made before or after the notice under s.12(2) is given. The right of the tenant under S.11(3) is only this that in order that he should not be ejected for non payment of rent, he wants to pay rent but he does not want to pay the contractual rent about which he has made a complaint, but he wants to pay rent which is the interim rent fixed by the Small Causes Court. That right is given to the tenant whether he makes an application for fixing the standard rent before the notice under s. 12(2) is served or after it is served. That right is given to the tenant whether he makes an application for fixing the standard rent before the notice under s. 12(2) is served or after it is served. The fact which is relevant and material is the giving of the notice by the landlord under s.12(2). As soon as that notice is given and the time mentioned in that sub-section elapses. The tenant is liable to be ejected if he does not pay rent. If he does not get an order for interim payment under s.11(3), he must pay the contractual rent, but in order to safeguard his own interest he can make an application s.11(3) and get a lesser rent fixed by the Small Causes Court. In my opinion it is absurd to suggest that merely because a tenant has made an application for fixing the standard rent, he is relieved from the obligation to pay rent, and even though the landlord gives him a notice under s.12(2) he can continue not to pay rent and not be liable to be ejected under s.12(1). Therefore, while upholding the view taken by the appellate Court with regard to the practice prevalent in the Small Causes Court, I have construed s.11(3) in a manner which will not make it difficult for the landlord to recover rent from his tenant in cases where the tenant has applied for fixation of standard rent.” 9. The judgment of Supreme Court in Shah Dhansukhlal Chhaganlal v. Dalichand Virchand Shroff, reported in AIR 1968 SC 1109 , on which reliance was placed may not be helpful for resolving the controversy. 10. In Sd. Umar Sd. Ahmed -vs- Dadamiya Husenbhai and ors, reported in AIR 1976 BOMBAY 336, the learned Single Judge of this Court, had followed the judgment in Karamsey Kanji v. Velji Virji reported in 56 Bom LR 619. The Court held that if the tenant had already made an application for fixing of standard rent under Section 11 of the act, in order to have protection of section 12(3) of the Rent Act, it was redundant on the part of opponent to make fresh application. 11. In Shri. Egbert D'Souza -vs- Smt. Vencilla J. Miranda reported in 1998 Bom R.C. 40, a learned Single Judge of this Court without noticing the judgments in Karamsey Kanji v. Velji Virji (supra) and Sd. Umar Sd. 11. In Shri. Egbert D'Souza -vs- Smt. Vencilla J. Miranda reported in 1998 Bom R.C. 40, a learned Single Judge of this Court without noticing the judgments in Karamsey Kanji v. Velji Virji (supra) and Sd. Umar Sd. Ahmed -vs- Dadamiya Husenbhai and ors (supra), has held that the fact that there was already application made for fixing standard rent on the date on which demand notice was issued is irrelevant to find out whether the tenant was ready and willing to pay the rent or not. The earlier view would obviously prevail. 12. The view which has been taken in Sd. Umar Sd Ahmed -vs- Dadamiya Husenbhai and ors (supra), would clothe the tenant with protection if he had filed application for fixation of standard rent under Section 11 of the Act even prior to receipt of notice of demand for rent in arrears. Thus fictionally, the application would be taken to be one filed by tenant who had received notice from the landlord under sub section (2) of section 12 of the Rent Act. Therefore, to that extent the Appellate Bench of Court of Small causes was undoubtedly right. 13. However, what is required for availing of protection under Section 12(3) of the Bombay Rent Act is to continue to pay and tender rent regularly till the suit is finally decided. In this case the learned counsel for the petitioner points out Standard Rent Application filed by the tenant itself was dismissed in default on 14.6.1977 and was restored by order dated 17.6.1978 on the condition that the tenant should deposit arrears of rent at the rate of Rs.16.25 per month amounting to Rs.468/-. Since the tenant did not pay this amount, on 5.7.1978, application again stood dismissed. The tenant again sought restoration which was granted on the condition that the tenant shall deposit arrears of rent of Rs.468/-. On 4.12.1979, interim standard rent was fixed at Rs.55/- per month. The tenant did not pay this amount and took out Notice for condonation of delay in deposing rent. This application was rejected and eventually standard rent application came to be dismissed because of failure of the tenant to comply with the orders of the Court. 14. On 4.12.1979, interim standard rent was fixed at Rs.55/- per month. The tenant did not pay this amount and took out Notice for condonation of delay in deposing rent. This application was rejected and eventually standard rent application came to be dismissed because of failure of the tenant to comply with the orders of the Court. 14. Thus, as the tenant had not complied with the interim order of continuing to deposit rent pursuant to the orders passed in the Standard Rent Application, he did not have the protection of section 12 of the Bombay Rent Act. The learned counsel for the petitioner, therefore, submits that in view of the judgment of Supreme Court in Vora Abbasbhai Alimahomed -vs- Haji Gulamnabi Haji Safibhai reported in AIR 1964 SC 1341 , the Court had no option but to pass decree for ejectment. 15. The conclusions drawn by the Appellate Bench of the Court, that the tenant, having filed application for fixation of standard rent even before the notice of demand was made, and having obtained an order fixing standard rent, could not be said to have been in arrears of rent, cannot be upheld because subsequently the trial Court in the same application for fixation of standard rent had fixed amount of Rs.68.40 and for some time at Rs.55/- which tenant did not pay. It should not have been overlooked by the Appellate Bench that the tenant's application for fixing the standard rent prior to the service of notice of demand was fictionally to be taken as application filed after receipt of notice of demand, and therefore, the tenant had not complied with the orders, requiring him to pay rent in arrears, it could not be said that the notice itself was premature or suit was filed without there being any cause of action. This is apart from the tenant incurred ejectment because he failed to continue to deposit rent as fixed by the trial Court in the application for fixing of standard rent which the tenant had filed. 16. There is one more ground on which the appellate bench has set aside the judgment of the trial Court namely that the notice of demand was itself not served. Notice was sent by “Registered Post”. It was also posted Under Certificate of posting and also was sought to be served by “personal delivery”. 16. There is one more ground on which the appellate bench has set aside the judgment of the trial Court namely that the notice of demand was itself not served. Notice was sent by “Registered Post”. It was also posted Under Certificate of posting and also was sought to be served by “personal delivery”. The notice seems to have been also pasted on the door of the premises. The learned trial Judge had held that the notice was duly served invoking presumption under Section 114 (a) and (f) of the Evidence Act as well as section 27 of the General Clauses Act. The Appellate Bench noted that the tenant had not uttered even a word in examination-in-chief that he had gone to his native place at the relevant time, but observed that in cross examination he denied the suggestion that the notice was validly served upon him adding that he was at his native place in the month of May and June. The Appellate bench held that “the fact of the matter, therefore, is that in cross examination the tenant establishes that he was at his native place when the notice is supposed to have been served upon him” This conclusion was thoroughly unwarranted because it was not that in the cross examination any suggestion was put to the witness that the witness was not at his native place. It was in fact suggested that the notice was duly served upon him. Therefore, the overzealous cross examination on behalf of the landlord should not have resulted in appellate Court holding that presumption stood rebutted by one stray sentence in the cross examination. The bench having noted that tenant had not even uttered a word in his examination-in-chief about his being away, should have seen that presumption which the trial Court had drawn was perfectly justified. So even on this count, the conclusions drawn by the Appellate Bench cannot be sustained. 17. In view of this the petition is allowed. The impugned order dated 19.9.1994, passed in Appeal No.797 of 1994, is set aside and the judgment and order dated 1.9.1994, passed in R.A.E. & R. Suit No.18/136/1977, is maintained.