Shri Egbert D''Souza vs Smt. Vencilla J. Miranda

D.K. Deshmukh, J.—By this petition, the petitioner challenges the order dated 15.12.1983 passed by a Division Bench of the Small Causes Court at Bombay in Appeal No. 659 of 1981. That appeal was filed by the petitioner challenging the judgment and decree passed by the Judge, Small Causes Court at Bombay, dated 3.10.1981 in R.A.E. & R. Suit No. 2168/7545 of 1974. That civil suit was filed by the present respondent claiming therein that she is owner of the premises being Flat No. 5, 1st floor, Silver Sands, Plot No. 50, Lourdes Colony, Orlem, Malad, Bombay, and the petitioner is the tenant. The landlady sought a decree of eviction against the tenant - petitioner on the ground that the tenant has committed default in payment of rent. She contended that a notice dated 22.5.1974 was issued to the petitioner-tenant demanding rent for the period from 1.6.1973 to 30.4.1974. She contended that after due receipt of the notice, the tenant did not dispute his liability to make the payment of rent and also did not make an application contemplated by the provisions of Sub-section (3) of Section 11 of the Bombay Rent Act within a period of one month and therefore she was entitled to a decree of eviction against the tenant u/s 12(3)(a) of the Act. The trial court, after appreciating the material on record, decreed the suit in favour of the landlady. In the appeal carried by the tenant against the decree passed by the trial court, the appellate court confirmed the finding recorded by the trial court and dismissed the appeal. It is these two judgments of the courts below which are challenged in the present petition .

The learned Counsel appearing for the petitioner urged before me that the petitioner-tenant had, in the month of July, 1973, filed an application before the court for fixation of standard rent. He urged that when the notice was issued by the landlady on 22.5.1974 demanding arrears of rent, the application for fixation of standard rent was already pending. In the submission of the learned Counsel, though that application was withdrawn on 6.12.1974, before the landlady filed the civil suit on 13.12.1974, a decree u/s 12(3)(a) of the Act cannot be passed against the petitioner. He urged that once he makes an application for fixation of standard rent, after receipt of the notice he could not have made another application for fixation of standard rent and therefore the decree passed against him is vitiated. The learned Counsel relied on the judgment of the Supreme Court in the case of Ibrahim Abdulrahim Shaikh (dead) by L.Rs. Vs. Krishnamorari Sripatlal Agarwal (dead) by L.Rs., and contended that there is no limitation prescribed for making an application under Sub-section (3) of Section 11 of the Act. The learned Counsel further urged that in the notice of demand, apart from claiming the arrears of monthly rent, the landlady had also claimed the amount of permitted increases. In the submission of the learned Counsel, the amount of permitted increases is not payable by the month but is to he paid by the year and therefore, relying on the judgment of the Gujarat High Court in the case of Vanlila Vadilal Shah Vs. Mahendrakumar J. Shah and Another, the learned Counsel urged that the notice of demand itself was vitiated.

The learned Counsel for the respondent urged before me that to enable a decree of eviction being passed against a tenant u/s 12(3)(a) of the Act, three things have to be established : (i) that the rent of the suit premises is payable by the month; (ii) that there is no dispute regarding the amount of standard rent or permitted increases; and (iii) that the tenant has neglected lo make payment of the arrears of rent for a period of more than 6 months within a period of one month of the receipt of the notice issued under Sub-section (2) of Section 12 of the Act. In the submission of the learned Counsel, there was no dispute raised by the tenant that the rent of the suit premises is payable by the month. He further urged that it is also an admitted position that on the date on which the court passed the decree, there was no dispute pending about the amount of standard rent or permitted increases. He contended that it is an admitted position that after receipt of the demand notice issued under Sub-section (2) of Section 12, the tenant has not made the payment of the arrears of rent demanded by the notice. In the submission of the learned Counsel, therefore, in the present case, the landlady has satisfied all the three mandatory requirements of Sub-section (3) of Section 12 and therefore the courts below were perfectly justified in passing the decree of eviction in favour of the landlady. The learned Counsel, relying on a Division Bench judgment of this Court in the case of Jaypal Bandu Adke and Another Vs. Basavali Gurulingappa and Another, urged that in order that a tenant can avoid a decree u/s 12(3)(a) of Act, he must raise a dispute by making an application u/s 11(3) of the Act within one month of the receipt of the notice issued u/s 12(2) of the Act. He urged that there is some dispute pending between a landlord and a tenant about the amount of standard rent does not disentitle the landlord from issuing a notice under Sub-section (2) of Section 12 of the Act. In the submission of the learned Counsel, existence of a dispute contemplated by Sub-Section 3(a) of Section 12 of the Act is relatable to Explanation I appearing below Section 12 and Sub-section (3) of Section 11 of the Act.

Now, considering the rival submissions, it is clear that there is nothing in the Act which disentitles a landlord from issuing a notice of demand to the tenant demanding from him the amount of rent which according to the landlord is due from the tenant even in a case where a tenant has filed an application for fixation of standard rent and that application is pending. Once that notice is issued, it is for the tenant to dispute his liability, firstly, by sending reply to the notice and, thereafter, by making an application under Sub-section (3) of Section 11 of the act. That there is already an application made for fixation of standard rent does not prevent the tenant from making an application under Sub-section (3) of Section 11 of the Act after he receives the notice. A presumption that the tenant is ready and willing to pay the rent is raised by Explanation I below Section 12 of the Act only in case an application under Sub-section (3) of Section 11 of the Act is made by the tenant after receiving the notice of demand issued under Sub-section (2) of Section 12 of the Act. Therefore, in my opinion, that there was already an application made for fixation of standard rent on the date on which the demand notice was issued is irrelevant for finding out whether the tenant was ready and willing to pay the rent or not. The Division Bench of this Court in Jaypal Bandu''s case referred to above has also observed thus :

...The fact that there was some dispute about standard rent prior to the notice u/s 12(2) would also be immaterial and would not affect the power of the Court to pass a decree u/s 12(3)(a) if the conditions referred to in Section 12(3)(a) are satisfied if no application has already been made u/s 11(3) of the Act....

In so far as the judgment of the Supreme Court in the case of Ibrahim Abdulrahim referred to above, relied on by the petitioner, is concerned, the question that was being considered by the Supreme Court in that case was whether there was any period of limitation prescribed by the Act for making an application u/s 11(3) of the Act if the tenant disputes his liability to pay the amount demanded within one month of the receipt of the notice. In that case, the question that arises in this case was not being considered and the question that was considered in that case does not arise in this case.

Thus in my opinion, therefore, the findings recorded by the courts below, which are concurrent, do not suffer from any manifest error of law so as to call for interference at the hands of this Court in its jurisdiction u/s 227 of the Constitution of India.

So far as the contention urged by the learned Counsel for the petitioner that because the amount of permitted increases was also demanded by the notice, the notice was vitiated is concerned, it has to be pointed out that by the notice the amount of rent was separately demanded and the tenant was also called upon to pay the amount of permitted increases. Thus, in the notice, distinct demands were made and this is not a case of composite demand where it is not possible for the petitioner to find out the amount of permitted increases and the rent. Therefore, the contention urged by the petitioner has no substance.

The learned Counsel for the petitioner thereafter urged, relying on the deposition of the witness by name Ratan examined by the tenant to claim that after the notice of demand was issued by the landlady, there was a settlement between the parties and therefore the notice of demand stood waived. Perusal of the deposition of the witness Ratan however shows that she is a witness who is also a tenant of the same landlady and against whom a suit filed by the landlady is pending. Perusal of her deposition shows that though she says that the landlady had promised not to take action on the basis of the notice already issued, she docs not know whether notice was issued to her or not. In my opinion, the plea of waiver has to be specifically made out and clearly proved. The deposition of the witness Ratan does not clearly establish the case of waiver. In any case the question of waiver is a question of fact and therefore this Court would not be justified in going into it in this petition filed under Article 227 of the Constitution of India.

In the result, the petition fails and is dismissed. Rule discharged with no order as to costs.