Subhaschandra Manikchand Bourndiya vs Ramnivas Laxminarayan Agrawal

Sunil P. Deshmukh, J.—The applicant is plaintiff in Regular Civil Suit No. 54 of 2002 and respondents are defendants in said suit. (Hereinafter, parties are referred to by their status in the suit). Plaintiff had instituted the suit against the defendants, seeking eviction and vacant possession of premises bearing CTS No. 272, godown No. 18, municipal plate No. 1-13-18 the extent to which defendants were in possession of said property i.e. eastern shop and half godwn behind the eastern side situated at new Mondha abutting Jalna-Aurangabad road, pursuant to sections 15 and 16 of the Maharashtra Rent Control Act, 1999 (hereinafter, for convenience "The Act") and for recovery of arrears of rent and mesne profits of Rs. 47,600/- and future mesne profits at the rate of Rs.400/- per month.

Father of the plaintiff was the landlord who had let on rent said suit premises to father of defendants at an agreed rate of rent of Rs.400/- per month. Suit premises were meant for running commission agency business. Rent was payable on first day of each calender month.

After death of respective fathers of plaintiff and defendants, the plaintiff and defendants became landlord and tenants respectively of suit premises. Plaintiff has pleaded that defendants paid rent regularly till August, 1980, however, thereafter they failed to make payment of rent from 1-9-1980 till 31-5-1984 and as such, plaintiff was constrained to institute a suit for recovery of arrears of rent. It was only thereafter, the defendants paid arrears of rent. Said suit accordingly had been withdrawn. Even thereafter, defendants continued to be irregular in making payment of rent and had fallen in arrears since 1-3-1992 onwards till the date of present suit; R.C.S. No. 54 of 2002 instituted on 26-9-2002. In spite of demands at the instance of plaintiff, defendants continued to commit defaults and avoided to make payment on one pretext or the other. By 31-7-1998, the arrears of rent mounted to Rs. 31,200/- and as such a notice through advocate had been issued by plaintiff demanding the arrears and vacant possession of the premises. In response, the defendants assured to pay arrears of rent, however, denied to vacate the suit premises. Thereafter as well, defendants continued to commit defaults and did not pay rent.

It is pleaded by the plaintiff, the defendants dismantled southern side wall of godown adjacent to Aurangabad-Jalna road without his written consent and had fixed one window and a shutter in the same. An application was made by plaintiff to Municipal Council, Jalna, yet, defendants once again dismantled southern side wall and fixed shutter of 10'' x 10'' size. Thereupon, a complaint had been lodged with police by the plaintiff, however, that did not deter the defendants and they had abused and threatened the plaintiff.

The plaintiff has also pleaded that a portion of the suit premises had been sublet by defendants to Marathi daily "Sangharsha Bhoomi" without plaintiff''s written consent. Plaintiff has further pleaded reasonable and bona fide requirement of suit premises, pointing out that the plaintiff is originally resident of Jalna, however, had shifted for business purpose to Sillod fifteen years ago. Plaintiff has four sons who have become major and require the suit premises for running business by his sons. Pradeep is his eldest son who is married and has one son and a daughter, so is the case of another son Sandeep, third son Pawankumar is a bachelor and fourth son Sushil is also married and is having one son. The plaintiff is running a shop at Sillod in the name and style, Jain Kirana Stores and Pawankumar is running business at Sillod under the name Pawan Trading Company. With the growth in family members, it had become difficult to maintain family under one roof. Other sons of plaintiff were not having any independent business to earn their livelihood and as such, the suit premises were required for running business at Jalna by sons of the plaintiff. A need of the suit premises was therefore not only reasonable and bona fide but has also become a necessity.

It is contended, by 31-5-2001, the accumulated arrears of rent from 1-3-1992 till 31-5-2001 had been Rs.44,400/-. As such, on 18-7-2001, plaintiff issued a notice terminating tenancy of the defendants with effect from 31-10-2001. The notice was served on defendants, however, some of the defendants refused to accept the same.

Notice was replied by defendants through advocate Shree Deshpande on 1-8-2001. The defendants purported to send Rs.14,400/- to plaintiff towards part payment of arrears of rent through cheque. The plaintiff on 10-8-2001, replied to the notice clarifying that the amount of Rs. 14,400/- would be accepted under protest and adjusted towards arrears of rent upto 1994. The defendants, on 21-8-2001 responded and on 23-02001, the plaintiff had returned said cheque to defendants. Under the circumstances, the plaintiff instituted above said suit, claiming vacant possession of suit premises with recovery of Rs.47,200/- towards arrears of rent and mesne profits and further mesne profits at the rate of Rs.400/- per month from the date of suit.

The defendants appeared in the suit and filed their written statement disputing the quantum of rent to be Rs.400/- per month and that it was payable on first day of each calender month and also that the suit premises were obtained for running commission agency business. It was contended that rent was agreed to be paid whenever convenient to parties and that the premises were let out for commercial purpose. Defendants refused to accept that there had been default from August, 1980 onwards till 1984 and that their father was irregular in making payment of rent and also that plaintiff''s father was required to file suit for recovery of arrears of rent, however, contended that during lifetime of fathers of respective parties, defendants'' father was prompt in making payment of rent regularly and plaintiff used to accept the same and that parties had faith in each other and as such, receipts for payment of rent were not insisted on. It is further contended that rent was being paid by tenants as per convenience and used to be accepted by plaintiff.

It is contended by defendants that plaintiff''s father on formation of Jalna as a separate district from Aurangabad told that rate of rent would go up and as such had been looking out for a ground for eviction of premises and for said purpose went on refusing to accept payment of rent in order to brand the tenants as wilful defaulter. Suit had been instituted by plaintiff, however, the suit had to be withdrawn. It is contended that after 1984 till 1992, plaintiff accepted payment of rent from defendants as per practise and their convenience. After 1-3-1992, plaintiff''s father refused acceptance of rent and, therefore, father of defendants used to send rent by money order and cheques which too were refused to be accepted by plaintiff''s father and in support of the same a list is submitted along with written statement. On 8-3-1997 defendant no. 3 had issued notice to plaintiff asking him the mode in which rent should be sent. The plaintiff refused to accept the tender of rent and had not accepted even the notice so sent by defendant no. 3. The notice dated 19-8-1998 from plaintiff had been replied by defendants on 28-8-1998.

With reference to the pleadings of the parties, requisite issues came to be framed in the court of first instance viz. default, material alterations in structure without written permission of landlord, subletting, bona fide requirement and entitlement of plaintiff and compensatory costs to defendants. The trial court gave negative findings in respect of all aforesaid issues and as such had dismissed the suit.

The plaintiff-applicant carried the suit in appeal bearing Regular Civil Appeal No. 17 of 2004. The appellate court purported to frame points for determination with respect to default in payment of rent, non payment of rent during appeal, material alterations by the defendants, subletting and bona fide requirement of landlord.

The trial court as well as appellate court have held that the tenant having deposted amount of Rs.50800/- in the court before expiry of 90 days of summons, decree on the ground of default could not be passed. The appellate court had considered that the notice had mentioned arrears of Rs. 31,200/- for the period 01-03-1992 to 31-07-1998; whereas the defendants had deposited Rs.50,800/- which covered the rent upto September, 2002. With reference to the correspondence, the defendants had been making efforts to pay the rent which was not being allegedly accepted by the landlordplaintiff, the plea taken up by the defendants had found favour. The courts further found that the interest shall be deemed to have been adjusted from the amount paid towards property tax in 2003. The appellate court also thought it that the law does not force payment of interest from a particular date and in such a case, it shall be deemed that the interest would be chargeable from the date of institution of the suit. The courts have also found no substance in the ground of material alterations and subletting. The courts purported to give a negative finding on the ground of bona fide requirement for want of evidence / averment of plaintiff''s son having shifted to Jalna and did not state that they intended to migrate to Jalna for business and with reference to adjacent land. As such, the suit as well as appeal were dismissed. The Plaintiff is thus before this court in present revision.

Mr. Katneshwarkar, learned Counsel appearing for the applicant plaintiff contends that it is apparent that respondents have failed to comply with mandatory provision and obligations under Section 15(3) of the Act. It was incumbent for tenants to have paid/deposited entire arrears of rent along with interest at the rate of 15 % per annum within ninety days from the date of summons and since there is failure on the part of respondents to pay interest within stipulated period as required, the decree of eviction ought to have been passed and there is no option about it. According to him, it is apparent from the facts, evidence and the judgments that no arrears along with interest as are required had ever been tendered or deposited by tenants and therefore the courts have been in error in not granting decree of eviction.

Learned Counsel further contends that it was equally an error to hold that alteration caused to structure on suit premises is not a permanent construction or alteration in the face of position that defendants had carried out alteration without written consent of the applicant. To hold the alteration to be not a construction under section 16 of the Act is improper and does not sub-serve the purpose underlying the provision.

Learned Counsel further contends that the courts have been in error in holding that there is no sub-tenancy specially when plaintiff''s witness no. 4 states that part of suit premises had been taken by him on rent of Rs.3000/- per month and was being used for running a marathi daily "Sangharsh Bhoomi".

He further submits that it was sufficient for the plaintiff-landlord to plead bona fide requirement and no formal proof of the same is necessary. He emphasizes the indisputable factual position that applicant-plaintiff had four sons and that one of them runs business at Sillod and that other three want to run suitable business and further to that this position has been deposed to by plaintiff in the court and supported by his witnesses. He further contends that the appellate court was in gross error in taking a pedantic approach in the matter in considering there was no pleading about plaintiff''s sons wanting to migrate to Jalna. According to him, when the requirement of premises at Jalna has been expressed, it has within its fold the purpose of shifting to Jalna from Sillod and the same was not necessary to be made explict at all as it is intrinsic and implicit. He contends that having taken into account that the plaintiff himself has been running business separately, the other three sons with the growing families were in natural requirement of separate business and the premises were conveniently available at Jalna. In such a case, according to him, it cannot be said that plaintiff had no reasonable requirement and no bona fide purposes.

Learned Counsel for the applicant relies on Harbanslal Jagmohandas v. Prabhudas Shivlal, 1977 (1) SCC 575, in order to stress the point that obligations arising out of statutory provisions cannot be ignored and in the cases of breach of such obligations, its fallout would not be avoidable. Said case was dealing with an issue whether the decree of eviction could be sustained when the dispute with regard to standard rent had been raised, however, not within the limitation of time referred to under explanation (i) to section 12 of the Bombay Rent Act. The Bombay view was that limitation on raising a dispute within one month from the date of service of notice would render the provisions of section 4 to be default. However, the Supreme Court appears to have held otherwise. Thus, this case was on the point of limitation as to within which the action as required under law is to be begun is mandatory. It has been considered that limitation of time within which a dispute is to be raised as to standard rent would hold the field and as such the Supreme Court ruled the Gujarat view to be correct view and not Bombay view. As such this case would apply to the situation in the present case where under indisputably tenants had failed to pay the amount of interest as required under section 15(3) of the Act.

The next cases relied on by applicant-plaintiff are Analini B. Shah v. Bapalal Mohanlal Shah, 1980 (4) SCC 251 and Mohan Laxman Hede v. Noormohammed Adam Shaikh, 1988 (2) SCC 481. These cases refer to that regular tender of rent is mandatory and are pressed into service for the purpose that, according to the plaintiff/landlord, the tenant even after institution of suit had not tendered the rent regularly and as such decree of eviction on that count pursuant to section 15(3) needs to be passed, as tenant in the present case has not been regularly paying rent.

Another case relied on by the applicant, viz. Kulkarni Patterns Private Limited v. Vasant Baburao Ashtekar, 1992 (2) SCC 46 appears to be in respect of notice of termination of tenancy pursuant to section 106 of the Transfer of Property Act, 1882. However, none of the present parties had addressed the matter on this issue.

Bhaskar Bhagwant Shinde v. Vasudha Madhukar Kadam, 2005(4) Bom. C.R. 532 has been pressed into service by applicant in support of his contention that even in the cases where a letter had been issued by tenant tendering rent, yet if it was not accompanied by demand draft as written under the letter, that tantamounts to default and decree of eviction cannot be arrested.

Learned Counsel for the applicant has in support of his contention about bona fide requirement, has placed reliance on Dwarkaprasad v. Niranjan, 2003 (4) SCC 549 to consider that liberal interpretation has to be placed on the bona fide requirement as under said citation it was the case of brothers of the landlord whose requirement was considered and held to be bona fide. According to learned Counsel, in the present case as well, it is the landlord''s sons who genuinely require the suit premises for their business as their families are growing and the businesses being run by plaintiff-landlord and his son Pavankumar are not sufficient to maintain the growing family members and as such the requirement of suit premises by them is reasonable and bona fide.

1999 (4) SCC 1, Dattatraya Laxman Kamble v. Abdul Rasul Moulai Kotkunde, has been referred to and relied on by the applicant in order to support their claim on the ground of reasonable and bona fide requirement of the premises and to consider that the landlord is not required to establish genuineness of his requirement and the same is not to be tested on par with dire need.

Next citation relied on by plaintiff-landlord, viz. Prativa Devi v. T.V. Krishnan, 1996 (5) 353, is to demonstrate that as far as reasonable, bona fide requirement of premises is concerned, it is the landlord who is the best judge of the same and has freedom in that matter and it is not the concern of the court to indicate to the landlord how and in what manner he should live and that there is no law which deprives the landlord of beneficial enjoyment of his property.

1998 (3) SCC 341, Rena Drego v. Lalchand Soni is also relied on by the applicant in order to buttress the ground of eviction with regard to bona fide and reasonable requirement of the landlord, where under it was taken into account that, with the growth of family the requirement of more accommodation cannot be ignored. In the present case, both the courts have referred to the premises adjacent to the shop and godown rented out to the tenants being vacant, however, without reference to the fact that it is open land.

1996 (5) SCC 344, Meenal Eknath Kshirsagar v. Traders and Agencies, has been relied on by the applicant for the purpose of strengthening his case on the ground of bona fide requirement of the premises and further to demonstrate that the adjacent premises referred to by the courts below cannot be said to be other available premises to be suitable by which bona fide requirement of the plaintiff could be satisfied.

2009 (5) Bom. C.R. 1, Shree Krishna Trading Company v. Arvind Wamanrao Nagpurkar, is relied on by applicant to support his case of bona fide requirement.

It is contended by Advocate Mr. Sanjiv B. Deshpande that much capital has been made about non compliance of section 15(3) of the Act on account of arrears of rent being not deposited with interest within ninety days from the date of notice or for that matter within ninety days from the date of service of summons. It has been contended that the courts below have rightly considered that the payment made in respect of municipal taxes has been adjusted towards payment of interest and as per record to that effect, the trial court has held that interest from the date of suit would not be at a figure of more than Rs.3000/-. According to Mr. Deshpande, as per the contract, rent was to be paid as per convenience of parties and there is no practise of issuing receipts. Tenants cannot be imputed defaults and that the suit has been instituted with a view to take disadvantage of the situation. According to learned Counsel, no case can be said to have been made out on the ground of default referable to section 15(3) of the Act since within ninety days from the date of receipt of summons of the suit, payment of Rs.50,800 has been deposited in the court and as far as interest is concerned it could not be tendered as the difficulty had been posed as to its computation and the dates from which that shall be calculated. He strenuously contends that as a matter of fact, the ground of default is a manufactured one. It is submitted that as rent was being refused to be accepted, it came to be tendered through money orders and notices as well were issued from 1993 and that those were refused to be accepted. Since the tenant was always ready and willing and had, in fact, tendered rent, the ground of falling in arrears of rent cannot be said to be available to the landlord/plaintiff. There is no force in said ground and it is devoid of any substance. Both the courts, trial as well as appellate, have quite in detail dealt with this ground and have negatived the claim of the plaintiff. He contends, as the rent was not being accepted, tenant cannot be alleged of falling in arrears of payment of rent and thus the liability to pay interest does not arise.

Learned Advocate Mr. Deshpande submitted, in the face of availability of adjacent land which is equal in area as that of tenanted premises, the ground of reasonable requirement for bona fide need cannot succeed.

It has been contended by Mr. Deshpande that the findings by the courts below are concurrent and are not, nor those can be termed as perverse and as such are not amenable to reversal under revisional powers of the court.

Learned Counsel for respondents Mr. Deshpande has relied on citation Patel Valmik Himatlal v. Patel Mohanlal Muljibhai reported in 1998 DGLS (Soft.) 785, to press into service that the high court has no power to rehear the matter or to re appreciate the evidence which would be available in the cases requiring correction of errors of law going to root of the matter. The judgment is with reference to section 29(2) of the Bombay Rent Act, 1943 wherein the Supreme Court has observed that the same empowers the high court to correct errors which make the decision contrary to law and which go to the root of the matter but does not vest the high court with powers of rehearing the matter and re appreciating the evidence. The Supreme Court has held that mere fact that a different view is possible on re-appreciation of evidence cannot be a ground for exercise of the revisional jurisdiction. It was a case contested on the ground of subletting which was found favour by the trial court and maintained by the appellate court. The high court under its revisional jurisdiction had set aside the concurrent findings and the Supreme Court on appeal against said judgment of High Court, had made aforesaid observations. The Supreme Court found that the high court had been in error in re appreciating evidence and reconsidering the findings without in any way pointing out error of law apparent on the face of record. It is in that context, the Supreme Court had made aforesaid observations. Said citation can hardly be said to be of any assistance to present defendants-tenants.

Other case relied on by Advocate Mr. Deshpande is Narhar Damodar Wani v. Narmadabai T. Nave, 1984 BCI (O) 26, wherein Division Bench held that since there was refusal by landlord to receive entire amount demanded in notice under section 12 (2) of Bombay Rent Act, it shall be treated as payment for the purpose of sub-sections (1) and (2) of Section 12 of the Act and no suit for non payment of rent could have been filed and landlord could not have asked for decree of eviction. Present case being different and as such said decision cannot be of any assistance to the respondents defendants.

Another case relied on by respondents is Sitaram Maruti Nagpure v. Fakirchand Purushottam Dhase 2008 (1) BCR 687, which is relating to a question as to whether an offer made before issuance of notice under Section 12(1) and 12(2) of the Bombay Rent Act is sufficient compliance of the provisions since there were contrary views taken by two learned Single Judges and thereupon the division bench ruled that such a tender would be sufficient and refusal by landlord to accept the tender by tenant would not enable the landlord to claim default against the tenant. Though assistance is sought to be taken of said ruling, it can hardly carry the case forward for tenant defendant for he is faced with the situation of non compliance of the requirement under section 15(3) of the Maharashtra Rent Control Act which is a different provision and as such, cited case would not govern the present matter.

The position appears to be that suit had been instituted on 6-2-2002 and defendants were served with summons on 8-7-2002 and they had paid towards rental arrears an amount of Rs.50,800/- under a cheque dated 16-09-2002 on 26-09-2002.

It is being contended that there has been tender of arrears of rent within the prescribed period referred to under section 15(3) of the Act.

It has further been contended that an amount of Rs.10,000/- was forced and was constrained to be paid by tenant towards municipal taxes on 22-03-2003.

It has come on record that quantum of rent was Rs.400/- per month and that the arrears of rent accumulated to Rs.50,800/- on the date of service of summons and that the amount came to be paid / deposited in the court admittedly, without interest as required under section 15(3) of the Act.

Section 15 of the Maharashtra Rent Control Act reads as under:

"15. No ejectment ordinarily to be made if tenant pays or is ready and willing to pay standard rent and permitted increased.

(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, in so far 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.

(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 cost 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."

Thus, it would be obligatory on the tenant to tender arrears of rent with interest at the rate of 15 per cent within prescribed period of ninety days. In this case, it is contended by defendants-tenants that they had deposited arrears of rent within ninety days and could not deposit any amount towards interest as they were confused and not sure about computation of interest. It is further contended that the amount of Rs. 10,000/- paid towards municipal taxes shall be considered and adjusted towards payment of interest. As such, it surfaces that the defendants were aware about liability and obligation to pay interest along with arrears of rent and yet had not bothered or taken any efforts or steps in that direction at all nor any request appears to have been made by them because of confusion for which the amount of interest was not being tendered. The wisdom appears to have dawned upon the tenants only when they were constrained to pay Rs.10,000/- that the amount can be requested to be adjusted towards payment of interest which they were under obligation to pay within a period of ninety days from the date of receipt of summons. No such request appears to have been made prior to 19-09-2003 which is obviously beyond the prescribed period within which interest was liable to be paid by tenant. In effect, there was no tender of arrears of rent with interest within ninety days which could prevent the decree for eviction.

Taking into account obligation of the tenants to pay arrears of rent along with interest within ninety days of service of summons of the suit and in the present case there being an apparent and indisputable failure to discharge by the same, the decree of eviction for breach of legal obligation is inevitable.

The citations relied on, on behalf of the defendants-tenants which have been with reference to the provisions of the Bombay Rent Act, would hardly be able to contain the situation arising in the present matter vis-a-vis obligation under section 15(3) of the Maharashtra Rent Control Act. Those citations would not assist the defendants-tenants to carry their point forward to avoid the decree of eviction which would be a fall out for contravention of the stipulation under section 15(3) of the Act. So far as contention of Mr. Deshpande that as the tenants had tendered and landlord had refused to accept rent the tenants cannot be termed as being in arrears is concerned, it loses its significance under the aforesaid position. The courts below appear to have overlooked the stipulation under section 15(3) of the Act that tender of arrears of rent shall be together with the amount of interest and if the tenants had a difficulty and had genuine desire, in such a case compliance of the requirement of law could have been brought about by tendering the amount of interest from the date of rent falling in arrears. In this case, it was only when the tenants were constrained to pay taxes, it had occurred to them that said amount can be adjusted towards interest which they were under obligation to pay. In the scenario, the fall out, of default in compliance with the requirement of law, cannot be arrested. The findings on the point by the courts below as such are incompatible with the obligations arising under the statutory provisions.

In the present case, it has to be taken into account and has to be given regard to that the land-lord plaintiff has four sons and that he has migrated from Jalna for the purpose of business. He runs a business for himself, so is the case in respect of his son Pawankumar who runs a concern for himself. The family of landlord-plaintiff is growing, three sons being married and having children and as such, they are required to start business for the growing family. It is not disputed that the suit premises are a shop and godown. Additionally, the family has kept the property at Jalna all along and in natural course the family has grown and as such their need being bona fide and reasonable cannot be faulted with and strict establishment of the same is not expected. In such a case, the reasons on which the eviction decree has been refused are unsustainable. The other premises referred to cannot be said to be alternative for satisfaction of bona fide need of the landlord-plaintiff. In addition to that, it has to be considered that the landlord is the best judge of his need. Under the circumstances on this ground as well, the suit ought to have been decreed.

As far as other two grounds viz. subletting and permanent alterations are concerned, the plaintiff does not appear to have been able to prove the same and as the courts below have found that those grounds have not been proved, those findings do not require to be touched.

However, on the two grounds of compliance of section 15(3) and bona fide requirement, the suit deserves to be decreed.

As such, Civil Revision Application is allowed. The judgments and decrees in Regular Civil Suit No. 54 of 2002 dated 01-10-2003 passed by IV Joint Civil Judge, Junior Division, Jalna, and in Regular Civil Appeal No.17 of 2004 dated 21-03-2006 by District Judge, Jalna are quashed and set aside. Suit of the plaintiff is decreed as prayed for in terms of prayers clauses (A), (B) and (C) of the Revision Application.

Rule is made absolute, accordingly.