VANLILA VADILAL SHAH Vs. MAHENDRAKUMAR J SHAH

JUDGEMENT

(1.) This is a revision petition filed by the petitioner-landlord under sec. 29(2) of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (which will be hereinafter referred to as the Act) against the judgment and decree passed by the learned District Judge Surendranagar in Civil Appeal No. 101 of 1969 dismissing the petitioners appeal and confirming the judgment and decree passed by the learned trial Judge.

(2.) Both the Courts below have dismissed the petitioner-landladys suit for eviction which was claimed on account of non-payment of arrears of rent and education cess for a period over six months. By suit notice Ex. 23 demand of arrears of rent for the period between 10-5-1967 and 10 was made. That was the rent which could be claimed as found by the two Courts below. She was not entitled to rent upto 27-5-1968 on the date of the notice as it was broken portion of the month. It was a monthly tenancy and she was entitled to get rent at the end of the month. The month ended on 10-6-1968. That amount came to Rs. 48 The petitioner-landlady had further claimed education cess of Rs. 8 40 paise. Opponent tenant had sent money-order of Rs. 48.00 within the period of one month from the date of the receipt of the notice. He had not sent the aforesaid education cess amount but he had paid it later on.

(3.) The learned District Judge came to the conclusion that sub-sec. (3)(a) of sec. 12 of the Act would not be attracted as part of the rent namely the education cess could not be said to be payable by month relying upon the decision of this Court in Mohanlal v. Maheshwari Mills Ltd. 3 Gujarat Law Reporter 574; he came to the conclusion that the education cess was an annual cess. Therefore although defendant No. 1 was a monthly tenant and so far as the rent of Rs. 4.00 per month was concerned it was payable by month the education cess payable by him was not payable by month. In that view of the matter sec. 12(3)(a) of the Act was not attracted. Taking that view of the matter he reached the conclusion that the decree for eviction cannot be passed against the opponent-tenant under section 12(3)(a) of the Act.