BACHIBEN TULSIDAS Vs. JAYANTILAL CHUNILAL

JUDGEMENT

(1.) The petitioners-original defendant Nos. 1 and 2 have filed this Revision Application under Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the Bombay Rent Act") against the judgement and decree dated 12.11.1979 passed by the District Judge, Surat, in Regular Civil Appeal No. 219 of 1978. The learned Judge by his impugned judgement was pleased to dismiss the appeal of the appellants-petitioners herein. The learned Judge was pleased to confirm the judgement and decree dated 26.10.1978 passed by the learned Judge, Small Causes Court at Surat in Rent Suit No. 1915 of 1975 (Old Regular Civil Suit No. 824 of 1974). It may be noted that the learned Judge by his judgement and decree has held that the defendants i.e. petitioner Nos. 1 and 2 herein and respondent Nos. 2, 3,4 and 6 in the Revision Application and original defendants shall hand-over vacant possession of the suit premises to the plaintiff within three months from the date of the judgement. The Court also fixed standard rent of the suit premises at Rs. 31.50 ps. per month. The Court also directed the defendants to pay arrears of rent from 6.11.1972 to 5.7.1976 and also mesne profit to the plaintiff at Rs. 31.50 ps. per month from the date of the suit till delivery of the possession.

(2.) The facts emerging from the record of the case which are relevant herein, are set out as under:- 2.1 There is a property situated at Navapura, Vachali Seri, Surat, bearing Municipal Ward No. 3, Nondh No. 3542 (hereinafter referred to as "the suit premises"). Jayantilal Chunilal, respondent No. 1 herein, original plaintiff, is the owner of the suit property. From the record it appears that the plaintiff had given the suit premises on lease at the rate of Rs. 31.50 ps. per month. The defendants were liable to pay education cess over and above the rent of the suit premises. 2.2 As the defendant failed and neglected to make payment of rent for 18 months at the rate of Rs. 31.50 ps. per month i.e. Rs. 567/- i.e. November, 1972 to 23.4.1974 and from 23.4.1974 to 30.4.1974 Rs. 8/- in all a sum of Rs. 575/-, the plaintiff was constrained to address a notice dated 9.5.1974 to the tenant Tulsidas Nathubhai through his advocate terminating the tenancy. He has stated that the defendant failed and neglected to pay the aforesaid amount of rent. The defendant also neglected to pay education cess. The defendant has also created nuisance. In view of the same, the said notice was addressed by the plaintiff to the defendant at Exh. 37 in the proceedings. 2.3 The defendant has replied to the said notice of the plaintiff vide letter dated 15.7.1974. In the reply to the said notice, the defendant has raised a dispute regarding standard rent and stated that the original rent was only Rs. 27/- and rent at the rate of Rs. 31.50 ps. was excessive. The defendant has also denied that he was in arrears of rent of Rs. 575/-. He has stated that he has not created any nuisance. He has raised a dispute of standard rent and prepared to pay the said amount. The defendant decided to send Rs. 638/- regarding arrears of rent. It appears that when the aforesaid notice was addressed to the landlord he refused to accept the same. Therefore, the said notice was sent by registered post. However, the landlord returned the said amount of Rs. 638/- and the said reply is produced at Exh. 41. 2.4 The plaintiff thereafter addressed a notice dated 21.7.1974 to the defendant tenant. The plaintiff again reiterated his contention of the earlier notice. He has stated that the standard rent was Rs. 31.50 ps. and denied the rent of Rs. 27/- as stated by the tenant. The said notice is produced at Exh. 44. 2.5 In view of the aforesaid premises, the original plaintiff Jayantilal Chunilal filed Regular Civil Suit No. 824 of 1974 against the defendant Tulsidas Nathubhai on the ground of arrears of rent i.e. rent due for 18 months from 6.11.1972 to 22.4.1974 Rs. 567/- and from 23.4.1974 to 30.4.1974 Rs. 8/- in all Rs. 575/- and further rent from 1.5.1974 to 31.5.1974 Rs. 31.50 ps. in all Rs. 606.50 ps. The plaintiff claimed possession of the suit premises under Section 12(3)(a) of the Bombay Rent Act. The plaintiff also claimed that the defendant has committed breach of tenancy terms and also created nuisance and as the plaintiff has addressed a notice but the defendant failed to hand over the suit premises and ultimately the rent is due from 6.11.1972, the defendant was in arrears of rent of Rs. 606.50 ps. As the rent was due and payable by the tenant, the plaintiff filed suit on 16.7.1974. 2.6 The original tenant Tulsidas Nathubhai filed a written statement at Exh. 14. He has raised the dispute regarding standard rent. He has stated that originally the rent was Rs. 27/- and not Rs. 31.50 ps. as alleged by the landlord. He has denied the arrears of rent. He has stated that rent upto 30.6.1974 amounting to Rs. 638/- was sent to the plaintiff by the tenant. However, the plaintiff landlord refused to take the amount. He has therefore stated that the defendant is not liable to hand over the possession under Section 12(3)(a) of the Bombay Rent Act. He has also denied the contention of nuisance. The said reply was filed on 19.6.1975. 2.7 It appears that original tenant Shri Tulsidas Nathubhai died on 10.8.1975. The plaintiff had filed an application for bringing heirs of Tulsidas Nathubhai on record. Thereafter, the plaintiff filed an application Exh. 16 for amendment of the plaint on 19.9.1975 for bringing heirs and legal representatives of Tulsidas Nathubhai on record as defendant Nos. 1/1 Bachiben Tulsidas, 1/2 Amratlal Tulsidas, 1/3 Budhiabhai Tulsidas, 1/4 Manilal Tulsidas, 1/5 Dhansukhlal Tulsidas, 1/6 Ratilal Tulsidas, 1/7 Jayantiben Tulsidas. He has stated that defendant Nos. 1/1, 1/2 and 1/4 were residing with the deceased. However, the other defendants were not residing with the deceased Tulsidas Nathubhai and therefore, they had no interest in the property. However, without prejudice to their contention, the said amendment was filed for bringing all heirs and legal representatives of the deceased. The said application was filed on 19.9.1975 at Exh. 16. The learned trial judge has granted the same. 2.8 It appears that out of the legal heirs and representatives, Bachiben Tulsidas and Amratlal Tulsidas have filed additional written statement on 21.9.1976 at Exh. 25 to the said suit. They had raised contention regarding validity of notice. They have also raised contention regarding dilapidated condition of the premises in question. It appears that they have filed purshis at Exh. 24 dated 8.3.1974 debating the reply filed by the original defendant and thereafter filed a detailed reply at Exh. 25. 2.9 The learned trial Judge framed issues on 5.9.1977 at Exh. 27. 2.10 On behalf of the plaintiff Jayantilal Chunilal was examined at Exh. 34. He has stated that he is the owner of the suit property in view of the partition deed executed between their family members. He has stated that the suit premise was handed over on lease by the plaintiff to the deceased Tulsidas Nathubhai on rent of Rs. 31.50 ps. He has stated that the defendant was in arrears of rent from 6.11.1972 as stated in the notice as well as the plaint. He has produced rent receipt which shows that from December 1971 rent was at Rs. 33/-. The rent receipts have been produced at Exh. 36 on the record. He has also deposed regarding notice and reply by the defendants. He stated that the defendants did not raise the dispute regarding standard rent and the defendants did not pay the rent within one month from the date of the notice and ultimately after the death of Tulsidas Nathubhai, his heirs and legal representatives were made parties in the suit. He has also stated that he has not charged education cess separately but on the back of the receipt he has written about education cess at Exh. 34. 2.11 On behalf of the defendant Amratlal Tulsidas was examined at Exh. 45. He happens to be son of Tulsidas. He has also admitted that respondent Nos. 1, 2, 4 were residing with the deceased Tulsidas Nathubhai at the time of his death. He has stated that originally rent was Rs. 27/- per month which has been increased to Rs. 31.50 ps. per month. He has stated that except rent of Rs. 31.50 ps., he has not paid anything to the landlord. 2.12 It may be noted that originally old Regular Civil Suit No. 824 of 1974 was converted into Rent Suit No. 1915 of 1975. The learned Small Causes Court, Surat, by his judgement and decree dated 26.10.1978 was pleased to hold that the defendant shall handover vacant possession of the suit premises to the plaintiff within three months from the date of the judgement. The learned trial judge fixed standard rent at Rs. 31.50 ps. per month. The learned trial judge further held that defendant No. 1/2 Amratlal Tulsidas shall pay Rs. 598.50 ps. to the plaintiff for arrears of rent from 6.11.1972 to 5.7.1976. Defendant No. 1/2 shall also pay future mesne profits to the plaintiff at Rs. 31.50 ps. per month from the date of the suit till delivery of possession. TRIAL COURT'S FINDINGS: 2.13 It may be noted that while decreeing the suit, the learned trial judge has arrived at the following conclusion/findings: (i) The plaintiff proved that the suit premises had been given on lease to the defendant on the terms and conditions stated by the plaintiff. (ii) The suit notice was legal and valid and it was duly served on the defendant. (iii) The plaintiff proved that the defendant is to be in arrears of rent exceeding six months on the date of the suit notice and on the date of the suit. (iv) The learned trial judge held that the defendant is not ready and willing to pay the standard rent and section 12(3)(a) of the Bombay Rent Act is applicable to the facts of the case. (v) The plaintiff failed to prove that the defendant has committed breach of conditions of the tenancy. (vi) The plaintiff failed to prove that the defendant has been guilty of conduct which is a nuisance or annoyance to the adjoining or neighbouring occupants. (vii) The standard rent is fixed at Rs. 31.50 ps. (viii) The learned trial judge held that the defendant is liable to pay Rs. 598.50 ps. and ultimately the plaintiff is entitled to vacant possession of the suit premises. 2.14 Being aggrieved and dissatisfied with the aforesaid judgement and decree, Bachiben Tulsidas and Amratlal Tulsidas filed appeal being Regular Civil Appeal No. 219 of 1978 before the District Judge, Surat on 28.11.1978 and ultimately the learned District Judge granted stay by the order dated 9.1.1979. The respondent landlord filed reply at Exh. 5 on 26.12.1978. 2.14A He has also filed an application at Exh. 18 dated 30.8.1979 stating that the defendants were ready and willing to pay education cess and as the defendants were not aware about the exact amount, they did not pay the education cess in this regard. Therefore, they filed an application for amendment the written statement. In the said application they stated that Section 12(3)(a) of the Bombay Rent Act is not applicable to them. However, the learned judge by his order dated 31.8.1979 was pleased to reject the said application for amending the written statement. 2.15 Being aggrieved and dissatisfied the petitioner filed Revision Application No. 1246 of 1979 before this Court on 21.9.1979. Originally the Court admitted the matter and granted stay and ultimately on 28.9.1979 the petitioner withdraw the said revision application. The Court passed the following order: "Withdrawn by Mr. Vyas. Dismissed as withdrawn. Ad-interim stay granted on 21st September, 1979 vacated. Mr. Vyas says that he withdraws this application because the matter is at an interlocutory stage". 2.16 It appears that during the pendency of the appeal the landlord filed application Exh. 24 on 12.11.1979 in which he has stated as under: The note was filed to show that the tenant was irregular in payment of rent. The tenant is not entitled to any protection of Rent Act. Issue framed : 5.9.1977 Amount of arrears upto 31.5.1974 Rs. 606.50 Amount of arrears upto 31.8.1977 Rs. 1221.50 (34 months) --------- Rs. 1828.00 ---------- 2.16A The tenant has paid Rs. 1835.00. Tenant paid Rs. 7/- in excess. However, tenant has not paid rent of September, October, November of 1977 and January, 1978. 2.16B Thereafter, Rs. 200/- was paid on 13.2.1978. Therefore, for the months of September, October, November, December and January, there was a default. Thereafter, Rs. 200/was paid on 16.2.1978 and excess Rs. 8/- in all Rs. 208/-. Therefore, even if the rent is paid for 7 months, there was default of 7 months. Thereafter, on 6.10.1978 Rs. 200/- was paid. In view of the same, there was a default from March to September, 1978. Though there are further payments, as there was already default, there was no question of the tenant getting protection in this behalf. On that note the tenant has stated that as there was a dispute of standard rent and the trial Court after fixing the standard rent ought to have given opportunity to the defendant to pay the amount of standard rent. It was further stated that thereafter notice amount was tendered and so as per the decision of this Court in the case of LALLUBHAI HARICHAND VS. HEIRS OF KHODIDAS HARIBHAI reported in 16 G.L.T. 31 the decree for possession cannot be passed. APPELLATE COURT'S FINDINGS: 2.17 Thereafter, the matter was adjourned by the learned appellate Judge. The learned appellate Judge considered the entire evidence on record and was pleased to dismiss the appeal of the tenant. While dismissing the appeal the learned appellate Judge has held that the present suit is governed by the provisions of Section 12(3)(a) of the Rent Act. It may be noted that after holding the case falling under Section 12(3)(a) of the Bombay Rent Act and not within Section 12(3)(b) of the Act, the learned appellate Judge has also considered the alternative case of the appellant-tenant and after considering the evidence on record the learned appellate Judge has held that defendant should have deposited Rs. 31.50 which was contractual rent between the parties before fixing of the standard rent. He has relied on the decision of the Apex Court as well as judgement of this Court and held that it is for the tenant to make an application to the Court to decide the standard rent of the suit premises. He further held that the tenant has not chosen to make an application for standard rent and therefore as per the purshis at Exh. 24, the tenant has not deposited rent regularly and has also deposited rent at irregular interval and therefore the tenant is not qualified for protection of Section 12(3)(b) of the Bombay Rent Act and therefore tenant cannot be said to be ready and willing to pay the rent and confirmed the decree of the possession in this regard. 2.18 Being aggrieved and dissatisfied with the aforesaid judgement and decree, the petitioners original defendants have filed this Revision Application before this Court on 21.1.1980. The matter was admitted on 21.2.1980 and it is now ready hearing before this Court today. During the pendency of the Civil Revision Application it is noted that the landlord has filed Civil Application No. 770 of 1992. The landlord has also filed Civil Application No. 1528 of 2002 on the ground that the original petitioner Amratlal Tulsidas expired on 19.6.2001 and no heirs of Amratlal Tulsidas have been brought on record. Hence the revision application may be abated. SUBMISSION OF THE LEARNED ADVOCATE FOR THE PETITIONER:

(3.) 1 The property in dispute is the first floor of the property bearing nodh No. 3542, ward No. 3 situated in Vachlisheri, Nawapura. The contractual rent earlier was Rs. 27/- per month. However, it was increased to Rs. 31.50 due to increase in the taxes and facilities.