SHAH ASHOKKUMAR MANILAL Vs. GANDHI VRAJLAL GABHRULAL

JUDGEMENT

(1.) Petitioner herein is the original defendant and the tenant of the suit premises. The respondent herein is the original plaintiff and the landlord of the suit premises. They are referred to in this judgment as the plaintiff and the defendant.

(2.) The plaintiff filed Regular Civil Suit No. 65 of 1977 in the Court of Civil Judge (SD) at Deesa for obtaining possession of the suit premises consisting of a shop situated at New Deesa on the ground that the defendant was a tenant in arrears of rent for a period of more than 6 months. It was the plaintiff's case that rent of Rs. 50 per month plus electricity charges of Rs. 5 per month was payable by the defendant to the plaintiff and it fell due from Ashadh Sud 1 of S. Y. 2029. A total sum of Rs. 2,450 by way of rent and Rs. 245 by way of electric charges, in all Rs. 2,695 remained due and payable by the defendant to the plaintiff resulting into the plaintiff serving a demand notice dated 23rd May 1977. The defendant did not tender the rent and, therefore, the plaintiff had to file the suit as aforesaid. The defence of the defendant was that the plaintiff was recovering rent at Rs. 60 per month from 1-8-1973 and from 1-12-1975 the plaintiff started recovering rent at the rate of Rs. 70 per month. According to him he had paid up the rent and electricity burning charges and nothing was due from him. He contended that the rent could have been recovered according to Gregorian calendar and not Samvat calendar. He gave reply dated 4th June 1977 to the plaintiff's notice. The learned Trial Judge upon hearing of the matter came to the conclusion that the plaintiff was collecting rent as alleged by the defendant holding that notice was neither legal nor valid and that plaintiff was not entitled to get the rent as claimed in the suit. The learned Trial Judge dismissed the suit by judgment and decree dated 5th May 1979 with no order as to costs. The plaintiff carried the matter in appeal in Regular Civil Appeal No. 30 of 1979 in the Court of learned District Judge, Banaskantha at Palanpur who by his judgment and decree dated 26th June 1981 allowed the appeal and set aside the trial Court's judgment and decree dismissing the suit and directed the defendant to vacate the suit premises and pay the arrears of rent in the sum of Rs. 2,640 besides mesne profits at the rate of Rs. 50 per month plus Rs. 5 per month being electricity charges from the date of the suit till realisation. It is this last mentioned decision, which is the subject-matter of this Revision Application by virtue of Sec. 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as 'the Rent Act').

(3.) Mr. A. R. Majmudar, learned Advocate appearing on behalf of the defendant (petitioner herein) has, after going through the evidence, fairly submitted that the rent fell due from Samvat Year 2029 Ashad Sud 1. He, however, canvassed the following points of law : I. According to the submission of Mr. Majmudar, the suit notice is not valid under Sec. 12(2) of the Rent Act. In the first place, he relied upon the decision of this Court in the case of Bapulal Kalidas v. Bai Kashiben, reported in XVIII (1977) GLR 77. There can be no dispute with regard to the proposition that a vague notice requiring the tenant to pay all the arrears of rent and permitted increases, without indicating the actual amount due on that account or the point of time from which the rent and permitted increases at a specified rate are, according to the landlord, in arrears, would afford no real opportunity to the tenant to avail of the facility or benefit of making payment of the arrears due by him before he is sued in ejectment. There can also be no doubt with regard to the proposition that the demand of standard rent and permitted increases in a suit under Sec. 12(2) must be a precise demand, i.e., to say, one that sets out with certainty what according to the landlord is due by the tenant on that account, that is to say, the demand must be for a sum specified or it must be made in such a manner that the amount actually claimed becomes definitely ascertainable by reference to some other intrinsic evidence in the notice itself, such as the point of time from which arrears at a specified rate are due or some such or other indication. In Bapulal's case (supra), the factual position was such as would fall in the aforesaid ratio settled by this Court in that case. In that case notice indicated monthly rent but it did not set out the date from which it was due or the amount that was due. The requisition in the notice was merely to pay up all the arrears of rent. In the present case, the suit notice indicates the date from which the rent fell due. It has been indicated that the rent fell due from S. Y. 2029 Ashad Sud 1 although in the latter portion of the notice the calculation of outstanding amount of rent is worked out from S. Y. 2029 to Jeth Sud. There is an error committed either in the typing or in the setting out of the working and this is apparent on the face of the notice. However, the working is for the rent of 48 months, that is to say 4 years and it could not be shown that the rent was not due for that period even if the amount was worked out from S. Y. 2029 Ashad Sud 1. The defendant has also been given option in the matter of termination of tenancy and sufficient time has been given to the defendant since admittedly the suit has been filed much after the expiry of one month from the date of receipt of the notice. The counterfoil of the rent receipt given by the defendant to the plaintiff is placed on record, and upon appreciation of evidence the appellate Court came to the conclusion, and in my opinion, rightly that the rent fell due from S.Y. 2029 Ashad Sud 1. It is, thus, clear that the suit notice sets out with certainty the particulars about the rent due and it was never the defence of the defendant that he was misled by the error in the suit notice as stated above. The defence of the defendant was that he had paid up all the rent that fell due and that defence was not accepted upon appreciation of evidence by the appellate Court. The demand in the notice has been made in such a manner that the amount actually claimed would be definitely ascertainable so that the defendant could have made the tender of rent demanded. It is in this connection that Mr. D. M. Shah, learned Advocate, appearing for the plaintiff has made reference to a decision of this Court in the case of Bachubhai Ismailbhai v. Ismail Haji Ibrahimbhai Malek, reported in XXXV (2) [1994 (2)] GLR 1271. In that case, the rate of rent was set out in the notice. The total amount of arrears was stated to be Rs. 1,500 and the date upto which the rent fell due was also stated in the notice. The contention was that the actual period for which the rent due was not mentioned in the notice and that the plaintiff did not take care to mention the date from which the tenant was in arrears. Under such circumstances, this Court (M. R. Calla, J.) held that the notice could not be said to be vague. It is settled principle of law that a notice in a rent case is to be construed liberally. Reference in this connection may be made to a decision of the Bombay High Court in the case of Lalshankar Mulji Joshi v. Kantilal Mohanlal Parikh, reported at 74 (1972) BLR 241, where a learned single Judge of the Bombay High Court was required to deal with a similar situation as has arisen for consideration by this Court. Following an unreported decision of the Hon'ble Supreme Court in Raghunath Ravji Dandekar v. Anant Narayan Apte, (1966) Civil Appeal No. 387 of 1964, decided on April 5, 1966 (Supreme Court), it has been held that a liberal construction should be put upon a notice to quit in order that is should not be defeated by inaccuracies either in the description of the premises or the name of the tenant or the date of the expiry of the notice and the sufficiency of the notice should be worked out bearing in mind that the notice issued is not to a stranger but to a tenant presumably conversant with all the facts and circumstances and the mistake. Following observations need be excerpted :