MODI MOHANLAL BHAGWANDAS Vs. SHAH KESHAVLAL JETHALAL

JUDGEMENT

(1.) This Civil Revision Application arises out of the judgment given in civil appeal No. 37 of 1962 by the learned Judge of the 8th Court of the Ahmedabad City Civil Court confirming the judgment and decree of the Small Causes Court at Ahmedabad dismissing the suit of the applicants for recovering possession of the suit premises from their tenant the present opponent. The petitioners are landlords of the shop bearing M. C. No. Kalupur Ward 1A No. 1754 on Gandhi Road at Ahmedabad which was leased out to the opponent by the predecessorsin-title of the plaintiffs at the monthly rent of Rs. 60/under a registered rent note in the year 1935. Under the said rent-note the landlord paid the municipal rates and taxes in respect of the premises. Subsequently under a rent-note passed to the petitioner on the 28th of April 1947 the premises were leased from the 1st of September 1947 at the monthly rent of Rs. 60/but as regards municipal taxes new arrangement was arrived at. It was agreed that the landlord was to bear the amount of municipal rates and taxes payable for the assessment year 1943-44 and the amount of rates and taxes in excess of the said amount will be paid by the tenant and the tenant agreed to pay the same with effect from the assessment year 1947-48. According to the landlords they reasonably and bona fide require the said shop for their own occupation as they wanted to conduct the business of a provision store. It was their further allegation that the opponent had not paid his share of the municipal taxes for the period from 1954-55 to 1957-58 and that he was also in arrears of rent from the 1st of January 1958. The tenant was also liable to pay permitted increases under the provisions of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (hereinafter referred to as the Rent Act). Notice was given to the tenant demanding the above arrears and also terminating the tenancy. Despite this notice which was served on the tenant on the 25th of April 1958 no payment was made within one month thereof but an amount of Rs. 42-0/only was remitted in July 1958 by money-order which according to the petitioner was much less than the amount due for rent and permitted increases including the taxes. Thereafter the petitioners instituted Regular Civil Suit No. 2611 of 1958 on the 22nd of July 1958 in the Court of Small Causes at Ahmedabad against the tenant for recovery of possession and the amount due. The defendants contested the suit on the ground inter alia that the amount claimed as standard rent was not the standard rent that the landlord was not entitled to the permitted increases as claimed and that there was no bona fide and reasonable personal requirement for which possession was wanted by the plaintiffs. The learned trial Judge negatived the contention of the plaintiffs holding that they were not entitled to evict the defendanttenant on the ground of non-payment of rent. He also held against the plaintiffs as regards their plea that they required the premises for bona fide and reasonable personal use. He fixed the standard rent of the premises at Rs. 67 50 and further directed that the defendant tenant would be liable to pay such additional amount in respect of the municipal rates which exceeded the amount by Rs. 32.37 np. per annum The trial Court further directed the tenant to pay the sum of Rs. 840-75 np. as arrears of rent and permitted increases from 1-1-1958 to 30-6-1958. Possession was however not awarded. The landlords being aggrieved by the said decision had filed the aforesaid appeal. The appellate Court however confirmed the decree of the lower Court and dismissed the appeal holding against the landlords on both the score.

(2.) On behalf of the petitioners the following submissions were made in support of the revision application :

(3.) Now before we go to examine these grounds it will be convenient to deal with some of the contentions raised on behalf on the tenant and which appear to have appealed to the learned appellate Judge. It was urged in the appellate Court that the landlord had not made a legitimate demand in respect of the permitted increase in rent but had claimed an amount much in excess of what he could legitimately claim under the Act under sec. 10(AA). The landlord having claimed an amount which was in excess of what he was entitled to claim in law the demand of the landlord was not a valid demand and the notice served on the landlord making that demand was not in accordance with law. The learned appellate Judge has observed that the contention raised on behalf of the tenant was that the plaintiff was not entitled to institute a suit for recovery of possession on the ground of non-payment until after the service of the notice demanding standard rent or permitted increase on the tenant under sec. 12(2) of the Rent Act. Emphasis was laid on the expression one month next after notice in writing of the demand of the standard rent or permitted increases... .... Therefore if the landlord were to demand something more than the standard rent or permitted increases the notice would be a notice contrary to the provision of sec. 12(2) and since the tenant was not bound to comply with such an illegal notice the suit instituted against the tenant was bad for want of valid notice under sec. 12(2) of the Act. The landlord had made a demand in his notice also for an amount of Rs. 465-75 nP. by way of the amount due from the tenant on the score of taxes and this was considered by the learned Judge as beyond the scope of the notice and in the opinion of the learned Judge such a demand was contrary to law and the tenant was not bound to comply with such a notice and therefore the plaintiffs were not entitled to the relief for possession. I find it difficult to agree with the learned Judge in his conclusion. Merely because in the notice a claim for a larger amount than the standard rent and permitted increases is made the notice would not be rendered illegal. What is intended by the Legislature by providing for giving of a notice is that the tenant must know what was demanded from him and if the notice made it clear that he was demanding also the standard rent and the permitted increases the notice would comply with the requirements of sec. 12(1). It may be that if by the notice any amount is claimed which is beyond the amount of the arrears of standard rent and permitted increases the plaintiff may not be entitled to recover that amount ultimately if he were to file a suit to recover such an amount. It has also to be taken into consideration as in this case it is the case of the landlord that the tax which the tenant had undertaken to pay is permitted increase in the eye of law under the Rent Act and therefore he was entitled to claim it from the tenant as permitted increase. Again the landlord might honestly believe that the particular amount was standard rent which he was entitled to claim and accordingly make such demand in the notice. Ultimately it may turn out that under the provisions of law and after the evidence is led the amount due was less than what he had claimed to be the amount of standard rent in the notice. It is not possible to interpret this provision of law to mean that in any case where the demand exceeds the actual amount of standard rent and permitted increases the notice would be rendered illegal if such a demand is in excess of such standard rent or permitted increases which may ultimately be held to be the standard rent or permitted increase. In this view of mine I am supported by a decision in Labhabhai Vithaldas v. Laxmidas Vithaldas IV G. L. R. page 567 wherein it has been held that when a notice under sec. 12(2) of the Bombay Rent Control Act is given for the payment of arrears of rent not at the rate of contractual rent but at a rate higher than standard rent the notice itself does not become invalid so as to take away the right of the landlord to institute the suit one month after the notice. It is the fact of the notice which is important under sec. 12(2) and not the correctness of the contents of the notice. Similar is the view taken by this High Court in another decision in Panchal Mohanlal Ishwardas v. Maheshvari Mills Ltd. III G.L.R. page 574 wherein also a demand over and above the standard rent and permitted increase was made in the notice and a similar contention had been raised on behalf of the tenant which was negatived and the notice was held to be a legal notice which could form the basis of a suit by the landlord.