TULSHIRAM BHUMAYYA SHRIRAM Vs. AKBARKHAN MAJAFARKHAN

JUDGEMENT

(1.) THIS Letters Patent Appeal arises from an order summarily rejecting writ Petition No. 1545/1994, by the learned Single Judge. We proceed to state the undisputed facts germane for the present purpose.

(2.) APPELLANTS are the tenants of residential property bearing Municipal house No. 3914 (City Survey No. 5234) and admeasuring about 17 x 23 fts. (Le. 391 sq. ft. ). The monthly rent was fixed at Rs. 7/-and, thus, the tenancy was on monthly basis (as per English Calendar ). Notice dt. 18. 1. 1983 {exh. 30) was served on the tenants by the plaintiffs (landlords) for recovery of arrears of rent for the period from 13. 8. 1981 onwards. The tenants did not pay the arrears of rent or the monthly rent within one month even after receipts of the said notice and, therefore, the plaintiffs (landlords) moved regular Civil Suit No. 150/1983, in the Court of the learned Civil Judge, senior Division, at Ahmednagar, on or about 4. 3. 1983, for recovery of rent as well as possession of the suit premises. The possession was claimed on two grounds, namely, (1) default in payment of rent, and (2) personal and bonafide requirement of the landlord, and thus, attracting the provisions of the sections 12 (3) and 13 (l) (g) of the Bombay Rents, Hotel and Lodging houses Rates Control Act, 1947 (for short referred to as the Bombay Rent act ). By filing a written statement the suit was opposed and, while the suit was pending, the provisions of section 12 (3) of the Bombay Rent Act came to be amended by Maharashtra Act No. 18/ T987 and the amendment was brought into force from 1. 10. 1987. After considering the evidence brought on record, the Trial Court passed eviction decree vide its judgment and order dt. 30/08/1988, and directed the defendants to pay Rs. 167/- towards the arrears of rent and to deliver vacant possession of the suit premises within three months. Mesne profits, at the rate of Rs. 7/- per month, from the date of filing of the suit till delivery of possession, was also directed to be paid to the plaintiffs. This decree was challenged in Regular civil Appeal No. 524/1988, which was dismissed by the learned Third additional District Judge at Ahmednagar on 20th of Jan. , 1994. The Lower appellate Court held that the suit premises were required for the personal and bona fide occupation of the landlords and the tenants were wilful defaulters in payment of rent. The orders passed by the Courts below came to be challenged in Writ Petition No. 1545/1994. It was urged by the tenants that, they could not be held to be defaulters as the payment was, at the first instance, sent by money orders, which were returned, and, secondly, in any case, the amount towards the rent was deposited in the Court. It was also contended that the notice of eviction was served on some of the four defendants and it could not be treated as notice to all the four defendants and, therefore, it was not a valid notice. The personal and bona fide requirement was also challenged on the ground that the landlords had alternative accommodation at more than one place within the Municipal limits of Ahmednagar. All these issues raised by the tenants did not find favour with the learned Single Judge and, for the reasons set out in the order, which is subject matter of this Letters Patent Appeal.

(3.) THERE is no dispute as to the relationship between the parties. The defence taken by the tenants was on the basis of money orders purportedly sent for the payment of rent. The Lower Appellate Court, on the examination of record, had noted the instances of three money orders, as claimed by the tenants. The first one was on 29. 1. 1981 for an amount of Rs. 28/- and this was found to be irrelevant because the period of default commenced from 13. 8. 1981. The second instance was that of 1. 6. 1983 for an amount of Rs. 70/ -. The notice served by the landlord was dt. 18. 1. 1983 and, therefore, even if this instance was presumed to be correct. It had no consequence as the money order was purportedly sent after about five months from the date of the notice. The third instance of money order was purportedly in March, 1982, for an amount of Rs. 49/ -. All these money order coupons, though brought on record, were not proved. Merely bringing on record money order coupons, along with the amount covered by each such coupon was not sufficient. It was necessary to bring on record the period for which the said amount was supposed to be the rent, the date on which it was offered to the landlords by the postman and their refusal, as claimed by the tenants. Nothing to this effect was brought on record by way of evidence and the money order coupons were not, in fact, exhibited. So far as the issue of deposit in the Court is concerned, we need to refer to provisions of section 12 (3) as they stood on the date of filing of the suit and on amendment w. e. f. 1. 10. 1987 when the suit was still pending. On receipt of the notice dt. 18. 1. 1983, the course available to the tenants was to invoke the provisions of section 11 (3) of the Bombay Rent Act for fixation of standard rent or to apply under section 11 (1) before the notice was received. None of these actions were resorted to. In the case of Jaypal Bandu adake and another v. Basavali Gurulingapa Mhalank and another, a Division Bench of this Court held that a decree for eviction under section 12 (3) (a) can be prevented only if an application for standard rent is made under section 11 (3) within one month of the notice under section 12 (2) or by filing an application under section 11 (1) before such a notice is received. By raising a dispute regarding standard rent, in reply to notice under section 12 (2), the Court could not be prevented from passing a decree under section 12 (3) (a) of the Bombay Rent Act, ruled this Court.