RATNAPRAPHA V TOPLE Vs. SULOCHANA DAMODAR

JUDGEMENT

(1.) This is original unsuccessful landladys petition with regard to her claim against respondent No. 1 tenant on the basis that the said tenant was a defaulter with regard to rental liability. The petitioner-landlord set up entitlement to a decree either under section 12(3)(a) or under section 12(3)(b) of the Bombay Rents, Hotel and lodging House Rates Control Act, 1947 (hereinafter called as "the Act"). The courts below have held that either of the clauses of sub-section (3) of section 12 of the Act were not available. Those findings are seriously challenged in the present petition.

(2.) Few facts, which are more or less not in dispute, be stated at the outset. The suit premises, which are flat No. 2, F Building in Vijay Colony, Juhu Lane, Andheri (West), Bombay, are taken on lease by respondent No. 1-tenant on a monthly rent of Rs. 100/-, which did not include water charges, education cess and other charges for the amenities. The petitioner landlady purchased this property on January 7, 1963 and along with it all the liabilities then outstanding. At the time of the initial lease, respondent No. 1 tenant had advanced a construction loan under a duly registered agreement of December 15, 1962. The liability under that agreement was also taken by the petitioner landlady. The agreement provided that out of the amount of Rs. 100/-, Rs. 65/- per month was to be adjusted towards the amount so given in loan and respondent No. 1 tenant was to pay the balance per month in cash towards her rental liability. After the purchase by the petitioner-landlady of this flat and assignment of the agreement, R.A.E. Suit No. 688/7152 of 1965 was filed on various grounds and relief of possession both under section 12 of the Act as well as under section 13 of the Act was sought. By the judgment of August 30, 1971, the suit of the petitioner-plaintiff under section 12 of the Act was dismissed while the suit under section 13 of the Act was decreed, holding that respondent No. 1 tenant had been guilty of sub-letting as well as that the petitioner landlady had established her need. The petitioner landlady did not file any appeal as far as the dismissal of the suit under section 12 of the Act was concerned. However, respondent No. 1 tenant filed an appeal, being Appeal No. 472 of 1971, questioning the decree under section 13 of the Act. Admittedly, that appeal was filed on October 15, 1971. Before this appeal was filed on October 15, 1971, the petitioner landlady purported to give notice (Ex. B) under section 12(2) of the Act. By that notice, it was pointed out that the liability against the permitted increases was Rs. 23,94p. per month and all that liability was not paid right from April 1, 1963 and the demand was made for Rs. 2,364-24p., which would cover the period upto September 30, 1971. It was made clear that the notice was being given under section 12(2) of the Act and if there is a failure action will be taken by filing a suit. During the pendency of the appeal filed by respondent No. 1 tenant, being Appeal No. 472 of 1971, the petitioner landlady, relying on this notice, filed a suit on March 3, 1972. The appeal of respondent No. 1 tenant was, eventually allowed by the judgment rendered by a Bench of the Court of Small Causes, Bombay, on July 12, 1973 and the decree passed in favour of the petitioner-landlady under section 13 of the Act was set aside.

(3.) Thereafter, the present suit proceeded to hearing. It is not in dispute that for the first time, respondent No. 1 tenant as defendant filed an application seeking permission to deposit the arrears on April 4, 1975. Though order was made, defendant did not comply with the same. It may be mentioned that in the earlier litigation, liability with regard to the permitted increases was, eventually, worked out to be the liability in the sum of Rs. 23,94p. per month, being the permitted increases towards the water charges, energy charges and other charges, respondent No. 1 tenant, thereafter, made another application on June 4, 1976, which was granted ex-parte and deposit was made on June 8, 1976. Thereafter, the deposits had not been regular. On November 15, 1976 respondent No. 1 tenant made a deposit of Rs. 143.70p., on January 7, 1977, she made deposit of Rs. 71-85 i.e. for two month followed by the deposit of Rs. 23.94p. on February 9, 1977. Afterwards, again the deposit came to be made on June 1, 1977 and on August 1, 1977 and November 3, 1977. The deposits, it is submitted, were made with the permission of the Court.