MANGALAGAURI TRIKAMALAL VERMA Vs. KAMAL ANIL ADHIYA

JUDGEMENT

(1.) THIS petition once again raises some fine contentions that have been very ably canvassed by the learned Counsel appearing on both sides and which require a determination by this Court. The first of them concerns the position in law with regard to a charge under section 13 (1) (k) of the Rent Act where the allegation against the respondent tenant, who incidentally is a lady Doctor, is to the effect that even though in the year 1966 the premises were let out to her for running a Maternity Home, that she had ceased to use the same for that purpose and had consequently committed an action of breach. Where it is undisputed that the tenant has ceased to run a Maternity Home in the premises since about the year 1970-72 but where she contends that she had been residing in the premises all along and that the ground of change of user is therefore not actionable, the debate has centred around the important question as to how and under what circumstances is this ground to be held proved. In other words, whether it is essential that it be demonstrated conclusively that the user was restricted to a particular purpose which had ceased to exist thereafter and where the onus in entirely on the plaintiff-landlord or landlady as happens to be the case, here, to establish this fact. Secondly, it was vehemently canvassed by the learned Counsel that a long period of time covering almost two years had elapsed between the stage at which an actionable breach under section 12 (3) (a) of the Rent Act took place by virtue of default in payment of rent after which the tenant had paid up the arrears in the following year and therefore that this cause of action did not subsist. Whether the acceptance of rent constitutes waiver and thereby extinguishment of the cause of action is really the point that needs to be gone into under the second charge. For this purpose, however, it would be useful to recount a few of the salient facts.

(2.) THE suit premises in question belong to the petitioner-landlady and consist of V. P. House Nos. 14, 15 and 16 at Dahanu which came to be purchased from the previous owner on 20th August, 1955. Admittedly the present tenancy had commenced from 1st July, 1966. There is on record at Exh. 50 a letter of offer from the tenant who at the relevant time was a practising doctor, dated 30-6-1966 offering to take the premises in question on lease on certain Terms and Conditions. We are not really concerned with the contents of this letter except to the limited extent of recording that the letter is silent with regard to the purpose for which the premises were being let. The first rent receipt is dated 1-7-1966 and is a normal rent receipt issued by the landlady to the tenant indicating that it was rent for the premises which again does not specify any restrictive user or for that matter indicate that the premises were let for a particular purpose. Thereafter, we have on record another document which is Exh. 48. This is a hand-written letter sent by the tenant Doctor on the letter-head of her Nursing Home dated 14-3-1967 which was roughly nine months after the tenancy had commenced in which she has requested the landlady for a letter specifying that the premises were being used as a Nursing Home and requesting her to issue the necessary letter to the M. S. E. B. for the purposes of reduction of the Electricity Tariff. The record indicates that there were certain disputes between the parties with regard to carrying out of repairs, maintenance etc. and that there were also some disputes with regard to the quantum of rent payable. Ultimately, the landlady served a notice dated 12-5-1972 and another one dated 11-8-1972 pointing out that the tenant was in arrears for the period 1-7-1972 to 11-8-1972. These notices were replied but the tenant did not either pay up the arrears or move the Court for determination of the question of the standard rent. Thereafter, one more final notice was served on 12-9-1972 covering all the claims upto that point of time. In response to this the tenant paid up all the arrears on 11-10-1972 i. e within less than one month. The suit came to be filed ultimately on 10-4-1974. The principal ground canvassed in the suit was that there has been a total change of user. The landlady had contended that the premises had been let out exclusively for running of a hospital, in other words, for commercial purposes and that the tenant had closed down the hospital since the year 1970 that there had been a total change of user in so far as she had shifted into the premises with her family thereafter, and had converted the house into a purely residential area. The second ground that was canvassed and which we are not really concerned with because it was not seriously agitated and subsequently given up was that the tenant was guilty of several unauthorised alterations.

(3.) THE tenant filed her written statement and denied the charges. It was her case that there was no specific purpose indicated when the premises had been let out that she had been residing in the premises right from 1-7-1966 and that according to her, there was no cause of action under section 13 (1) (k ). She also denied the charge of unauthorised alterations and stated that the landlady had failed and neglected to maintain the premises as a result of which she was required to spend considerable amounts of money on repairs, and that none of the repairs carried out by her constitute unauthorised alterations. When the evidence commenced, an application was made by the plaintiff for amendment of the suit. The trial Court rejected the application as it was belated and as it sought to make out an entirely new ground namely the ground of non-payment of arrears, which was a separate cause of action and was in no way aligned to the existing one but the landlady carried the matter upto this Court and was ultimately permitted to carry out the amendment in question. The ground of non-payment of arrears inspite of notice was thereafter added on and the tenant-defendant filed an additional written statement in which it was contended that there had been a long standing dispute between the parties with regard to the adjustment of certain amounts spent on repairs etc. as also with regard to the quantum of rent payable and further more that the defendant had in fact paid up the arrears in October, 1972 and that consequently this cause of action could not be pleaded against her.