NAGINDAS JASANGBHAI DOSHI Vs. JAMNABAI RAMCHANDRA VANDAKER

JUDGEMENT

(1.) PETITIONERS in this case are the tenant of the suit premises viz., Room No. 9, last floor, Vandekar Mansion, Lamington Road, Bombay-4, of which respondents Nos. 1 to 4 are the landlords. The suit premises is a business premises. Originally the suit premises was given on rent to one Mr. Shantilal Jasangbhai Doshi, proprietor of Modern Auto and Machinery Agency with effect from July 1, 1963. Monthly rent of the aforesaid premises at that time was fixed at Rs. 42.85/-. It is the case of respondent Nos. 1 to 4 plaintiffs that the petitioners failed to pay the rent from January 1975 and, therefore, the plaintiffs gave notice to the present petitioners dated May 18, 1982 calling upon them to make the payment of arrears of rent amounting to Rs. 6,987.70/-. It may be noted here that though initially, as pointed out above, the monthly rent was fixed at Rs. 42.85/-, still, taking into consideration the permissible increases the monthly rent at the time of issuing the notice was Rs. 92.75/- and it is on the basis of this monthly rent of Rs. 92.75/- the said demand notice was sent. Mr. Abhyankar, the learned Counsel appearing on behalf of the present petitioners, contended that though initially the rent was Rs. 42.85/- still, admittedly taking into consideration the permissible increases the rent of the suit premises was Rs. 92.75/- and, therefore, there is no dispute as regards the monthly rent as demanded by the respondents-plaintiffs. After the receipt of the said notice, it is the case of respondent Nos. 1 to 4 that the petitioners failed to pay the rent as demanded in the notice and also had not filed any application in the Small Causes Court, Bombay, for fixing of the standard rent. The plaintiffs, therefore, were constrained to file R.A.E. and R. Suit No. 1689/6056 of 1982. The aforesaid suit was filed for eviction solely on the ground of default under Section 12(3) of the Bombay Rents, Hotel Lodging Houses Rates Control Act, 1947 (hereinafter referred to as the Bombay Rent Act). In the aforesaid suit the plaintiffs contended that the defendants were in arrears of rent from January, 1975 and in fact as per the notice given on May 18, 1982 by the plaintiffs the defendants were in arrears of Rs. 6,897.70/-. However, taking into consideration the provisions under the Limitation Act, the plaintiffs prayed for recovery of rent of Rs. 3,339/- i.e. the rent of three years due from the date of the filing of the suit. In short, the plaintiffs filed the suit for recovery of possession of the suit premises and for recovery of the arrears of rent of Rs. 3,339/- and costs. As against this, it was contended on behalf of the defendants that the relations of the defendants with the plaintiffs were cordial from the inception of the tenancy. The defendants further contended that they used to make advance payments to the manager, one Mr. Patankar, appointed by the plaintiffs landlords, and whatever advance the defendants used to pay to the said Patankar, he used to acknowledge the same subsequently by passing a receipt. It is further contended by the defendants that since the defendants used to make payment in advance to the said Patankar rent collector of the building, Patankar used to pass receipt to every time, and actually, at the time of the issuance of the said receipt no payment of rent was made by the defendants. The aforesaid receipt used to be given by the said Patankar to the defendants against the advance payments made by them and the said receipt used to be signed. The said receipt for the rent was not only used to be signed by Patankar but also by one of the plaintiffs for and on behalf of all the other plaintiffs. Further it is the case of the defendants that periodically Manager Patankar used to settle the accounts against the rent paid in advance by the defendants and if any balance was found due at the time of issuing the receipt then the said balance of the amount used to be paid by the defendants either in cash or by cheque. It is the case of the defendants that this mode of payment was from the inception of the tenancy till the issuance of notice by the plaintiffs. The defendants have also contended that except for the period of twelve months i.e. from August, 1968 to July, 1969 when the payments were made by eight cheques by the defendants against which they also got receipts from Patankar duly signed by him and one of the plaintiffs. The defendants further contended that in fact in August, 1969 they paid an amount of Rs. 5,000/- which was agreed to be returned within three months by plaintiff No. 4 with an agreed interest rate failing which it was also agreed that the said amount of Rs. 5,000/- and interest accrued thereon would be adjusted towards the payment of rent in future. Further, the defendants had also paid amounts of Rs. 750/- and Rs. 1,000/- to the plaintiffs-landlords through the said Patankar in order to meet the expenses towards the Municipal Taxes. Taking into consideration all the aforesaid amounts paid in advance which were to be adjusted towards the future rent, according to the defendants, nothing was due to the landlords as on the date of the notice and even at the time of the filing of the suit and in fact, according to the defendants, they had to receive Rs. 7,596.20/- from the landlords after giving all the due credit for the rent till the filing of the suit. In short, it is the case of the defendants-tenants that if the total amount of advances as advanced by the defendants to the landlords are taken into consideration it would be clear that not only that they were not in arrears as alleged but in fact the landlords were to make payment to the defendants. The defendants further gave an explanation of their conduct as to why they had not given any reply to the demand notice sent by the landlords and as to why they did not remain present when the summons was served. According to the defendants, after the receipt of the notice they had met the landlords and shown them all the accounts and that nothing was due from them to the landlords and that the landlords had decided to settle the accounts. The defendants have further contended that in spite of this the landlords have filed the suit. After the receipt of the summon also they had met the landlords and convinced them as to how they were not in arrears of rent. It is relying on these talks with the landlords that the defendants did not give any reply to the notice sent by the plaintiffs or remained present in the Court or did not file any written statement in the suit filed by the plaintiffs against them. However, an ex parte decree was passed against the defendants and thereafter the defendants took steps for setting aside the said ex parte decree and after the decree was set aside filed their written statement and the case proceeded. According to the defendants the business premises in Bombay is a valuable and they would not have allowed the said notice go unreplied or they would not have allowed the Court to pass the decree ex parte but for the cordial relations with the landlords. The fact that after setting aside the ex parte decree the defendants immediately filed their written statement within eight days, also fortifies the contention of the defendants.

(2.) AS against this Mr. Rane, the learned Counsel appearing for the respondents-plaintiffs contended that in fact the conduct of not giving any reply to the notice and not appearing in the Court or not taking any steps for fixing the standard rent only shows that the defendants-petitioners were convinced about the default and it was only after the decree was passed, as an after thought, the defendants have taken a stand of advance payment. Before the trial Court evidence was led by both the parties and the trial Court in its decision dated February 9, 1988 decreed the suit. Against the aforesaid decision the defendants preferred appeal No. 1933 of 1988 before the appellate Court of Small Causes at Bombay and the said appellate Court by its decision dated November 17, 1989 confirmed the decision of the trial Court. It is against the decisions of the trial Court as well as the appellate Court the petitioners, original defendants, have preferred this writ petition under Article 227 of the Constitution of India.

(3.) AS against this, Mr. Rane, the learned Counsel appearing for the respondents, contended that both the lower Courts were justified in coming to the conclusion that payments made to Patankar were not the payments made to the plaintiffs as there was no authority to Mr. Patankar to that effect and, therefore, both the lower Courts were justified in coming to the conclusion that the defendants were the defaulters. Apart from that Mr. Rane further contended that on the basis of the evidence on record both the Courts have come to the concurrent conclusion that the defendants failed to prove the payments towards the rent and, therefore, even this Court is likely to come to a different conclusion, under Article 227 the findings of fact cannot be disturbed.