MADHAVSINGH TULSIDAS Vs. BHAKTIBEN NARANDAS PALEJA

JUDGEMENT

(1.) The Appellate Bench of the Court of Small Causes reversed the findings of the trial Judge and decreed the landlord's suit for eviction on the ground of a default by the tenant in the payment of rent.

(2.) The landlord sued for possession of two tenanted rooms situated in "K' Block, on the Second Floor, of a building called Vanraj Bhuvan, at Bhau Daji Cross Lane, Matunga, Mumbai. The landlord issued a notice of demand claiming arrears of rent from the tenants on 27th June 1972. The arrears were calculated at the rate of Rs. 35.70 p.m. for the period from February 1970 till September 1971 and at the rate of Rs. 36.12 from the month of October 1971. According to the landlord, the notice of demand was remitted by registered post with an acknowledgment due and the postal packet was returned with the remark, "refused". It was averred that a notice had also been sent Under Certificate of Posting. Another notice was stated to have been pasted on the premises. In the Written Statement, the tenants denied receipt of the notice of demand and claimed that they were ready and willing to pay the rent.

(3.) Evidence was adduced before the trial Court by the parties. The trial Judge dismissed the suit on 30th November, 1991. The trial Court held that service of the notice of demand was not proved. The third defendant stepped into the witness box and denied that the notice had been tendered by the postman. The trial Judge held that parties reside in close proximity in the same block of tenements and upon the denial by the third defendant of the service of the notice, the landlord failed to establish service of the notice of demand. In so far as the ground for eviction was concerned, the trial Judge held, following the judgment of the Supreme Court in Raju Kakara Shetty v. Ramesh Prataprao Shirole, 1991 1 SCR 51 that education cess payable under the Maharashtra Education (Cess), 1962 is not payable monthly and since it forms part of the rent, the rent was not payable monthly. There was, the trial Court held, no agreement between the parties that the education cess would be paid with the rent on a monthly basis. In that view of the matter, Section 12(3)(a) of the Bombay Rents, Hotel and Lodging Rates (Control) Act, 1947 as it then stood, was held not to be attracted and the case was to be governed by Section 12(3)(b). The tenant was held to be entitled to the protection of Section 12(3)(b) since on or before the first day of the hearing of the suit, the tenant had duly deposited the arrears of rent and that thereafter, the rent had been deposited regularly as and when it fell due.