DATTU MAHADU LABADE Vs. RANGNATH BABURAO BODAKE

JUDGEMENT

(1.) This petition is directed against the judgment and order dated 23.11.1998 rendered by the District Judge, Pune in Civil Appeal No.140/1986 by which the respondent-landlord s appeal has been allowed and the suit for recovery of possession on the ground of arrears of rent as provided for under section 12(3)(a) of the Bombay Rent Act came to be decreed and the petitioner-defendant has been directed to be evicted and deliver possession of the suit premises to the respondent or or before 1st January, 1989. The petitioner was also directed to pay to the respondents Rs.540.60 Ps. as claimed and cost of the suit and appeal. The suit was filed by the respondent-landlord for eviction on the grounds of arrears of rent and nuisance. The trial Court, however, by its judgment and order dated 19.9.1985 dismissed the suit holding Rs.15/- as the standard rent. In appeal, the learned counsel for the respondent-landlord did not press decree on the ground of nuisance. Similarly, the issue of standard rent was not pressed by the petitioner-tenant hence only the issue that was framed and decided by the appeal court was with regard to ground available under section 12(3)(a) of the Bombay Rent Act.

(2.) The case set up by the respondent-landlord was that the petitioner-tenant was in arrears of rent for a period of 30 months. In view thereof a demand notice under section 12(2) of the Bombay Rent Act was issued on 22.6.1981. The notice was duly served on the petitioner on 1.7.1981. The petitioner neither replied the notice nor did he make payment of the arrears of rent due and outstanding within the time stipulated from the date of receipt of the notice. Admittedly, he did not raise any dispute about the standard rent nor did he make an application for fixation of the standard rent. Still the trial Court had framed the issue as to the standard rent of the suit premises and fixed it at the rate of Rs.15/- per month.

(3.) The appeal Court after appreciating the entire material placed before it decreed the suit holding that the petitioner was in arrears for 30 months and is liable to be evicted on that ground. I am not referring to the reasons recorded by the appeal Court in detail in view of the submissions advanced by the learned counsel for the petitioner and for not taking exception to the reasons recorded in the judgment of the appeal court. As a matter of fact, the learned counsel for the petitioner fairly stated that default in paying rent for 30 months has been proved in the present case. However, the only contention advanced by the learned counsel for the petitioner is that, in the plaint as well as in the notice, the landlord demanded monthly rent as also permitted increases i.e. education cess which was payable on year to year basis and in view thereof the demand notice under section 12(2) itself was invalid. He further stated that no suit on the ground of default could be maintained if it is founded on notice which includes such claim. In other words, since the notice was inclusive of the education cess, which was payable on year to year basis, the notice under section 12(2) itself was invalid and in view thereof the suit ought to have been dismissed. In support of this contention he placed reliance upon the judgment in Ramvilas Shivlal Navandar & Others Vs. Biharilal @ C.R.Ray & Others 467 2002(2) Mh.L.J. 467. He further submitted that though there is no material on record to show that the educational cess was payable on year to year basis, it is well settled that amount towards permitted increases is essentially payable on year to year basis. My attention was further drawn to the observations made in paragraph 10 of the judgment in Ramvilas Shivlal s case (supra) to contend that the Apex Court in the case of Raju Kakara Shetty Vs. Ramesh Prataprao Shirole and Anr. in (1991) 1 SCC 570 has taken a view that the amount towards education cess would be payable on year to year basis unless there is express agreement between the parties to the contrary. The landlord has failed to bring on record any material which speaks contrary to the settled position in law that the education cess would be payable on year to year basis.