PRAKASH VISHNUPANT TILE Vs. RAMCHANDRA GANESH PATHAK

JUDGEMENT

(1.) THIS writ petition filed under Article 227 of the constitution impugns the judgment and order rendered by the lower Appellate court in Civil Appeal No. 1258 of 1986. The said appeal was allowed and the decree of eviction passed by the learned Principal Judge, Small Causes Court at pune in Civil Suit No. 91 of 1979 filed under the Bombay Rents, Hotel and lodging House Rates Control Act, 1947 (for short "the Bombay Rent Act") on 30-8-1986.

(2.) THE appellants-plaintiffs are the landlords and the eviction decree was sought on three grounds viz. (a) default in payment of rent with permitted increases, (b) bona fide requirements and (c) change of user and breach of the terms of tenancy agreement. The landlords had contended that the monthly rent was Rs. 65/-, in addition the permitted increases like education cess, employment guarantee cess and taxes etc. were also required to be borne by the defendant-tenant and he was in arrears of the same from 4-2-1977 onwards. It was also stated that for the month of november 1978 the monthly rent of Rs. 65/- was not paid and all these arrears were demanded by issuing a demand notice (Exhibit 66) dated 1-12-1978 by registered post A. D. The said notice was received by the defendant on 7-12-1978 (postal receipt at Exhibit 67 ). The suit shop premises admeasuring 25 ft. x 13 ft. located on the ground floor of CTS No. 405, Budhwar Peth, Pune were given on rent in the year 1951 to one Mr. Agarwal who was paying rent at the rate of Rs. 35/- per month and rent was thereafter increased to Rs. 55/- per month and the said amount of Rs. 55/- was increased to Rs. 65/- per month. The defendant was occupying the premises since 1959. The defendant filed his Written Statement at exhibit 10 and additional written statement at Exhibit 38 and contended that initially he was paying the rent of Rs. 45/- per month and subsequently it was increased to Rs. 65/- per month and the same was excessive and unreasonable. He denied that he was in arrears of education cess or employment guarantee cess and that he was in arrears of Rs. 207/ -. In the alternative he contended that he had already sent money order for Rs. 207/- to the plaintiffs but they refused to accept the money order and, therefore, he could not be said to be in arrears. On behalf of the plaintiffs, Prakash Vishnupant Tile was examined and in addition vishwamber Tile and Manohar Tile were examined. In support of the defendant's case, he was examined. The trial Court on assessment of the evidence and by taking into consideration the averments made by the respective parties rejected the landlords' case for eviction on the grounds of bona fide requirements and change of user. However, the trial Court decreed the eviction on the ground of default in payment of rent and permitted increases. However, the lower Appellate Court while holding that the case of the landlord for eviction of the decree as per the trial Court was under section 12 (3) (a) of the Bombay rent Act, held that in the notice at Exhibit 66 as well as in the plaint there was no reference to agreement of monthly payment of rent or permitted increases and the decree passed by the trial Court was set aside.

(3.) THE trial Court noted that apart from there being a statutory liability of the tenant to pay the educational cess and the employment guarantee cess, the plaintiffs had produced on record the counterfoil of the rent receipt for the year 1975 which was signed by the defendant and the same was admitted by the defendant while in the witness box. It showed that in addition to the rent the defendant had paid the education cess separately to Smt. Parvatibai Joshi and this document clearly went to show that in addition to the monthly rent the defendant had agreed to pay education cess and the employment guarantee cess and he was so paying separately. Section 12 (3) of the Bombay Rent Act came to be amended by Maharashtra XVIII of 1987 and in the instant case we are concerned with the pre-amended clause (a) of sub-section (3) of section 12 of the said Act. The pre-amended section 12 (3) (a) reads as under :