MALATI MAHADEV GAVANKAR Vs. RITA SUPLYAN GRACIOUS

JUDGEMENT

(1.) BY this petition, the petitioner challenges the order dated 8.2.1984 passed by the Assistant Judge, Thane, in Civil Appeal No.409/1981. That appeal was filed by the petitioner challenging the judgment and decree dated 23.10.1981 passed by the Civil Judge, Junior Division, Vasai, District Thane, in Regular Civil Suits Nos. 13/1974 and 43/1978. Both these Civil suits were filed by the original landlord Suprayan, of whom the present respondents are the legal representatives, claiming therein that he is the landlord of the suit premises and that the present petitioner is the tenant. By suit No.13/1974, a decree of eviction was sought on the ground that the suit premises were let out to the tenant on the clear understanding that she will vacate it after the rainy season; that even after the rainy season, she did not vacate the suit premises; and hence she was liable for a decree of eviction. The second Suit No.43/1978 was filed seeking a decree of eviction against the tenant on two grounds : (1) that the landlord needs the suit premises for his bona fide occupation and (2) that the tenant has committed default in payment of rent. The trial Court dismissed Regular Civil Suit No.13/1974 but granted a decree of eviction against the tenant in Regular Civil Suit No.43/1978 recording a finding against the tenant that she is not ready and willing to pay rent. Therefore, obviously, the tenant challenged the judgment and decree in Regular Civil Suit No.43/1978. The appellate Court, however, confirmed the finding recorded by the trial Court on the question of default committed by the tenant in payment of rent and dismissed the appeal. Thus, these two judgments are challenged in this petition.

(2.) WHEN the petition was called for final hearing, none appeared for the petitioner. However, with the help of the learned counsel for the petitioner, I have gone through the record. I find from the record that before instituting Suit No.43/1978, claiming a decree of eviction against the tenant under section 12 of the Act on the ground that she was not ready and willing to pay rent, notices dated 17.12.1977 and 14.1.1978 were issued. Perusal of the notices, which are on record, shows that in both the notices the landlord stated that the tenancy of the petitioner was already terminated by notice dated 31.12.1973 and what was claimed by the notices was damages in lieu of rent for the period from 1.1.1977 to 30.11.1977. Admittedly, the suit has been filed under section 12 of the Bombay Rent Act. Perusal of sub-section (2) of section 12 shows that no suit for recovery of possession can be instituted by a landlord against a tenant on the ground of non-payment of standard rent or permitted increases until the expiration of one month next after the notice in writing of the demand of standard or permitted increases has been served upon the tenant. Therefore, service of a demand notice demanding the amount of standard rent or permitted increases is sine qua non for institution of a suit for a decree against a tenant under section 12 of the Act. It is pertinent to note here that according to sub-section (2) of section 12 of the Act, what has to be demanded by the notice is the standard rent or the permitted increases. The term 'standard rent' is defined by sub-section (10) of section 5 of the Act. Perusal of that definition shows that damages in lieu of rent are not included in the definition of 'standard rent'. Therefore, a notice demanding damages in lieu of rent is not a notice demanding standard rent within the meaning of the Act. In the present case what is demanded by the notices is not standard rent as defined in the Act but damages in lieu of rent. Therefore, the demand notice is not in accordance with the provisions of sub-section (2) of section 12 of the Act. The learned counsel for the respondents, however, submitted before me that the decree has been passed against the tenant under section 12(3)(b) of the Act for her failure to make deposits of the standard rent and permitted increases regularly in court after the institution of the suit and therefore even though the demand notice may not be complying with the requirement of sub-section (2) of section 12 of the Act, the decree passed against the tenant cannot be said to be vitiated on that ground. In my opinion, the submission made by the learned Counsel is devoid of any substance. Perusal of section 12(3)(b) of the Act shows that it opens with the words "In any other case no decree for eviction shall be passed". Thus, section 12(3)(b) deals with the stage which is of passing the decree. So far as sub-section (2) of section 12 is concerned, it deals with valid institution of the suit. The question of passing a decree under section 12(3)(b) would arise only if the court finds that the suit has been properly instituted in terms of the provisions of sub-section (2) of section 12 of the Act. But in case it is found that the institution of the suit itself is defective, in as much as the provisions of sub-section (2) of section 12 of the Act have not been complied with, then there is no question of making a decree under section 12(3)(b) of the Act. A decree can be passed only in a validly instituted suit. As I find that the demand notices issued in the present case did not comply with the requirement of sub-section (2)of section 12 of the Act for the aforesaid reasons, in my opinion, the decree passed against the tenant by the courts below cannot be sustained.

(3.) IN the result, therefore, the petition succeeds and is allowed. Rule made absolute in terms of prayer clause (a) with no order as to costs.