MUKTABAI GANGADHAR KADAM Vs. MUKTABAI LAXMAN PALWANKAR

JUDGEMENT

(1.) A short but interesting question of law of considerable importance arises for decision in this petition in the following circumstances.

(2.) THE petition is directed against a decree for eviction under the Rent Act. The petitioner is the tenant and opponents Nos. 1 and 2 (hereinafter referred to as the opponents) are her landlords in respect of a room in their house situated in Nana Peth at Poona, since several years. The agreed rent of the room was Rs. 15 per month. In February 1960, the opponents gave notice to the petitioner purporting to terminate her tenancy on the ground of non -payment of rent, and within one month of the receipt of the notice the petitioner filed an application for fixation of standard rent in the Court of Small Causes at Poona. The opponents also thereafter filed a suit for eviction against the petitioner in the same Court. Both the proceedings were heard together and terminated in favour of the petitioner. The standard rent of the room was fixed at Rs. 8 per month and as the petitioner had deposited all the rent in Court, the suit of the opponents was dismissed. The appeal filed by the opponents against the dismissal of their suit and the revision application filed by them against the order fixing the standard rent, were both dismissed with costs by the District Court on June 8, 1'963. In the meantime the petitioner had been sending rent by money orders. Some of these money orders were accepted by the opponents but the others were not. On July 3, 1963 the opponents, through their advocate, gave a notice to the petitioner alleging that she was in arrears of rent from March 1, 1962, and purporting to terminate her tenancy with effect from the end of August 1963 on the ground of non -payment of rent. By that notice, in addition to the arrears of the standard rent, they also demanded the education cess at the rate of 2 per cent, of the standard rent from October 1, 1962, which they claimed to have paid in respect of the room in the occupation of the petitioner. The petitioner received the notice on July 4, 1963, and seems to have given a reply to it but the reply is not on record. A money order for Rs. 15 was also sent by her but the opponents refused to accept it. On September 18, 1963, the opponents filed their suit against the present petitioner. In the suit also they made a claim for the amount of education cess at the same rate from October 1, 1962, Eviction of the petitioner was sought by the opponents on the sole ground of non -payment of standard rent and education cess.

(3.) THE opponents realised that their claim for the amount of 'education cess' at 2 per cent, of the standard rent was not maintainable and gave up that claim altogether at the trial. The trial Court held the over -payments proved but held that the claim for the same was barred by limitation. It also held that though Bs. 37.50 were due to the petitioner towards the costs of former proceedings, her remedy was by way of execution and she was not entitled to set -off that amount against the suit claim. The trial Court further held that the dispute relating to 'education cess' was not a dispute relating to a 'permitted increase', and hence, though the petitioner had complied with the requirements of Section 12(3)(b) of the Kent Act, she was not entitled to the protection of that section. According to that Court as the rent was in arrears for over six months, the case was governed by the provisions of Section 12(3)(a) of the Rent Act. It, however, held that the notice did not satisfy the requirements of Section 12(2) of the Bent Act inasmuch as the amount demanded therein was in excess of the amount due, and, on that ground alone, dismissed the suit directing that the opponents should withdraw the amount deposited in Court by the petitioner and that the parties should bear their respective costs.