IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1611 OF 1991 Daulatrao Madhawrao Bagal since deceased, by his heir and legal representatives: 1.Smt.Kamal D.Bagal, wife, 62 years 2.Satish D.Bagal, Son, age 42 years 3.Ulka D.Bagal, daughter, age 45 years, All residing at 634 E, Shahupuri, Kolhapur. 4.Smt.Sucheta S.Kori, Daughter, age 46 years, Residing at Dipti, S/2, 2nd floor, Near Venus Corner, Kolhapur - 416001. ...Petitioners Versus Sonabai Dinkar Hundekar, (since deceased), through her legal heirs: 1(a) Smt.Shobha Annappa Chougule (nee Shobha Dinkar Hundekar) daughter, age about 40 years, R/a B-4, Flat No.16, Giridhar Nagar, Warage, Malwadi, PUNE - 29. 1(b) Smt.Mina Madan Bagane, (nee Mina Dinkar Hundekar) daughter, age about 37 years, R/a 22/11, Jagdale Colony, Near Pratibhanagar, Kolhapur ...Respondents ...... : 2 : Mr.P.S.Dani for Petitioners. Mr.Pankaj Das for Respondents. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. AUGUST 8, 2008. AUGUST 8, 2008. AUGUST 8, 2008. JUDGMENT : JUDGMENT : JUDGMENT : 1. This Writ Petition under Article 227 of the Constitution of India takes exception to the Judgment and Decree passed by the Additional District Judge, Kolhapur dated 27th August 1990 in Regular Civil Appeal No.382 of 1984 thereby reversing the Judgment and Decree of possession ordered by the IIIrd Joint Civil Judge, Junior Division, Kolhapur dated 28th September 1984 in Regular Civil Suit No.165 of 1975. The original Petitioner (predecessor of the present Petitioners) being the landlord in respect of premises situated on CTS No.634 C, in ‘E’ Ward at Kolhapur having two rooms, one admeasuring 30’ x 23’ 3" and other 30’ x 10’, instituted Suit for possession of the said premises against the original Respondent : 3 : (predecessor of the present Respondents) on different grounds. However, before this Court the Petitioners have confined to ground of default and bonafide requirement. 2. The Suit filed by the landlord was decreed by the Trial Court on the ground of default, bonafide requirement as well as non-user of the tenement for the purpose for which it was let. The Appellate Court, however, reversed the decree of eviction on all the three counts. Against the said decision of the Appellate Court, the landlord has filed the present Writ Petition under Article 227 of the Constitution of India and pressed for restoration of decree of possession ordered by the Trial Court limited to grounds of default and bonafide requirement. 3. Reverting to the first ground on which the landlords pray for possession of the suit premises, will have to be addressed keeping in mind the following admitted facts: . The landlord issued demand notice dated : 4 : 19th December 1974 terminating the tenancy, amongst others, on the ground of default in payment of rent. In the said notice sent to the tenant, it was asserted that the tenant was in arrears since November 1973, which period was more than six months anterior to the date of notice. The tenant on receipt of the said notice, remitted sum of Rs.350/- (Rupees Three Hundred Fifty) to the landlord on 31st December 1974, which was accepted by the landlord. There is no dispute on these facts. The controversy, however, was in relation to the mode of tenancy-whether it was monthly tenancy or yearly tenancy. According to the landlord, the tenancy was on monthly basis; whereas according to the tenant, it was on yearly basis. The Appellate Court has found as of fact that the tenancy was on monthly basis but the rent was payable yearly. Insofar as the finding of fact recorded by the Appellate Court that the tenancy was on monthly basis, is not in issue. Even the finding of fact recorded by the Appellate Court that the rent was payable on yearly basis is not assailed. On this finding, it necessarily follows that the ground of eviction under Section 12(3)(a) : 5 : of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as ‘the Act’) was not available in the fact situation of the present case. The Appellate Court then proceeded to reverse the decree of possession on the ground of default, granted by the Trial Court, on the reasoning that once Section 12(3)(a) is inapplicable, remedy under Section 12(3)(b) also will not be available to such tenancy. To examine the correctness of this opinion, we shall straightway refer to Section 12 of the Act as it applied to the case on hand, which reads thus: "12(1) A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, insofar as they are consistent with the provisions of this Act. (2) No suit for recovery of possession shall be instituted by a landlord against tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in Section 106 of the Transfer of Property Act, 1882. : 6 : (3)(a) Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-section (2), the court shall pass a decree for eviction in any such suit for recovery of possession. (b) In any other case, no decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the court. (4) Pending the disposal of any such suit, the Court may out of any amount paid or tendered by the tenant pay to the landlord such amount towards payment of rent or permitted increases due to him as the Court thinks fit." (emphasis supplied) 4. Section 12, which is a ground for ejectment on account of tenant’s failure to pay the standard rent and permitted increases, applies to both types of tenancies. Be it monthly tenancy or yearly tenancy. Section 12(3) recognises separate regime in the form of Clauses (a) and (b), on the basis of factum of mode of payment of rent - either : 7 : on month to month basis or year to year basis. The tenancy where the "rent is payable by the month", Section 12(3)(a) of the Act would come into play. Whereas, if the rent is payable on yearly basis, such a tenancy would be governed by the regime of Section 12(3)(b) of the Act. 5. Insofar as sub-section (1) is concerned, that is a general provision governing both types of tenancies, whether the rent is payable by the month or otherwise. Sub-section (2) of Section 12 is a provision which creates a bar for institution of suit, unless the landlord were to issue notice in writing of the demand of standard rent or permitted increases coupled with the notice is duly served upon the tenant in the manner provided in Section 106 of the Transfer of Property Act, 1882 (hereinafter referred to as ‘the T.P.Act’) and period of one month has expired from such service. 6. In the present case, there is no dispute that demand notice in writing was served on the tenant in the manner provided in Section 106 of the T.P.Act. The argument regarding validity of the : 8 : notice will be addressed a little later. Once, the stipulation provided in sub-section (2) is complied, the landlord is free to file the Suit for recovery of possession on the ground of default.If the Suit for recovery of possession is in respect of tenancy where the "rent is payable by the month", the rigours provided in Section 12(3)(a) will get attracted. However, in respect of any other type of tenancy, it will be governed by the regime of Section 12(3)(b) of the Act. It is not necessary to elaborate on the other provisions of Section 12 of the Act. In the present case, as the Court below has found that although the tenancy was monthly basis, but the rent was payable on yearly basis, we will have to proceed on the premise that provisions of Section 12(3)(b) will be attracted. 7. Before proceeding further, I would think it appropriate to first deal with the opinion recorded by the Appellate Court that the demand notice was invalid. The Appellate Court relying on the decision of the Gujarat High Court in the case of Vasumatiben & Ors. vs. Bal Kashiben reported Vasumatiben & Ors. vs. Bal Kashiben reported Vasumatiben & Ors. vs. Bal Kashiben reported in 1977 Bom.R.C. 152 in 1977 Bom.R.C. 152 in 1977 Bom.R.C. 152, has opined that the demand : 9 : notice Exhibit 56 was invalid. Before analysing that aspect I would in the first place advert to the dictum of the Gujarat High Court. It has held that the notice of demand must be precise for a sum specified or it must be made in such a manner that the amount actually claimed becomes definitely ascertainable by reference to some other intrinsic evidence in the notice itself such as the point of time from which arrears at a specified rate are due or such sums or other such indications. In absence thereof, there would be really no demand within the meaning of Section 12(2) of the Act. There can be no quarrel with this proposition. The Appellate Court has noted that the demand notice Exhibit 56 does not comply with the requirements of Section 12(2) of the Act as it fails to mention the rate of rent along with the period of arrears. True it is, that the notice Exhibit 56 does not mention the rate of rent. However, there is absolutely no controversy between the parties that the rate of rent was Rs.350/- (Rupees Three Hundred Fifty) per annum as fixed by the Rent Court in the standard rent application filed by the tenant. As a matter of fact, the tenant in his written statement has : 10 : expressly conceded that position in paragraph 2 of the written statement. If it is so, the assumption of the Appellate Court that the notice is invalid, as it does not specify the rate of rent will have to be stated to be rejected in the fact situation of the present case, having regard to the stand of the Defendant in the written statement. In that, there is no confusion at all in the mind of the Defendant that the rate of rent is Rs.350/- (Rupees Three Hundred Fifty) per annum and that the same was unpaid since November 1973. The Appellate Court, however, then proceeds to observe that the demand notice Exhibit 56 makes no mention even with regard to the period of arrears. This finding is error apparent on the face of the record. Inasmuch as, in Para 4 of the demand notice, it is expressly stated that the tenant was in default since November 1973 till the date of notice and which period was more than six months. In other words, the basis on which the Appellate Court proceeded to hold that the demand notice was invalid, cannot be sustained both on facts and in law. The decision of the Gujarat High Court is therefore of no avail. In other words, there is intrinsic evidence in the : 11 : demand notice Exhibit 56 itself as to the period of arrears and the amount required to be paid by the tenant. As a matter of fact, the tenant after receipt of the notice immediately remitted sum of Rs.350/- (Rupees Three Hundred Fifty), which according to him was the only amount due and payable at the relevant time. Suffice it to observe that there is no infirmity in the demand notice as served upon the tenant. 8. The next question is: whether the rigours of Section 12(3)(b) would be attracted to the facts of the present case? No doubt, the tenant is justified in asserting that on the date of service of demand notice Exhibit 56, as he was in arrears only from 1st November 1973, the amount then due and payable would be only till 31st October 1974, keeping in mind that rent was payable yearly and not on monthly basis. It is on that assumption, the tenant remitted only sum of Rs.350/- (Rupees Three Hundred Fifty) to the landlord on 31st December 1974. The question is: whether that would deprive the landlord from instituting the Suit on the assertion that entire amount demanded : 12 : in the notice has not been paid by the tenant? There is nothing in Section 12 of the Act which would preclude the landlord from instituting such a Suit. Even if the tenant chooses to pay part of the amount demanded in the suit notice, the cause of action to institute Suit on the basis of such a demand notice would continue and the landlord can legitimately institute Suit on that basis. In that case, the parties will be governed by the stipulations of Section 12 of the Act. As aforesaid, the present case is governed by Section 12(3)(b) - not a case being rent payable by the month. Insofar as Section 12(3)(b) is concerned, in case of institution of the Suit by the landlord, the tenant is obliged to pay or tender in Court the standard rent and permitted increases then due on the first day of hearing of the Suit or on or before such other date as the Court may fix. Besides, the tenant is obliged to continue to pay or tender in Court regularly such rent and permitted increases till the Suit is finally decided. Section 12(3)(b) cast two obligations to be observed by the tenant against whom the Suit is filed for recovery of possession inspite of the : 13 : tenant making part payment under the suit notice, which payment, though accepted by the landlord, is not full satisfaction of the claim of the landlord spelt out in the demand notice. In that Suit, the tenant, in the first place, has to ensure that all the arrears then due with regard to standard rent or permitted increases are already paid or tendered in Court before the first date of hearing of the Suit. By now, it is firmly established that the date on which the issues are framed should be reckoned as the first date of hearing of the Suit. In the present case, that event has happened on 30th December 1975. Even if the tenant’s case were to be accepted as it is, all that the tenant asserts is that after receipt of demand notice, he paid sum of Rs.350/- (Rupees Three Hundred Fifty) on 31st December 1974. No further payment was made by the tenant till the first date of hearing of the Suit. By the first date of hearing of the Suit, the tenant in any case had become liable to pay rent from 1st November 1974 till 31st October 1975 for the whole of that period, if not till 30th December 1975. He was admittedly in default in paying or tendering at least the said amount in : 14 : Court on the first day of hearing of the Suit even though the said amount had become then due. Thus understood, the first part of Section 12(3)(b) has been breached by the tenant inviting decree of eviction on the ground of default on that count itself. 9. Assuming that the case of the tenant was to be examined further, even then, the latter part of Section 12(3)(b) of the Act mandates that the tenant shall continue to pay or tender in Court regularly such rent and permitted increases till the Suit is finally decided. The payment or tender by the tenant is expected to be on regular basis as and when the amount towards standard rent and permitted increases become due. In the present case, however, the tenant has paid amount in Court on irregular basis, which can be seen from the relevant dates. --------------------------------------------------- Sr. Date of Amount of Particulars Date of Amount of Particulars Date of Amount of Particulars No. Deposit Deposit Deposit Deposit Deposit Deposit --------------------------------------------------- 1) 30.12.1974 Rs.350/- Towards arrears between 1/11/73 till 21/10/74. 2) 30.12.1975 Not paid First date of hearing : 15 : of the Suit. By then tenant was expected to pay arrears for period between 1/11/1974 to 31/10/1975 (i.e.Rs.350/-). 3) 25.08.1977 Rs.950/- Rent up to Nov.1976 (Rs.700/-, paid surplus Rs.250/-). 4) 27.03.1980 Rs.700/- Rent up to Nov.1979 (Rs.1050-Rs.250=Rs.800/-. Therefore, short payment Rs.100/-). 5) 01.04.1981 Rs.350/- Rent up to Nov.1980 - (Rs.350/- + Rs.100/-) short payment Rs.100/-. 6) 01.12.1983 Rs.700/- Rent up to Nov.1983 Rs.1050+Rs.100. Therefore short payment Rs.450/-. 7) 13.11.1986 Rs.1,050/- Rent up to Nov.1986 Rs.1050/- + Rs.450/-. Therefore, short payment Rs.450/-. 8) 01.01.1988 Rs.350/- Rent up to Nov.1987. Rs.350+450.Therefore short payment Rs.450/-. 9) 27.12.1988 Rs.350/- Rent up to Nov.1988. Rs.350+Rs.450. Therefore, short payment Rs.450/-. 10) 07.12.1989 Rs.350/- Rent up to Nov.1989. Rs.350+Rs.450. Therefore, Short payment Rs.450/-. ---------------------------------------------------- 10. From the above chart, it is more than clear that the tenant failed even to regularly pay the amount towards standard rent and permitted : 16 : increases as and when the same became due with promptitude. In such case, the tenant would expose himself to decree of eviction within the meaning of latter part of Section 12(3)(b) of the Act. If any authority is required on this proposition, it will be useful to refer to the decision of the Apex Court in the case of Mranalini B.Shah & Anr. vs. Mranalini B.Shah & Anr. vs. Mranalini B.Shah & Anr. vs. Bapalal Mohanlal Shah reported in AIR 1980 SC 954 Bapalal Mohanlal Shah reported in AIR 1980 SC 954 Bapalal Mohanlal Shah reported in AIR 1980 SC 954 which refers to its earlier decisions to hold that it was clear that the Act interferes with the landlord’s right to property and freedom of contract only for the limited purpose of protecting tenants from misuse of the landlord’s power to evict them in these days of scarcity of accommodation, by asserting his superior rights in property or trying to exploit his position by extracting too high rents from helpless tenants. At the same time, the object was not to deprive the landlord altogether of his rights in property which have also to be respected. The Judgment proceeds to examine the sweep of expression "regularly" appearing in the latter part of Section 12(3)(b). While considering that, the Apex Court in Para 12 has observed that the said word "regularly" enjoins : 17 : a payment or tender characterised by reasonable punctuality, that is to say, one made at regular times or intervals. It further held that the regularity contemplated may not be a punctuality, of clocklike precision and exactitude, but it must reasonably conform with substantial proximity to the sequence of times or intervals at which the rent falls due. Same view is restated by the Apex Court in the case of Mohan Laxman Hede Mohan Laxman Hede Mohan Laxman Hede vs.Noormohamed Adam Shaikh reported in (1988) 2 SCC vs.Noormohamed Adam Shaikh reported in (1988) 2 SCC vs.Noormohamed Adam Shaikh reported in (1988) 2 SCC 481 481 481. Though in the fact situation of that case, the Court was of the view that the defaults committed by the Appellant/tenant were few and there was some delay amounting from two or three days up to a maximum of 23 days. In the present case, however, from the chart reproduced above, it is not possible to countenance that the payment tendered by the tenant in Court towards standard rent and permitted increases was on regular basis. Even for that reason, the landlord was entitled for decree of eviction against the tenant. Suffice it to observe that the opinion of the Appellate Court in reversing decree of eviction on the ground of default on the basis that if Section 12(3)(a) is : 18 : unavailable, no remedy under Section 12(3)(b) is available to such a landlord. That view cannot be countenanced in law. Accordingly, the conclusion reached by the Appellate Court in relation to ground of default will have to be overturned and the decree of eviction ordered by the Trial Court against the tenant on the ground of default will have to be affirmed for the aforesaid reasons. 11. Counsel for the Petitioners had also relied on the decision of our High court in the case of Waman Deoram Sonawane vs. Shri Ganesh Waman Deoram Sonawane vs. Shri Ganesh Waman Deoram Sonawane vs. Shri Ganesh Mandir, Dhulia & Anr. reported in 1984 Mh.L.J. Mandir, Dhulia & Anr. reported in 1984 Mh.L.J. Mandir, Dhulia & Anr. reported in 1984 Mh.L.J. 791 791 791 which restates the legal position expounded in the decision in Mranalini Shah’s case (supra). The said decision of our High Court was carried in appeal being Civil Appeal No.3231 of 1984 before the Apex Court, which, however, has been dismissed, thereby upholding the said decision. 12. That takes us to the ground of reasonable and bonafide requirement of the landlord. The case made out by the landlord in paragraph 4 of the Plaint is essentially that the landlord wanted the : 19 : suit premises occupied by the tenant and his family members for starting montessory school therein to be managed by his wife. It is stated that the present residential accommodation will be inconvenient for the wife to conduct montessory school. To establish the case, the landlord not only examined himself as PW 1 but also his wife as PW 2. Both have deposed about the requirement spelt out by the landlord. The landlord (PW 1) has spoken about the need in his examination-in-chief. He has given the background in which his wife is going to start montessory school in the suit premises. He has deposed that she has completed D.Ed. course and that the suit tenement was convenient for starting a montessory school. He has also deposed that there is no other place convenient to start montessory school elsewhere in his residential house. He has also deposed that there was no possibility for him to secure another accommodation to start the montessory school. He has further stated that the suit tenement was adjacent to the residential building where his family was staying. He has then disclosed his financial position and the fact that if his wife : 20 : was to start the montessory school, that would help in supporting the family requirements. The Plaintiff’s wife also entered the witness box and reiterated the stand of the Plaintiff stated in his evidence. She has deposed that she has acquired necessary qualification and was eager to start the montessory school. She has also stated that she has already applied to the concerned authority for permission to start the montessory school in 1974. With regard to the issue under consideration, the Defendant cross-examined the Plaintiff and his wife PW 2. Besides, the Defendant examined himself as DW 1. In his evidence, he brought on record the fact that the Plaintiff acquired possession of other premises from other tenants during the pendency of the present Suit. The Trial Court, on analysing the entire evidence, proceeded to answer the issue and summed up the position in the following words in Paragraph 34, which reads thus: "34. Applying