1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 3126 OF 1994 KACHARDAS DAGDULAL JAIN, since deceased per L.Rs. (A) Smt. Kamalabai w/o. Kachardas Jain, Age 55 yrs., Occu. Household, R/o. Chalisgaon, Dist. Jalgaon. (B) Rajendra Kachardas Jain, Age 39 yrs., Occu. Business, R/o. As above. (C) Nandalal Kachardas Jain, Age 36 yrs., Occu. Business, R/o. Vadale-Wodalis, Tq. Chalisgaon, Dist. Jalgaon. (D) Dilip Kachardas Jain, Age 33 yrs., Occu. Education, R/o. Chalisgaon, Dist. Jalgaon. (E) Sanjay Kachardas Jain, Age 31 yrs., Occu. & R/o. As above. (F) Harashwardhan Kachardas Jain, Age 26 yrs., Occu. & R/o. As above. (G) Mahavir Kachardas Jain, Age 23 yrs., Occu. & R/o. As above. (H) Mrs. Chandanbai Parasmal Jain, Age 29 yrs., Occu. Household, R/o. 187, Faiz Road, Kurol Bagh, New Delhi. ....Petitioners. Versus 1. Laxminarayan Chunnilal Kalantri, Age 52 yrs., Occu. Nil. 2. Somnath Chunnilal Kalantri, Age 47 yrs., Occu. Nil. 2 Both Businessmen and R/o. Chalisgaon, Dist. Jalgaon. ....Respondents. Shri. S.S. Bora h/f. Shri. S.C. Bora, Advocate for petitioners. Shri. H.M. Karwa, Advocate for respondent Nos. 1 and 2. CORAM : R.K. DESHPANDE, J. DATE : 16th August, 2010. ORAL JUDGMENT : 1. This writ petition challenges the judgment and order dated 29.8.1994 passed by the learned Additional District Judge, Jalgaon, dismissing the Civil Appeal No. 363/1984 filed by the petitioners/tenants and confirming the judgment and decree passed by the learned Civil Judge, Junior Division, Chalisgaon in Regular Civil Suit No. 132/1981 decided on 9.8.1984. The Trial Court has decreed the Regular Civil Suit No. 132/1981 filed by the respondents/landlords for possession of the suit premises, on the ground that the petitioners/tenants were defaulters in regard to the standard rent. The petitioners were also directed to pay arrears of rent for the period from 1.9.1978 to 31.8.1981 at the rate of Rs. 16/- per month. Similarly, the petitioners were also directed to pay the permitted increases at the rate of Rs. 3/- per month for the period from 1.9.1978 to 31.8.1981. The petitioners were also directed to deliver vacant possession of the suit premises to the plaintiff. 2. The petitioners are tenants and the respondents are the landlords 3 in respect of suit premises bearing City Survey No. 2522 situated at Chalisgaon, Dist. Jalgaon, having Block No. 3, on the ground floor admeasuring 12 x 25 fts. In Regular Civil Suit No. 132/1981 filed by the respondents/landlords against the petitioners, a finding is recorded that the petitioners were in arrears of rent for more than six months at the time of issuing the suit notice. It was held that the suit notice was legal and valid. It was held that the petitioners were in arrears of rent and permitted increases including education cess etc. for the period from 1.9.1978 to 31.8.1981. It was further held that the plaintiffs were entitled to get the possession of the suit premises. Hence, the decree of eviction and arrears of rent was passed. 3. In Civil Appeal No. 363/1984 preferred by the petitioners/tenants, the findings recorded by the Trial Court were confirmed. It was held that the notice at Exh. 48 was legal and valid. It was further held that the petitioners were defaulters and there was no compliance of provisions of Section 12 (3) of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947, (hereinafter referred to as the "said Act") as the petitioners had failed to deposit the amount of standard rent and permitted increases. The appeal was, thus, dismissed on 29.8.1994. Thus, the instant writ petition is preferred by the tenants challenging concurrent findings recorded by the Courts below. 4. Shri. Bora, the learned counsel for the petitioners has urged that 4 notice dated 1.3.1981 issued by the landlords was invalid as it included not only the amount of standard rent, but permitted increases including the education cess. According to him, the standard rent was fixed in earlier proceedings at the rate of Rs. 16/- per month and thereafter there was no question of payment of alleged permitted increases including education cess etc. However, according to him, the notice contained such demand, which was also not substantiated by any evidence and the suit based upon such notice was liable to be dismissed. He relied upon the judgment of this Court reported in 1992 (1) Mh.L.J. 436; Ramchandra Appaji Manjage since deceased by L.Rs. Vs. Mahavir Gajanan Mug. 5. Both the Courts below have recorded concurrent findings of facts that the petitioners/tenants have committed default and they were not regular in making payment of rent and hence, the case clearly falls under the provisions of Section 12 (3) (a) of the said Act. It was held that the notice of demand dated 1.3.1981 at Exh. 48 was legal and valid and did not suffer from any infirmity. While recording such findings, the Trial Court has observed in para 15 of the judgment, as under :- "Moreover, at the same time, I would like to point out that in view of judgment of R.C.S.No. 72/69 which is filed at Exh. 36, the standard rent of the suit premises was decided @ Rs. 16/- per month. And, therefore, there is no question of deciding the standard rent at all. And moreover, there is no contention on side of the defendant of reply of dt. 16.2.81 that he is having any dispute regarding rate of rent. But he has also admitted that the rate of rent 5 is Rs. 16/- per month as per English calender by judgment of R.C.S.No. 72/69. And the tenancy month is admittedly according to both of the parties starts from the day of every month and ends by end of the every month. Moreover, the present defendant in his notice has not challenged the permitted increases also. Moreover, the legal position of this point is very clear that it is the duty of the defendant that he must pay the permitted increases also alongwith rent due. And in these circumstances, if he will not pay the permitted increases alongwith rent due month to month regularly then due, therefore, he can be safely hold that he was not ready and willing and now also he is not ready and willing to pay the arrears of rent month to month regularly then due. Hence, the case of the plaintiff is clearly governed U/s. 13 (3) (a) of the Rent Act. The Trial Court has further held in para 16, as under :- "16) After these notices, the suit notice was given by the plaintiff on 1.3.81 which is proved by him at Exh. 11 and it is admitted position on record that defendant has received the suit notice. And in these suit notice, he has demanded the arrears of rent of 152 months from 1.7.68 to 28.2.81 as well as for the said period itself. He has also demanded the permitted increases and notice charges. He has also pointed out the rate of permitted increases was of Rs.3/- per month and by the same rate itself, he has calculated the arrears of permitted increases of 152 months. The same position has been pointed out by him in the suit plaint and demanded the arrears of rent due and permitted increases due for 158 months from 1.7.68 onwards. Therefore, I can safely hold that plaintiff has given clear account of amount due. This notice was duly served on the defendant as per Exh. 43 on 7.3.81 and his tenancy is terminated by the end of 31.3.81, therefore, it was clear 15 days notice in view of 106 of Transfer of Property Act. Therefore, also the legality of notice cannot be challenged and it is legal and valid notice. 7. The Appellate Court in para 8 of its judgment has observed, as 6 under :- "8- In the same way, there is no cogent evidence before the Court that, the arrears of Rs. 16/- per month was inclusive of permitted increases. Therefore, the defts was under legal obligation to pay the arrears of permitted increases at the rate of rupees 3 per month for a period of 152 months amounting to rupees 456/-. Therefore, the suit notice at Exh. 48 was legal and valid in to demand the amount of rent from the deft u/s. 12 (1) (a) of the Bombay Rent Act. Hence, for the above said reasons I do not think that the deft. was justified in submitting before the court that the suit notice at Exh. 48 was not legal and valid in order to terminate the tenancy of the deft in the suit premises." The Appellate Court has further observed that the petitioner tenant has not deposited or tendered the arrears of rent to the plaintiff after issuance of notice and there was no compliance of four conditions mentioned in the ruling referred to in the judgment. It was further held that part payment by way of deposit of arrears of rent in the Court by the defendants during the pendency of suit, would not amount to compliance of the suit notice. 8. In view of the aforesaid findings of facts recorded by the Courts below, which are based upon appreciation of evidence and material available on record, I do not find that any case is made out to exercise jurisdiction under Articles 226 and 227 of the Constitution of India, to upset the aforesaid findings. 9. The judgment relied upon by the learned counsel for the 7 petitioners/tenants proceeds on the finding that the notice was invalid and hence, is of no avail to the petitioners. 10. In the result, there is no substance in this petition. The same is, therefore, dismissed. Rule is discharged. [ R.K. DESHPANDE, J. ] ssc/wp3126.94