: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.184 OF 2008 ALONGWITH CIVIL APPLICATION NO.113 OF 2008 IN CIVIL REVISION APPLICATION NO.184 OF 2008 Vinayak Narayan Deshpande & Ors. .. Applicants V/s. Deelip Pralhad Shisode .. Respondent Mr. R.M. Hardas i/b. Mr. P.N. Joshi for the Applicants. Mr. M.M. Sathaye for the Respondent. AND CIVIL REVISION APPLICATION NO.661 OF 2009 Deelip Pralhad Shisode .. Applicant V/s. Vinayak Narayan Deshpande & Ors. .. Respondents Mr. M.M. Sathaye for the Applicant. Mr. R.M. Hardas i/b. Mr. P.N. Joshi for the Respondents. CORAM : SMT. NISHITA MHATRE, J. DATED : 4 TH DECEMBER, 2009. JUDGMENT: 1. These two Civil Revision Applications have been filed against the judgment and order dated 26th October, 2007 passed by the Ad-Hoc District Judge, Nasik, in Civil Appeal No.123 of 2006. The Civil : 2 : Revision Application No.113 of 2008 has been preferred by the landlords while the Civil Revision Application No.661 of 2009 has been preferred by the tenant. For the sake of convenience, the parties will be referred to as ‘landlords’ and ‘tenant’. 2. The landlords purchased the suit property from the earlier owner on 23rd February, 2000. The landlords issued a notice on 23rd May, 2000 to the tenant calling upon him to pay arrears of rent from September, 1999. The landlords also contended that they required the premises for their own use and, therefore, terminated the tenancy. 3. The tenant did not reply to this notice. In the circumstances, the landlords instituted a Suit being Regular Civil Suit No.1284 of 2000 on 17th October, 2000. The contentions raised in the plaint were : (i). that the tenant had committed a default in payment of rent; : 3 : (ii).that the suit premises were required by the landlords bonafide and; (iii).that the suit premises were not in use for more than six months. 4. The tenant denied the claim made by the landlords by filing his written statement. He contended that he was not a defaulter as he had, in fact, paid rent to the erstwhile landlord upto August, 2000. He further contended that ample space was available to the landlords and, therefore, there was no need to pass a decree on the ground of bonafide requirement. The tenant also denied that the suit premises were not being used by him. 5. The Suit was decreed to the extent that the tenant was directed to pay rent of Rs.2,160/- to the landlords. This was the rent payable from April, 2000 to April, 2006. However, the case of : 4 : the landlords that the tenant was in arrears of rent for the period from 1st September, 1999 was not accepted. The landlords’ contention that they required the suit premises bonafide for their own use and enjoyment was not believed. 6. Being aggrieved by the decision of the trial Court, the landlords preferred an Appeal being Civil Appeal No.123 of 2006. The Appeal was decided on 26th October, 2007 by allowing it partly. The Suit was partly decreed to the extent that the tenant was directed to vacate the suit premises in his possession on the first floor within a period of three months. The plaintiffs were granted liberty to erect a steel/iron staircase on appurtenant premises to secure access to the upstairs premises. However, the Appellate Court confirmed the order of the trial Court that the tenant was not in arrears of rent. 7. Mr. Haridas appearing for the landlords submits that the Appellate Court has passed a partial decree on an erroneous ground. He points out that : 5 : the landlords had sought ejectment of the tenant from four rooms on the ground floor of the building which they owned. Instead of passing a decree on those terms, the Appellate Court had directed that the tenant should be evicted from two rooms on the first floor. He submits that this was not what was sought by the landlords and, therefore, the matter would have to be remanded for a fresh hearing. 8. Mr. Sathaye appearing for the tenant concedes that the description of the premises from which the tenant was sought to be ejected, as contained in the plaint, is four rooms on the ground floor and, therefore, the question of evicting the tenant from the two rooms on the higher floor did not arise. He submits that, in fact, the tenant has filed this Civil Revision Application for the same reasons apart from the contention that the landlords had sufficient space available to themselves and did not bonafide require the suit premises which were in occupation of the tenant. : 6 : 9. I have perused the order of the Appellate Court and I find that the Appellate Court has committed a grave injustice. Therefore, in my opinion, it would be appropriate to remand the matter to the Appellate Court for a decision on the question of bonafide requirement of the landlords for the suit premises. 10. The other contention raised by Mr. Haridas for the landlords is that both the Courts below have erroneously dismissed the Suit for recovery of possession of the suit premises on the ground of arrears of rent. He submits that the notice for recovery of arrears of rent was issued on 20th May, 2000 to the tenant which he admittedly received on 23rd May, 2000. That notice, as pointed out by the learned Advocate, claimed arrears of rent from 1st September, 1999. Therefore, the tenant ought to have made the payments within 90 days of the receipt of the notice, as required under Section 15(2) of the Maharashtra Rent Control Act, 1999 (for short “the said Act”). He submits the fact that the tenant had not cared to respond to the : 7 : notice demanding the arrears of rent indicated that the tenant had accepted the plaintiffs as his landlords and, therefore, ought to have paid rent to the landlords. He points out that the Suit was instituted by the landlords only after a notice was issued, as required under Section 106 of the Transfer of Property Act, 1882, in accordance with the provisions of Section 15(2) of the said Act. He then submits that if the tenant wanted to avoid a decree for eviction on the ground of non payment of arrears of rent, he could have done so if within 90 days of the date of service of summons of the Suit, the tenant had paid to the landlord or tendered in Court the rent together with simple interest @ 15% p.a. Besides this, the learned Advocate points out that the tenant is expected to continue to pay or tender in Court, regularly, the rent for the premises till the Suit is finally decided. He submits that the tenant in the present case has neither paid the arrears of rent on receipt of the notice demanding the rent, nor has he tendered or paid the rent within 90 days of the Suit being instituted. In such circumstances, according to the : 8 : learned Advocate, a decree for ejectment from the suit premises on the ground of arrears of rent ought to have followed and both the Courts below have committed a grave error by not decreeing the Suit on this ground. 11. Mr. Sathaye, on the other hand, points out that the notice dated 20th May, 2000 mentioned that the arrears of rent payable was from 1st September, 1999 despite the fact that the landlords purchased the suit property from the erstwhile landlord some time in February, 2000. He, therefore, submits that the tenant was not in arrears of rent when he received the notice as he had paid the rent to the erstwhile landlord. According to him, the landlords informed the tenant only by letter dated 20th May, 2000 that the erstwhile landlord had sold the property. The learned Advocate further submits that the demand for arrears of rent is fictitious and, therefore, no suit could have been instituted or decreed on a fictitious demand made by the landlords. He submits that the Appellate Court has committed no error by concluding that the tenant was not a defaulter. He : 9 : relies on the judgments of this Court in the case of Ganpat vs. Motilal Champalal Lunawat & Anr., reported in AIR 1977 BOM. 344 and in the case of Shamrao Abaji Jadhav v/s. Smt. Chaturbai Sidheshwar Javeri, reported in AIR 1982 BOM. 132, in support of his submissions. 12. Section 15 of the Maharashtra Rent Control Act reads as follows : “15. No ejectment ordinarily to be made if tenant pays or is ready and willing to pay standard rent and permitted increases : (1).A landlord shall not be entitled to the recovery or possession of any premises as 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, in so far as they are consistent with the provisions of this Act. (2).No suit for recovery of possession shall be instituted by a landlord against the tenant on the ground of non- payment of the standard rent or permitted increases due, until the expiration of ninety days next after notice in : 10 : 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 (IV of 1882). (3).No decree for eviction shall be passed by the Court in any suit for recovery of possession on the grounds of arrears of standard rent and permitted increases if, within a period of ninety days from the date of service of the summons of the suit, the tenant pays or tenders in Court the standard rent and permitted increases then due together with simple interest on the amount of arrears of fifteen per cent per annum; and thereafter continues to pay or tenders in Court regularly such standard rent and permitted increases till the suit is finally decided and also pays cost of the suit as directed by the court. (4).Pending the disposal of any suit, the Court may, out of any amount paid or tendered by the tenant, pay to the landlord such amount towards the payment of rent or permitted increases due to him as the court thinks fit.” 13. At first blush the submission of Mr. Haridas, regarding non payment of rent appears to be attractive. However, on a careful reading of : 11 : Section 15 of the Maharashtra Rent Control Act, in my opinion, his arguments are not tenable. Section 15 provides that where a landlord is seeking the tenant’s eviction from any premises, he may not do so on the ground of non payment of rent so long as the tenant pays or is ready and willing to pay the amount of standard rent and permitted increases in rent and performs other conditions of tenancy in consonance with the provisions of the Maharashtra Rent Control Act. The landlord gets a right to institute a Suit for recovery of possession from the tenant on the ground of non payment of standard rent or permitted increases, when after serving a notice upon the tenant in the manner prescribed under Section 106 of the Transfer of Property Act, 1882, the tenant fails to pay the rent for 90 days after receiving the notice of demand. This notice must clearly, as laid down by various judgments of the Supreme Court as well as this Court, specify that the notice has been issued on the ground of non payment of rent or arrears of rent. The demand for arrears cannot be inflated or be untenable as then the notice itself would be bad as held in the : 12 : case of Ganpat vs. Motilal Champalal Lunawat & Anr. A learned Single Judge of this Court was considering the provisions of Section 12(2) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act. The provisions of Section 12 are para materia with the provisions of Section 15 of the Maharashtra Rent Control Act. 14. It is only when the demand notice is issued in accordance with law that a Suit can be instituted and a decree can follow if the landlord establishes that the tenant is in arrears of rent. However, the tenant can avoid a decree on this ground if after institution of the Suit and within 90 days of the receipt of the summons of the Suit, the tenant pays or tenders in Court the standard rent and permitted increases with simple interest on the arrears @ 15% p.a. and, thereafter, continues to pay or tender in Court regularly such standard rent and permitted increases. Therefore, unless the demand notice itself is legal, the question of the tenant depositing the arrears or tendering the arrears and continuing to pay the arrears in Court would not : 13 : arise. However, if the tenant chooses not to pay the arrears, as required under Section 15(3) of the Maharashtra Rent Control Act, the landlord cannot be denied a decree for ejectment on the ground of default in payment of rent, if he proves that the tenant is in arrears of rent. 15. In the present case, the trial Court has considered the evidence on record and held that the landlords had not established the fact that they were entitled to recover the rent from August, 1999 i.e. even prior to the purchase of the property by them. The trial Court has considered the coupons of the money order which were produced on record at Exhibit “48”, “48-A to 68-A” and “68” and found that the rent was paid to the erstwhile landlord. The trial Court has also held that the plaintiffs had failed to prove that they had the right to claim the rent prior to March, 2000. 16. The Appellate Court, in my opinion, has rightly considered the factual position in this case as well as the provisions of Section 15 of the : 14 : Maharashtra Rent Control Act. It has been held that the money order coupons which were on record indicated that the rent was paid to the erstwhile landlord upto August, 2000 for each month. The Appellate Court held that the tenant was not in arrears of rent at the time when the notice of demand was issued as he had already paid the rent to the erstwhile landlord. The Appellate Court further held that undoubtedly there was a failure on the tenant’s part to deposit the rent into the Court as required under Section 15(3) of the Maharashtra Rent Control Act. However, since there was no compliance of the requirements of Section 15(2) of the Maharashtra Rent Control Act, the Appellate Court held that the tenant could not be labeled as a defaulter. 17. It is now well settled that the provisions of Section 15 of the Maharashtra Rent Control Act which are para materia with Section 12 of the Bombay Rents, Hotel and Lodging House Rates (Control) Act must be strictly construed. Therefore, in the circumstances, once it has been : 15 : found, in my opinion rightly, that the notice of demand itself was not issued in accordance with law because it was for an untenable amount, the Suit seeking a decree for recovery of possession on the ground of non payment of rent was not maintainable. Therefore, the question of tenant depositing the rent after institution of such a Suit does not arise. 18. In my opinion, the finding of the Appellate Court that the landlords had not established their case for a decree on the ground of non payment of arrears of rent cannot be faulted and is confirmed. However, the finding of the Appellate Court with regard to the bonafide requirement of the landlords for the suit premises is set aside. The Appeal No. 123 of 2006 is remanded for a rehearing only on that issue. 20. The Civil Revision Applications are allowed accordingly. : 16 : 21. The Civil Application No.113 of 2008 which has been filed in this Court is dismissed as it does not survive in the present Civil Revision Application. However, the applicants may move the Appellate Court for requisite orders in respect of the contentions raised in the Civil Application. The Appellate Court will decide such Application, if moved by the applicants, on its own merits. 22. The Appeal to be disposed of within a period of six months from today. .......