1 wp2094.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.2094 OF 1999 1 Govind Eknath Gholap 2 Smt.Laxmibai Govind Gholap ...Petitioners vs. Pandurang Bhikoba More (since deceased through his legal heirs) 1-A Smt.Hirabai Pandurang More 1-B Sanju Pandurang More 1-C Mahesh Pandurang More 1-D Omesh Pandurang More ...Respondents Ms Snehal Ratnakar i/b Ms Suhasini Mutalik for the petitioners None for the respondents CORAM :A.S.OKA,J. DATE : SEPTEMBER 21, 2010 ORAL JUDGMENT : 1 Heard the learned counsel for the petitioner. When the petition was called out yesterday for final hearing, none appeared for the respondents. Today when the petition is called out, none appears for the respondents. 2 The petitioners are the original plaintiffs and the respondents are the legal representatives of the defendant. The suit premises is consisting of one room more particularly described in paragraph 1 of the plaint. According to the case of the plaintiffs, the suit premises was let out to the defendant at monthly rent of Rs.35/- which included taxes of Rs.10/- per month. It is alleged that the defendant was in arrears of rent from January 1989. It is alleged that the plaintiffs required the suit premises for bonafide and personal use. The 2 wp2094.sxw plaintiffs relied upon the notice of demand of arrears of rent dated 21 st March 1992 by which the tenancy of the defendant was allegedly determined. In the plaint, it is stated that the notice was duly served to the defendant on 4 th April 1992 but compliance was not made with the notice and a false reply was sent. Therefore, a suit for eviction was filed on the ground of arrears of rent and bonafide requirement. 3 The defendant filed written statement. The defendant did not dispute that he was the tenant in respect of the suit premises of the plaintiffs at monthly rent of Rs.35/-. The defendant denied the ground of bonafide requirement. The defendant denied the correctness of the averments made in paragraph 4 of the plaint regarding service of notice and the reply sent by him. 4 The learned trial Judge dismissed the suit. The learned trial Judge recorded a finding that the plaintiffs were not in a position to establish the rate of rent and therefore the defendant cannot be said to be a defaulter. The ground of bonafide need was also negatived. An appeal was preferred by the plaintiffs. The appeal has been dismissed by the District Court. The finding of the District Court is that the plaintiffs ought to have proved the rate at which the rent was payable and the plaintiffs have failed to discharge the burden. The ground of bonafide need was also negatived. 5 The learned counsel for the plaintiffs submitted that admittedly notice of demand by which the demand of arrears of rent for a period of more than six months was made by the plaintiffs was duly served to the defendant. She pointed out that the defendant neither paid nor 3 wp2094.sxw tendered the amount demanded within a period of one month and failed to apply for fixing the standard rent. She submitted that in view of settled law, the decree on the ground of arrears of rent must follow. She submitted that there was no burden on the plaintiffs to establish the rate of rent as the defendant did not dispute the same. She contended that the finding of the Courts below on the issue of bonafide need was perverse. It must be stated here that when this Court expressed the view that if a decree of eviction is to be passed on the ground of bonafide need, the same cannot be passed by this Court as the Appeal Court has not framed any point for determination on the issue of comparative hardship, the learned counsel for the petitioner on instructions of the petitioners states that as the respondents are not appearing, the petitioners are not pressing the ground of bonafide need as the petitioners desire to avoid order of remand. 6 I have carefully considered the submissions. In paragraph 2 of the plaint, the plaintiffs averred that the rent in respect of the suit premises was Rs.35/- inclusive of taxes of Rs.10/- per month. The defendant admitted that he was a tenant of the plaintiffs in respect of the suit premises. There is only a denial of the averments regarding agreed rent. In the written statement, there is no specific denial of the service of notice of demand. Perusal of the notice dated 23 rd March 1992 (Exh.21) shows that arrears of rent from January 1989 to January 1992 have been demanded at the rate of Rs.35/- per month. The 1 st plaintiff stepped into witness box. He proved the office copy of the demand notice and postal acknowledgment thereof at Exh.20 which was duly signed by the defendant. In the cross examination of the 1 st plaintiff, there is no challenge 4 wp2094.sxw to the service of notice to the defendant. The defendant stepped into the witness box. He admitted in the examination-in-chief that he received the notice from the plaintiffs. He alleged that he had been to the plaintiffs for tendering the rent, but they refused to accept it. He stated that he remitted the rent by money order and he was possessing the postal receipts and coupons. In the cross examination he admitted that he had not offered to pay a sum of Rs.1245/- as demanded by the demand notice. He admitted that he had not sent such amount by money order. He also admitted that he did not deposit the said amount in the Court. He admitted that he has not filed any proceedings for fixation of standard rent. The suit was filed in the year 1992 which will be governed by section 12(3) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act,1947 (hereinafter referred to as the said Act) as amended by Maharashtra Act no.18 of 1987. Under sub section 3 of section 12 of the said Act, the defendant could have been entitled to relief against forfeiture provided he had deposited the arrears of rent with the interest at the rate of 9% per annum together with costs of the suit before the first date of hearing of the suit or on or before such other date as may be fixed by the trial Court. It is not the case of the defendant that he has complied with sub section 3 of section 12. In view of Explanation-I to section 12 of the said Act, the only mode by which the defendant could have raised the issue of standard rent was by filing an application for fixing the standard rent before expiry of period of one month after notice of demand issued in terms of sub section 2 of section 12 of the said Act was served to him. Admittedly, the defendant has not filed any application for fixing the standard rent. Apart from this, no evidence was adduced by the defendant to show that he had 5 wp2094.sxw paid rent from January 1989 till the date of notice of demand. Thus, this is a case where the defendant is a defaulter for a period of more than six months. In view of settled law, the Court had no discretion but to pass a decree for possession on the ground of arrears of rent. However, it must be observed that both the courts have recorded a very strange reasoning. The courts below have held that the plaintiffs have failed to prove the rate at which the rent was payable. The only recognised mode by which the defendant could have disputed the amount of rent demanded by notice was by filing an application for fixing the standard rent within a period of one month from the date on which the demand notice was served. Without filing such application, it was not open for the defendant to dispute the amount of rent. The findings recorded by the Courts below that the plaintiffs have failed to prove the rate of rent are perverse and deserve to be quashed and set aside. Hence,the petition must succeed and the decree for possession on the ground incorporated in section 12 of the said Act must follow. 7 Hence, I pass the following order : i) Impugned Judgments and Decrees are quashed and set aside. Regular Civil Suit No.467 of 1992 stands decreed in terms of prayer clauses (a) to (c) with costs through out. ii)The legal representatives of the defendant will be entitled to adjust the amount, if any, deposited by them in the court during the pendency of the proceedings towards decretal amount payable in terms of the decree. iii)Rule is made absolute in above terms with no order as to costs. JUDGE