1 CRA 495 OF 2009.sxw vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 495 OF 2009 Union of India, through the Secretary of Ministry of Communication (Posts & Telephone Dept) New Delhi .. Applicant -versus Sheth Jamshetjee Jeejeebhoy & 22 others .. Respondents. Mr. S.S. Kanetkar, i/b Ashok Varma for the applicant. Mr. Vaibhav Sugdare, counsel a/w Mr. Sailesh Poria, i/b Hariani & Co. for respondent Nos 1, 5, 13, 17, 18, 20, and 23.. CORAM: R.C. CHAVAN, J. DATED: 18th August, 2010 P.C. 1. This revision is filed against concurrent findings of the Courts below, holding the applicant liable to ejectment on the ground that the applicant tenant had defaulted in payment of additional repair cess. 2. The applicant Union of India runs Post office in the suit premises. The monthly rent of the premises till 1983 was Rs.99.06 ps. According to respondent land-lord an additional repair cess was levied on the building and the tenant’s share of this additional repair cess came to Rs.23.9l per month from July, l983. There is no dispute that the rent was Rs.99.06. The arrears of this additional 2 CRA 495 OF 2009.sxw repair Cess were claimed by the notice dated 8th August,1985 and 8.2.1986. These notices were replied by the applicant by stating that they were taking up the issue with the Municipal Corporation. Thereafter on 3lst March, 1986, the land lord issued notice stating that the opponent was in arrears of rent @ Rs.123/- per moth which included the additional repair cess @ Rs.23.94 per month and was therefore, liable for ejectment. The notice was issued u/s 12(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act (hereinafter referred to be as “the said Act”). The defendant did not pay arrears as demanded by notice. Therefore, the landlord filed suit claiming the applicant’s ejectment on the ground of failure to pay rent. 3. The issues in the said suit were framed on 11.10.1996. It is landlord’s contention that the tenant had filed application in the year l997 for making payment of arrears and tenant deposited rent in arrears which was withdrawn in the year l998. After considering the evidence before it, the Trial Court held that the applicant failed and neglected to pay the monthly rent and permitted increases in arrears for more than six months and therefore, ordered applicant’s ejectment. 4. On appeal, the Appellate Bench of the Court of Small Causes, upheld these findings. It also observed that if the case did not fall within the provisions of section section 12(3)(a) the tenant 3 CRA 495 OF 2009.sxw was liable to ejectment u/s 12(3)(b) and therefore, decree had to follow. Aggrieved by this, the applicant is before this Court. 5. The learned counsel for the applicant pointed out that the repair cess @ Rs.23.94 per month was demanded for the first time by notice dated 8th August, l985. Before that there was no such demand and there was nothing to indicate that the parties had entered into any agreement to pay this additional repair cess in monthly instalments or alongwith monthly rent. The learned counsel for the respondent landlord submitted that in the plaint it is stated that the tenant was liable to pay this amount of Rs.23.94 per month as additional repair cess alongwith monthly rent. As it was not denied by the tenant, the Courts below had rightly inferred that there was agreement to pay additional repair cess by the month. According to him it could not be said that the case did not fall u/s l2(3)(a) of the Bombay Rent Act. 6. The learned counsel for the parties relied on the judgments of the Hon’ble Supreme Court in Arun Khiamal Makhijani -vs- Jamnadas C Tuliani and ors (1989) 4 Supreme Court Cases, 612 and Raju Kakara Shhetty -vs- Ramesh Prataprao Shirole and anr (1991) 1 Supreme Court Cases 570, which had been referred to by this Court in Ramvilas S Navandar & ors -vs- Biharilal @ C.R. Ray and anr 2002 (Supp.), Bom.C.R. 780 and Madhavsingh Tulsidas (decd) 4 CRA 495 OF 2009.sxw through Lrs. Uday M Singh Palicha and anr -vs- Bhaktiben Narandas Paleja, 2006 (6) Mh. L. J, 353, which lay down that that permitted increases or taxes are payable by the month only if there such agreement, which has to be pleaded and proved. In this context, it has to be noted there is no such plea that the applicant had agreed to pay the additional repair cess by month to month. Even if it is presumed that rent of Rs.99.06, includes any taxes, it does not follow that any agreement was entered in respect of additional repair cess which was levied from l983. The witness examined on behalf of landlord has categorically stated that the landlord had himself to pay the taxes every six months. Therefore, there is no question of recovering this increased cess from the tenant every month. In any case, as already pointed out prior to 8.8.1985, there is nothing to show that repair cess from July, l983 was ever demanded by the landlord. Therefore, both Courts below erred in concluding that the cess was payable month to month, on the basis of a stray sentence towards the end of the cross examination of applicant’s witness Subhash Jagdale that prior to September, l984, they were paying taxes alongwith rent from month to month. At the cost of repetition, it has to be pointed out that even if it is presumed that the tenant used to pay taxes alongwith rent prior to September, l984, it does not follow that the agreement should continue in respect of additional repair 5 CRA 495 OF 2009.sxw cess which was levied in July, l983 and demanded only in 1985. For such agreement to be reached, it was necessary for the landlord to state as to what was the total additional repair cess leviable on the property what was share of the tenant and how the figure of Rs.23.94 per month was arrived at. In view of this, the Courts below had come to a wrong conclusion that the additional repair cess was also payable on monthly basis. Neither section l2(3)(a) nor l2(3)(b) was attracted in the face of admission of landlord’s witness that entire amount of rent and cess had been paid by the tenant in the year l988 ie before issues were framed on framed on 11.12.1996. The contention that application made by tenant in the year l997 for deposit of rent, showed that the tenant deposited the arrears in 1998 is washed away by admission of landlord’s witness. 7. The question whether arrears in rent was paid before or after framing of issues should not pose such a big difficulty since the landlord is a trust which must be keeping accounts and it could have been demonstrated from the account books that the rent was paid after 11.10.1996 when issues were framed. In any case admission is the best piece of evidence and the admission by landlord’s witness that arrears were cleared in the year l988 would seal the case as far as section 12(3)(b) of the Rent Act is concerned. 6 CRA 495 OF 2009.sxw 8. There is no question of payment of cost by the tenant, though section 12(3)(b) refers to payment of costs, because costs would become payable only after the suit is decreed. All that section provides is that the tenant would not have any protection unless he pays the cost of the suit, if the suit is decreed. In view of this the judgment of the Courts below cannot be sustained. The Revision Application is allowed. The impugned judgments and orders passed by the Courts below are set aside and the suit is dismissed. (R. C. CHAVAN, J.)