1 FH wp.894.97 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 894 OF 1997 Sau. Shalan Gundu Patil. ... Petitioner Vs. Hanmantrao Babasaheb Ghorpade and ors. ... Respondents -------- Mr.N.V.Bandiwadekar for the Petitioner . -------- CORAM : A.S.OKA, J. DATE : 01 st December, 2010. JUDGMENT: 1 By this writ petition under Article 227 of the Constitution of India, the Petitioner who is the original plaintiff has taken an exception to the judgment and decree dated 2 nd September, 1996 passed by the learned Additional District Judge by which the decree for possession passed against the Respondent has been set aside. 2 The residential premises consisting of four rooms and a bathroom is the suit premises which was let out to the original Respondent. According to the Petitioner, the tenancy month used to commence from 15 th day of every month. The Petitioner purchased property in the year 1987. The present suit is based on the notice of demand issued by the Petitioner on 12 th October, 1992. In the notice of demand, it was stated that Respondent is in arrears of rent and permitted 2 FH wp.894.97 increases from 15 th December, 1987 to 14 th September 1992 along with interest thereon at the rate of Rs.9% per month totally amounting to a sum of Rs.4205.59. Notice was replied by a reply dated 24 th October, 1992. It was pointed out that in Regular Civil Appeal No. 142 of 1984, arising out of earlier suit for eviction being Suit No. 116 of 1978, the Respondent had deposited rent and permitted increases payable up to 14 th December, 1989. The rent for the period between 15 th December, 1989 to 14 th December, 1992 was sent by money order. 3 The suit was contested by the Respondent. Even in the written statement ,a contention was raised regarding deposit of amount in Regular Civil Appeal No. 142 of 1984. It was contended that the rent was deposited in Court up to 14 th December, 1989 and the rent for further period was forwarded by money order dated 24 th October, 1992, which was received by the Petitioner. 4 The trial Court decreed the suit by holding that the Respondent has not complied with Section 12 (3) (amended with effect from 1 st October, 1987) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as “the said Act”). An appeal was preferred by the Respondent. The Appellate Court relied upon a Division Bench decision of this Court holding that this was a case where compliance was made with the notice of demand under Section 12 (2) and therefore, there was no cause of action for filing suit. Therefore, 3 FH wp.894.97 the Appellate Court proceeded to set aside the decree. 5 The learned counsel appearing for the Petitioner submitted that admittedly, the entire amount demanded by notice of demand was not paid within statutory period from the date of service of notice. He submitted that amount sent by money order was insufficient and was accepted under the protest. He submitted that in Civil Appeal No. 142 of 1984, which was filed by the predecessor-in title of the Petitioner for challenging the decree of dismissal of the earlier suit filed against the Respondent, the Petitioner applied for impleading herself as a party in the said appeal. He submitted that the said application was opposed by the Respondent by denying the status of the Petitioner as a landlady. He submitted that the deposit made in the appeal arising out of earlier suit filed by the predecessor-in-title of the Petitioner cannot be considered to be valid payment of rent to the Petitioner. He submitted that amount deposited in the said appeal was the amount payable to the predecessor of the Petitioner and therefore, the said amount cannot be taken into consideration. He submitted that within one month from service of notice dated 12 th October, 1992, the Respondent ought to have paid or tendered rent for the entire period from 15 th December, 1987, which is the date on which the Petitioner became the landlady. He submitted that only a part of the amount was tendered and there was no compliance made with requirements of sub-section 3 of Section 12 by depositing entire arrears with interest thereon and costs of the suit on or before first day of 4 FH wp.894.97 hearing. He submitted that there is irregular payment of rent during the pendency of the suit. He submitted that even if deposit made in the aforesaid appeal is taken into consideration along with the amount sent by money order in the sum of Rs.1984, there is no compliance with the demand made of a sum of Rs.4205.59, which was the amount demanded by notice dated 12 th October, 1992. He submitted that as the compliance is admittedly not made, the Petitioner was not entitled to protection. 6 I have given careful consideration to the submissions. As stated earlier, the Petitioner purchased the property on 15 th December, 1987 and become landlady from the said date. The demand of arrears was made by issuing notice dated 12 th October, 1992 for the period between 15 th December, 1987 till 14 th September, 1992. In the reply, it was stated that in Regular Civil Appeal No. 142 of 1984, rent payable up to period ending with 14 th December, 1989 was deposited with interest and costs. It was stated that a money order dated 14 th October 1992 in the sum of Rs. 1984 representing arrears of rent from 15 th December, 1989 to 14 th October, 1992 inclusive of permitted increases was sent to the Petitioner. 7 In the year 1984, the predecessor-in-title of the Petitioner filed Regular Civil Suit No. 116 of 1978 for possession of the suit premises on account of arrears of rent. The suit was partly decreed to the extent of the claim for arrears. However, as far as the prayer for 5 FH wp.894.97 possession is concerned, the suit was dismissed. The predecessor of the Petitioner preferred Civil Appeal No. 142 of 1984 in the District Court. Certified copy of the judgment in the said appeal is produced on record at Exhibit-35. It shows that the same was decided on 23 rd November, 1989 and that the present Petitioner was substituted in place of the Appellant, who was the original plaintiff. On the record of the suit, a certified copy of the plaint in Regular Civil Suit No. 116 of 1978 has been filed which shows that by the order dated 17 th November, 1988 passed in Civil Appeal No. 142 of 1984, the Petitioner was substituted in place of the plaintiff, who was predecessor-in-title of the Petitioner. Thus, on 17 th November, 1988, the present Petitioner was impleaded as Appellant in the pending Appeal No. 142 of 1984 and the plaintiff in the suit. On 18 th October, 1989, an application was made in the said appeal seeking permission for deposit of the entire arrears of rent and permitted increases together with interest at the rate of Rs.9% per annum and costs of the appeal total amounting into Rs.2261. The present Petitioner was heard by the District Court and in fact a reply was filed to the said application by the advocate for the petitioner to the effect that if the Respondent desired to deposit the amount, he may do so, without prejudice to his rights and contentions. On the very day, the said application was allowed and on 19 th October, 1989, a sum of Rs.2261 was deposited by the Respondent. Thus, the said deposit was made in the appeal, in which the present Petitioner was the appellant, who was substituted as the plaintiff. In the earlier appeal, the amount of arrears of 6 FH wp.894.97 rent up to 14 th December 1989 at the rate of Rs.55 per month with permitted increases of Rs.3.35 per month was deposited. Interest was also deposited on the said amount. The Petitioner had not only notice of the deposit of the said amount, but Petitioner was heard before permitting Respondent to deposit the amount. In the circumstances, the Appellate Court was right in holding that rent and permitted increases up to 14 th December, 1989 was deposited in the said appeal and the said deposit is valid. 8 The demand made in the demand notice dated 12 th October, 1992 is of sum of Rs.3,187.60 representing the arrears of rent and permitted increases calculated at the rate of Rs.55/- per month and Rs. 3.35 per month. The period of arrears is from 15 th December, 1987 till 14 th September, 1992. The grievance made by the learned counsel appearing for the Petitioner is that taking into consideration the amount sent by money order and the amount deposited in the earlier appeal, still there is shortfall as total amount demanded was Rs.4205.59/-. The shortfall is not of rent or permitted increases. The shortfall is on account of the fact that the Petitioner also demanded 9% interest on arrears in the notice of demand itself which cannot be demanded in a notice under section 12(2). On the date on which demand notice was issued, the Respondent had deposited rent and permitted increases upto 14 th December, 1989 with interest thereon at 9% p.a. in the District Court in the earlier appeal in which the present Petitioner was the appellant. The rent and permitted 7 FH wp.894.97 increases demanded by the Petitioner for further period from 15 th December, 1989 to 14 th October, 1992 was send by money order dated 14 th October, 1992, which was accepted under protest. 9 Under sub-section 2 of Section 12, a notice of demand was required to be issued before filing the suit. As stated earlier, a part of the amount demanded was also deposited in the year 1989 and remaining part was tendered by money order within the expiry period of one month from the date of notice. Thus, there was complete compliance with the notice of demand and there was no cause of action for filing a suit on the ground of arrears of rent. 10 As there was no cause of action for filing the suit, non compliance with sub-section 3 of Section 12 is totally irrelevant. Hence, it is not possible to find fault with the impugned judgment and decree of the Appellate Court. 11 There is not merit in the Petition. Petition is rejected. Rule is discharged with no order as to costs. [ A.S.OKA, J ]