CRA.743-09 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATON No. 743 OF 2009 B. V. Gandhi, through L.Rs. .. Applicants Vs. Lalsing Kochhar through L.Rs. & Ors. .. Respondents Mr. R. R. Arolkar, for the Applicants. Mr. V. Y. Sanglikar, for Respondent No.1(b). Mr. R. S. Samant for Respondent No. 3(b). CORAM : R. C. CHAVAN, J. DATED : JULY 29, 2010. P.C. : 1. This revision is directed against the concurrent findings by the learned Judge, Small Causes Court as well as appellate Bench of the same Court, whereby the Courts have held that the applicants are defaulters in payment of rent and therefore, liable to be evicted. The finding is sought to be assailed on the ground that the rent claimed @ Rs.135/- per month was inclusive of all taxes and permitted increases. Arrears, amounting to Rs.7,140/- were demanded towards permitted increases from 1968 to 1984. It is not necessary to go into this demand CRA.743-09 - 2 - from 1968 to 1984. 2. The question is whether the notice of demand is valid as it also included the permitted increases. The contention of the learned counsel for the applicant is that permitted increases could not have been included in the monthly rent since they are not payable by the month. Reliance is placed on the decision of the learned Single Judge of this Court in the case of – Ramvilas Shivlal Navandar & Ors. Vs. Biharilal @ C. R. Ray & Anr. [ 2002(2) Mh. L.J. 467 ]. In that case the Court was considering landlord’s writ petition against the judgment of the Courts below, dismissing the landlord’s suit for ejectment. The Court observed in paragraph 10 of the judgment that permitted increases are payable annually and that there was no pleading that permitted increases were payable by month to month. Fortunately, in this case written-statement mentions in paragraph 3 that the correct monthly rent inclusive of permitted increases was Rs.103.03 per month. Thus, he does not dispute that permitted increases were to be paid by the month. The rent was however, paid in response to landlord’s notice @ 69.87 + rent before the increases on 18-4-1983 + Tax increase at 3% after 18-4-1983 per month @ Rs.2.10 in all Rs.103.03. Now, from where the tenant got the figure of CRA.743-09 - 3 - Rs.69.87 is not clear. The learned counsel for the applicant submitted that previously, applicant had filed proceedings for fixation of standard rent on which it was claimed that the rent was Rs. 69.87. But this proceeding was withdrawn because the rent was stated to be Rs. 90.61 Ps. per month by the landlord. In that case, the rent should have been remitted @ Rs.90.61 + taxes and not @ Rs.69.87, with some additions. None of the figures mentioned in the reply notice dated 3rd December, 1984, sent by the applicant tally. In view of this, it cannot be said that the Courts below erred in holding that the applicant had not paid the rent in arrears, demanded within the stipulated period and therefore, was liable to be evicted. 3. One Parambir Singh Kochar s/o late Hardev Singh Kochar, who does not seem to have been party-plaintiff before the trial Court, after the demise of Lalsingh Kochar, has now filed an affidavit stating that the suit filed by the deceased Lalsingh Kochar against the original tenant was filed without the consent and knowledge of latte Hardev Singh Kochar and his uncle late Joginder Singh Kochar, who werre also the co-owners of the suit buildings. They had never authorized, nor given consent to, respondent No. 1(b) to prosecute suit against the CRA.743-09 - 4 - deceased tenant and his heirs, on humanitarian grounds due to their cordial relations with deceased tenant and his family members. In that case, proper course for him was to appear before the trial Court and have himself transposed as defendant with whatever consequences. It is a dispute between the family of landlord which can be fought elsewhere and not in this suit. This is not a suit based on claim for bona fide need where the need of family members of landlord would have to be proved . This is a suit based on default in payment of arrears of rent, and therefore, tenant was liable to be evicted on his failure to pay rent for more than six months in arrears in spite of demand. He could not avoid ejectment by remitting a smaller sum which landlord was not obliged to accept. There is no perversity in the order passed by the Courts below. The revision application is therefore, dismissed. 4. At the request of the learned counsel for the applicant, the decree may not be put to execution for a period of 8 weeks on the applicants’ furnishing the usual undertaking within two weeks. Sd/- [R. C. CHAVAN, J.]