1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1351 OF 1992 Laxman Bhikashet Gandhi. deceased by heirs. 1. Sarojini Laxman Gandhi, 55 years 2. Ashok Laxman Gandhi, 35 years 3. Suresh Laxman Gandhi, 32 years. 4. Uday Laxman Gandhi, 26 years. 5. Nilesh Laxman Gandhi, 19 years. All r/o Chiplun, District Ratnagiri. 6. Mrinalini Kailas Kamarkar R/o Premkutir, R.No.10, Kalwa, District Thane. 7. Vidya Mahendra Devlekar R/o Gokul Dhami, 4th floor, S.V.Road,Borivali(W),Bombay-92. 8. Jyosna Jayant Pathare, R/o 188, Jayant Vidi shop, Bora Bazar Road, Bombay 400 001. 9. Vinda Viraj Khatu, 24 years r/o Chiplun, Ratnagiri ..Petitioners. V/s. Prataprao Abajirao Shinde, R/o Chiplun Vithal Prasad, Room No.3, Bombay Goa Highway, Chiplun, Ratnagiri. ..Respondent. Mr.G.R.Rege i/b. Mrs. S.A.Mudbidri for petitioners. Mr.S.M.Railkar for Respondent. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : AUGUST 28, 2008. DATE : AUGUST 28, 2008. DATE : AUGUST 28, 2008. JUDGMENT : JUDGMENT : JUDGMENT : 1. Heard Counsel for the parties. 2. This Writ Petition under Article 227 of the 2 Constitution of India takes exception to the Judgment and Decree passed by the Additional District Judge, Ratnagari dated 22nd November, 1991 in Civil Appeal No.230 of 1985. The Appellate Court reversed the Decree of possession passed by the Civil Judge, Malvan on deputation at Chiplun dated 31st August, 1985 in Regular Civil Suit No. 29 of 1984 passed in favour of the Petitioners/landlord. 3. Briefly stated, the premises in question are two rooms admeasuring 35 x 10 ft. bearing Municipal House No.808(B) having City Survey No.6885 at Village-Chiplun. The case of the Petitioner/landlord was that the Respondent was monthly tenant inducted in the said premises on monthly rent of Rs.62/- and Rs.5/- by way of permitted increases. According to the Petitioner, the tenant failed to pay the monthly rent with effect from 1st June, 1983 consisting of standard rent and permitted increases in respect of the suit premises with effect from 1st June, 1983. As a result, the Petitioner issued demand notice on 23rd January, 1984 demanding arrears of rent from 1st June, 1983 to 31st December, 1983. It is noticed from the concurrent view taken by the two Courts below that the said demand notice was duly served on the Respondent/tenant on 4th February, 1984. Inspite 3 of the said notice, the Respondent failed and neglected to pay the arrears of rent, as demanded by the Petitioner/landlord. As a result, the Petitioner/landlord filed suit on 2nd April, 1984 for recovery of possession of the suit premises against the Respondent/tenant on the ground of default for the period between 1st June, 1983 to 31st December, 1983. To complete narration of the fact, it may be mentioned that the Respondent after entering appearance in the said suit deposited arrears of rent and has been regularly depositing the monthly rent in respect of the suit premises. 4. Be that as it may, the trial Court on analysing the pleadings and evidence on record accepted the case of the Petitioner/landlord that the Respondent/tenant failed and neglected to pay rent within one month of the notice and has incurred consequence of eviction within the meaning of Section 12(3)(a) of the Bombay Rents, Hotel and Lodging Housing Rates Control Act, 1947. 5. Against this decision, the Respondent carried the matter in appeal being Regular Civil Appeal No.230 of 1985 before the District Court at Ratnagiri. The District Court however, has allowed 4 the appeal essentially on the ground that the demand notice issued by the Petitioner/landlord, which was served on the Respondent/tenant was not proper. In that, the Petitioner not only demanded standard rent for period of over six months but also permitted increases payable by the Respondent in respect of the suit premises. As the demand notice was composite notice calling upon the Respondent to pay the standard rent and permitted increases, the Appellate Court took the view that provisions of Section 12(3)(a) were not attracted. On that reasoning the Appellate Court set aside the decree of possession passed by the trial Court and dismissed the suit. In paragraph-19 of the Judgment, the Appellate Court however, proceeded to observe that from the evidence on record it appears that the practice followed between the parties was that the rent was not payable monthly but in odd lots of six months, nine months or three months at a time. This is the additional reason recorded by the Appellate Court. At the same time, in the opening part of the reasons of the impugned Judgment the Appellate Court in the paragraph-8 of the Judgment has proceeded to record undisputed facts. One of the undisputed fact mentioned by the Appellate Court is that the monthly rent of the suit premises of Rs.62/- and Rs.5/- per 5 month towards permitted increases has been recovered and paid till 31st May, 1983. It is also noted that rent receipt for the total rent including permitted increases for Rs.67/- has been issued prior to 31st May, 1983 and that the Defendant/tenant was in arrears of rent and permitted increases from 1st June, 1983 to 31st December, 1983 when the demand notice was issued to him on 23rd January, 1984. The correctness of the abovesaid view taken by the Appellate Court is put in issue by the landlord by way of present Writ Petition. 6. After having considered the rival submissions, the first question that needs to be addressed is whether the opinion recorded by the Appellate Court that it was not open to the landlord to issue composite notice calling upon the tenant to pay the standard rent in respect of the suit premises but also permitted increases for a period of over six months on the date of issuance of notice is correct. This issue is in no more res intigra. The Apex Court in the case of Raju Kakara Shetty v/s. Ramesh Raju Kakara Shetty v/s. Ramesh Raju Kakara Shetty v/s. Ramesh Prataprao Shirole & Anr. Prataprao Shirole & Anr. Prataprao Shirole & Anr. reported in (1991 1991 1991) 1 SCC 1 SCC 1 SCC page 570 was called upon to page 570 was called upon to page 570 was called upon to answer this aspect. Even in that case, the landlord had issued composite demand notice to the tenant calling upon the tenant 6 to pay rent and permitted increases, which were due for a period of more than six months preceding the date of issuing the demand notice. In that case, the Court found as of fact that there was agreement between the parties to pay amount towards permitted increases from month to month. Even though the landlord would be required to pay that amount to the authorities on yearly basis or as and when demanded by the authorities, the amount towards permitted increases was specified as Rs.120/-, which was in addition to the amount of Rs.900/- towards standard rent in respect of the suit premises. Considering those facts, the Apex Court proceeded to hold that in view of such agreement, the amount towards permitted increases having been agreed to be paid on month to month basis by the tenant formed part of the rent and could be recovered from the tenant on that basis alongwith standard rent of the suit premises payable monthly. In such a case, the provisions of Section 12(3)(a) would be attracted. In paragraph-13 of the said decision, the Apex Court has observed thus: "If by agreement, the amount is so quantified and is made payable by the month notwithstanding the owner’s liability to pay the same annually to the local authority, the question is whether in such circumstances the "rent" can be said to be payable by the month within the meaning of Section 12(3)(a) of the Act ? We see no reason why we should take 7 the view that even where the parties mutually agree and quantify the tax amount payable by the tenant to be landlord on monthly basis, the rent should not be taken to be payable by the month within the meaning of Section 12(3)(a) of the Act." Applying the said principle to the fact situation of the present case, I have no hesitation in taking the view that the opinion recorded by the Appellate Court that composite notice pertaining to amount towards standard rent as well as permitted increases could not be issued and that such a case is not covered under section 12(3)(a) cannot be sustained. To that extent the view of the Appellate Court will have to be reversed. 7. The next question is whether in the present case the agreement between the parties was to create monthly tenancy and that the obligation of the tenant was to pay rent and permitted increases monthly. From the concurrent finding recorded by the two Courts below, there is no manner of doubt that the monthly standard rent in respect of the suit premises was Rs.62/- and Rs.5/- towards permitted increases. Respondent/tenant in the past has been paying rent on that understanding in the sum of Rs.67/- per month. Assuming that the tenancy is a monthly tenancy, that 8 itself is not sufficient to attract rigours of section 12(3)(a) of the Act. In addition, what is required to be established is that the tenant was under obligation as per the agreement between the parties to pay such amount on monthly basis. This is so because section 12(3)(a) postulates that the rent should be payable by the month. There should be no dispute about the said fact. If there is dispute in that behalf, it is necessary for the Court to first pronounce upon the said fact as to whether there was agreement between the parties that the rent and permitted increases was payable by the month. The fact that the Respondent in the past had paid rent in lots of three months, six months or nine months does not necessarily mean that there was no agreement or understanding between the parties that rent and permitted increases was payable by the month. It is only when the Court records the finding that tenant was liable to pay the agreed rent by the month, the Court would assume jurisdiction to pass decree under section 12(3)(a) of the Act. In absence of that finding, no decree under section 12(3)(a) can be passed. In the event, the Court were to find that even though the tenancy was a monthly tenancy but the rent was not payable by the month, such a case would be then covered by rigours of section 12(3)(b) of the 9 Act and not 12(3)(a) thereof. 8. Insofar as the present case is concerned, neither the trial Court nor the Appellate Court has addressed itself to this aspect specifically. Indeed, the Appellate Court in paragraph-19 of its Judgment has noted that the practice followed by the tenant was that he used to pay rent in lots of three months, six months or nine months at a time. That does not mean that there was no agreement between the parties to pay rent and permitted increases by the month or month to month basis. That is a question of fact which will have to be answered by the fact finding Court in the first instance. The opinion recorded in paragraph-19 is obviously inconsistent with the undisputed fact recorded in paragraph-8 where the Appellate Court has noted that monthly rent of the suit premises was Rs.62/- and Rs.5/- towards permitted increases which was paid till 31st May, 1983 for which rent receipts were also issued for Rs.67/- per month upto 31st May, 1983. As aforesaid, the fact as to whether there was agreement to pay the rent and permitted increases by the month will have to be answered by the fact finding court in the first instance and for that reason, the appropriate course is to relegate the parties before the Appellate Court 10 who in turn would examine the pleadings and the evidence on record and thereafter decide the matter on the basis of the finding to be recorded in that behalf, keeping in mind the observations made in the earlier part of this decision. 9. Accordingly, this Writ Petition partly succeeds. Rule is made partly absolute. The impugned Judgment and Order is set aside. Instead, the appeal being Regular Civil Appeal No. 230 of 1985 is restored to the file of the Appellate Court, to be decided in accordance with law, keeping in mind the observations made in the earlier part of this decision. The Appellate Court shall decide the appeal as expeditiously as possible, in any case not later than 31st March, 2009. 10. The parties shall appear before the Appellate Court on 22nd September, 2008, when the Appellate Court may proceed with the argument on the same day or such other date, as may be convenient to it while ensuring that the appeal is finally disposed of before 31st March, 2009. 11. No order as to cost. 11 (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)