1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1364 OF 1990 M/s.Navnitlal Amritlal Gandhi .. Petitioner versus Sharad Shivling Tambekar (deceased) through Shantabai Sharad Tambekar & Ors. .. Respondents Mr.Uday Warunjikar for the petitioner. Mr.P.K.Hushing for respondent Nos.1a to 1f and 2a to 2d. CORAM : A.S.OKA, J. DATE : 5th February 2010. JUDGMENT: . The petitioner-firm by this writ petition under Article 227 of the Constitution of India has challenged the decree of eviction passed by the Courts below on the grounds of carrying out construction of permanent nature and arrears of rent by filing this writ petition under Article 227 of the Constitution of India. 2. The suit premises has been more particularly described in paragraph 1 of the plaint. The suit premises has been allegedly let out for the purposes of business of the petitioner. The allegation in the plaint is that outside the third hall in the South-West corner forming part of the suit premises there was an open terrace admeasuring 15ft X 10ft having walls of height of 2’ 6” . It is alleged that a new room has been constructed by the petitioner on the 2 said terrace which is being used as a kitchen. It is stated that the petitioner- firm has constructed walls on all four sides having height of 9 feet. It is alleged that new mosaic tiles have been fixed. It is alleged that in the Southern portion, a window has been carved out and iron grills have been fixed. It is stated that a kitchen platform having height of 3 feet has been constructed therein. It is alleged that a sink has been constructed for the purposes of the kitchen. It is further alleged that in one of the halls let out to the petitioner, a permanent construction of bath-room has been made by constructing three walls inside the said hall. 3. The respondents have alleged that a notice of demand dated 12th December 1984 demanding arrears of rent till December 1984 amounting to Rs.2805/- together with education cess at the rate of 12% per annum amounting to Rs.336.60/- was served to the petitioner. It was alleged that the last payment of rent was made by the petitioner on 6th July 1982 for the period between 1st April 1979 to 31st March 1982. A written statement was filed by the petitioner. The case made out by the petitioner is that initially the agreed rent was Rs.45/- per month. It is further alleged that in the year 1965, the predecessor in title of the respondent-plaintiff carried out extensive repairs to the suit premises and therefore rent was increased to Rs.85/- per month. The petitioner denied that open terrace has been converted into a kitchen by constructing a new room. The petitioner denied allegation of construction of bath-room in a hall. The petitioner admitted that the last 3 payment of rent was made of Rs.3060/- on 6th July 1982 for the period from 1st April 1979 to 31st March 1982. However, the petitioner contended that the respondents owed large amounts to the petitioner and after 6th July 1982 a sum of Rs.5073/- was due from the respondents to the petitioner. It was contended that after adjusting the said amount towards the rent for the further period, as on 1st April 1984 there was a sum of Rs.2807.80/- due and payable by the respondents to the petitioner. It was alleged that a sum of Rs. 960/- was paid in cash to the respondents on 8th June 1979 and a sum of Rs. 3000/- was paid by the petitioner to the respondents as advance out of which sum of Rs.2040/- was adjusted towards rent for the period from 1st April 1977 to 31st March 1979 and the balance of Rs.960/- remained with the respondents. 4. The trial Court passed a decree of eviction on the ground of permanent construction and arrears of rent. The finding of the trial Court is that under section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the said Act), this was a case of clear default in payment of arrears for a period of more than six months. The trial Court was of the view that if section 12(3)(b) was applicable, the petitioner was not a defaulter. 5. The Appellate Court, in an appeal preferred by the petitioner, confirmed the finding of the trial Court on the ground of permanent 4 construction. The Appellate Court held that compliance has not been made by the petitioner with the requirements of section 12(3)(b) by depositing the entire arrears on or before the first date of hearing. The Appellate Court dismissed the appeal preferred by the petitioner. 6. The learned counsel appearing for the petitioner submitted that there was no evidence on record to show that construction of a kitchen was made by the petitioner on the open terrace. He submitted that even assuming that a bathroom was constructed in one of the halls, the construction was for beneficial enjoyment of the suit premises. He submitted that construction of bathroom will not amount to carrying out permanent construction. He submitted that the rent note produced on record at Exhibit 65 disclosed that the purpose of letting was composite for residence and business as well and therefore, kitchen was in existence in the suit premises. 7. The learned counsel appearing for the petitioner submitted that a demand was made for arrears of rent as well as education cess which was not payable by month. Hence, section 12(3)(a) was not applicable. He submitted that there is evidence on record to show that amounts of Rs. 3,000/- and Rs.4,000/- were advanced by the petitioner on 10th February 1977 and 6th November 1979 to the respondents and if the said amounts are considered, the petitioner was never in arrears. He submitted that evidence on this aspect has been wrongfully discarded by the Courts below. The 5 learned counsel, therefore, submitted that as the petitioner had made substantial compliance with requirements of section 12(3)(b), the decree for possession could not have been passed. The learned counsel appearing for the respondents supported the impugned judgments and decrees. 8. I have made careful consideration of the submissions advanced. As far as construction of kitchen on the terrace is concerned, there are concurrent findings of fact recorded by the Courts below holding that the existence of the kitchen at the time of letting out the suit premises has not been established. The trial Court has considered the description of the suit premises in the plaint in Suit No.739 of 1951(Exhibit 89) filed by the predecessor in title of the respondents against the predecessor in title of the petitioner. After considering that description of the suit premises in the said earlier suit and the description of the suit premises in the present suit, the trial Court recorded a finding that there is no difference between the description of the suit premises in these two suits. The learned trial Judge observed that from the description of the suit premises in the said suit of the year 1951 it is apparent that the kitchen was not in existence at that time. The trial Court has taken into account the description of the suit premises in the rent note at Exhibit 65. After considering the description of the suit premises in the documents at Exhibit 65 and Exhibit 89 the trial Court was of the view that construction of the kitchen appears to have been made subsequently. The trial Court noted that in the reply issued by the 6 respondents to the suit notice it is vaguely stated that certain repairs were carried out in the year 1965 and rent was enhanced. The trial Court found that it is not the specific case made out that at that time construction of kitchen and bathroom was made by the respondents. The Appellate Court has considered the same documents. The Appellate Court found that in both the documents at Exhibit 65 and Exhibit 89 existence of kitchen has not been shown. Infact, the Appellate Court referred to notice dated 16th October 1983 at Exhibit 75 issued by the Pune Municipal Corporation to the petitioner alleging that construction of kitchen room was unauthorisedly made. It is pertinent to note that neither in the written statement nor in the evidence the petitioner has come up with a case that after the year 1951 the predecessor of the respondents constructed the kitchen which was not in existence in the year 1951. The Appellate Court noted that a full-fledged kitchen was constructed with a kitchen platform and sink. The learned Judge found that there was Shahbad flooring made in the kitchen and mosaic tiles were fixed. The Appellate Court noted that construction was carried out with the intention of using the same permanently as a kitchen. The walls were constructed having height of 9 feet for the purposes of kitchen. Considering the nature of the user of the construction carried out and the intention of the petitioner of carrying out construction, a finding of fact has been recorded that construction of kitchen was of permanent nature which was made without the consent of the respondents. On the basis of documentary evidence on record, the Courts below have found that at the time of creation 7 of tenancy and at the time of filing earlier suit in the year 1951, the kitchen was not in existence. The petitioner has not come out with a case that at a particular point of time the kitchen was constructed by the respondents or their predecessor. In the circumstances, there is no reason to find fault with the finding of fact regarding construction of permanent nature in the form of a kitchen on the open terrace. There is some substance in the contention of the learned counsel appearing for the petitioner that construction of bathroom was made inside the premises let out and the construction was essentially for the beneficial enjoyment of the suit premises. 9. As far as ground of arrears is concerned, there is a clear demand made by the respondents in the notice of demand of education cess which was admittedly payable yearly. The education cess forms part of the rent and as a part of rent is not payable by month , section 12(3)(a) will have no application. Therefore, the question is whether the petitioner complied with requirements of section 12(3)(b) by depositing the entire arrears due and payable on or before the first date of hearing and whether the petitioner has thereafter regularly deposited the rent. 10. In the written statement it is admitted that the last payment of rent of Rs.3060/- was made on 6th July 1982 for the period ending with 31st March 1982. In paragraph 5 of the written statement a specific stand taken by the petitioner is as set out hereinafter: 8 “... The defendants say that as stated above, it is the plaintiffs who then owned large amount to the defendants, and after making up a payment of rent due till 31.3.1982, an amount of Rs.5073/- was due from the plaintiffs to the defendants. As a matter of fact it was these defendants that had to repeatedly ask the plaintiffs to clear off the dues and regularise the position of accounts, as the arrears position was brought about by the plaintiffs practice of taking away large amounts from these defendants as and when they needed them for their various needs. It was the plaintiffs who put off making up proper accounts and issuing rent receipts for advance rent received. Giving credit for the rent for the4 period 1.4.1982 to 31.3.1983, and then for the period 1.4.1983 to 31.3.1984, an amount of Rs.2807.80 ps was still due and outstanding from the plaintiffs to the defendants. An amount of Rs.960/- was paid in cash to the plaintiffs on 8.6.1979 at their demand. On that date Rs.3000/- were paid to the plaintiff as advance out of which he adjusted Rs.2040/- towards rent from 1.4.1977 to 31.3.1979 and the balance of Rs.960/- remained with the plaintiff in cash. This amount duly entered in the accounts, is included in the amount of Rs.2807.80 ps mentioned above. It is therefore submitted that as on the date of issue of the notice dt.12.12.1984 by the plaintiffs, the defendants were not only in any arrears of rent, but in fact a substantial amount was due from the plaintiffs to the 9 defendants. ....” 11. As far as this aspect is concerned, in the evidence the petitioner produced extracts of accounts maintained by it. The trial Court has considered the entries in the extract of account produced by the petitioner. Apart from the reasons given for coming to a conclusion that there were material omissions and additions in the extracts produced by the petitioner, importantly the trial Court found that except for the entries of the amounts of Rs.76.84/- and Rs.933.80/- there were no other entries made under the heading of rent. The entries of the other amounts allegedly paid by the petitioner were made in personal account of the respondents. Therefore, the case made out in the written statement regarding payments made by the petitioner to the respondents from time to time has been discarded by the trial Court. The Appellate Court considered the same evidence and noted that the petitioner was separately maintaining a personal account of the respondents and a rent account of the respondents. The Appellate Court found that apart from the fact that there were obvious errors in the extract of account at Exhibit 68, there were only two entries in the year 1977-78 of Rs. 76.84/- and Rs.933.80/- in the rent account. The entries of all other amounts allegedly paid were in the personal account of the respondents. 12. It must be noted here that while considering whether compliance was made by the petitioner under section 12(3)(b) ,the trial Court held that in the 10 receipt at Exhibit 63 dated 14th November 1975 in the sum of Rs.1530/-, the period was erroneously mentioned as from 1st October 1975 to 31st March 1976. The trial Court held that if correct calculation was made, the amount covered the rent up to 31st March 1977. Therefore, the trial Court gave credit of Rs.1020/- to the petitioner. Both the Courts below found that on the first date of hearing i.e.13th December 1988 , the rent payable was Rs.6800/-. Both the Courts found that as on the first date of hearing, the total amount deposited by the petitioner was Rs.5940/-. However, the trial Court gave credit of a sum of Rs.1020/- to the petitioner. It must be noted here that in the written statement, the petitioner has not pleaded anything about extra payment of Rs.1020/- under receipt at Exhibit 63. On the contrary there is a categorical admission in paragraph 5 of the written statement that on 6th July 1982 ,the last payment made towards the rent by the petitioner to the respondents was for the period ending with 31st March 1982. It is not the case made out that anything in excess was paid by the petitioner. Perusal of the deposition of the witness examined by the petitioner shows that no such case was made out regarding excess payment under receipt at Exhibit 63. It is pertinent to note that the receipt is dated 14th November 1975 and at no stage the petitioner made a grievance regarding excess payment of Rs. 1020/-. Therefore, the Appellate Court has rightly discarded the theory of excess payment and has come to the conclusion that on the first date of hearing out of the amount payable of Rs.6800/-, a sum of Rs.5940/- was deposited. Thus, compliance was not made by the petitioner by depositing 11 the entire arrears on the first date of hearing. Though reasoning on this aspect by the Appellate Court may not be proper, nevertheless the finding that there was no compliance with section 12(3)(b) of the said Act appears to be correct. 13. There is no merit in the petition and the same deserves to be dismissed. It must be pointed out that the learned counsel appearing for the respondents stated that the decree for possession has been already executed. 14. The petition is rejected. Rule is discharged with no orders as to costs. (A.S.OKA,J)