1 wp 2698.92 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2698 OF 1992 Shaikh Abdul Gafoor S/o Noor Mohamad, Age : 45 Years, Occu. : Service, R/o Ahmednagar, Dist. Ahmednagar. .. Petitioner Versus Syed Mir Syed Mohmad, Age : 25 Years, Occu. : Education, R/o Bharad Lane, Chitale Road, Ahmednagar, Dist. Ahmednagar. .. Respondent Shri S. Y. Mahajan, Advocate for the Petitioner. Shri R. L. Kute, Advocate h/f Shri R. N. Dhorde, Advocate for the Respondent. CORAM : S. V. GANGAPURWALA, J. DATE : 27TH JULY, 2011. ORAL JUDGMENT : . Heard Shri Mahajan, the learned counsel for the petitioner and Shri Kute, the learned counsel for the respondent. 2. The petitioner is the original defendant. The respondent had instituted a suit for possession and recovery of arrears of 2 wp 2698.92 rent. The possession was sought on various grounds, such as non payment of arrears of rent, bonafide requirement, alternate accommodation, etc. The Trial Court decreed the suit for possession and recovery of arrears of rent on the ground of default and the tenant securing alternate accommodation. The tenant preferred an appeal. The Appellate Court dismissed the appeal. It held that the tenant has secured the alternate accommodation, but on the ground that notice claiming recovery of arrears of rent is invalid, negatived the ground of default, though, it came to the conclusion that the tenant was in arrears of rent. Aggrieved thereby the tenant has filed the present writ petition. 3. Shri Mahajan, the learned counsel for the petitioner submits that, finding on the ground of alternate accommodation is perverse and is based on assumptions and presumptions only. There is no record to show that the said alternate accommodation was occupied by the tenant or the tenant was allotted the same. The evidence on record does not satisfy the test as is laid down U/Sec. 13(1)(l) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. (hereafter referred as the "Rent Act") The learned counsel contends that the sale 3 wp 2698.92 deed is in the name of the son of the tenant. The son had taken the loan amount from the bank for construction of the house. As such, it cannot be said that, it is the present petitioner who had purchased the said property. It is further contended that, the parties are Mohammedan and there is no concept of joint family. As such, it cannot be said that the said alternate accommodation is joint family property. Even in view of the provisions of the Benami Transactions (Prohibition) Act, 1988, the petitioner cannot be said to be the owner of the house. The Courts have wrongly drawn adverse inference against the petitioner for non production of his bank accounts. Only on the ground that the petitioner retired at the relevant period and received the retiral benefits, it cannot be said that it is the petitioner who had contributed towards the purchase of the property. 4. Shri Mahajan, the learned counsel further contends that as the notice is invalid on account of claiming excessive rent, no decree can be passed on the ground of default and the learned lower Appellate Court has rightly negatived the same. The landlord in absence of any independent petition or a cross objection cannot be allowed to agitate the same in the present writ petition. The learned counsel further contends that the 4 wp 2698.92 lower Appellate Court has rightly held the notice to be invalid. Shri Mahajan, the learned counsel relies on the judgment of the learned Single Judge of this Court in a case of Shri Laxmi Oil Mills Vs. Mohanlal Harikisan Kabra reported in 2004(4) Mh. L. J. 346. So also relies on the judgment in a case of Ramchandra Appaji Manjage Vs. Mahavir Gajanan Mug reported in 1992(1) Mh. L. J. 436. Shri Mahajan, further contends that the total arrears of rent have been deposited in the Court and thereafter in every month the rent was deposited. So on this count also no decree can be passed for eviction. 5. Per contra, Shri Kute, the learned counsel for the respondent submits that the respondent in a writ petition has every right to agitate all the grounds decided against him, though the respondent has not filed any independent proceedings or cross objection. For the said purpose the learned counsel relies on the judgment of the learned Single Judge of this Court in a case of Musaji Mohamadali Master Vs. Gulamali Dadabhai Amreliwala reported in 2005 (Supp.) B. C. R. 816 and the judgment of the Apex Court in a case of Shalini Shyam Shetty Vs. Rajendra Shankar Patil reported in (2010) 8 5 wp 2698.92 S.C.C. 329. The learned counsel further contends that this Court in its supervisory jurisdiction would not interfere with the appreciation of evidence of the Courts below, more so, when both the Courts have concurrently on appreciation of evidence come to the conclusion that the tenant has acquired suitable alternate accommodation. The learned counsel further contends that the notice issued claiming recovery of arrears of rent cannot be dubbed as invalid only on the ground that excessive amount was claimed. For the said purpose the learned counsel relies on the judgment of the learned Single Judge of this Court in a case of Sadashiv Gangaram Lambe Vs. Subhash Akaram Gotkhinde reported in 2005(2) B. C. R. 527 and contends that it was erroneous on the part of the learned Appellate Court to hold the notice invalid only on the ground that excessive rent was claimed. 6. The landlord/respondent has not filed any cross objection on the points determined against him regarding the validity of the notice. The learned Single Judge of this Court in a case of Musaji Mohamadali Master has held that, aggrieved party has right to object or assail adverse finding without filing written objection. In view of the same I am inclined to consider the 6 wp 2698.92 validity of the notice issued by the landlord claiming recovery of arrears of rent prior to the filing of the suit. 7. The landlord had issued the notice claiming recovery of arrears of rent from the year 1964 vide Exhibit 75 on the basis of monthly rent of Rs. 40/- per month. After the notice was received by the tenant, the tenant within one month filed an application for fixation of standard rent. In the said application the interim order was passed by the Court directing the petitioner to deposit arrears of the rent at the rate of Rs. 15/- per month within a period of one month from the date of order. It is observed by both the Courts that the tenant did not deposit the arrears of rent as directed by the interim orders passed by the Court in an application for fixation of standard rent. The learned Single Judge of this Court in a case of Sadashiv Gangaram Lambe referred supra has relied on the observations of the Hon'ble Apex Court and observed as under : 6. In (Lalshankar v. Kantilal) reported in A.I.R. 1972 Bom. 373, by a notice dated 17-8-1965 the landlord demanded a total amount of Rs. 176.90 ps. Being the rent at the rate of Rs. 17/- per month for the period ending on 15-9-1965. The Trial Court held that the demand of rent was excessive because the rent claimed for the period 15-8-1965 to 7 wp 2698.92 15-9-1965 had not become due and payable to the landlord at the time of service of the said notice of demand and therefore, the said emand was not legal and therefore the notice was illegal and for the same reason the tenant could not have been said to be not ready and willing to pay to arrears of rent. However, it was held by the learned Single Judge of this Court that : "It is now well-settled that a liberal construction should be put upon a notice to quite in order that it should not be defeated by inaccuracies either in the description of the premises or the name of the tenant or the date of the expiry of the notice; and that the test of its sufficiency is not what its contends would mean to a stranger ignorant of all the facts and circumstances touching the premises to which the notice purports to refer, but what they would mean to tenants presumably conversant with all those facts and circumstances and the mistakes, if any, should not be construed with a desire to find faults, but they should be construed liberally." Therein reliance was placed in an unreported decision of the Apex Court in the matter of (Raghunath Ravji Dandekar v. Anant Narayan Apte), 1966 Civil Appeal No. 387 of 1964, decided on April 5, 1966 (S.C.) wherein the Apex Court while considering the validity of such notice had observed that mere mistake in demanding more than what was due while issuing the notice to quite under the T. P. Act would not render the notice to be bad in law. The decision of the Apex Court in that regard, 8 wp 2698.92 as revealed from the observation by the learned Single Judge, reads thus :- "Their Lordships held that all that section 12(2) of the Rent Act requires is the notice by the lessor for payment of arrears of rent. Their Lordship further observed that it was true that such a notice shall contain the figure of the amount due as arrears of rent, but according to Their Lordships, if there was a mistake in the amount specified in the notice, that did not, in their opinion, make the notice under section 12(2) bad or because of that mistake the notice to quite under the Transfer of Property Act bad." Considering the said ruling of the Apex Court, the learned Single Judge held that :- "It appears to me that simply because by mistake or over-sight the landlord had demanded the rent for the month for which it was not due, that would certainly not make the notice invalid. The view taken by the learned Assistant Judge is, therefore, not correct." 7. In (Bhagabandas Agarwalla v. Bhagwandas Kanu and others), reported in A.I.R. 1977 S.C. 1120, the Apex Court while dealing with the issue relating of the validity of the notice to quite issue by the lessor to the lessee, observed that :- "Now, it is settled law that a notice to quite must be construed not with a desire to find faults in it, which would render it defective, but it must be construed ut res magis valeat quam pereat. "The validity of a notice to quit", 9 wp 2698.92 as pointed out by Lord Justice Lindley, L.J. in (Sidebotham V. Holland), 1985(1) Q.B. 378 "ought not to turn on the splitting of a straw". It must not be read in a hyper-critical manner, not must its interpretation be affected by pedagogic pendantism or over refined subtlety, but it must be construed in a common sense way. See (Harihar Banerji v. Ramsashi Roy), 45 Ind. App. 222 : A.I.R. 1918 P.C. 102." 8. In (Chhaganlal Mulchand Jain V. Narayan Jagannath Bangh), reported in A.I.R. 1983 Bom. 212, the Division of this Court held that : "The notice is a communication between the landlord and the tenant and both the parties know their rights and liabilities for the payment of rent. Hence any mistake in making a demand for the larger amount would not render the notice invalid." 9. ....................... 10. In (Shashikant Govind Kulkarni and others v. Mahalaxmi Co-op. Bank Ltd.), reported in 2001(1) Bom. C. R. 437 : 2001(1) Mh. L. J. 131, the landlord by notice dated 13.1.1978 demanded rent for the period from 1-10-1976 to 31-12-1977 amounting to Rs. 2250/- at the rate of Rs. 150/- per month which was sought to be disputed by the tenant contending that there was excessive demand as the actual rent was Rs. 140/- per month and that therefore the notice was invalid. The learned Single Judge of this Court, relying upon the decision of the Apex Court in 10 wp 2698.92 (Harbanslal Jagmohandas & another v. Prabhudas Shivlal), reported in A.I.R. 1976 S.C. 2005, held that :- "It is well settled positiont hat even if the demand is excessive it is the duty of the tenant to offer at least the agreed rent within a period of one month from the receipt of the suit notice or at least raise a dispute regarding the standard rent to save himself from the rigours of section 12(3)(a)." 8. The learned Single in the said judgment has taken the stock of the various judgments of the Apex Court and the Division Bench of this Court and has held that merely claiming excessive rent in the notice would not invalidate the notice. The lower Appellate Court had held the notice to be invalid only on the sole ground that the rent claimed in the notice was excessive in view of the dictum referred supra. The notice on the said count cannot be held to be invalid. Both the Courts have held that the tenant is in arrears of rent and that the tenant has not deposited the total arrears of rent as directed by the Court vide order dated 02.05.1981 within one month and as such, the tenant entails eviction on the said ground. The judgments in a case of Shri Laxmi Oil Mills and Ramchandra Appaji Manjage referred supra relied by Shri Mahajan, the learned counsel would be of no assistance in view of the law laid down and 11 wp 2698.92 discussed in the judgment of Sadashiv Gangaram Lambe referred supra. 9. This takes to me to the next contention about the decree been passed on the ground of petitioner securing permanent accommodation. Both the Courts on appreciation of evidence have concurrently come to the conclusion that the facts and attending circumstances on record goes to show that the petitioner has also contributed for the purchase of the said alternate accommodation and taking into account the totality of the evidence have come to the conclusion that the petitioner and his other sons also have contributed for purchase of the property and the construction of the house thereon and the said house constructed is bigger than the area of the suit property. When the Courts below have concurrently arrived at a possible and plausible conclusion on the ground of tenant securing alternate accommodation, this Court in its writ jurisdiction would not entertain only on the ground that some other view may also be possible. 10. In the light of above, the writ petition is dismissed. The Rule is discharged, however, with no order as to costs. 12 wp 2698.92 11. At this stage, Shri Mahajan, the learned counsel for the petitioner states that the tenant/petitioner is residing in the said premises since the time immemorial. As such, he may be granted one year to vacate the premises. Shri Kute, the learned counsel for the respondent opposes the said request. However, taking into consideration the fact that the tenant is residing in the said premises since long time, I deem it appropriate to grant time to the tenant to vacate suit premises till 31.03.2012 on condition that the petitioner submits an undertaking to this Court within a period of three weeks from today stating that the petitioner would hand over vacant possession of the suit premises in habitable condition on or before 31.03.2012 and shall pay the rent regularly to the landlord or deposit the same in the Court and shall not create any third party interest or encumbrance over the suit property. The landlord is allowed to withdraw the amount of rent deposited by the petitioner in the Court. Sd/- [ S. V. GANGAPURWALA, J. ] bsb/July 11