IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4729 OF 1984 WRIT PETITION NO. 4729 OF 1984 WRIT PETITION NO. 4729 OF 1984 Smt. Chimabai Bapurao Tandale (since deceased) through her legal heirs. ... Petitioners V/s Chandrakant Prabhashankar Vora, (since deceased) through his legal heirs. ... Respondents Mr. Vineet Naik for the petitioner. Mr. A.A. Kumbhakoni with Tejas Deshmukh for respondent Nos. 1A to 1E. CORAM: P.V. KAKADE, J. CORAM: P.V. KAKADE, J. CORAM: P.V. KAKADE, J. DATED: 3RD MARCH, 2006 DATED: 3RD MARCH, 2006 DATED: 3RD MARCH, 2006 ORAL JUDGEMENT ORAL JUDGEMENT ORAL JUDGEMENT: 1. This petition is preferred by the petitioner landlady against the judgment and order passed by the Assistant Judge, Solapur, dated 11.4.1984 dismissing the appeal and confirming the judgment and order passed by the Trial Court dismissing the suit which was filed by the petitioner against the defendant tenant for recovery of the possession of the suit property under the 2 provisions of the Bombay Rent Act. 2. I have heard the learned counsel for both parties. Perused the record. The dispute relates to the shop and godown premises bearing Municipal House No. 396/A, East Mangalwar Peth, Solapur. The possession of the suit property was claimed by the plaintiff on various grounds including that the defendants are rendered defaulter in law due to non-payment of rent for more than six months. Rest of the grounds appear to be subsequently given up. A notice was given to the defendant Nos. 1 & 2 on 1.5.1977. Defendants did not hand over the possession nor did they make the payment of arrears of rent and, therefore, the plaintiff brought the suit on 11.7.1971 claiming the possession of the suit premises and the total amount of Rs.1,172.36 towards arrears of rent and other charges. The defendant No.1 contested the suit denying all the allegations to the effect that no default was committed by him. It was contended that there was previous suit filed by the plaintiff which was still pending and the matter was subjudiced when the notice of present suit 3 was issued by the plaintiff and hence the present suit was not maintainable and dismissal thereof was sought for. Defendant Nos. 2 & 3 did not appear and suit proceeded ex-parte against them. 3. The Trial Judge, after hearing both parties and on the basis of available evidence came to the conclusion that the plaintiff had failed to prove that defendants were rendered defaulter due to non-payment of rent and permitted increases and, as such, the suit came to be dismissed. The appeal was carried to the District Court. The learned Addl. District Judge, after hearing both parties concurred with the findings recorded by the Trial Court on the contested issues contemplated under Sec. 12 of the Bombay Rent Act and dismissed the appeal. Hence the petition. 4. At the outset, it may be noted that the property belonged to the original plaintiff landlady which consists of shop and godown premises located in the city of Solapur. One Prabhashankar Jaychand Vora was a 4 tenant in the suit premises. Plaintiff landlady had filed R.C.S. No. 1325 of 1971 on 23.12.1971 against said Prabhashankar on the grounds of subletting, illegaly profiteering and personal requirement. Before filing the suit, she served Prabhashankar with notice dated 23.8.1971 and terminated his tenancy by the end of 30.8.1971. In that suit, she alleged that Prabhashankar sublet the suit premises to one Hyderasaheb Fakruddin Inamdar since January 1971 and has been illegaly profiteering. She also contended that she requires the suit premises reasonably and bonafide. 5. Plaintiff’s suit for possession came to be dismissed on 30.12.1975. In the said proceeding interim rent was fixed at Rs.80/- p.m. The Trial Court, while deciding the suit, fixed the standard rent at the decided rate at Rs.125/- p.m. Against the decision of the Trial Court dated 30.12.1975, the plaintiff filed the Civil Appeal No. 114 of 1976. Defendant Prabhashankar also filed Civil Revision Application No. 17 of 1976. It appears that during the pendency of the said proceeding, Prabhashankar died and his legal heirs i.e. son Chandrakant and widow Prabhavati were impleaded as legal representatives. Thus, in short, there was no cause of action at all to file the present suit and, therefore, 5 the suit itself was not maintainable. After the death of Prabhashankar, the plaintiff landlady sought amendment contending that as per the provisions of Sec.5(11)(c) of the Bombay Rent Act, persons residing at the time of the death of a tenant are only protected and that the said clause is applicable only to residential premises. Since the suit premises are shop premises, according to the plaintiff landlady, the heirs of Prabhashankar were trespassers and as such are not protected under Sec.5(11)(c) of the said Act. Her application for amendment was allowed and after framing necessary issues, the matter was remanded to the trial Court. The trial Court after remand, decided the suit on 30.11.1978. Taking into consideration the Amended Act No. XXII of 1978, it came to the conclusion that the heirs of Prabhashankar were not trespassers and were protected under Sec. 5(11)(c) of the Amended Actk and, therefore, dismissed the suit. 6. During the pendency of the Civil Appeal No. 114 of 1976 and Civil Revn. Application No. 17 of 1976, plaintiff found that the heirs of Prabhashankar had not 6 paid the difference at the rate of Rs.45/- p.m. for the period from 1.11.1971 to 31.10.1975 and that they were in arrears of rent for a period from 1.11.1975 to 31.5.1977 at the rate of Rs.125/- p.m. Thus, according to the plaintiff, by the end of April, 1977, defendant Nos. 1 and 2 were in arrears of rent of Rs.4350/-. Hence she served notice dated 1.5.1977 to the defendants calling upon them to pay the arrears of rent within one month of the receipt of the notice. Defendant No.1 received the notice on 4.5.1977, defendant No.2 received the notice on 6.5.1977 and defendant No.3 Inamdar refused to accept the notice on 6.5.1977. The plaintiff, therefore, alleged that inspite of receipt of the notice, the defendant did not pay the arrears of rent within 30 days from the receipt of the notice and they were rendered defaulter and, therefore, according to the plaintiff she was entitled to claim possession of the suit property under Sec. 12(3)(a) of the Bombay Rent Act and, therefore, she filed R.C.S. No. 733 of 1977 against the defendants. At the time of filing of the suit, plaintiff alleged that defendants had deposited the amount of arrears of rent claimed by her in the suit notice in Civil Appeal No. 114 of 1976. According to the plaintiff, said amount has been deposited by defendants in the said appeal on 9.6.1977. 7 Hence, as defendants did not pay the arrears of rent within 30 days of receipt of the notice, they were rendered defaulter as per the provision of Sec. 12(3)(a) of the Bombay Rent Act. 7. Defendants challenged the contentions on various grounds. Taking into account the evidence adduced by both parties as well as the argument advanced by the learned counsel for both parties and on perusal of the various rulings relied upon by them, it is to be noted that initially prior to filing of the present suit, the plaintiff had filed R.C. Suit No. 1325 of 1971 on 23.12.1971 for possession of the suit property wherein he had claimed possession on the grounds of bonafide requirement and subletting. Defendants in that suit raised dispute about the standard rent and it appears that in the said proceeding interim rent was fixed at Rs.80/- p.m. Before filing the said suit, plaintiff had issued notice dated 23.8.1971 and terminated the tenancy of Prabhashankar by the end of September, 1971. The suit was dismissed on 30.12.1975 and the standard rent of the suit property was fixed at Rs.125/- p.m. Therefore, it is clear that, in the earlier suit though the amount of default was not taken up by the landlady, 8 the issue of standard rent was specifically raised and decided. In that regard, it is to be noted that on 30.12.1975, first suit was dismissed and standard rent was fixed at Rs.125/- p.m. On 24.6.1976 in the appeal filed by the landlady, the present respondents filed cross-objections specifically raising and continued to raise the dispute about the standard rent. The said cross-objections were adjudicated and dismissed on 16.6.1978. Therefore, it is crystal clear that till 16.6.1978 the dispute as to the standard rent was pending before the Court. 8. Once this position is clear, it is to be noted that, when the dispute as to the standard rent was pending in the suit Court, pending this dispute the landlady issued suit notice of the present suit dated 1.5.1977 and the notice was served on the first defendant on 5.5.1977 and on the second defendant on 6.5.1977. It is to be noted further that on 9.6.1977 in the pending appeal the entire amount of arrears of standard rent as fixed by the Court and as claimed by the suit notice was deposited by the present respondents which is an admitted position. On this back ground, the present suit was filed on 11.7.1977 i.e. after the entire rent arrears of standard rent was deposited by the 9 respondents in the pending appeal. In this regard, the evidence clearly shows that, (a) on the date of the suit, the dispute as to the standard rent by way of cross objections was continued and was pending in the Court. (b) On the date of filing of the suit, there were no arrears at all towards standard rent and, therefore, obviously there was no cause of action to file a suit for eviction on the ground of arrears of standard rent. (c) On the date of the suit, if at all there could be only cause of action to claim the alleged increase in Municipal Taxes, however, both the Courts below have recorded finding of fact concurrently holding that the claim of the plaintiff as to alleged increase in the municipal taxes is not sustainable at all and the respondents were not at all liable to pay the amount claimed by the municipal taxes at all. Therefore, it must be inferred that no cause of action arose or existed on the date of filing of the suit for claim of arrears of rent and increase of municipal taxes. In this regard, it must be noted that the standard rent of the suit premises was fixed at Rs.125/- but there is nothing on record to show that while fixing the standard rent, the Court had excluded the amount of permitted increases. In the absence of any such order, it will 10 have to be presumed that in the earlier proceeding the standard rent was fixed at Rs.125/- p.m. including the permitted increases. It is significant to note that the plaintiff has not produced any evidence to the contrary and, therefore, in my view, the claim of the plaintiff regarding the amount of permitted increases besides the standard rent must be held to be bad in law. 9. Thus, in short, there was no cause of action at all to file the present suit and, therefore, the suit itself was not maintainable. 10. It must further be noted that the suit notice was of composite nnature whereby not only the arrears of standard rent were demanded but also alleged increase in the municipal taxes was claimed. In view of the facts and circumstances, the suit itself is not maintainable especially when the dispute about standard rent was pending not only on the date of issuance of suit notice but also on the date of filing of the suit and, therefore, Section 12(3)(a) would not be attracted. So far as Sec.12(3)(b) is concerned, the same does not at all contemplated payment of dues claimed within a period of one month, unlike Sec.12(3)(a). Therefore, on the ground of non-payment of alleged dues within one month 11 of receipt of notice, Sec. 12(3)(b) is not attracted. As held by both the Courts below, suit even under Sec. 12(3)(b) is not tenable. Thus, there is no cause of action for filing the present suit and plaintiff therefore has not acquired any right on any ground to seek eviction of defendants. 11. For the reasons recorded above, I hold that the concurrent findings recorded by both the Courts below appear to be just legal, and proper and, therefore, would brook no interference. 12. In the result, the petition is found to be devoid of any merits and stands dismissed with no order as to costs. Rule stands discharged. Consequently, civil application also stands disposed of. .....