1 cra98 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL REVISION APPLICATION NO.98 OF 2010 Pannalal Gebilal Jain ...Applicant vs. Dhirajlal P. Jaradi ...Respondent Mr.A.V.Anturkar i/b Mr.Sugandh Deshmukh for the applicant None for the respondent CORAM :A.S.OKA,J. DATE : NOVEMBER 16,2010 P.C.: 1 By this revision application, the revision applicant who is the defendant-tenant has challenged the decree of eviction passed by the trial Court which has been confirmed in appeal. The respondent is the original plaintiff. 2 According to the case of the respondent-plaintiff, the applicant was liable to pay monthly rent of Rs.114/- inclusive of repair cess in respect of the suit premises let out to the applicant. The case made out by the respondent is that the applicant remained in arrears of rent for the period between August 1995 to August 1996 amounting to Rs.1350/- and difference in repair cess from April 1995 to November 1995 at the rate of Rs.33.36 p.m. A demand notice was issued by the respondent on 5 th September 1996 calling upon the applicant to pay amount demanded towards the aforesaid arrears. Notice was duly served to the applicant. As compliance was not made, a suit for eviction was filed. 3 The applicant filed written statement and contended 2 cra98 that the suit premises has become old and was in dilapidated condition. It was contended that rent was Rs. 81/- per month and not Rs.114/- per month. It is stated that an application was made by the applicant in October 1996 for fixation of standard rent. It is stated that as the Advocate appointed by the applicant in the said proceedings died, the proceedings of the application remained pending. 4 The trial Court recorded a finding that the applicant was in arrears of rent and in spite of service of notice of demand dated 5 th September 1996, he failed to pay rent and difference in repair cess. The trial Court held that the application for fixing standard rent was not filed within a period of one month from the date of service of notice of demand and the arrears were not tendered. The trial Court also observed that the arrears along with interest at the rate of 9% p.a were not deposited as per the requirement of section 12(3) of the Bombay Rents, Hotel and Lodging House Rates (Control)Act, 1947 (hereinafter referred to as the said Act). Therefore, trial Court proceeded to pass a decree of eviction on the ground of default. The Appellate Court has confirmed the finding of the trial Court and has also confirmed the decree of eviction on the ground of arrears of rent. 5 The learned counsel for the revision applicant submitted that admittedly, the agreed monthly rent was Rs.81/- p.m and demand was made by the respondent of exorbitant amount at the rate of Rs.114/- p.m from August 1995. He placed reliance on the decision of learned Single Judge of this Court in case of Ramchandra Appaji Hanjage, since deceased by his heirs and legal representative [1991 (4) Bombay Cases Reporter 381]. He 3 cra98 submitted that in view of the said decision, the suit for possession ought to have been dismissed on the ground that the notice of demand by which a demand of excessive amount was made was not tenable in law. He, therefore, submitted that the decree could not have been passed on the ground of arrears of rent as the notice of demand was itself illegal. 6 I have given careful consideration to the submissions. A finding of fact recorded by the Courts below and in particular Appellate Court is that assessment bills produced by the respondent-plaintiff show that with effect from 1 st April 1995, municipal taxes were increased to 390% from 195% and that is the reason why the respondent claimed rent at the rate of Rs. 114/- p.m instead of Rs.81/- p.m inclusive of permitted increases. 7 Admitted position is that the applicant did not tender arrears demanded even within a period of one month from the date of service of notice and did not file an application for fixation of standard rent within a period of one month from the date of service of notice. 8 It must be noted here that with effect from 1st October 1987, sub-section 3 of section 12 of the said Act was amended by deleting clauses (a) and (b) and by incorporating a new sub-section 3. The suit will be governed by the said amended sub-section 3 of section 12. The applicant could have obtained relief against forfeiture only by depositing the entire arrears of rent due with 9% interest and costs of the suit within the time stipulated by sub-section 3 of section 12 as amended. However, the applicant has failed to do so. The applicant has not even deposited the arrears due and 4 cra98 payable as per his own calculations along with interest and cost of the suit. The decision in case of Ramchandra Appaji Hanjage (supra) specifically considers section 12 prior to amendment with effect from 1st October 1987. The effect of section 12 (3) as amended from 1st October 1987 has not been considered. In view of non compliance with sub-section 3 of section 12 (as amended), the decree of eviction must follow. 9 Moreover, there is a finding of fact on the basis of the documentary evidence on record that the municipal taxes in respect of the suit premises were substantially increased with effect from 1 st April 1995. In view of the said finding of fact, demand made at the rate of Rs.114/- cannot be said to be excessive, exorbitant or illegal. 10 There is no reason to interfere with the concurrent decrees passed by both the Courts below. Revision application is rejected. 11 The decree for possession shall not be executed for a period of twelve weeks from today, subject to the condition that the applicant shall not create third party rights and will not part with possession of the said property. JUDGE