1 C.R.A. No.149/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.149 OF 2010 Ashok Murlidhar Bhaskar Age 45 years, Occ. At present Nil, R/o Kae Mala, Kopargaon, District Ahmednagar ... APPLICANT VERSUS Vijay Kumar Premraj Kale, Age 58 years, Occ. Business, R/o Kopargaon, Taluka Kopargaon, District Ahmednagar ... RESPONDENT ..... Shri S.P. Chapalgaonkar, Advocate for applicant Shri S.D. Kulkarni, Advocate for respondent ..... CORAM : S.S. SHINDE, J. DATED : 29th July, 2011. Date of reserving judgment : 26.7.2011 Date of pronouncing judgment : 29.7.2011 J U D G M E N T : 1. This Civil Revision Application is filed challenging the order dated 5.2.2009, passed by Joint Civil Judge, Junior Division, Kopargaon in Regular Civil Suit No.251/1998, which is confirmed by Additional District Judge, Kopargaon in Regular 2 C.R.A. No.149/2010 Civil Appeal No.41/2002, by judgment and order dated 21.8.2010. 2. The respondent/ plaintiff filed suit for recovery of possession of suit premises i.e. a room, admeasuring 40 feet x 20 feet from City Survey Nos.1833, 1835 and 1856, which was let out to the applicant/ defendant on monthly rent of Rs.30/-. The Municipal taxes were also to be paid by the defendant. It is contended by the plaintiff that an amount of Rs.2880/- was in arrears towards rent up to 31.3.1997 together with education cess. The plaintiff contended that, defendant committed default in paying the rent, hence the plaintiff issued notice to defendant on 18.3.1997 and terminated his tenancy rights. The defendant paid only Rs.500/- on 4.8.1999 which is accepted by the plaintiff without prejudice to his rights. Hence, according to the plaintiff, the plaintiff is entitled to get possession of the suit premises from the defendant. The plaintiff claimed Rs.2880/- towards arrears of rent up to 31.3.1997, Rs.450/- towards damages from 31.4.1997 to 30.6.1998, Rs.200/- towards education cess and Rs.125/- towards notice charges. The plaintiff thus totally claimed Rs.3655/-. By deducting the amount of Rs.500/- paid by the defendant, the plaintiff claimed to recover amount of Rs. 3155/- together with interest and future mesne profits and also prayed for granting relief of possession of the suit premises from the defendant. 3 C.R.A. No.149/2010 3. The defendant filed his written statement and admitted that the suit premises is in his possession as tenant. The defendant also did not dispute the monthly rent of Rs.30/-. However, he denied that he was in arrears of Rs.2880/- 31.3.1997 together with education cess. The defendant also denied to have committed default in paying the rent. According to the defendant, the particulars of arrears given by the plaintiff in plaint are not correct. According to the defendant, plaintiff had not issued any notice to him and there is no arrears of rent. The defendants also contended that he was always ready to pay the rent to the plaintiff, however, the plaintiff intentionally avoided to accept the rent. According to the defendant, the plaintiff was not issuing rent receipts. According to the defendant, he is residing in the suit premises since the time of his forefathers and is regularly paying the rent and no rent is outstanding and is recoverable from him and the plaintiff has filed the false suit. As such, the defendant prayed for dismissal of the suit. 4. Learned Joint Civil Judge, Junior Division, Kopargaon, by judgment and decree dated 5.2.2009, decreed the suit of the plaintiff and directed the defendant to hand over vacant possession of the suit premises to the plaintiff within a period of three months and also directed to pay amount of Rs.3155/- to 4 C.R.A. No.149/2010 the plaintiff, which was directed to be deposited in the Court, to be adjusted towards the amount to be recovered from. Learned trial Court directed to hold separate enquiry in respect of future mesne profits as per Order 20 Rule 12 of the Civil Procedure Code. 5. The applicant filed Regular Civil Appeal No.41/2002 before the District Court, Kopargaon. The learned Additional District Judge, Kopargaon, vide judgment and order dated 21.8.2010, was pleased to dismiss the appeal. Hence this Civil Revision Application challenging the impugned order dated 18.6.2009 passed by Ivth Jt. Civil Judge, Senior Division, Aurangabad below Exh. 13 in Regular Civil Suit No.291/1997. 6. The learned counsel appearing for the applicant submits that, the lower appellate Court, without even referring the evidence placed on record below Exh. 72, was pleased to dismiss the appeal with very cryptic order. It is further submitted that, both the courts have committed grave mistake of law in believing the agent, who appeared before the Court without any authority in law. It is submitted that, as per mandate of Order 3 Rule 2 of the Civil Procedure Code, only those agents are recognized who are holding power of attorney authorizing them to make and do such appearances, applications and acts on behalf of such parties. In the present case, no such authorization was ever filed, nor did the 5 C.R.A. No.149/2010 Court directed the witness to produce such authorization. It is further submitted that both the Courts erred in accepting the notice as compliance of Section 12(3) of the Bombay Rent Act below Exh. 26, which was not signed by the landlord. Therefore, it is submitted that, any notice on behalf of, that too without any authorization known to the Court or the defendant is unknown to any of the provisions of law. According to the counsel for the applicant, both the courts erred in interpreting concept of “first day of hearing”. It is submitted that, in case of Ajit Vs. Nirmala [ 2010 (5) Mh.L.J. 481 ] and in particular para 10, the Court has taken a view in the facts of that case, though the tenant was 30 days late in depositing the amount, in that case, the Court has construed the deposit by the tenant on first day of hearing. It is further submitted that, the tenant i.e. present applicant could not have made liable for the payment of education cess and municipal taxes in absence of any agreement to that effect. In support of his contention, the learned counsel placed reliance on the reported judgment of this Court in the case of Haanjabai Vs. Hansraj [ 2011 (1) 1021 ] Therefore, according to the counsel for applicant, both the courts have not appreciated the contention of the applicant that, the tenant cannot be made liable for the payment of education cess and other municipal taxes. 6 C.R.A. No.149/2010 It is further submitted that, as per Article 52 of the Limitation Act, the limitation is three years and in such claim, recovery of money more than that is barred and suit should have been dismissed on that ground itself. It is further submitted that, the lower appellate Court, did not even refer to the deposition of the doctor who was examined in order to prove the ailment of the tenant to substantiate the reference that he was unable to pay the rent regularly and this shows non application of the mind by the lower appellate Court and, therefore, this may deserve payment of fresh consideration by the lower appellate Court. The learned counsel further invited my attention to the grounds taken in the Civil Revision Application, annexures thereto and private paper book containing evidence which is placed on record and submitted that, this Civil Revision Application deserves to be allowed. 7. On the other hand, the learned counsel appearing for the respondent submits that, there are concurrent findings of the facts, therefore, this Court may not interfere in revisional jurisdiction to upset the concurrent findings of facts. It is submitted that, both the Court, after appreciating the evidence brought on record, have held that, the applicant who is original tenant, has made default in payment of arrears towards rent for about eight years and, therefore, the respondent/ landlord is entitled for possession of the suit property. 7 C.R.A. No.149/2010 It is further submitted that, P.W.1 Dhanlal is the brother of the plaintiff/ landlord. The demand notice also specifically states that, the notice has been sent on behalf of the landlord. The learned counsel invited my attention to provisions of subsection 3 of Section 5 of the Bombay Rent Act and contended that, the landlord means any person who is for the time being receiving, or entitled to receive, rent in respect of any premises whether on his own account or on behalf or for the benefit of any other person or as a trustee, guardian or receiver for any other person who would so receive the rent to be entitled to receive the rent if the premises were let to a tenant.” 8. It is further submitted that the plaintiff had given a demand notice. The said notice along with acknowledgement receipt was exhibited and proved. No reply was given to the applicant to said notice and both the courts have held that the proper notice was given by the plaintiff. The point raised by the applicant that in absence of mention about the education cess in agreement, no such suit is maintainable to recover the said education cess is concerned, it is submitted that, the application has not pleaded this point before the trial Court. On the contrary, he did accept his liability to pay the arrears towards rent. Therefore, applicant cannot be allowed to raise such new point in 8 C.R.A. No.149/2010 the revisional jurisdiction. It is further submitted that, the revision applicant himself in his examination-in-chief admits that he has defaulted in paying the rent from 1993 till 1998 and both the Courts have taken the note of these facts and accordingly held that the applicant has defaulted in paying the rent. It is further submitted that, to substantiate the arguments, the counsel appearing for the petitioner relied on the judgment of this Court, wherein it has been observed that, if there is no agreement in respect of the education cess, the same cannot be demanded. According to the counsel for respondent, the judgment which is cited by the counsel for the applicant pertains to provisions of the old Act which has been amended in the year 1987 and undisputedly the suit is filed in the year 1998. Thus, it is governed by the amended provisions of the Bombay Rent Act which do not stay in such condition precedent for demanding rent along with education cess and other taxes. The learned counsel further submitted that, the “first day of hearing” has been defined in the judgment of the Apex Court in Vasant Ganesh Damle Vs. Shrikant Trimbak Datar [2002 (5) Bom.C.R. 421 ] and in case of Vidyabai Vs. Padmalatha [ 2009 (2) SCC 409 ]. Relying on the said judgments, the learned counsel for the respondent would submit that, the date of hearing cannot be stretched beyond date when the issues are framed in the suit. It is further submitted that, the tenant is not only obliged to pay the rent regularly till the disposal of the suit, 9 C.R.A. No.149/2010 but even till the matter is decided by the appellate Court. It is further submitted that, in the present case, the second application was filed by the tenant for depositing rent after a period of six months and, therefore, both the courts below have held that the applicant has not deposited the rent as contemplated in Section 12(3) of the said Act and is liable for the eviction. So far challenge by the applicant for maintainability of the suit is concerned, on the ground of limitation, the counsel for the respondent submitted that, the suit for arrears of rent and eviction filed by the landlord was decreed after giving full opportunity to the present applicant to adduce evidence and this point about maintainability of the suit as it is barred by limitation was not raised by the applicant herein either before the trial Court or before the appellate Court. Therefore, the learned counsel for respondent would submit that such point may not be allowed to be agitated by the applicant in the revisional jurisdiction. It is further submitted that the plea taken by the applicant that the landlord was ill and, therefore, he could not deposit the rent was not either pleaded before the trial Court or it was not mentioned in the written statement filed before the trial Court, therefore, such plea cannot be raised subsequently either before the appellate Court or in this revision. Therefore, learned counsel appearing for the respondent would submit that, this Civil Revision Application is devoid of any merits and same may be dismissed. 10 C.R.A. No.149/2010 9. I have given thoughtful consideration to the submissions advanced by the learned counsel appearing for the applicant and learned counsel appearing for the respondent. The Court of Jt. Civil Judge, Junior Division, Kopargaon, while adjudicating the Regular Civil Suit No.251/1998, framed as many as 7 issues for its consideration/ determination. The first issue was framed in respect of notice given by the plaintiff to defendant and the Court has concluded that plaintiff has proved that the notice was given on 18.3.1997 by the plaintiff to the defendant for terminating the tenancy. The specific issue was framed about the default in monthly payment of rent up to 31.3.1997 by the tenant i.e. applicant herein, and said issue is answered in affirmative holding that the applicant/ tenant has committed default in monthly payment of rent. The third issue was framed and it is held by the trial Court that the respondent/ landlord is entitled to relief of possession of the suit premises and also he is entitled for Rs. 2880/- towards arrears of rent. The Court has also held that the respondent/landlord is entitled to Rs.450/- towards damages and also entitled for education cess of Rs.200/- and notice charges of Rs.125/-. Therefore, the trial Court answered the issue Nos.1 to 6 in the affirmative and held that the respondent/ landlord is entitled for relief of possession of the suit premises. 11 C.R.A. No.149/2010 10. The trial Court has recorded its elaborate finding on first issue in para 13 of the judgment and concluded that, the plaintiff has proved that the legal notice was sent by him to the defendant prior to institution of the suit, making demand of arrears of the rent which was for the period of 8 years. From the discussion in para 13, it can safely be gathered that the acknowledgement receipts were placed on record by the applicant to show that such notice was served on the defendant/ tenant. 11. The trial Court in para 15 of the judgment has discussed about the default committed by the defendant in making of payment of rent to the tune of Rs.2880/- for the period of 8 years ending by 31.3.1997. There is reference to the plaintiff’s witness Dhanlal, who has stated in his oral evidence that the account was kept by him in respect of outstanding rent amount to be recovered from the defendant. It appears that, the original account book was brought by the said witness before the Court. It is further observed by the trial Court that the entries in the said account book are in the handwriting of said Dhanlal. The said witness Dhanlal has deposed that an amount of Rs.1440/- was outstanding recoverable from defendant towards rent by the end of 31.3.1993. Thereafter again the defendant was in arrears of rent of one year commencing from 1.4.1993 to 31.3.1994. The trial Court held that the witness Shri Dhanlal has duly proved entries by referring to the original 12 C.R.A. No.149/2010 account book which was produced by him in the Court. Therefore, the verified copy from the said account is exhibited at Exh. 28. The trial Court concluded that the total amount of Rs.1800/- was outstanding recoverable from defendant by the end of 31.3.1994. The trial Court found that, the defendant had put his signature on this document and had thus, acknowledged the outstanding balance amount of Rs.1800/- towards arrears of rent. The defendant has not disputed about his signature on Exh. 28. The trial Court concluded that the defendant/ tenant has accepted the fact that he has put his signature on Exh. 28 in token of acknowledgement of amount of Rs.1800/- towards arrears of rent by the end of 31.3.1994. The trial Court has also noticed that, on the documents which were placed at Exh. 29 to 31, the defendant/ tenant has signed on all those documents, those are the photo copies of the account for the period 1.4.1994 to 31.3.1997. Thereby the defendant has acknowledged the outstanding rent amount. Though it was orally argued before the trial Court that due to ill health the applicant/ tenant could not pay the amount towards arrears of rent, however, such plea was not taken in the written statement which was filed before the trial Court. Therefore, the plea taken by the applicant tenant about ailment was negated by the trial Court. 13 C.R.A. No.149/2010 The trial Court has referred to the oral evidence of the applicant herein, who is original tenant, in which he has admitted that, due to the financial difficulties he could not pay the rent during the period from 1990 to 1998. In his cross-examination, he has clearly admitted that he was in arrears of rent as per the demand made by the plaintiff in the suit. However, according to him, due to his illness, he could not pay the amount of arrears of rent. Therefore, in para 17, the trial Court concluded that, taking into consideration the oral evidence adduced by the plaintiff and the defendant and the account extract produced from Exhs. 28 to 31, it must be accepted that the plaintiff has satisfactorily proved that the defendant has committed default in making few of rent of the suit premises up to 31.3.1997. 12. The trial Court in para 18 has considered the provisions of subsection 3 of Section 12 of the Bombay Rent Act and after elaborate discussion in subsequent paragraphs, concluded that subsection 3 of Section 12 of the Bombay Rent Act requires that the tenant should deposit amount of arrears of rent together with interest at the rate of 9% on that amount on the first date of hearing of the suit. However, the tenant did not deposit said amount on the first date of hearing. 14 C.R.A. No.149/2010 13. Therefore, taking into consideration the entire evidence on record, the trial Court concluded that the landlord/ plaintiff is entitled for vacant possession of the suit premises described in para 1 and accordingly ordered that the defendant should hand over vacant possession of the suit premises within a period of three months from the date of the order. 14. The appellate Court, upon hearing the respective parties and upon appreciation of the evidence, also found that the findings recorded by the trial Court are in consonance with the evidence brought on record. The appellate Court has fully confirmed the findings recorded by the trial Court. Therefore, there are concurrent findings of the fact recorded by the courts below. 15. As stated hereinabove, the issuance of notice to the tenant by the plaintiff has been duly proved by the plaintiff. The default in payment by the defendant towards arrears of rent has been proved and even the defendant has admitted in his deposition that he was default in payment of the rent. His plea of ailment has been negated by the trial Court since same was not incorporated in the written statement which was filed before the trial Court. It is also not in dispute that the amount which was deposited by the applicant/ tenant before the Court was not with interest. The applicant was not regularly depositing the amount in 15 C.R.A. No.149/2010 the Court. As it is evident that after six months he filed another application to deposit further amount towards rent arrears. The amount which was deposited initially in the Court was also without interest. The mandate of Section 12 is that, on the first date of hearing of the suit the tenant should deposit the entire amount towards arrears with interest. Therefore, the findings recorded by the trial Court and which are confirmed by the appellate Court on default by the defendant in payment of the rent needs no interference. 16. The contention of the applicant that, the person who has sent the notice i.e. P.W.1 Dhanlal is the brother of the plaintiff/ landlord and, therefore, the notice which is not sent by the landlord is not valid notice as contemplated under the provisions of the said Act, has no force. The provisions of subsection 3 of Section 5 of the Bombay Rent Act reads thus : 3. Landlord means any person who is for the time being receiving, or entitled to receive, rent in respect of any premises whether on his own account or on account, or on behalf, or for the benefit of any other person, or as a trustee, guardian, or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant; and includes any person not being a tenant who from time to time derives title under a landlord and further includes in respect of his sub-tenant, a tenant who has sublet any premises; and also includes in respect of a licensee deemed to be a tenant by section 15A, licensor who has given such 16 C.R.A. No.149/2010 license, and in respect of the State Government, or as the case may be, the Government allottee referred to in sub-clause (b) of clause (1A) deemed to be a tenant by section 15B, the person who was entitled to receive the rent if the premises were let to a tenant immediately before the coming into force of the Bombay Rents, Hotel and Lodging House Rates Control, Bombay Land requisition and Bombay Government Premises (Eviction) (Amendment) Act, 1996.” 17. Bare reading of said provision would make it clear that the landlord means any person who is for the time being receiving, or entitled to receive, rent in respect of any premises whether on his own account or on account, or on behalf, or for the benefit of any other person. Therefore, if the evidence of Dhanlal is considered, he has stated in his evidence that from number of years he is looking after the said property and he is collecting the rent and to that effect even he has maintained books of account and such entries from the books of account have been duly proved by him before the Court. 18. The another contention of the counsel for the applicant about the education cess is concerned, he did not protest before the trial Court about the same, on the contrary, in his statement before the Court, he did admit that he is in arrears towards payment of rent. I find considerable force in the argument of the 17 C.R.A. No.149/2010 counsel for the respondent that the suit is filed in the year 1998 and is governed by the amended provisions of Bombay Rent Act, which do not provide for any such condition precedent i.e. any agreement for demanding rent along with education cess and other taxes. 19. The another contention of the counsel for the applicant that the first day of hearing means not necessarily the day when the Court frames the issues is concerned, the said contention is required to be rejected. The Hon’ble Supreme Court in case of Vidyabai (supra), has taken a view that, the first day of hearing is the day when the Court frames the issues and when the affidavit in lieu of examination-in-chief is filed by the party. Even if it is assumed for a moment that the applicant/ tenant did deposit entire amount towards arrears of rent on the first day of hearing, admittedly that was not with interest. It is admitted position that the amount which was deposited by the applicant/ tenant was principle amount excluding interest