WP. 496-94 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION No. 496 OF 1994 Sheikh Imbrahim Husainmiya ...Petitioner Vs. Putalabai B. Pardeshi (since deceased, represented through LRs.) & Anr. ...Respondents *** Mr. V. S. Gokhale, for the Petitioner. Mr. Prathamesh B. Bhargude i/b Mr. A. V. Anturkar, for Respondent Nos. 1A, 1E, 1F, 1C, 1G, 1H & 2. *** CORAM: V. M. KANADE J. DATE : MARCH 15, 2011 P.C. 1. Heard the learned counsel appearing on behalf of petitioner and respondent Nos. 1A, 1E, 1F, 1C, 1G, 1H and 2. By consent of parties writ petition is taken up for final hearing. Rule. Rule made returnable forthwith. Copy of the petition is given to the counsel for the respondents. 2. The learned counsel appearing on behalf of the petitioner submits that both the Courts below had erred in dismissing the suit for WP. 496-94 - 2 - eviction. He submitted that the lower Appellate Court also had confirmed the judgment and order passed by the trial Court. It is inter-alia submitted that both the Courts below had erred in holding that case of the respondents fell within the purview of Section 12(3)(b) and not Section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the “Act”). He submitted that petitioner had demanded arrears of rent from August, 1978 and the notice dated 2-6-1981 was served on 12th June, 1981. It is submitted that the landlord had demanded rent of Rs.27.50 + Education Cess, which was quantified @ Rs. 2.86 per month. He submitted that this rent was not paid within one month. It is submitted that there was an implied agreement between the parties that the tenant would pay the education cess which was quantified at Rs.2.86 per month and the tenant not having paid the said amount within one month from the service of notice, his case was covered by the provisions of Section 12(3)(a) and 12(3)(b) of the Act. In support of this contention, a reliance is placed on the judgment of the Apex Court, in the case of – Raju Kakara Shetty, Appellant vs. Ramesh P. Shirole & Anr., Respondents [(1991) 1 SCC 570]1. He invited my attention to the findings recorded by the trial Court 1 (1991) 1 SCC 570. WP. 496-94 - 3 - and by the lower Appellate Court. On this point, he submitted that both the Courts below had committed an error of law which is apparent on the face of record. He invited my attention to the above judgment of the Apex Court, particularly paragraph 7 thereof and submits that on this ground alone, respondents were liable to be evicted. 3. It is not possible to accept the said submission. It is an admitted position that on the first date of hearing before the trial Court, the respondent deposited entire arrears of rent. Though it is contended by the learned counsel for the petitioner that there was implied agreement regarding payment of cess by the tenant, no evidence has been led in support of the said contention. It is admitted position that the rent receipts have not been issued for quite some time. Payment of education cess is normally payable by the year, unless amount is quantified as being payable by the month, therefore, provisions of Section 12(3)(b) of the Act would be attracted. It my view, it is rightly observed by the trial Court and confirmed by the lower Appellate Court. The ratio of the judgment on which reliance is placed by the learned counsel for the petitioner, in my view, would not apply to the facts of the present case. In the said case the Apex Court has observed that though education cess is payable by the tenant annually, the parties by agreement can quantify the WP. 496-94 - 4 - amount of cess to be paid on month to month basis and under such circumstances, if there is an agreement between the parties and agreed amount is not paid within one month from the date of service of demand, provisions of Section 12(3)(a) of the Act would be attracted. In the present case, in the written-statement there is a specific denial by the respondent herein on that aspect. Admittedly, there is no written agreement regarding quantum of education cess which would be payable by month to month basis by the tenant. Therefore, under these circumstances, the trial Court was justified in coming to the conclusion that the case would fall within the purview of Section 12(3)(b) of the Act and that he would be entitled to get protection of the sub-clause (b). In view of this, no case is made out to interfere with the concurrent finding of fact of both the Courts below. Therefore, writ petition is dismissed. 4. So far as other grounds are concerned, on the question of sub-letting, both the Courts have held that defendant No.2 was the son- in-law of defendant No.1, and therefore, the question of subletting does not arise. On the question of change of user, both the Courts below, have noted that the premises were used for business and the defendants continued to use the premises for another business and therefore, it is permissible and case of change of user was not attracted. On the question WP. 496-94 - 5 - of permanent construction, it was observed that the tenant had constructed ‘Otla’ and relying on judgments of this Court, both the Courts below have held that construction of ‘Otla’ did not amount to a permanent alteration. Lastly, so far as acquisition of alternate premises is concerned, both the Courts below have held that since the alternate premises which were acquired, were commercial purposes, the said provision was not attracted since the defendant was carrying on business in the suit premises. In my view, no case is made out for interference with the impugned judgment and order dated 4th December, 1992. Writ Petition is, therefore, dismissed. [ V. M. KANADE J.]