1 WP-6491/2005 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.6491 OF 1995 Shri. B.M.L. Saksena and ors. ..Petitioners. Vs. Shri. Kailashchand Garg and ors. ..Respondents. Mr.R.A.Thorat, Advocate for the Petitioners. None for the Respondents. CORAM : A.S. OKA, J. DATE : 20th September, 2010. JUDGMENT : 1 Heard the learned counsel appearing for the petitioners who are landlords and original plaintiffs. None appears for the respondents who are the legal representatives of the defendant tenant. 2 It is not in dispute that the original defendant was the tenant of the original plaintiff in respect of the suit premises and the standard rent was fixed at Rs.76.16ps. per month. Notice dated 2nd April,1970 was issued by the original plaintiff to the original defendant through an Advocate calling upon the original defendant to pay arrears of rent for the period from 1st September,1968 to 31st March,1970 at the rate 2 WP-6491/2005 of Rs.76.16ps. per month. There was a reply issued by the Advocate for the original defendant on 16th April, 1970. It was contended in the reply that the Municipal authorities granted permission to the original defendant to construct a regular lavatory. It was stated that as stated in letter dated 18th February, 1969, a sum of Rs.2073.57ps. which was spent upon the construction, has been adjusted towards the payment of rent and therefore, the original defendant was not in arrears from 1st September, 1968. 3 Both the parties adduced evidence. The Trial Court accepted the case made out by the original plaintiff that the original defendant was in arrears of rent from 1st September, 1968. The Trial Court recorded a finding that the original defendant incurred expenses of Rs.2073.57ps. on the work of repairs and that the original defendant is entitled to adjust the said amount in the rent. Therefore, the Trial Court proceeded to dismiss the suit. 4 The Appellate Court in an appeal preferred by the plaintiff came to the conclusion that under Sub section 2 of Section 499 of the Bombay Municipal Corporation Act,1988, the original defendant tenant was entitled to deduct the amount of expenditure incurred on the said work from the rent 3 WP-6491/2005 which is due and payable to the landlord. Therefore, the Appellate Court confirmed the decree of dismissal of the suit. 5 The learned counsel appearing for the legal representatives of the original plaintiff submitted that the original defendant-tenant was not entitled to carry out the repairs without following the procedure as provided for under Sub section 2 of Section 23 of the Bombay Rents, Hotel and Lodging House Rates Control Act,1947(hereinafter referred to as the “said Act”). He submitted that only after giving notice as contemplated by the said provision, the tenant is entitled to carry out the repairs and deduct the expenditure incurred on such repairs from the rent. He submitted that prior to 1987, the provision of law was that amount so deduced or recoverable in any year shall not exceed 1/6th of the rent payable by the tenant for that year. He submitted that in view of non abstante clause in Sub Section 1 of Section-23 of the said Act, it will have overriding effect over the provisions of the Mumbai Municipal Corporation Act, 1988. Therefore, Sub- Section 1 of Section 499 of the said Act of 1988 will have no application. He submitted that in any case, there is no evidence to show that a particular amount was spent by the original defendant on expenditure. He therefore, submitted that even assuming that original defendant could have taken benefit of 4 WP-6491/2005 Section-23(3) of the said Act, the decree of possession ought to have been passed in view of the admitted arrears on the date when the demand notice was served. 6 None appears for the legal representatives of the original defendant. I have perused the record and proceeding of the suit. I have also perused the documents placed on record by way of documentary evidence. 7 Before going to the question as to whether the original defendant was entitled to adjust the expenditure incurred on carrying out the repairs against the arrears of rent by invoking sub section-2 of Section-499 of the said Act of 1988, it will be necessary to consider the submission made by the learned counsel appearing for the legal representatives of the original plaintiff that there was no evidence to show that expenditure of Rs.2073.57ps. was incurred. 8 In the examination in chief of the original defendant, he has deposed that the estimate after preparation of the plan was Rs.2000/-. However, in the examination in chief, he has not given any details. In further examination in chief of the original defendant, he came out with the case that he has spent a sum of Rs.2073.57ps. for repairs. In the earlier 5 WP-6491/2005 examination in chief, the original defendant has made a reference to various documents and bills which are marked as Y-2, Y-3, Y-4, Y-5 and Y-6 for identification. All these documents have not been admitted in evidence and the said documents have been marked only for identification. 9 Now turning to the finding of the Trial Court on this aspect, a specific issue being Issue No.6 was framed by the Trial Court. While dealing with Issue No.6, the Trial Court has made a reference of the notice issued by the Municipal Corporation. However, the Trial Court has not recorded any specific finding as regards the amount expended by the original defendant on carrying out the work. The Trial Court has not at all noticed that most of the the documents which were sought to be produced by the original defendant to prove the claim of the expenditure incurred of Rs.2073.57ps. were not admitted even in evidence. There is no basis on which the trial court has come to the conclusion that Issue No.6 has to be answered in favour of the original defendant. The Appellate Court has also not recorded any finding as to how the expenditure of Rs.2073.52ps. has been incurred. The notice dated 26th April,1968 which was sent by the Advocate for the original defendant to the original plaintiff records the estimated costs was Rs.2074/-. Thus, till that date, the work 6 WP-6491/2005 was not carried out. There was a reply sent to the said notice by the original plaintiff contending that the original defendant has no authority to carry out the repairs. There is a rejoinder sent to the said reply by the Advocate for the original defendant. Even the said rejoinder indicates that the construction was not carried out as on that day. There is a notice dated 18th February, 1969 sent by the Advocate for the original defendant to the original plaintiff in which it is contended that the actual costs incurred on the work is more, but the original defendant was advised only to deduct a sum of Rs.2073.57ps. 10 The burden was on the original defendant to prove that the aforesaid amount was spent by him on construction. As pointed out earlier, most of the documents produced by the original defendant for proving the expenditure have been marked only for the purposes of identification and the said documents are not yet proved. 11 Apart from the fact that both the Courts below have not made reference to any legal evidence to show that amount spent by the original defendant for repairs was to the extent of Rs.2073.57paise, the perusal of the record shows that material documents produced to prove the expenditure have 7 WP-6491/2005 not been proved and the same have been marked only for the purpose of identification. 12 Thus, this was the case where there was no legal evidence to show that the original tenant had spent an amount of Rs.2073.57ps. Thus, the findings on this aspect by the Courts below are perverse. Such findings could never have been recorded. But for the claim of adjustment, there is no dispute that the original defendant was in arrears of rent from 1st September, 1968 to 31st March, 1970 when notice of demand was issued. Admittedly, no amount has been tendered and no application for fixation of standard rent was filed. As alleged, the expenditure incurred has not been established by the original defendant and therefore, it is not necessary go into into the interpretation of sub section 2 of Section 499 of the said Act of 1988. 13 Hence, petition must succeed and the decree of possession must follow under Section 12(3)(a) of the said Act. Hence petition is disposed of by passing the following order. ORDER a) Rule is made absolute in terms of prayer clause (b). 8 WP-6491/2005 b) Suit stands decreed in terms of prayer clause (a) to (c) thereof. c) There will be no order as to costs. JUDGE