1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 695 OF 1989 Shankar Kashinath Surve Deceased by his heirs .......Appellants. (Orig.Defnds) V/s. Laxman Lahu Chaudhari Deceased by his heirs .....Respondents (Orig.Plffs) ========== Mrs.Neeta Karnik, adv.for appellants. Mr.G.V.Nagarsheth, adv.for respondents no.1 to 7. CORAM: SMT.R.P.SONDURBALDOTA, J. DATED: 8TH MAY, 2009. P.C. : 1. This Second Appeal arises out of the judgment and order dated 6th December, 1989 of the District Court, Thane in Civil Appeal No.39 of 1987. By the said order, the District Court allowed the appeal and set aside the judgment and decree dated 23rd September, 1986 passed by the court of Civil Judge Junior Division, Vasai in Civil Suit No.270 of 1981. 2. The Second Appeal was admitted on 14th February, 1990 on following substantial questions of law : 2 (1) The learned Additional District Judge erred in allowing the appeal. He ought to have dismissed the appeal since the controversy was clearly covered since the judgment of the Hon’ble Supreme Court in AIR 1985 S.C.709 (also reported in 1985 2 B.C.R. Page 553)? (2) The learned Appeal Court ought to have noted that during the pendency of the suit Rent Act came to be applied to the Village Achole wherein the suit premises are situate, through the State Government Notification, dated 16th February 1983. Once the Bombay Rent Act came to be applied the suit filed under the Transfer of Property Act for possession of the tenanted premises could not be proceeded any further? (3) The learned Appeal Court ought to have noted that the trial Court had aframed the correct issue and rightly dismissed the suit. The learned appeal Court had no reason to reverse the said finding ? 3. The facts of the case stated in brief giving rise to the above questions are as follows : Laxman, the original plaintiff since deceased had let out the suit premises i.e. one Room in the building known as Matruchaya 3 situated at Village-Achole, Taluka-Vasai to Shankar-original defendant (since deceased) on monthly rent of Rs.15/-. There was default in payment of rent by Shankar during the period September 1974 to June 1977. Therefore, Laxman sent notice under Section 106 of the Transfer of Property Act for (i) demand of the rent due for the period, (ii) termination of tenancy from the date of receipt of the notice and (iii) for possession. Shankar responded by claiming that he had paid rent upto January, 1975 and that thereafter Laxman did not accept the rent. Laxman filed Regular Civil Suit No. 270 of 1981 for possession of the demised premises. During the pendency of the suit, Part-II of The Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as `the Bombay Rent Act’) became applicable to the area in which the suit premises were situated with effect from 16th February, 1983. The notification therefor was published in the Government Gazette on 24th February, 1983. With the application of the Bombay Rent Act, notice issued by Laxman under Section 106 of the Transfer of Property Act, was not sufficient08 and legal for evicting Shankar on the ground of default of payment of rent because notice prescribed under Section 12(2) of the Bombay Rent Act, was required to be issued. The basic difference in the two notices is that under Section 12(2) of the Bombay Rent Act, no suit for recovery of compensation can be instituted by a landlord against tenant on the ground of non-payment of standard rent or permitted increases due, 4 until the expiry of one month next after notice in writing of the demand of the standard rent. Such notice was required to be served in the manner provided under Section 106 of the Transfer of Property Act. The trial court considered this position and Section 50 of the Bombay Rent Act which extends the application of the act to the pending proceedings and dismissed the suit. 4. Laxman then preferred an appeal being Civil Appeal No.39 of 1987 which was continued by his heirs on his death. The appeal was allowed by the District court on the ground that the Bombay Rent Act would have no effect upon the pending proceedings. With this observation, the appeal court set aside the judgment and decree of dismissal of the suit. It decreed the suit directing Shankar to deliver vacant possession of the suit premises to the heirs of Laxman and to pay rent of Rs.1250/- alongwith costs. 5. Mrs.Karnik, the learned counsel for the appellant before this court, submits that the appeal court misdirected itself completely on the application of Section 50 of the Bombay Rent Act, as also the decision of the Apex Court in the case of Motiram Ghelabhai (deceased by L.R.) and Ors. V/S.Jagan Nagar (deceased) by L.R.s and Ors. reported in 1985(2)Bom.C.R.page 553. 6. As against this, Mr.Nagarsheth, the learned counsel for the respondents seeks to justify the order of the trial court submitting that once the notice for eviction was issued on the 5 ground of default of rent, if the tenant fails to pay the rent within a period of one month from the date of receipt of the notice, there is no need for the landlord to issue fresh notice to the tenant under Section 12(2) of the Bombay Rent Act. 7. Since the appeal court has held that the provisions of the Bombay Rent Act are not applicable to pending proceedings, it will be necessary to refer to Section 50 of the Bombay Rent Act and the direct decision thereon of the apex court cited above. Section 50 reads as follows. “50. Repeal- The Bombay Rent Restriction Act, 1939 and the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944 are hereby repealed. Provided that all suits and proceedings...between a landlord and a tenant relating to the recovery of fixing of rent or possession of any premises to which the provisions of Part II apply and all suits and proceedings by a manager of a hotel or an owner of lodging house against a lodger for the recovery of charges for, or possession of, the accommodation provided in a hotel or lodging house situated in an area to which Part II applies, which are pending in any court, shall be transferred to and continued before the Courts which would have jurisdiction to try such suits of proceedings under this Act [or shall be continued in such courts, as the case may be,] and * * all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedings. 6 . Nothing in this proviso shall apply to execution proceedings and appeals arising out of decrees or orders passed before the coming into operation of this Act and such execution proceedings and appeals shall be decided and disposed of as if this Act had not been passed]: . Provided further that- (a) every order passed or act done by the Controllers under Part IV of the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944 and every order or act deemed to have been passed or done under that Part shall be deemed to have been passed or done under this Act; and (b) all proceedings pending before the Controllers under Part IV of that Act shall be transferred to and continued before the Controllers appointed under this Act as if they were proceedings instituted before the Controllers under this Act. 8. It is clear from this provision that the Bombay Rent Act is made applicable to all the pending cases. The only proceedings saved from the application are execution proceedings and appeals arising out of the decrees or orders. Therefore, the view taken by the learned District Judge as regards the applicability of the Bombay Rent Act to the pending proceedings is patently erroneous. This view is fortified by the decision of the Apex Court cited above. The relevant observations of the Apex Court are as follows: “9. ....the legislative intent was and is quite clear that only suits and original proceedings between a landlord and tenant (of the description or categories specified therein) 7 which were pending on the relevant date are required to be decided and disposed off by applying the provisions of the 1947 Act.” 9. In the circumstances, the decision of the appeal court cannot be sustained. The Second Appeal is allowed. The judgment and decree dated 6th December, 1989 of District Court, Thane in Civil Appeal No.39 of 1987 is set aside. I am informed that the appellants have deposited an amount of Rs.1215/- in the trial court and the rent for the premises till date. The respondents are at liberty to withdraw the amount. [SMT.R.P.SONDURBALDOTA, J]