1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4403 of 1991 Purushottam Ramchandra Patankar .. Petitioner versus Makarand Chintaman Dixit .. Respondent ... Ms.Sujata Mogre for the petitioner. Mr.V.K. Damle for respondent. CORAM : A.M.KHANWILKAR, J DATED : 16th July 2008 P.C.: 1. Heard counsel for the petitioner. None appears for the respondent. 2. This Writ Petition takes exception to the judgement and decree passed by the Small Causes Court at Bombay in Appeal No.359/85 dated 3rd May 1991 whereby the decree of possession of the suit 2 premises passed against the respondent tenant by the trial court on 26th April 1985 has been set aside. The petitioner landlord filed suit for possession of Block no.5, 2nd floor, Rishikesh Building, Datta Mandir Road, Malad (East) Mumbai 400064, on the ground of arrears of rent and default committed by the respondent tenant inspite of demand made by landlord in that behalf. The petitioner landlord by demand notice dated 22nd December 1972 called upon the respondent tenant to pay monthly rent of Rs.55.28 and permitted increases till the end of September 1971 at Rs.55.97 per month inclusive of permitted increases, education cess from 1st October 1971 onwards. Both the courts below have found that the said demand notice was duly served upon the respondent tenant by Registered Post A.D. Both the courts below have also found that after service of said notice within one month, the respondent tenant filed R.A.N. Application no.142/SR/ of 1972 raising dispute about the standard rent demanded by the petitioner landlord. It is not necessary to refer to the fact which led to the dismissal of the said standard rent application for default and again restored on two occasions, as nothing would turn on the said fact for deciding the point in issue. Suffice it to observe that on the said standard rent application, ex-parte interim rent was fixed by the 3 court in terms of order dated 25th January 1972 in the following terms:- "Ex-parte interim rent fixed at Rs.45/- p.m. Applicant to deposit Rs.340/- towards arrears of rent due till 31-1-1973, after adjustment of construction loan Rs.25/- p.m. Notice to issue." 3. Both the courts below have found that in terms of the said order, the respondent deposited the said amount of Rs.340/- within time. The two courts below however, have given opposite reasons or findings, which will be adverted to hereinafter. The trial court proceeded to hold that after the demand notice although respondent filed standard rent application within time, however, as the said application was dismissed for default it was obvious that the said claim of the respondent tenant was not bonafide. On that premise, the trial court proceeded to hold that the tenant committed default within the meaning of section 12(3)(a) of the Bombay Rent Act. The appellate court on the other hand, proceeded to hold that the trial court erroneously proceed on the assumption that the standard rent application filed by the respondent tenant was not enough. To the 4 extent of the said finding recorded by the appellate court, even if accepted as it is, that would be of no avail to the respondent tenant. I shall elaborate this aspect a little later. The appellate court then proceeded to hold that no decree u/s.12(3)(a) could be passed against the respondent tenant in the facts and circumstances of the present case. While considering the question whether the respondent tenant had committed default within the meaning of section 12(3)(b) of the Rent Act as applicable at the relevant time, the appellate court proceeded to hold that the tenant having deposited Rs.340/- within time in terms of order dated 21st January 1973 that was sufficient compliance of section 12(3)(b). The appellate court then went on to observe that there was no direction to the tenant to deposit monthly rent on regular basis. In absence of such direction, the question of respondent tenant being liable to be evicted by invoking section 12(3)(b) of the Rent Act does not arise. It is the correctness of this finding will have to be tested in the present petition. 4, In so far as the finding recorded by the appellate court that it is not a case for passing decree u/s.12(3)(a) of the Rent Act against respondent tenant, even if that were to be accepted 5 as it is the court is still required to consider whether the respondent tenant had made himself liable for eviction on account of the breach within the meaning of section 12(3)(b) of the Act. Before we analyse this aspect further, it would be apposite to advert to section 12 as it applied at the relevant time. Section 12 reads thus:- 12. No ejectment ordinarily to be made if tenant pays or is ready and willing to pay standard rent and permitted increase (1) A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observed and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of the Act. (2) No suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non-payment of this standard rent or permitted increased due, until the expiration of one moth next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the Transfer of Property Act, 1882 (IV) of 1882. (3)(a) Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-section (2), the court may pass a decree for eviction in any such suit for recovery of possession. 6 (b) In any other case, no decree for eviction shall be passed in any such suit, if, on the first day of hearing of the suit or on or before such other date as the court may fix, the tenant pays or tenders in court the standard rent and permitted increased then due and thereafter. (i) Continues to pay or tendered in court such rent and permitted increases till the suit is finally decided; and (ii) pays costs of the suit (4) Pending the disposal of any such suit, the court may out of any amount paid or tendered by the tenant pay to the landlord such amount towards payment of rent or permitted increases due to him as the court thinks fit. 5. Section 12(3)(b) is in two parts. The first stipulation in section 12(3)(b) obligates the tenant to pay or tender in court standard rent and permitted increases then due on the first date of hearing of the suit or on or before such other date as the court may fix. In the present case, both the courts below have found that the respondent tenant paid the standard rent and permitted increases amount as specified by the court in terms of order dated 25th January 1973. The appellate court then proceeded to hold that the tenant was not liable to pay monthly rent on regular basis thereafter and no decree u/s.12(3)(b) could be passed as there was no direction issued by the court calling upon the tenant to pay monthly rent on regular basis. This opinion 7 recorded by the appellate court cannot be sustained, in law. In as much as, the second part of clause (b) of section 12(3) mandates the tenant to continue to pay or tender in court such rent and permitted increased till the suit is finally decided. In other words even if there is no direction from the court to deposit monthly rent on regular basis, but once suit for eviction has been filed by the landlord on the ground of default or for that matter the tenant chose to file standard rent application after receipt of demand notice, the tenant is obliged not only to pay the arrears of standard rent and permitted increases then due but also continue to pay monthly rent regularly in court. In the present case, the appellate court has rightly noted as of fact that deposit made by the respondent tenant during the pendency of standard rent application and the suit for eviction was not on regular basis. However, it overlooked that default of the tenant on the specious reasoning that there was no direction issued by the court in that behalf, while fixing interim standard rent to be paid by the tenant. That view of the appellate court cannot be countenanced in law. In view of the finding of fact already recorded by the Appellate Court, it is unnecessary to analyse the facts of the present matter any further. However it will not be out of place to refer to the deposit 8 chart produced by the petitioner which is based on the documents on record. Same is at page nos.19 and 20 which reads thus: "INSTALMENT RECEIPT "INSTALMENT RECEIPT "INSTALMENT RECEIPT Deposit order dated 25.1.73 in RAN 142/73 and deposit amount and dates of Deposits Order of 25.1.73 in RAN 142/73 Exparte, Interim rent fixed at Rs.45/- p.m. Applicant to deposit Rs.340/- towards arrears upto 31.1.73 by 24.2.73. Interim rent to be deposited after deducting Rs.25/- p.m. as per construction loan agreement. Date Deposit Amount Date Deposit Amount Date Deposit Amount 20.2.73 ... Rs. 340/- 6.6.73 ... Rs. 60/- 14.9.73 ... Rs. 60/- 6.1.75 ... Rs. 340/- 11.6.75 ... Rs. 100/- 12.11.75 ... Rs. 100/- 13.2.76 ... Rs. 60/- 26.7.76 ... Rs. 100/- 9 13.1.77 ... Rs. 120/- 26.7.77 ... Rs. 100/- 7.11.77 ... Rs. 60/- 12.7.78 ... Rs. 140/- 26.7.78 ... Rs. 120/- 5.8.78 ... Rs. 340/- 6.11.78 ... Rs. 60/- 4.8.78 ... Rs. 160/- 6.10.78 ... Rs. 60/- 7.4.79 ... Rs. 160/- 4.1.80 ... Rs. 200/- 11.12.80 ... Rs. 200/- 25.3.81 ... Rs. 250/- 16.7.81 ... Rs. 300/- 4.11.81 ... Rs. 250/- 15.7.82 ... Rs. 480/- 2.12.82 ... Rs. 120/- 31.3.83 ... Rs. 270/- 9.2.84 ... Rs. 720/- 3.4.84 ... Rs. 720/- 4.7.84 ... Rs. 200/- 6.9.84 ... Rs. 200/- 18.2.85 ... Rs. 480/- 6. Having perused the above chart there is no reason to doubt the correctness of the finding of fact 10 recorded by the appellate court that the respondent tenant was not regular in depositing the monthly rent in court. On this finding, the inevitable conclusion is that the tenant has made himself liable for a decree of eviction in terms of section 12(3)(b) of the Bombay Rent Act as applicable at the relevamt time. In the circumstances, the Writ Petition succeeds on the above basis. 7. Accordingly, the impugned judgement and decree passed by the appellate court dated 3rd May 1991 is set aside and instead the decree of possession passed by the trial court dated 26.4.1985 in R.A.E. Suit no.929 of 1973 is restored but on the ground of default committed by the respondent tenant within the meaning of section 12(3)(b) of the Bombay Rent Act. 5. Writ Petition succeeds on the above terms with costs. (A.M.KHANWILKAR, J)