spb/- 1 wp4526-1991.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 4526 OF 1991 1 Smt. Hanjabi Ratanchand Solanki | Age 62 years, Occ. Household.| | ... Petitioners/ | (Org.Defendants) 2 Gitamal alias Otarmal Ratanchand Solanki | Age 45 yrs, Occ.Business. | | 3 Bastimal Ratanchand Solanki, age 25 yrs. | Occ. Business. | | 4 Jethmal alias Sheshmal Ratanchand Solanki | Age 22 yrs, Occ.Business. | | 5 Dilip Ratanchand Solanki, Age 22 yrs, | Occ.Business. | All residing at 1686, Kedari Road, Pune | V/s. Hansraj Mishrimal Jain, since deceased through | ... Respondent his legal heirs :- | (Org. Plaintiff) 1 Smt. Kanugabai Hansraj Jain-Ranka, | Hans, 206, M.G.Road, Pune-1 | 2 Shri Ashok Hansraj Jain -Ranka, | R/o. as above. | 3 Manju Ashok Rathod, | R/o. Rajkamal Saree,Matarpakadi, | Opp. Jain Mandir, Mazgaon Tower Building | Mazgaon, Mumbai. | 4 Pravin Hansraj Jain-Ranka | 5 Mahendra Hansraj Jain-Ranka, | both r/o. ‘Hans’, 206, M.G. Road,Pune-1. | 6 Saroj Ramesh Dhumavat, | Flat No. 313, Thakkar House, Camp, Pune-1. | --- spb/- 2 wp4526-1991.sxw Mr. T.D. Deshmukh for the Petitioners. Mr. Nitin Jamdar for the Respondents. --- CORAM : D. G. KARNIK, J. DATE : 10th JANUARY, 2011. ORAL JUDGMENT : 1 This petition under Article 227 of the Constitution of India is directed against the judgment and order dated 27th September, 1991 passed by the 2nd Additional District Judge, Pune, allowing the Appeal filed by the Respondent (Landlord), thereby passing a decree for eviction against the petitioners. 2 It appears that the court receiver was appointed initially in respect of the suit property. The respondent appears to have purchased the property in a court auction. On 7th of December, 1997 the court receiver issued a notice to the petitioners, alleging that the petitioners are in arrears of rent amounting to Rs. 4275/- upto 31st December, 1972 and further he was in arrears of rent to Rs. 4425/- from 1st January, 1973 to 30th November, 1977. The notice also stated that the petitioners were in arrears of education cess amounting to Rs. 77.50 from 1.4.1968 to 30.9.1971; Rs.84/- from 1.10.1971 to 31.03.1974 and education cess of spb/- 3 wp4526-1991.sxw Rs. 396/- from 1.4.1974 to 30.11.1977. According to the petitioners, the arrears of rent and education cess amounting to Rs.9257.50/- was due and payable by the petitioners to the court receiver. On the petitioners failure to pay the amount despite notice, the court receiver filed a suit bearing civil suit no. 1516 of 1979 against the petitioners for possession. By a judgment and order dated 30th April, 1983 the second Additional Judge, Small Causes Court, Pune dismissed the suit. Thereafter, the respondent who has purchased the property in a court auction filed an appeal (bearing civil appeal no. 162 of 1984) against the judgment and order of the small causes court, dismissing the suit for possession. By an order dated 27th September, 1991, the Appeal was allowed and the decree for possession was passed by the Appellate Court. That order is impugned in this petition. 3 Before the trial court a defence of the petitioners was that there was dispute regarding ownership of the property and the different persons were appointed as court receivers at different times and therefore, the present court receiver Mr. Khade, who had issued the notice, had no right to issue the notice. As the court receivers did not pay property tax, the petitioners were paying the property tax in order to prevent auction of the property for non-payment, the petitioners were required to pay spb/- 4 wp4526-1991.sxw taxes to the Pune Municpal Corporation. Accordingly, the petitioners had paid the taxes to the Municipal Corporation, Pune. The learned counsel for the petitioners further submitted that the in the previous litigation, the petitioners had deposited some amount in the court and were entitled to get credit in the rent which was deposited in the previous litigation. He contended that since the notice of demand did not give credit for taxes paid by the petitioners as also for the rent which was deposited by the petitioners in the previous litigation, the notice was defective. The demand notice contained an excessive demand and therefore, the notice was not valid. The trial court accepted the defence and held that the petitioners had paid taxes to the Municipal Corporation and had also deposited the money in the previous litigation. If the credit was given for these amounts, the notice of the demand contained an excessive demand and was not proper and valid. Consequently, the trial court dismissed the suit. 4 On appeal, the appellate court reversed the decision of the trial court and held that the tenant was not required to pay the taxes to the Municipal Corporation unless it was established that the taxes were demanded from him by the Corporation. As the petitioner-tenant had failed to establish that the demand was made on him by the Corporation, spb/- 5 wp4526-1991.sxw he was not entitled to get credit of the amount of taxes paid. The appellate court further held that since the tenant did not deposit the amount within one month of the notice, the respondent-landlord was entitled to a decree of possession under section 12(3)(a) of the Bombay Rent Act. 5 Assailing the judgment of the appellate court, the learned counsel for the petitioners submitted that even if it is held that amount which was paid by the petitioners to the Corporation was required to be ignored and could not be adjusted towards the rent, still the respondent was not entitled to a decree for possession. He submitted that the findings of the appellate court that the case fell under section 12(3)(a) of the Bombay Rent Act is clearly illegal and contrary to the decision of the Supreme Court in the case of Raju Kakara Shetty vs. Ramesh Shirole & Ors. (1991) 1 SCC 570 and a decision of this court in the case of Awabai Kama vs. M.N.Kaka (1987 (3) Bom.CR 338. In the case of Raju Kakara Shetty (supra) the Supreme court approved the view taken by the Gujarat High Court that where the tenant was obliged under the terms of the tenancy or by virtue of the statute to pay any taxes to the landlord, since such taxes which form part of the rent are payable annually the case ceases to be governed by section 12(3)(a) of the Bombay Rent Act and would fall within the purview of section 12(3)(b) of the Act. In the spb/- 6 wp4526-1991.sxw case of Awabai Cama (supra) this court has also taken a view that where the demand of rent includes arrears of rent as also demand of education cess then the case would not fall under section 12(3)(a) of the Bombay Rent Act unless there was an agreement between the parties that the education cess would also be payable monthly alongwith the rent. 6 In the present case, admittedly the demand notice contained a demand of education cess. There was no agreement to pay education cess monthly alongwith the rent and even there were no pleadings to that effect. Consequently, the appellate court erred in coming to the conclusion that the case fall under section 12(3)(a) of the Bombay Rent Act. The appellate court erred in passing the decree under section 12(3) (a) of the Bombay Rent Act on the ground that the rent was not paid within one month of the date of the notice of demand. 7 In the result, the petition succeeds. The impugned judgment and order is set aside. The suit of the respondent-plaintiff for possession is dismissed. 8 Rule is made absolute but in the circumstances without any order as to costs. [D.G. KARNIK, J.]