In view of this Clause, it is clear that the tenant can avoid decree of eviction if on the first date of hearing of the suit or on or before such other date as the Court may fix tenant pays or tenders in the Court standard rent and permitted increases, which is due and thereafter continues to pay or tender in the Court regularly such rent or permitted increases till the suit is finally decided. Even though in 1987, the defendant No. 1 to 3 had paid arrears of rent till then and that payment was made prior to first date of hearing, i.e., the date of framing of issues, still the defendants did not continue to pay or tender in the Court regularly the annual rent till final disposal of the suit. Thus, the second part of the Clause (b) was violated. It is not sufficient that all the arrears are paid on the first date of hearing but it is also necessary that the tenant continues to pay rent thereafter regularly till the suit is finally decided. As that condition was not fulfilled, the defendant could not get the protection of not passing the decree of eviction.
Citation: 2008(3)ALLMR277, 2008(4)MhLj275
IN THE HIGH COURT OF BOMBAY
Civil Revision Application No. 187 of 2008
Decided On: 26.02.2008
Vasant Raghosheth Tambe and Rajesh Vasant Tambe
Vs.
Shri Bholadasji Mandir,
Vs.
Shri Bholadasji Mandir,
Hon'ble Judges/Coram:
J.H. Bhatia, J.
J.H. Bhatia, J.
1. Heard the learned Counsel for the Parties.
2. Revision Application is filed by the original defendant Nos. 1 and 3, who are the tenants on the open suit plot situated at Panchavati belonging to the original plaintiffs, who are the respondent Nos. 1 and 2 before this Court. The suit plot was leased out to one Raghosheth Tambe predecessor of the defendants under the lease deed dated 7-12-1970. The lease period commenced from 1-1-1971. It was for a period of 30 years and the annual rent was Rs. 751/- per year plus education cess of Rs. 82.50 paise. Rent was required to be paid in advance every year. After death of original tenant Raghosheth, his legal representatives continued to be tenants. The plaintiffs filed Regular Civil Suit No. 525 of 1985 on 20-7-1985. It was alleged that the defendant No. 1 had paid the rent upto 31st December, 1982. However, the defendants were in arrears of rent from 1-1-1983. Notice was issued on 1-12-1982 by the plaintiffs to the defendants demanding arrears of rent and vacant possession of the suit plot. There was no response. Again a notice was issued on 23-7-1984 but still there was no response. It was contended that the defendant Nos. 1 to 3 were thus, defaulters in payment of the rent. It was also contended that they had inducted defendant No. 4 as subtenant in respect of plot admeasuring 44 X 100 ft. and defendant No. 5 as sub-tenant on piece of plot admeasuring 12 ft. X 20 ft. Thus, there was contravention of 13(1)(a) of the Bombay Rent Act. It was also contended that the plaintiff required the suit plot for reasonable and bonafide requirement of the trust to which the property belongs. On these three grounds, plaintiff sought decree for eviction and for possession.
3. The suit was contested by the defendant Nos. 1 to 3. They admitted to have received the notice but according to them they had already made payment in 1982 and they had sent money orders in 1984 as well as in 1985 but the same were not accepted. They also contended that as per the terms of the contract, the tenant could make construction and sublet the constructed premises. As the defendant Nos. 1 to 3 did not have sufficient funds for construction, they had taken funds from the defendant No. 4 and with consent of Mahant Ramlakhandas plot was sublet. Defendant Nos. 4 and 5 also contested the suit by contending that the Mahant Ramlakhandas had consented for leasing out premises and also for construction of room, which is made by the defendant No. 5.
4. The learned trial Court rejected the contention of the plaintiffs that they reasonably and bonafide required the suit plot. However, the learned trial Court held that defendant Nos. 1 to 3 were defaulters and they had also violated terms of the contract by subletting the premises. In the result, suit came to be decreed in favour of the plaintiffs. Against that the original defendant Nos. 1 to 4 preferred Civil Appeal No. 334 of 2001 while defendant No. 5 vacated the plot. Appeal came to be dismissed. The Appellate Court concurred with the findings of the trial Court on both the counts. Therefore, the original defendant Nos. 1 and 3 have preferred present Revision Application.
5. It is clear from the record that there are concurrent findings of the facts of both the Courts below. Admittedly, the lease agreement was for a period of 30 years and rent was to be paid annually. There is no dispute that the rent was paid upto the end of 1982 and receipts were also issued. According to the plaintiffs, rent was not paid from 1-1-1983 and therefore, two notices were issued. Notice dated 23-7-1984 Exhibit 109 was issued and it was received by the defendants but the payment was not made. Suit was filed in July, 1985. Admittedly, the issues were framed on 17-7-1992 and the defendant Nos. 1 to 3 had deposited an amount of Rs. 4167.50 paise towards the arrears of rent on 6-2-1987. Thereafter an amount of Rs. 10,835.50 was deposited by the defendant Nos. 1 to 3 with permission of the Court on 3.3.2000. Admittedly, the first payment made on 6-2-1987 was for a period from January, 1983 to December, 1987 and the second payment was from 1988 to 2000. As far as arrears of rent as on the date of filing of the suit are concerned, payment was made prior to framing of issues i.e., on first date of hearing. However, in spite of having made that payment, defendants did not continue to make the payment regularly thereafter. Section 12(3) (a) and (b) as it stood prior to amendment of 1987, read as follows:
12.(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 shall pass a decree for eviction in any suit for recovery of possession. 12.(3)(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 increases then due and thereafter continues to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court.
Explanation 1: In any case where there is a dispute as to the amount of standard rent or permitted increases recoverable under this Act the tenant shall be deemed to be ready and willing to pay such amount if, before the expiry of the period of one month after notice referred to in Sub-section (2), he makes an application to the Court under Sub-section (3) of Section 11 and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court.
Section 12(3)(a) of the Bombay Rent Act, as it stood prior to amendment 1987, is not applicable. The case will be covered by Section 12(3)(b), as it stood prior to the amendment. In view of this Clause, it is clear that the tenant can avoid decree of eviction if on the first date of hearing of the suit or on or before such other date as the Court may fix tenant pays or tenders in the Court standard rent and permitted increases, which is due and thereafter continues to pay or tender in the Court regularly such rent or permitted increases till the suit is finally decided. Even though in 1987, the defendant No. 1 to 3 had paid arrears of rent till then and that payment was made prior to first date of hearing, i.e., the date of framing of issues, still the defendants did not continue to pay or tender in the Court regularly the annual rent till final disposal of the suit. Thus, the second part of the Clause (b) was violated. It is not sufficient that all the arrears are paid on the first date of hearing but it is also necessary that the tenant continues to pay rent thereafter regularly till the suit is finally decided. As that condition was not fulfilled, the defendant could not get the protection of not passing the decree of eviction.
6. The learned Counsel for the defendants/applicants contended that Section 12(3)(b) as it stood prior to amendment 1987 will not be applicable. According to him Section 12(3), as amended in 1987, will be applicable. Section 12(3), as amended in 1987, reads as follows:
No decree for eviction shall be passed by the Court in any suit for recovery of possession on the ground of arrears of standard rent and permitted increases 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 increases then due and together with simple interest on the amount of arrears of such standard rent and permitted increase at the rate of nine percent, per annum; and thereafter continues to pay or tenders in Court regularly such standard rent and permitted increases till the suit is finally decided and also pays cost of the suit as directed by the Court.
Provided that, the relief provided under this sub-section shall not be available to a tenant to whom relief against forfeiture was given in any two suits previously instituted by the landlord against such tenant.
In fact, it is now well settled that the provisions of Rent Act prior to amendment in 1987 would be applicable to the suits, which were filed prior to that amendment. In Piroja M. Mehta v. Dr. Hambai Jamshedji Cama 1988 (2) AIRCJ 334, after analysing the provisions of law in detail, the learned Single Judge of this Court had come to conclusion that Section 12(3) of the Bombay Rent Act is not retrospective but is prospective and is applicable only where the suit has been filed on or after the said amendment came into force and does not apply to the suits, which were filed prior to the said amendment. That authority has been followed in number of matters including in Civil Revision Application No. 476 of 2007 Smt. Savitridevi Virendrasingh Bhadoria v. Shashikant Tilakdhari Jha and Ors. decided by me on 20th February, 2008. Even if for a moment, it is assumed that the amended section would be applicable, still as far as present case is concerned, no difference would be made because after the amendment also condition of regular payment is there and that condition has not been fulfilled. Therefore, Courts below were right in passing the decree for eviction on the ground of default in making payment of rent.
7. Courts below also found that even though under the lease agreement and as per consent letter dated 22-2-1971 given by Mahant Ramlakhandas, original defendant was allowed to raise construction and to let out constructed premises, there was no permission to the tenant to sublet the open plot and to allow the subtenant to make any construction over the same. Courts below held that the defendant Nos. 1 to 3 had sublet the open plot and had allowed the subtenant to raise construction in violation of the terms and conditions of the lease agreement. This is a question of fact. There is nothing on record to show that the said findings are either illegal, irregular or erroneous.
8. In the result, there is no substance in the Revision Application.
9. Revision Application stands dismissed.
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