Insofar as the second ground is concerned, perusal of Section 16 would show that when eviction of tenant is sought on any of the grounds mentioned under Section 16(1) of the said Act, no notice is required. It is clear from the perusal of Section 16(1) that if the landlord satisfies the conditions mentioned in the grounds available under Section 16(1) of the said Act, he can directly file a suit for possession. In the facts of the present case, though the learned appellate Court has concurred with the findings of fact arrived at by the learned trial Court that the petitioner has proved his case for bona fide need and that it was also proved that the petitioner does not have any alternate premises for starting his business, has reversed the order solely on the ground that the suit was premature. I find that the said findings are totally in ignorance of the provisions of Section 16(1) of the said Act.
14. I have perused the judgment of the trial Court as well as the appellate Court. The learned trial Court, elaborately discussing the evidence on record, has come to a finding of fact that the suit premises were required by the petitioner for his bona fide occupation for running business of jewellery. It has also come in the evidence that there is a partition in the family and that the petitioner is residing separately and as such requires the premises to start his business separately. The said finding of fact is rightly confirmed by the learned appellate Court. The learned appellate Court, in unequivocal terms, concurred with the said finding and held that the petitioner needs the premises for bona fide occupation and also held that the petitioner wants to start his business there. Only on the ground that the suit was premature, the decree for possession on the ground under Section 16(1)(g) of the said Act has been reversed. As I have already held hereinabove that for filing a suit for eviction under Section 16(1)(g), it is not necessary to issue a notice of 90 days as contemplated under Section 15 of the said Act, I find that the findings of the learned appellate Court are totally unsustainable in law.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
W.P. No. 147 of 2005
Decided On: 27.07.2005
Madhukar S/o Laxman Umalkar Vs. Keshao S/o Laxman Shilawant
Hon'ble Judges/Coram:
B.R. Gavai, J.
Citation: 2005(3) MHLJ947,2005 BOM RC440
1. Rule. Rule made returnable forthwith.
Shri Parchure, the learned counsel, waives notice on behalf of the respondent.
By consent, heard finally.
2. By way of present petition, the petitioner challenges the order dated 28th October, 2003, passed by the learned District Judge, Buldhana, in Regular Civil Appeal No. 2/2003, thereby allowing the appeal of the respondent.
3. The present petitioner had filed suit for possession and arrears of rent under Sections 15 and 16(1)(g) of the Maharashtra Rent Control Act, 1999 (hereinafter referred to as the said Act). It was the contention of the petitioner-plaintiff that the suit premises had fallen to the share of the petitioner after the partition between him and his brothers. It is his contention that after partition, the petitioner was living separately and as such was requiring the premises for carrying the business of jewellery. It was further the contention of the petitioner that the respondent was in arrears of rent at Rs. 18,000/- and in this background, the petitioner filed suit for possession of the suit premises and arrears of rent.
4. The learned trial Court, vide judgment and decree dated 30th November, 2003, directed the respondent-defendant to handover vacant and peaceful possession of the suit premises. The learned trial Court also directed the respondent to pay Rs. 810/- towards arrears of rent to the petitioner.
5. Being aggrieved by the said order, the respondent went in appeal before the District Judge. The learned District Judge, vide impugned judgment and order dated 28th October, 2004, partly allowed the appeal. The learned District Judge maintained the decree insofar as the payment of arrears of rent is concerned. However, insofar as the claim for possession was concerned, same came to be dismissed by the impugned order.
6. The reasoning that weighed with the learned appellate Court is that the notice under Section 15 was posted by the petitioner on 4-4-2001 and the said notice was served on the respondent on 10-4-2001. Therefore, according to the learned appellate Court, the suit on the ground of default was not at all maintainable till 10th July, 2001 i.e. till the expiry of the period of three months after the service of notice. The learned appellate Court found that the suit filed on 5-5-2001 was premature and not permissible in law.
7. Insofar as second ground is concerned, the learned appellate Court, though finding that the petitioner has duly proved his bona fide need and that it was also proved that the petitioner does not have any alternate premises to carry on his business, rejected the prayer of the petitioner on the ground that the suit was premature.
8. Heard Shri Deshpande, the learned counsel for the petitioner and Shri Parchure, the learned counsel for the respondent.
9. Shri Deshpande submits that the finding of the appellate Court on both the counts, is not sustainable in law. Relying on the judgment of the Apex Court in the case of Vithalbhai (P) Ltd. v. Union Bank of India reported in MANU/SC/0195/2005 : AIR2005SC1891 , he submits that the suit cannot be dismissed on the ground that it is premature, if the tenants fails to deposit the arrears of rent within a period of 90 days and as such, if the arrears of rent remained unpaid on the expiry of 90 days, the suit would be tenable in law.
10. Insofar as the second ground is concerned, Shri Deshpande submits that the requirement of filing of the suit after the expiry of 90 days is applicable when the eviction is sought under Section 15 of the said Act. Said provision would not be applicable when the eviction is sought under Section 16(1)(g) of the said Act.
11. Shri Parchure, the learned counsel appearing on behalf of the respondent, on the contrary, supports the impugned order. He submits that the statute has clearly barred filing of the suit prior to expiry of 90 days from the date of service of notice and as such the learned appellate Court has rightly allowed the appeal of the respondent-defendant. He submitted that in that view of the matter, no interference is called for in the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India.
12. For appreciating the rival contentions, it will be necessary to refer to Sections 15 and 16(1)(g) of the said Act, which read thus :
"15. No ejectment ordinarily to be made if tenant pays or is ready and willing to pay standard rent and permitted increases. -- (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 observes and performs the other conditions of the tenancy, insofar as they are inconsistent with the provisions of this Act.
(2) No suit for recovery of possession shall be instituted by a landlord against the tenant on the ground of non-payment of the standard rent or permitted increases due until the expiration of ninety days 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.
(3) 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 increase if, within a period of ninety days from the date of service of the summons of the suit, the tenant pays or tenders in Court the standard rent and permitted increases then due together with simple interest on the amount of arrears at fifteen per cent, 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.
(4) Pending the disposal of any suit, the Court may, out of any amount paid or tendered by the tenant, pay to the landlord such amount towards the payment of rent or permitted increases due to him as the Court thinks fit."
"16. When landlord may recover possession -- (1) Notwithstanding anything contained in Act subject to the provisions of Section 25, a landlord shall be entitled to recover possession of any premises if the Court is satisfied --
(a)
(b)...
(c)...
(d)...
(e)...
(f)...
(g) that the premises are reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held or where the landlord is a trustee of a public charitable trust that the premises are required for occupation for the purposes of the trust; or"
It can, thus, be seen that it is only when the ejectment is sought under the provisions of Section 15 of the said Act, the landlord is required to give notice to the tenant demanding the standard rent or permitted increases. It is clear from Sub-section (3) of Section 15 of the said Act that if the tenant pays or tenders the amount demanded under the notice, then a decree for eviction shall not be passed under Section 15 of the said Act. It is, thus, clear that only when eviction is sought under the provisions of Section 15 of the said Act on the ground of arrears of rent, notice is required to be served on the tenant and 90 days' time is required to be given to him so as to make the payment and only on expiration of the 90 days, and if the payment is not made, a proceeding of eviction of the tenant can be initiated. Shri Deshpande, relying on the judgment of the Apex Court in the case of Vithalbhai (cited supra), disputes this position. However, since I find that the findings of the learned appellate Court on the question of grant of decree for eviction under Section 16(1)(g) are totally erroneous and since the suit is rightly decreed on the said ground by the learned trial Court, I do not find it necessary to deal with this issue.
13. Insofar as the second ground is concerned, perusal of Section 16 would show that when eviction of tenant is sought on any of the grounds mentioned under Section 16(1) of the said Act, no notice is required. It is clear from the perusal of Section 16(1) that if the landlord satisfies the conditions mentioned in the grounds available under Section 16(1) of the said Act, he can directly file a suit for possession. In the facts of the present case, though the learned appellate Court has concurred with the findings of fact arrived at by the learned trial Court that the petitioner has proved his case for bona fide need and that it was also proved that the petitioner does not have any alternate premises for starting his business, has reversed the order solely on the ground that the suit was premature. I find that the said findings are totally in ignorance of the provisions of Section 16(1) of the said Act.
14. I have perused the judgment of the trial Court as well as the appellate Court. The learned trial Court, elaborately discussing the evidence on record, has come to a finding of fact that the suit premises were required by the petitioner for his bona fide occupation for running business of jewellery. It has also come in the evidence that there is a partition in the family and that the petitioner is residing separately and as such requires the premises to start his business separately. The said finding of fact is rightly confirmed by the learned appellate Court. The learned appellate Court, in unequivocal terms, concurred with the said finding and held that the petitioner needs the premises for bona fide occupation and also held that the petitioner wants to start his business there. Only on the ground that the suit was premature, the decree for possession on the ground under Section 16(1)(g) of the said Act has been reversed. As I have already held hereinabove that for filing a suit for eviction under Section 16(1)(g), it is not necessary to issue a notice of 90 days as contemplated under Section 15 of the said Act, I find that the findings of the learned appellate Court are totally unsustainable in law. The learned appellate Court has taken totally erroneous view of the matter. The petition is, therefore, deserves to be allowed.
15. The impugned order dated 28th October, 2004 is quashed and set aside. The judgment and decree of the learned trial Court dated 30th November, 2003 is confirmed.
16. Rule is accordingly made absolute with no order as to costs.
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