On the other hand, the learned Counsel for the Respondent has raised preliminary objection regarding the maintainability of the present writ petition. According to him, the tenant was the original Respondent No. 1 (deceased Biharilal) and after his demise no steps have been taken by the Petitioners for substitution or to bring the heirs and legal representatives of the said Respondent on record. On the other hand, the Petitioners chose to delete the said Respondent, as is recorded in the order passed by this Court dated 23-3-1990. It is, therefore, contended that since the tenant is not before this Court, the writ petition cannot be pursued further. And as a consequence of that the decree in favour of the tenant becomes final.
It necessarily follows that, the writ petition as presented before this Court will have to be dismissed because the Petitioners have chosen not to pursue their remedy as against the original Respondent No. 1 - tenant or after his death against his heirs who were entitled to espouse his cause. Accordingly, decree passed in favour of the Respondent No. 1 - tenant has become final. In that case, the writ petition cannot proceed further against the Respondent No. 2 herein that too on the ground of default. In this view of the matter, this writ petition deserves to be dismissed on this limited count.
IN THE HIGH COURT OF BOMBAY
W.P. No. 6065 of 1987
Decided On: 24.10.2001
Ramvilas Shivlal Navandar and Ors. Vs. Biharilal @ C.R. Ray and Anr.
Hon'ble Judges/Coram:
A.M. Khanwilkar, J.
Citation: 2002(2) MHLJ 467,2002 Bom RC 6 Bom
1.This writ petition, under Article 227 of the Constitution of India, takes exception to the order passed by the VIII Additional District Judge, Pune dated September 4, 1987 in Civil Appeal No. 20 of 1986.
2. Briefly stated the Petitioners landlords filed suit for possession against Biharilal @ C.R. Ray, who was original Respondent No. 1 in this writ petition, and also against Respondent No. 2 herein, for recovery of possession of the suit premises on diverse grounds under the provisions of the Bombay Rent Act, However, this writ petition is pressed only with regard to the ground of default.
3. The facts relevant to examine the said ground of default are that the said Biharilal (since deceased) was inducted as a tenant in the suit premises bearing House No. 696, Raviwar Peth, Pune city on monthly rent of Rs. 9/-. According to the Petitioners, since the tenant was in arrears for more than 6 months, demand notice was issued under Section 12(2) of Bombay Rent Act, on 20-12-1980. It is not in dispute that the said notice was duty served upon the tenant. However, the tenant did not offer the rent as demanded by the said notice nor filed any application for fixation of standard rent under Section 11 of Bombay Rent Act within a period of one month from the date of service of the said notice. The plaint therefore, proceeds on the assertion that the case was squarely covered under Section 12(3)(a) of the Bombay Rent Act. -
4. In this suit, the Respondent No. 2 herein, was impleaded as Defendant No. 2 on the premise that he is unlawfully inducted as sub-tenant by the Respondent No. 1-deceased Biharilal.
5. The defence taken on behalf of the defendants before the trial Court with respect to the ground of default is that the demand notice was invalid, for it included demand towards permitted increases which were payable on year to year basis and not on month to month basis; and therefore, there was no cause of action to maintain suit for possession under Section 12 of the Act.
6. The trial Court after considering the evidence on record and the rival contentions decreed the suit in favour of the Petitioners on the ground that tenant had committed default within the meaning of Section 12(3)(a) of the Act. Besides the ground of default, decree for possession was also granted on the ground of bonafide and reasonable requirement of the landlords. Against this decision, the original tenant Biharilal as well as the Respondent No. 2 herein took up the matter in appeal before the District Court, Pune, being Civil Appeal No. 20 of 1986 and 21 of 1986 respectively. The District Court, while reversing the decree on the ground of bonafide requirement, affirmed the finding recorded by the trial Court that the Respondent No. 2 herein was only a family member of the original tenant-Biharilal, being his son-in-law. This finding has not been challenged before this Court and thus has become final. Insofar as the ground of default is concerned, the Appellate Court took the view that since the amount demanded towards permitted increases was not payable on month to month basis, the same could not have been included in the demand notice and for that reason the demand notice was invalid. In that view of the matter, the Appellate Court held that no decree for possession under Section 12 of Bombay Rent Act could be passed against the tenant. The Appellate Court has also gone into the question that there can be no question of granting decree even under Section 12(3)(b) of the Act - since the tenant has regularly deposited the entire amount due and payable. It is this view taken by the Appellate Court which is the subject matter of challenge in the present writ petition.
7. According to the Petitioners, the amount demanded in the suit notice towards permitted increases was payable on month to month basis. It is contended that there was tacit understanding between the parties that the same would be payable on month to month basis; and, therefore, the demand as made was valid and justified. It is next contended that, assuming that the said amount towards permitted increases was not payable on month to month basis, even then the court was in error in non-suiting the Petitioners because admittedly the tenant did not offer the undisputed amount towards monthly rent within one month nor raised any dispute regarding the standard rent within such period. He, therefore, submits that the case was clearly covered by the provisions of Section 12(3)(a) of the Act. The only argument advanced before this Court is that the case was covered under Section 12(3)(a) of the Act, therefore, the Court was obliged to decree the suit on that ground.
8. On the other hand, the learned Counsel for the Respondent has raised preliminary objection regarding the maintainability of the present writ petition. According to him, the tenant was the original Respondent No. 1 (deceased Biharilal) and after his demise no steps have been taken by the Petitioners for substitution or to bring the heirs and legal representatives of the said Respondent on record. On the other hand, the Petitioners chose to delete the said Respondent, as is recorded in the order passed by this Court dated 23-3-1990. It is, therefore, contended that since the tenant is not before this Court, the writ petition cannot be pursued further. And as a consequence of that the decree in favour of the tenant becomes final. With regard to merits of the ground of default is concerned, the learned Counsel contends that there is absolutely no pleading or any evidence on record on the factum of tacit understanding between the parties regarding payment of permitted increases on month to month basis. He therefore, submits that the plea now taken before this Court by the petitioners is devoid of any substance. He further contends that the law requires that the amount towards permitted increases, as demanded in the suit notice, were payable on year to year basis. It is, therefore, contended that the demand made in the suit notice was invalid and for which reason there could be no cause of action to maintain the suit on the ground of default within the meaning of Section 12(3)(a) of the Act. It is further contended that in any case no decree under Section 12 could be passed against the Respondent No. 2 who was impleaded in his personal capacity of a sub-tenant and not as the heir and legal representative of the tenant.
9. In response to the Preliminary objection raised on behalf of the Respondent, the learned Counsel for the Petitioners contends that since the Respondent No. 2 is the son-in-law of Biharilal, the original tenant, he has stepped into the shoes of Biharilal and, therefore, he will have to be accepted as the tenant. However, this submission does not commend to me, for there is nothing on record to suggest that respondent No. 2 has been accepted as the tenant to the exclusion of other heirs of Biharilal. The law requires that after the death of the tenant, all the heirs of the said tenant will have to be brought on record. Section 5(11)(c) of the Rent Act provides that the heir(s) who is staying at the time of death of tenant would inherit the tenancy. No record is produced before this Court in support of this fact situation. It is, therefore, not possible to proceed on the assumption that the Respondent No. 2 alone was in occupation of the suit premises as the heir or legal representative of the tenant at the time of his death. In this view of the matter, the submission made on behalf of the Petitioners that Respondent No. 2 has stepped in the shoes of the tenant is devoid of merits. Moreover, this argument over looks the fact that Respondent No. 2 is present in this proceeding in his individual capacity being a sub-tenant and not as the heir or legal representative of original Respondent No. 1. It necessarily follows that, the writ petition as presented before this Court will have to be dismissed because the Petitioners have chosen not to pursue their remedy as against the original Respondent No. 1 - tenant or after his death against his heirs who were entitled to espouse his cause. Accordingly, decree passed in favour of the Respondent No. 1 - tenant has become final. In that case, the writ petition cannot proceed further against the Respondent No. 2 herein that too on the ground of default. In this view of the matter, this writ petition deserves to be dismissed on this limited count.
10. Assuming that this Court was to examine the merits of the contention regarding the ground of default, to my mind, even that does not merit any interference. The admitted facts as would appear from the record are that the suit notice was issued on 20-12-1980 demanding arrears of rent from 1-1-1975. The demand was not only limited to the monthly rent due and payable as regards the demised premises, but also with regard to the permitted increases which were payable on year to year basis. The finding of fact recorded by the Appellate Court is that the said amount towards permitted increases was not payable on month to month basis. To get over this finding, the only argument advanced before the court, that too for the first time across the bar is that, the court may infer that there was tacit understanding between the parties that amount towards permitted increases was payable on month to month basis. To my mind, this plea is essentially a plea of fact which ought to have been taken in the plaint; and, is a matter on which parties were expected to adduce evidence and proof. That has not been done. In that sense, this argument is unavailable to the petitioners. Once we reject this argument, it necessarily follows that amount towards permitted increases demanded in the suit notice was not payable on month to month basis. It is well settled that amount towards permitted increases is essentially payable on year to year basis. In the case of Raju Kakara Shetty v. Ramesh Prataprao Shirole and Anr. reported in MANU/SC/0516/1991 : [1991]1SCR51 the Apex Court has taken the view that amount towards education cess would be payable on year to year basis unless there is express agreement between the parties to the contrary. In absence of such an agreement, the amount towards permitted increases cannot be demanded in the notice under Section 12(2) of the Act and no suit could be maintained on the ground of default if it is founded on notice which includes such a claim. Understood thus, no suit could have been instituted against the Respondents on the ground of default on the basis of invalid notice; and the court could not have examined any issue with regard to the ground of default, for there was no cause of action. Merely because a suit has been filed, that does not mean that the provisions of Section 12(3)(b) of the Act can be invoked. If no suit could be maintained on the ground of default under Section 12(3)(a), in such a case the court cannot proceed to decide the suit and decree the same under Section 12(3)(b). This position is well settled in decision reported in MANU/MH/0538/1984 : 1984 Mh.LJ 313 in the matter of Narhar Damodar Wani v. Narmadabai T. Nove. Moreover, the Appellate Court has found that since the Respondents-tenant had regularly paid the rent in Court no decree under Section 12(3)(b) could be made against the tenant.
11. Since the only ground pressed before this Court is one of default and as the same does not merit any interference, therefore, this Court has no option but to dismiss this writ petition with costs all throughout.
Parties to act on the copy of this order duly authenticated by Sherishtedar of the Court.
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