"Tenant pays"- the material words in Section 15(1) are preceded by words "so long as" and independently or even without their support, convey a conclusion to be drawn from the conduct of tenant or a state of affairs spread over a reasonably long time. Payment of rent of one or two months or on few occasions by a tenant will not be sufficient to deduce that this tenant "pays" the rent. Similarly, its non-payment for such short duration or once or twice may not imply that he does not pay. Burden obviously will be on the landlord initially to demonstrate that his tenant "does not pay". Legal notice or threat of eviction coercing that tenant to pay and consequential payment will not show that "tenant pays". If the tenant wants to enjoy protection under Section 15(1) of the Maharashtra Rent Act, he will have to prove that he pays and had been paying rent voluntarily and not only when coerced. In a given contingency, he may prove his readiness and willingness to pay. Thus, ingredients of Section 15(2) and (3) are not germane when landlord's grievance is that his tenant does not pay or is not ready and willing to pay. Conversely the tenant will be required to prove that he was/is ready and willing to pay rent i.e. that quantum of rent which formed subject matter of landlord's grievance. Thus, characteristics or factors which are relevant for finding out whether "the tenant pays," equally apply to concept implicit in "is ready and willing to pay." Thus, factors relevant for deciding the mental habit of tenant to commit defaults are determinative under said subsection (1) of Section 15 of the Maharashtra Rent Act.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Letters Patent Appeal No. 307 of 2012 in Writ Petition No. 1101 of 2007 (D)
Decided On: 23.10.2012
Chandiram Dariyanumal Ahuja Vs. Akola Zilla Shram Wahtuk Sahakari Sanstha
Hon'ble Judges/Coram:
B.P. Dharmadhikari & A.P. Bhangale, JJ.
Citation: 2013(1) MHLJ28
1. Appellant Chandiram is tenant while respondent/Akola Zilla Shram Vahatuk Sahakari Sanstha is landlord in respect of premises i.e. shop block in a building situated on Nazul Plot No. 7, Sheet No. 27/C, Old Cotton Market, Akola. Appellant/tenant was inducted in the suit premises under a Lease deed, dated 4th February, 1986 on a monthly rent of Rs. 500/- payable in advance. Appellant had kept security deposit of Rs. 1,00,000/- with the respondent-landlord. Appellant had actually occupied the tenanted premises with effect from 1st August, 1986. Tenancy month is governed as per English Calendar Month. Parties had agreed under the Lease deed that rent of the tenanted premises would be increased@ 20% after every five years. Copy of Lease deed is on record which contains various terms and conditions. The respondent-landlord filed Civil Suit No. 22 of 2003 for eviction alleging inter alia that the appellant-tenant paid rent regularly till 31.1.1991. However, thereafter, the appellant-tenant adopted practice of remaining in arrears of rent. It was also averred that the appellant-tenant did not pay municipal taxes and the respondent-landlord had to pay the same. When the appellant-tenant fell in arrears of six months' rent and Municipal Corporation taxes amounting respectively to Rs. 49,968/- and Rs. 43,460/- (total Rs. 93,428/-), the respondent-landlord recovered and adjusted the same from the amount of security deposit of Rs. One lakh. The landlord restricted the claim for recovery of rent for a period from 1.2.1992 to 31.3.2003 amounting to Rs. 21,740/-. The landlord claimed ejectment of tenant on the ground that he defaulted in payment of rent. Secondly, it was averred that the respondent-landlord was working for weaker section of the Society and it is in need of funds. There are number of people who approach the respondent with a request to let them some shop block and there are offers for higher amount of rent. Since the appellant-tenant is a rank defaulter and the respondent-landlord is in need of funds, eviction of tenant was sought on the ground of bona fide need also. The respondent-landlord sent legal notice dt. 7.8.2000 terminating tenancy of the appellant expiring with the midnight of 30.11.2000. The respondent-landlord further pleaded that the suit premises was located at a prime location and it could fetch minimum rent of Rs. 3,000/- per month and, therefore, the appellant-tenant be directed to pay rent @ Rs. 3,000/- per month during pendency of the suit. The respondent-landlord also prayed for enquiry into mesne profits.
2. The appellant-tenant failed to file Written Statement and an order was passed by the trial Court for proceeding with the suit without Written Statement of appellant-tenant. This was not challenged in the Appellate Court.
3. The learned trial Judge, after going through the evidence led by the respondent-landlord, decreed the suit partly directing the appellant-tenant to pay arrears of rent amounting to Rs. 9,980/- for thirty-six months due since prior to the institution of suit. The learned trial Judge held that though the rent was deposited in the Court by the tenant, he failed to comply with the condition laid down in Section 15(3) of the Maharashtra Rent Control Act, 1999 (hereinafter referred to as "the Maharashtra Rent Act"). The trial Court further held that the landlord has proved its bona fide need in relation to the suit premises and, therefore, directed the tenant to deliver vacant possession of the suit premises to the landlord. The learned trial Judge directed enquiry into mesne profit under Order XX, Rule 12 of the Code of Civil Procedure. It also directed that the decretal amount shall carry interest @ 15 % per annum from the date of institution of the suit till its realization.
4. The appellant-tenant carried an appeal under Section 34 of the Rent Act being Regular Civil Appeal No. 19 of 2005. Learned Principal District Judge, Akola maintained the order of the trial Court directing the appellant-tenant to pay arrears of rent of Rs. 9,980/- to the respondent-landlord and the decree of eviction for want of compliance of the provisions of Section 15(3) of the Maharashtra Rent Act. The learned Appellate Judge, however, was pleased to set aside the finding as regards the ground of bona fide need which was held established by the landlord as recorded by the trial Court.
5. The appellant-tenant assailed the Judgment and Order of the trial Court and the Appellate Court by filing Writ Petition (being Writ Petition No. 1101 of 2007) before the learned Single Judge of this Court. The learned Single Judge of this Court, after hearing both the parties, dismissed the Writ Petition of the appellant-tenant vide Judgment and Order, dated 25th June, 2012 and this is how the appellant-tenant is before this Court in Letters Patent Appeal filed under Clause XV of the Letters Patent.
6. The contention of the appellant-tenant is that the suit was not tenable as the cause of action did not accrue in favour of the respondent-landlord because the tenant had complied with the demand made by the landlord in the demand notice dt. 7.8.2000. According to the tenant, Demand draft of Rs. 27,000/-, dt. 23.10.2000 was sent along with notice dt. 18.10.2000. It is, thus, contended that - when Section 15(2) is complied with, the provisions of Section 15(3) cannot come in operation. In our view, this contention need to be appreciated in view of the provisions contained in Section 15. The right of the landlord to file suit for ejectment of the tenant on the grounds available under the general law is restricted by a Special law i.e. the Maharashtra Rent Control Act in a limited way to certain grounds for seeking eviction. The restriction is specific and not of omnibus nature. As long as tenant is ready and willing to pay rent, he is protected under Chapter III of the Act. Let us look into the relevant provisions of the Maharashtra Rent Act.
CHAPTER III :
RELIEF AGAINST FORFEITURE :
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, in so far as they are consistent 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 increases 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.
7. Section 15 clarifies that the landlord is not entitled to recover possession of the premises as long as the tenant is ready and willing to pay the rent due and perform the conditions of the tenancy (consistent with the provisions of the Act) and it provides for the institution of the suit against the tenant to recover possession on the ground of non-payment of the standard rent and permitted increases due, after the period of 90 days next after the notice of demand is served upon the tenant in the prescribed manner as required under Section 106 of the Transfer of Property Act, 1882. Such suit would not lie if the tenant has fully complied with the demand notice issued and served under Section 15(2) of the Act. No decree of eviction is to be passed in any such suit if the tenant has paid the arrears of standard rent and permitted increases due, within 90 days after the suit summons is served upon the tenant. Tenant can move the Court and pay the entire arrears due along with interest and costs, as may be ordered by the Court. This is how the tenant can claim relief against the forfeiture of tenancy from the Court.
8. The object of the Act is to protect such tenant who is ready and willing to pay the amount of rent (standard rent and permitted increases) and who observes and performs the other conditions of tenancy which are consistent with the provisions of the Act. The Act has made it mandatory for the landlord intending to sue the tenant on the ground of default in payment of rent to serve a pre-suit demand notice upon the tenant who may have remained in arrears of the rent (standard rent and permitted increases). The landlord intending to sue the tenant on the ground of arrears of rent has to serve such notice in the manner as prescribed in Section 106 of the Transfer of Property Act and has to wait to file suit until expiry of 90 days from the date of service of such notice upon the tenant in writing or duly typed. Once the suit is instituted after compliance with Section 15(2) and the suit summons is served upon the tenant, he gets additional opportunity in the Court which is limited to 90 days from the date of service of the suit summons upon the tenant, to pay or tender the amount of rent in arrears plus simple interest at the rate of Rs. 15% p.a. in the Court.. The tenant must be vigilant thereafter also to continue paying the rent (including the permitted increases) till such suit is finally decided. The tenant shall also pay costs of the suit as directed by the Court. The protection-relief against forfeiture - which is available to the statutory tenant is not absolute but conditional depending upon the tenant paying or tendering the rent, interest and, costs of the suit in the Court as directed by the Court. The Court can exercise the discretion to pay the appropriate amount due, to the landlord out of the amount deposited in the Court by the tenant in such a suit. It is not out of place to discuss the relevant provision of the erstwhile Bombay Rent Act in the light of the judicial precedents concerning the default in payment of rental arrears by the tenant.
9. The provision of the Bombay Rent Act considered in Shah Dhansukhlal Chhaganlal v. Dalichand Virchand Shroff, MANU/SC/0166/1968 : (1968) 3 SCR 346 by Hon'ble Apex Court is as under :-
9. In order to appreciate the first contention it is necessary to set out Section 12 of the Act as it stood at the relevant time:
12.(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 consistent with the provisions of this Act.
(2) No suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of one month 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)(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.
(b) In any other case, no decree for eviction shall be passed in any 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.
(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.
Explanation.- 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.
10. For the present purposes, the legal position is not materially different than Section 15 of the Maharashtra Rent Act. Section 12 stipulated the ground of "non-payment of the standard rent or permitted increases due" in s/s (2) and the ground in Section 12(1) is that the " tenant pays, or is ready and willing to pay". Both these grounds apparently do not convey same thing and are not the same. The Hon'ble Apex Court has co-related Section 12(1) with explanation of that Section and no ratio to further the cause of respondent-tenant before us is to be found in it. Hon'ble Apex Court has observed thus :-
10. It appears to us that there is no substance in the contention put forward on behalf of the appellant. Section 12(1) must be read with the Explanation and so read it means that a tenant can only be considered "to be ready and willing to pay" 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 by the court. We have already noted that the tenant made no payment within the period of one month of the notice of ejectment and although in his written statement he raised a dispute about the standard rent he made no application in terms of Section 11(3) of the Act. The readiness and willingness to pay has therefore to be judged in the light of the facts of the case. Where as here a suit is filed on the ground that the tenant was in arrears for a period of more than 6 months and although raising a dispute as to the standard rent or permitted increases recoverable under the Act, the tenant makes no application in terms of Section 11(3) he cannot claim the protection of Section 12(1) by merely offering to pay or even paying all arrears due from him when the court is about to pass a decree against him. In Vora Abbasbhai Alimahomed v. Haji Gulamnabi Haji Safibhai it was pointed out that Section 12(1) of the Act applied to a tenant who continued to remain in occupation even after the expiry of the contractual tenancy so long as he paid or was ready and willing to pay the amount of the standard rent and permitted increases. The protection was however available to a tenant subject to the provisions of Section 13 and to the limitations contained in Section 12(2) and Section 12(3)(a) of the Act.
11. The case of Vora Abbasbhai Alimoahomed. vs. Haji Gulamnabi Haji Safibhai, MANU/SC/0233/1963 : AIR 1964 SC 1341 is on power or scope of interference under Section 115 of the Code of Civil Procedure by High Court. However, following observations therein, particularly at the end of paragraph 16 read thus :
Section 12(1) does not affect the jurisdiction of the Court to entertain and decide a suit in ejectment against a tenant. It merely confers a protection upon a tenant if certain conditions are fulfilled, and Clauses (2), (3)(a), (3)(b) and the explanation deal with certain specific cases in which readiness and willingness to pay standard rent., may either be presumed or regarded as proved.
The above observations show that finding on whether tenant "pays" or "is ready and willing to pay" is required to be recorded independently while considering the compliances with or the conduct of tenant after service of pre-suit notice or service of suit summons upon him.
12. The portion underlined by us in paragraph above shows that Section 12(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the Bombay Rents Act") may be invoked independently i.e., separately. It operates in altogether different field not covered by Sub-sections (3a) and (3b). Thus, in the like manner full effect needs to be given to all the three sub-sections of Section 15 of the Maharashtra Rent Act as considered under Section 12 of the Bombay Rents Act and this shows that grievance that "tenant does not pay" or "is not ready and willing to pay" and therefore, he should be evicted is only cognizable under sub-section (1). A tenant habitually in arrears and always irregular in payment of rent may not succeed in avoiding the eviction by paying all arrears either in response to initial notice or then in the Court after filing of the suit if such suit does not seek his eviction only on the ground of non-payment of standard rent and permitted increases. A tenant who is inadvertently or casually but not deliberately in arrears or in arrears for stipulated number of months may not always be branded as a tenant who can be classified as habitually irregular.
13. "Tenant pays"- the material words in Section 15(1) are preceded by words "so long as" and independently or even without their support, convey a conclusion to be drawn from the conduct of tenant or a state of affairs spread over a reasonably long time. Payment of rent of one or two months or on few occasions by a tenant will not be sufficient to deduce that this tenant "pays" the rent. Similarly, its non-payment for such short duration or once or twice may not imply that he does not pay. Burden obviously will be on the landlord initially to demonstrate that his tenant "does not pay". Legal notice or threat of eviction coercing that tenant to pay and consequential payment will not show that "tenant pays". If the tenant wants to enjoy protection under Section 15(1) of the Maharashtra Rent Act, he will have to prove that he pays and had been paying rent voluntarily and not only when coerced. In a given contingency, he may prove his readiness and willingness to pay. Thus, ingredients of Section 15(2) and (3) are not germane when landlord's grievance is that his tenant does not pay or is not ready and willing to pay. Conversely the tenant will be required to prove that he was/is ready and willing to pay rent i.e. that quantum of rent which formed subject matter of landlord's grievance. Thus, characteristics or factors which are relevant for finding out whether "the tenant pays," equally apply to concept implicit in "is ready and willing to pay." Thus, factors relevant for deciding the mental habit of tenant to commit defaults are determinative under said subsection (1) of Section 15 of the Maharashtra Rent Act.
14. In Sitaram Maruti Nagpure v. Fakir, MANU/MH/0862/2007 : (2008) 3 Mh.L.J. 610, the Division Bench of this Court observed thus :--
14. After having heard the learned Counsel for both sides in the above and after perusal of all the aforesaid judgments, it is very clear that Section 12 makes it abundantly clear that if tenant pays or ready or willing to pay standard rent or permitted increases, then no ejectment will be made. To put it in other words, the landlord will be entitled to recover possession of the premises only if the tenant fails to pay the standard rent and permitted increases. In fact the said section 12 clearly contemplates in a negative manner that no suit for recovery of possession shall be instituted by the landlord unless the landlord satisfies that the tenant was not ready and willing to tender and had not paid the standard rent and permitted increases for over a period of six months and in the event, the tenant was not ready and willing to tender standard rent and permitted increases, and that he has been in arrears of over a period of six months, then the landlord has to issue notice terminating the tenancy and demand the standard rent and permitted increases within a month after service of the notice.
Even section 12(3)(a) makes it clear that 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 period of one month after the notice as referred in sub-section (2), the Court may pass a decree for eviction in any such suit for recovery of possession. By way of explanation, in the said section, it is provided that in any case where there is 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. To put it in other words, the explanation is with regard to the procedure, when there is a dispute with regard to the standard rent. Where there is no dispute with regard to the standard rent, the tenant has to show that he was always ready and willing to tender rent and he must not be in arrears for more than six months and in the event, the tenant was in arrears for more than six months, the landlord has the right to serve notice of termination and demand rent and permitted increases, and if the tenant does not pay the same within one month, in such a case, the landlord will be entitled for a decree of eviction.
15. Meaning of phrases "Ready and willing" and its effect on "tenant pays" used in S. 15 (1) is also important. In Mistry Premjibhai Vithaldas v. Ganeshbhai Keshavji, [MANU/SC/0354/1977 : (1977) 3 SCC 11], at page 17, the Hon'ble Apex Court observes as under :
14. The readiness and the willingness of the tenant to pay could be found only if he had complied with the provisions of the Act. The Act does not cover the case of a person who is unable to pay owing to want of means but is otherwise "ready and willing". Such a case is no doubt a hard one, but, unfortunately, it does not enable courts to make a special law for such hard cases which fall outside the statutory protection.
15. We understand that the defendant-respondent is a Carpenter. If he is unable to find means to pay rent we cannot dismiss the suit for his eviction on the ground of non-payment of rent. In view of his disability, on account of alleged illness, we propose to modify the decree of the appellate court to the extent "that he will have four months" time from April 5, 1977, before the eviction order can be executed against him provided he deposits within a month from today all the arrears due and goes on depositing Rs. 30 p.m. regularly, in advance, before the 5th of each month on which his tenancy begins. He must, however, vacate the premises before August 5, 1977, and may leave it earlier if he is unable to pay the required rent regularly in advance. The decree for eviction will become executable on breach of the conditions laid down, or, after August 5, 1977.
In P.R. Deb And Associates v. Sunanda Roy, MANU/SC/0379/1996 : (1996) 4 SCC 423), at page 429, the Hon'ble Apex Court has observed thus :
8. In the case of Chand Rani v. Kamal Rani a Bench of five Judges of this Court considered a similar situation, where the contract stipulated that a sum of Rs. 98,000 would be paid by the purchaser to the vendor within a period of ten days only. Despite notices of the vendor, the vendee was not willing to pay the said amount unless vacant possession of a part of the property was given by the vendor to the vendee. The Court said that in view of the express terms of the contract coupled with the conduct of the vendee, it was clear that the time was of the essence of the contract and the vendee was not ready and willing to perform the contract. In these circumstances, this Court upheld the refusal of the High Court to grant specific performance.
16. We, therefore, find that - a tenant, by either not paying or not being ready and willing to pay the rent due, is liable to be evicted by the landlord because of his blameworthy conduct subsequent to the pre-suit statutory notice demanding rental arrears and also during pendency of the suit instituted by the landlord on the ground of non-payment of arrears of rent. In the present suit, the landlord has sought to recover possession claiming relief of eviction on the ground that tenant is habitually irregular in payment of rent actionable in view of Section 15(1) because tenant can be evicted from the premises if he is not ready and willing to pay the standard rent and permitted increases and if he violates conditions of tenancy (consistent with the provisions of the Maharashtra Rent Act). In defence, the tenant is obliged to prove his readiness and willingness to pay standard rent and permitted increases. Proof may be by payment of entire rental arrears pursuant to service of demand notice within 90 days and during pendency of the suit pursuant to service of suit summons. Thus, time is allowed for the tenant to show his readiness and willingness to pay the rental arrears. The obligation to pay standard rent and permitted increases regularly is implicit in the contract between the landlord and the tenant.
17. The entire Scheme of Chapter III - relief against forfeiture, as provided under the provisions of Section 15, indicates that a tenant can perform his obligation and then claim protection in the form of relief against forfeiture as forfeiture occurs in accordance with general law governing lease under the Transfer of Property Act. The provision protects the tenant from the forfeiture when the tenant is paying rent or has proved his readiness and willingness to pay it. Section 15(3) added further obligation upon the tenant to pay entire arrears till date with interest and costs, as may be ordered by the Court. If tenant is continuing to pay rent due during the pendency of the suit instituted against him on the ground of non-payment of standard rent and permitted increases, then such tenant is entitled to claim relief against forfeiture of tenancy. To put it otherwise, when tenant does not pay rent as agreed or pays rent only when legal notice is served upon him or Court summons is issued against him, the landlord is not helpless because sub-section (1) of Section 15 enables the landlord to insist upon the tenant to pay rent and perform the conditions of tenancy. The tenant who disobeys legal provisions u/s. 15(1) of the Act can be evicted independently, though such tenant may not necessarily be in arrears of rent on the date of institution of the suit. A tenant who is prompted or induced to pay only after service of legal notice or after service of Court summons cannot be viewed as a tenant who either pays or is ready and willing to pay standard rent and permitted increases. Section 15 of the Maharashtra Rent Act has extended protection to a tenant after the landlord seeks to exercise his right to forfeit the tenancy in accordance with the provisions of general law. A tenant, in order to claim relief against forfeiture of tenancy, gets a period of 90 days after service of pre-suit statutory demand notice by the landlord calling upon the tenant to pay entire arrears of standard rent and permitted increases payable to the landlord. Thereafter when suit is filed, the tenant gets additional opportunity to pay entire arrears of rent and permitted increases demanded after the suit summons is served upon him. Such a tenant has a period of 90 days from the date of service of suit summons to pay or tender the arrears of rent with simple interest thereupon @ 15 % p.a. During pendency of the suit, the protection is available as above to the tenant to claim relief against forfeiture of tenancy provided that the tenant shall continue to be regular in payment of standard rent and permitted increases payable during the pendency of the suit as also costs of the suit as directed by the Court. The Court cannot be oblivious of landlords who may have to survive only on rental income. Habitual irregular payment of rent and permitted increases by the tenant will prejudice and jeopardize very survival of such landlords who survive on rental income only. Therefore, such a tenant who may be habitually irregular in payment of standard rent and permitted increases can invite eviction in view of Section 15(1) of the Maharashtra Rent Act when the Court considers the case of such a tenant who commits breach of conditions of tenancy as also remains habitual in rental arrears. In such exceptional case, provisions of Section 15(1) are applicable and procedural compliances u/s. 15(2) and 15(3) will not apply.
18. In the present matter, the landlord had filed initially a dispute under section 91 of the Maharashtra Co-operative Societies Act against present appellant/tenant to recover rent for the period from 1.8.1987 to 31.1.1992. Civil Suit No. 22 of 2003 out of which this L.P.A. arises points out non-payment of rent for the period from 1.2.1992 till 31.3.2003. Claim therein is however restricted to Rs. 21,740/-. Landlord has also pointed out how he was constrained to adjust rent arrears of Rs. 49,968/- + tax arrears of Rs. 43,460/- i.e. total Rs. 93,428/- out of security amount of Rs. 1 Lac deposited by the tenant. His notice dated 7.8.2000 issued prior to institution of suit also makes grievance about habitual irregularity and huge arrears. Suit is filed on 2.5.2003 and the trial Court has granted landlord decree of Rs. 9,980/- towards arrears of rent of past 36 months. Thus, the arrears granted are for period even prior to issuance of the notice. This grant of decree and findings supporting it are not assailed before the learned Single Judge or before us. Tenant's contention of compliance with said notice or of not being in arrears on 2.5.2003, is, therefore, misplaced. Even otherwise, when compliance by landlord with Section 15(2) is not necessary for filing suit against tenant under Section 15(1) of the Maharashtra Rent Act, alleged compliance by tenant with notice dated 7.8.2000 is immaterial or inconsequential. Perusal of judgment dt. 16.1.2007 delivered by the Principal District Judge, Akola in R.C.A. 19 of 2005 shows that issue No. 4 framed therein reads -- "Whether it is proved by plaintiff that defendant is habitual defaulter ?" It has been answered in affirmative by the Appellate Court from paragraphs 32 to 44 of its judgment. That discussion and finding is not even urged to be erroneous by the Appellant. Issue No. 1 decided by trial Court on 17.12.2004 is -- "Does the plaintiff prove that the defendant is a habitual defaulter and in arrears of rent within meaning of Section 15 of the M.R.C. Act, 1999?". Even this was answered in the affirmative. Thus, finding that the appellant/tenant is a habitual defaulter is concurrent one. This concurrent finding upheld by the learned Single Judge is sought to be wrongly projected by associating it with requirements of Section 15(2) and (3) to an undue extent. That co-relation can be only to the limited extent of judging conduct of the tenant during pendency of Suit as it is relevant to return finding on habitual defaults.
19. With the result, we do not find any case made out warranting interference by this Court. For the reasons recorded by us, dismissal of appellant's petition by the learned Single Judge is upheld. The Letters Patent Appeal is accordingly dismissed. Rule is discharged with no order as to costs. Mr. C.A. Joshi, learned Counsel for the appellant prays for grant of stay to the operation of this order. Mr. A.S. Chandurkar, learned Counsel for the respondent makes a statement that the respondent will not execute the decree for a period of eight weeks. The statement is recorded accordingly.
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