Girish Gangadhar Agrawal vs Jagdishchandra Amrutlal … on 21 August, 2009

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    IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                 NAGPUR BENCH, NAGPUR




                                                                               
                     Writ Petition No.2628 of 2007




                                                       
    Girish Gangadhar Agrawal,
    Age 55 years,
    Occupation Business,




                                                      
    R/o Ratanlal Plot,
    At, Post, Tq., Dist. Akola.                   ... Petitioner/
                                                  Ori.Deft./Tenant

         Versus




                                          
    Jagdishchandra Amrutlal Wakhariya,
                            
    Age 52, Business,
    R/o Mangaldas Market, Akola,
    Tq. and Dist. Akola.                          ... Respondent/
                           
                                                  Ori.Plff./Landlord



    Shri A.S. Chandurkar, Advocate for Petitioner.
      

    Shri M.G. Sarda, Advocate for Respondent.
   



                  CORAM : R.C. Chavan, J.

Reserved on : 31-7-2009
Pronounced on : Aug. 21st, 2009.

Judgment :

1. This petition by tenant is directed against

concurrent findings by both the learned Civil Judge and
District Judge in a Suit under the Rent Act, seeking his
ejectment on the ground of default in payment of arrears
of rent.

2. Chequered history relevant for deciding this

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petition is as under :

The petitioner is a tenant in respect of a godown

originally owned by late Amrutlal, the father of the
respondent and his brother Nitinkumar. He used to pay,
since before 1-10-1987, in advance Rs.1,600/- per annum

towards rent, plus, according to him, a further sum of Rs.
1,100/- per annum as advance rent. The respondent and
his brother Nitinkumar became owners of the godown in a

partition prior to Amrutlal’s death.

3.

Thereafter, since 1996, the petitioner started

paying Rs.800/- plus Rs.550/- to each of the two brothers.
There is no dispute that rent was so paid up to 1996 (i.e.
for year 1995-1996 – from Diwali to Diwali). According to

the petitioner, the respondent and his brother did not
come to receive rent in Diwali 1996, for the year

1996-1997. He claims to have sent the rent to the
respondent and his brother, who avoided to receive it.

The petitioner claims to have sent rent by cheques with
notices dated 25-1-1997 and 11-4-1997, which notices
were refused by the landlords. Hence, the petitioner filed
Regular Civil Suit No.605 of 1997 for an injunction

directing the landlords to receive the rent. Though served
with suit summons and represented by an Advocate, the
landlords did not tender any evidence at trial, but cross-
examined the petitioner. The suit was decreed and the
decree still stands.

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4. On 1-8-2001, the respondent issued a notice

stating that the petitioner was monthly tenant at the rate
of Rs.66.67 per month (equivalent to Rs.800/- per annum)

and was in arrears of rent for 74 months (including rent
for “adhikmas”, a thirteenth month in Hindu almanac), as
also municipal taxes at the rate of Rs.350/- per annum and

services charges at the rate of Rs.200/- per annum. The
petitioner replied on 10-10-2001 denying these claims.

5. The respondent filed Regular Civil Suit No.571 of

2001 seeking petitioner’s ejectment under Section 16 of
the Maharashtra Rent Control Act on the grounds of

bona fide need, non-user, allowing others to use the
godown, unauthorised alterations by creating a door in the
wall separating two parts of godown and default in

payment of rent in arrears, taxes and permitted increases,
amounting to Rs.12,127.73, inclusive of interest at the

rate of 18 per cent per annum till filing of suit.

6. The petitioner contested the suit by filing a
written statement. The learned Trial Judge framed issues
and after considering the evidence tendered, decreed the
suit by judgment dated 28-10-2004. Regular Civil Suit No.

3 of 2002 by respondent’s brother Nitinkumar for similar
reliefs in respect of his half of the godown had, however,
been dismissed on 15-12-2003. The petitioner’s appeal,
bearing Regular Civil Appeal No.162 of 2004, was
dismissed by the learned District Judge by judgment dated
29-10-2005. The petitioner filed Writ Petition No.369 of

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2006, wherein, by judgment dated 18-9-2006, the

appellate judgment was set aside and the matter was
remanded for a fresh hearing. The petitioner applied for

amendment of written statement and memo of appeal by
application Exhibit 26 before the District Judge on
31-1-2007. This application was rejected by the learned

District Judge by order dated 14-3-2007. The learned
District Judge held that the respondent had not proved his
bona fide need, or non-user, or material alterations by the

petitioner, and set aside these findings of the Trial Court,

but upheld the decree of ejectment on the ground of
default in payment of rent by the impugned judgment

dated 27-4-2007. Aggrieved thereby, the petitioner has
filed this petition. The petitioner also applied on
13-8-2007 vide Civil Application No.5739 of 2007 for

amendment to petition to refer to certain notices
exchanged between the parties. The petition was

admitted on 4-3-2008.

7. I have heard both the learned counsel for the
petitioner and the respondent.

8. The learned counsel for the petitioner pointed

out that there is no dispute that rent up to Diwali of 1996
had been paid to the landlord. Thereafter, the landlord
stopped receiving rent. Hence, the petitioner filed a suit
bearing Regular Civil Suit No.605 of 1997 against the
respondent-landlord Jagdishchandra and his brother
Nitinkumar. This suit was decreed on 14-2-1998.

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Landlord Jagdishchandra and his brother Nitinkumar were

directed to accept rent at the rate of Rs.1,600/- per annum
and also to submit accounts to the plaintiff. They were

also directed to communicate their account numbers to
enable the tenant to deposit the rent in such accounts.
The landlord applied for setting aside this decree,

branding it as ex parte decree. However, his attempt
failed. He did not file any appeal against this decree.
Therefore, this decree is binding on the landlord. The

learned counsel for the petitioner submitted that in the

face of this decree, the landlord’s plea that the petitioner-
tenant was in arrears of rent will have to be rejected, since

this decree would show that the petitioner had been
always ready and willing to pay rent and in fact he had
filed the said suit in order to deposit the rent.

9. The learned counsel for the petitioner drew my

attention to the fact that there was a decree in Regular
Civil Suit No.605 of 1997 mandating the landlord to

provide account number to enable the tenant to deposit
the rent. He submitted that the contention of the learned
counsel for the landlord that the decree did not operate
res judicata, as has been held by the Courts below, was

erroneous, since the decree could not be termed as ex
parate decree. In any case, it is a decree, which is still
valid and binds the parties and, therefore, would govern
the relations of the parties. For this purpose, he relied on
a judgment of the Supreme Court in Saroja v. Chinnusamy
(Dead) by L.Rs. and another, reported at 2007(10) Scale

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331. It may be appropriate to quote for ready reference

the observations of the Court in paras 8 and 9 of the
judgment as under :

“8. The learned counsel for the appellant
argued that the ex parte decree passed in the

former suit could not operate as res judicata
because in order to constitute res judicata within
the meaning of Section 11 of the CPC, the

conditions as noted herein earlier have to be

satisfied, which on the admitted facts of this
case, were not satisfied. … So far as the

conditions namely (i), (ii) and (iii) are concerned,
no dispute can be raised or was raised by the
parties before us as the said conditions have

been fully satisfied in the facts of this case.”

“9. Let us, therefore, deal with Condition No.

(iv) first which says, “the matter directly and

substantially in issue in the subsequent suit
must have been heard and finally decided by the
Court in the former suit. Learned counsel for the
appellant sought to argue that since the former

suit was decided ex parte, it could not be
said that it was finally heard and decided by the
Court and, therefore, Condition (iv) was not
satisfied and the principle of res judicata could
not be applied and accordingly the ex parte
decree in the former suit would not operate as

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res judicata in the subsequent suit. We are

unable to agree with this contention of the
learned counsel for the appellant. In this case,

admittedly, summons was duly served upon
Kuppusamy and inspite of such service of
summons, Kuppusamy thought it fit not to

appear or to contest the suit filed against him.
Once an ex parte decree is passed against
Kuppusamy, in our view, the same should be

taken as a final decision after hearing. It is well

settled that an ex parte decree is binding as a
decree passed after contest on the person

against whom such an ex parte decree has been
passed. It is equally well settled that an ex parte
decree would be so treated unless the party

challenging the ex parte decree satisfies the
court that such an ex parte decree has been

obtained by fraud. Such being the position, we
are unable to hold that Condition No.(iv) was not

satisfied and accordingly it cannot be held that
the principle of res judicata would not apply in
the present case. In the present case,
admittedly, the appellant in her plaint had not

made any case of fraud or collusion either
against Kuppusamy or against the respondents
herein. …”

10. Though the learned counsel for the respondent-
landlord could not show as to how decree in Regular Civil

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Suit No.605 of 1997 does not bind the landlord, he

submitted that mere willingness to pay the rent would not
be sufficient. It would be necessary for the tenant to show

that arrears were cleared upon demand by notice dated
1-8-2001, and the tenant has not done so. He submitted
that in the face of the admission that the rent after 1996

had not been paid, the tenant was under an obligation to
clear it within the stipulated period upon receipt of notice
dated 1-8-2001, rather than send a reply to it.

11.

I have considered these contentions. Though the
tenant must be held to have been ready to pay the rent as

evidenced by his filing a suit for an injunction, this desire
was not translated into action by tendering a cheque for
such amounts, as the tenant found to be due along with

reply to notice dated 1-8-2001. Therefore, the contention
of the petitioner that there was no cause of action to file

suit for ejectment on the ground of arrears of rent has to
be rejected.

12. The learned counsel for the petitioner next
submitted that the tenant was, in fact, not at all in arrears
of rent, as the landlord had been receiving Rs.550/- per

month towards advance rent. This was required to be
adjusted towards rent allegedly in arrears.

13. The learned counsel for the respondent
submitted that Rs.550/- was not advance rent, as alleged
by the petitioner. He pointed out that in the notice

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dated 1-8-2001, in para 1, it had been specifically stated

that separate receipt for Rs.550/- was issued to the
tenant, which included municipal taxes and service

charges. Therefore, there was no question of giving any
account, since no advance rent was ever paid.

14. The learned counsel for the respondent
submitted that there is no finding in the judgment in
Regular Civil Suit No.605 of 1997 that a sum of Rs.550/-

being recovered by the landlord was advance rent.

According to him, Rs.550/- was also a component of rent
and relied on a number of receipts, which had been

produced before the Trial Court. He pointed out that the
tenant was paying Rs.800/- plus Rs.550/-, i.e. Rs.1,350/- to
each of the two landlords and each of them used to issue

two separate receipts for Rs.800/- as well as two receipts
for Rs.550/-. This was the arrangement at the instance of

the tenant himself, possibly because the tenant wanted to
reduce burden of taxes on him. Such receipts have been

filed and they do show that on the same day, in the same
format the same landlord had issued separate receipts for
Rs.800/- and Rs.550/- for the same tenement and for the
same period.

15. The learned counsel for the petitioner submitted
that there is no question of paying Rs.550/- per month
towards taxes or service charges, since no service was
ever rendered by the landlord. The premises taken on
rent were a godown and hence there could be no question

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of any services for which the tenant was required to make

a payment. He further submitted that the landlord was
entitled only to reimbursement of the amounts paid by

him towards taxes and not to any arbitrary sums towards
taxes. Therefore, unless the landlord could show that the
sum of Rs.350/-, which he claimed to have been received

towards taxes, was in fact paid to the Municipal Council,
such adjustment was not permissible and, therefore, the
landlord was obliged to render accounts of the amounts

received by him. According to the learned counsel, if such

accounts are taken, it would be clear that the tenant was
not at all in arrears of rent.

16. The learned counsel for the petitioner relied on a
judgment of this Court in Madhavsingh Tulsidas since

deceased through LRs. Uday Madhavsingh Palicha and
another v. Bhaktiben Narandas Paleja since deceased

through LRs. Jawahar Narandas Paleja and others,
reported at 2006(6) Mh.L.J. 353, where the question was of

inclusion of education cess in the rent. The Court had
quoted from an earlier judgment of this Court in Vaman v.
Rajaram (Special Civil Application No.2418 of 1971
decided on 26-2-1976) as under :

“In a suit where the landlord wants to claim
possession on the ground that the tenant is a
defaulter because he has not paid the amount of
education cess, which are permitted increases, it
will be therefore obligatory on the plaintiff-

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landlord as specifically plead and prove the fact

of such payment of education cess to the
municipal authorities. Indeed from the provisions

of section 13(1) it is clear that there is no cause
of action for claiming reimbursement from the
tenant until the lessor has paid the amount of

education cess in respect of which he wants to
make a claim against the defendant.”

17. In Dr. Rajesh s/o Niranjan Singhania v. Surajmal
s/o Karnidanji

Dhadiwal (since deceased
reported at 2009(3) ALL MR 696, on which the learned
thr. LRs.),

counsel for the respondent relied, a learned Single Judge
of this Court had held that rent for the purpose of Section
15 of the Maharashtra Rent Control Act would include not

only the rent, but also payments, which are meant for
amenities provided by the landlord under the agreement

between the landlord and tenant. In that case, the rent of
Rs.8,000/- per month was broken up into three

components – Rs.3,000/- for use and occupation of the
premises; Rs.2,500/- for the facility of well and Corporation
water; and Rs.2,500/- as service charges for fittings and
fixtures. Therefore, according to the learned counsel for

the respondent, unless not only Rs.800/- per annum, but
also Rs.550/- per annum is paid regularly, the tenant
would be liable to be evicted.

18. I have carefully considered the rival contentions.
The landlord has not tendered any evidence to show what

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was the tax which he paid. His cross-examination at

Exhibit 21 of the record of the Trial Court would show that
he did not know what was the municipal tax, though he

admitted that the receipts were with him. Therefore, in
the absence of evidence to show that he had paid Rs.350/-
per annum towards taxes, he was not entitled to seek

reimbursement of this amount. Also, as no services were
ever rendered, the landlord was not entitled to adjust any
amount towards service charges.

19.

Judgment in Rajesh v. Surajmal may not be of
any help to the landlord, since in that case rent of Rs.

8,000/- was split up in three components, which did not
include taxes. The two components, apart from rent for
premises, were service charges for fittings and fixtures

and charges for water. Without showing what services
were rendered for a godown, service charges at the rate

of Rs.200/- per month could not have been recovered and
taxes could not exceed those actually paid.

20. The learned counsel for the respondent
submitted that Rs.1,600/- (divided by two for two
landlords) per annum could not have been taken as

standard rent and for the purpose of computing
payment of standard rent, the entire amount, which the
tenant was paying before 1st of October, 1987, would have
to be considered. The learned counsel for the respondent
submitted that once it is held that the tenant was paying
Rs.800/- plus Rs.550/- per annum, it would have to be held

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that the rent, which was recoverable by the landlord, was

Rs.1,350/- per annum and it would be impermissible for
the tenant in a suit for ejectment to claim fixation of any

different amount as standard rent. For this purpose, he
placed reliance on a judgment of this Court in Filmistan
Pvt. Ltd. v. Municipal Commissioner Greater Bombay,

reported at 1972 Mh.L.J. 896. That was a case where
question of fixation of rateable value by the municipal
authorities for the purpose of taxation had been raised. It

was observed in para 23 of the judgment that the rent,

which is agreed, would cease to be the standard rent only
when an application is made for fixation of standard rent

under the provisions of Section 11 of the Bombay Rent
Act. Since such are not the facts in the present case, this
contention has to be rejected, as the landlord himself split

up the amount, which he was receiving in two
components : Rs.66.67 per month (=Rs.800/- per annum)

as rent, and Rs.200/- per annum as service charges and
Rs.350/- per annum towards taxes. Now he cannot turn

around and claim that Rs.1,350/- per annum was the rent.

21. As to the claim that rent was Rs.66.67 per
month, the learned counsel for the petitioner submitted

that landlord Jagdishchandra’s brother Nitinkumar had
filed Regular Civil Suit No.3 of 2002 seeking relief of
eviction of the petitioner. In that suit, he had set up the
case that the rent of the premises was Rs.66.67 per
month. In that suit, the tenant had filed a written
statement contesting the claim of the landlord’s brother.

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That suit was dismissed by judgment dated 15-2-2003,

where it was held that the landlord had failed to prove
that the petitioner was a monthly tenant at the rate of Rs.

66.67 per month. No appeal has been preferred against
that judgment. Therefore, according to the learned
counsel for the petitioner, the plea that rent of the

premises was Rs.66.67 per month payable to the landlord
in the present case, as well as his brother, who was the
plaintiff in Regular Civil Suit No.3 of 2002 cannot be

entertained. He rightly pointed out that the tenant had

taken the entire godown on rent and upon partition
between the respondent herein and Nitinkumar, had been

paying them separately at the rate of Rs.800/- per
annum. Therefore, there would be no question of any
monthly rent being recoverable by the respondent.

22. Sub-section (14) of Section 7 of the Maharashtra

Rent Control Act defines “standard rent” as under :

” “standard rent”, in relation to any premises
means,–

(a) where the standard rent is fixed by the
Court or, as the case may be, the Controller

under the Bombay Rent Restriction Act, 1939, or
the Bombay Rents, Hotel Rates and Lodging
House Rates (Control) Act, 1944 or the Bombay
Rents, Hotel and Lodging House Rates Control
Act, 1947, or the Central Provinces and Berar
Letting of Houses and Rent Control Order, 1949

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issued under the Central Provinces and Berar

Regulation of Letting of Accommodation Act,
1946, or the Hyderabad Houses (Rent, Eviction

and Lease) Control Act, 1954, such rent plus an
increase of 5 per cent, in the rent so fixed; or

(b) where the standard rent or fair rent is not
so fixed, then subject to the provisions of
sections 6 and 8.–

(i)

the rent at which the premises were
let on the 1st day of October 1987; or

(ii) where the premises were not let on
the 1st day of October 1987, or the rent at
which they were last let before that day,

plus an increase of 5 per cent, in the rent
of the premises let before the 1st day of

October, 1987, or

(c) in any of the cases specified in section 8,
the rent fixed by the court.”

The learned counsel for the petitioner submitted this
would show that the standard rent would be the rent at
which the premises had been let before 1st of October,
1987, which was Rs.1,600/- per annum payable half and
half to two landlords.

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23. The learned counsel for the respondent

submitted that in view of this definition, there would be no
occasion for fixation of standard rent and amounts paid as

on 1-10-1987 must be taken to be standard rent. There
can be no doubt that amounts paid as “rent” on 1-10-1987
would be standard rent, but as already discussed, this

would not include sum of Rs.550/- per annum claimed
towards taxes and service charges.

24. The learned counsel for the respondent-landlord

stated that even if it is accepted for a while that a sum of
Rs.550/- could not have been appropriated towards taxes

or service charges, it does not follow that the tenant is not
in arrears. He submitted that the provisions of Section 15
of the Maharashtra Rent Control Act, 1999 are very clear

and the only way whereby a tenant can avoid his
ejectment is to deposit the rent or permitted increases

due within a period of ninety days from service of a notice
of demand by the landlord or within a like period within

service of suit summons. He pointed out that summons in
this suit was served upon the petitioner soon after the suit
was filed and yet, till the appeal was filed, the tenant did
not deposit a single farthing. Relying on a chart of deposit

of rent by the petitioner himself, the learned counsel for
the respondent-landlord submitted that the first deposit of
Rs.15,890/- was made on 5-2-2005, when the petitioner
had filed his written statement before the Trial Court way
back on 23-9-2002.

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25. The learned counsel for the petitioner, however,

submitted that the question of having recourse to
sub-section (3) of Section 15 of the Maharashtra Rent

Control Act would arise only if the landlord is able to show
that the tenant was not ready or willing to pay the amount
of standard rent and permitted increases and to perform

the other conditions of tenancy. He further submitted that
even a suit could not have been filed unless the landlord
could show that there was non-payment of standard rent

or permitted increases due.

26.

Both the learned counsel placed reliance on a

number of judgments in support of their respective
contentions.

27. In Ujwalabai @ Meena Shantaram Apte since
married now Mrs. Swati Rahul Datay and others v.

Namdeo Dnyanoba Shingare, reported at 2001(4) Mh.L..J.
545, on which the learned counsel for the respondent

relied, the Court considered the applicability of Section
12(3)(a) and 12(3)(b) of the Bombay Rent Act and held
that the provisions of Section 12(3)(a) of the Act would be
attracted, if the tenant neither offered the demanded rent

nor raised any dispute within one month from the date of
receipt of suit notice. In Ramesh Ramgopal Daga v.
Vasant Baburao Khandare, reported in 2005(4) Mh.L.J.
292, a similar view has been taken.

28. In Chhaganlal Mulchand Jain v. Narayan

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Jagannath Bangh, reported at 1983 Mh.L.J. 254, cited by

the learned counsel for the respondent, it was held that in
a suit filed by the landlord for possession, the tenant was

not entitled to seek fixation of standard rent and that such
fixation of standard rent could be sought only by making
an application under Section 11 of the Bombay Rent Act.

The observations of the Court in para 6 of the judgment
may be usefully reproduced as under :

“6. This Court in the case of Jaypal Bandu

Adake and another v. Basavali Gurulingappa
Mhalank and another, has also considered this

question and the following Head Note makes the
position clear :–

“The only way to prevent a decree
for eviction being passed under the

provisions of section 12(3)(a) of the
Bombay Rents, Hotel and Lodging House

Rates Control Act is that the tenant must
make an application raising a dispute
regarding rent and must ask for fixation of
standard rent under section 11(3) of the

Bombay Rents, Hotel and Lodging House
Rates Control Act as required by
Explanation I to section 12. There is no
other mode permissible for raising a
dispute as to standard rent for the
purposes of section 12 of the Bombay Rent

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Act. By raising a dispute with regard to

standard rent by the tenant in a reply to
the demand notice before the expiry of

one month without making an application
under section 11(3) read with Explanation I
to section 12, the Court will not be

prevented from passing a decree for
eviction under the provisions of section
12(3)(a)…”

It is thus clear that whenever a Court has to
consider a case under section 12(3)(a) of the

Rent Act, the question of standard rent cannot
be gone into unless the tenant has made an
application for that purpose within one month

from the receipt of the notice.”

Again in para 12, the Court held that the tenant was not
entitled to raise any dispute in respect of standard rent in

the suit for recovery of possession and, therefore, there
could not have been any issue before the Trial Court or
the District Court about fixation of standard rent.

29. In Suka v. Ranchhoddas, reported at 1972 Mh.L.J.
477, while considering the provisions of Section 12 of the
Bombay Rents, Hotels and Lodging Houses Rates Control
Act, 1947 (for short, “the Bombay Rent Act”), a learned
Single Judge of this Court held in para 6 of the judgment
as under :

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“6. … In my view the landlord cannot take
advantage of his conduct in not accepting rent

sent by the tenant and then give a notice saying
that the tenant is in arrears of rent for more than
six months. The intention of the Legislature

when enacting the Rent Act could not have been
to protect the landlord who refused to accept
rent and after six months turn round to say that

the tenant is in arrears of rent for a period of six

months or more. In my view, therefore, the facts
and circumstances of the instant case show that

the petitioner-tenant was ready and willing to
pay rent. The facts also show that the tenant
was not in arrears of rent voluntarily.”

30. In Marutrao Bhaurao Shelke v. Akbarali Noorbhai

Bohori and others, reported at 1974 Mh.L.J. 239, on which
the learned counsel for the petitioner placed reliance, this

Court had considered what constitutes readiness and
willingness to pay the rent. In paras 13 and 14 of the
judgment, the Court held as under :

“13. Turning to the facts of the present
case, there can be no doubt that when the
tenant sent the cheque and letter, he had not
neglected to pay as stated in the provisions of
section 12(3)(a). He made an effort to pay and
avoid the application of that provision to the suit

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which may be instituted by the landlord. It can

never be said, in the facts and circumstances of
the present case, that notwithstanding the

sending of the cheque which covered the entire
dues and which was accompanied by a letter
explaining why the cheque was being sent, that

the tenant had neglected to make payment
within the meaning of section 12(3)(a).

Negligence is the breach of a duty caused by the

omission to do something which a reasonable

man, guided by those considerations which
ordinarily regulate the conduct of human affairs,

would do, or doing something which a prudent
and reasonable man would not do.”

“14. In the present case, the tenant cannot
be said to have neglected to pay the arrears of

rent to the landlord, when, within one month, he
sent by registered post a cover containing the

cheque to the landlord. He did what a
reasonable and prudent man with a Bank
account in these days would do. The landlord
could have accepted the cheque and after he

had accepted the same he could have cashed it
by presenting to the bank. There is nothing to
show that he could not have cashed the cheque
by presenting it to the bank. Just because the
landlord did not do what an ordinary reasonable
and prudent landlord who wanted to recover

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rent would do, it cannot be said that the tenant

neglected to make the payment of arrears of
rent within the meaning of section 12(3)(a). The

only inference that can be really drawn is that
the landlord refused it only with a view to
contend that section 12(3)(a) applied though the

tenant was ready and willing to accept rent, it
cannot be inferred that the tenant was not ready
and willing to pay rent or neglected to pay

arrears of rent. The two Courts below, therefore,

were patently in error in applying the provisions
of section 12(3)(a) to the present suit, even

though section 12(1) applied to the suit.”

31. The learned counsel for the petitioner submitted

that recourse to the provisions of Section 15(3) of the
Maharashtra Rent Control Act was thus not permissible.

32. The learned counsel for the petitioner submitted

that the requirement of Section 15 of the Maharashtra
Rent Control Act that the tenant should continue to pay or
tender in Court regularly such standard rent and
permitted increased till the suit is finally decided

corresponds to a similar provision in Section 12(3)(b) of
the Bombay Rent Act, which had been interpreted by the
Apex Court in Mohan Laxman Hede v. Noormohamed
Adam Shaikh, reported at AIR 1988 SC 1111. In that case,
the tenant had deposited the rent, but not exactly on the
due dates. The Court quoted from an earlier judgment in

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Mranalini B. Shah v. Bapalal Mohanlal Shah, reported at

AIR 1980 SC 954, where it was held as under :

“13. The above enunciation,
clarifies beyond doubt that the provisions of
clause (b) of Section 12(3) are mandatory, and

must be strictly complied with by the tenant
during the pendency of the suit or appeal if the
landlord’s claim for eviction on the ground of

default in payment of rent is to be defeated. The

word “regularly” in clause (b) of Section 12(3)
has a significance of its own. It enjoins a

payment or tender characterised by reasonable
punctuality, that is to say, one made at regular
times or intervals. The regularity contemplated

may not be a punctuality, of clock-like precision
and exactitude, but it must reasonably conform

with substantial proximity to the sequence of
times or intervals at which the rent falls due.

Thus, where the rent is payable by the month,
the tenant must, if he wants to avail of the
benefit of the latter part of clause (b), tender or
pay it every month as it falls due, or at his

discretion in advance. If he persistently defaults
during the pendency of the suit or appeal in
paying the rent, such as where he pays it at
irregular intervals of 2 or 3 or 4 months – as is
the case before us – the court has no discretion
to treat what were manifestly irregular

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payments, as substantial compliance with the

mandate of this clause, irrespective of the fact
that by the time the judgment was pronounced

all the arrears had been cleared by the tenant.”

The learned counsel for the petitioner submitted that since

in the present case the rent was payable annually and
since willingness of the tenant to pay the rent was already
manifest, the tenant would not incur ejectment under

Section 15(3) of the Maharashtra Rent Act.

33.

In Chase Bright Steel Limited v. Shantaram

Shankar Sawant and another, reported at 1995(1)
Bom.C.R. 561, the Supreme Court held that the tenant
was under an obligation to deposit even the permitted

increases not only during the pendency of application for
fixation of standard rent, but also during the pendency of

suit for eviction.

34. In Indubai Sidram Mundewadi and others v.
Sidramappa Baslingappa Kalyanshetti since deceased by
his heirs and LRs. and others, reported at
1998(1) Mh.L.J. 282, the question of irregularity in

payment of rent during the pendency of the lis had been
raised and after referring to the judgment of the Supreme
Court in Mranalini B. Shah v. Bapalal Mohanlal Shah,
reported at AIR 1980 SC 954, Mohan Laxman Hede v.
Noormohamed Adam Shaikh, reported at AIR 1988 SC
1111, and Shantabai Vishnumal v. Ganpat Ladha, reported

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at 1976 Mh.L.J. 332, the Court observed in para 4 as

under :

“4. … It has been held that in cases falling
under section 12(3)(b) of the Act the first
injunction is that the tenant is required to pay or

tender in Court on the first day of the hearing of
the suit the standard rent and the permitted
increased then due. What is required to be paid

is standard rent and not contractual rent.

Thereafter it is held that if the standard rent is
not fixed then it is necessary for the tenant to

adopt appropriate proceedings and get the
standard rent fixed either as interim or final.
Thus it is held that tenant cannot be heard to

say that he is entitled to claim protection under
section 12(3)(b) of the Rent Act without showing

that he had taken diligent steps to get the
standard rent or interim standard rent fixed.

Thereafter it is to be determined as to whether
the tenant has continued to pay or tender in
Court regularly such rent and permitted
increased till the suit is finally decided. …”

35. The learned counsel for the petitioner submitted
that these judgments could not be applied, as they are, to
the facts of the present case, as there is a difference in
the provisions pertaining to fixation of standard rent as
also ejectment under Sections 8 and 15 of the

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Maharashtra Rent Act and the provisions of Sections 11

and 12 of the Bombay Rent Act. He submitted that
Explanation (I) to Section 12 of the Bombay Rent Act

(extracted below) is conspicuously missing in Section 15
of the Maharashtra Rent Control Act.

” Explanation (I).–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.”

Absence of this “deeming” explanation in the Maharashtra

Rent Control Act would not help the tenant. Rather it
would make it imperative for him to pay the rent
demanded without demur in order to secure protection of
Section 15. However, since when a tenant raises a

dispute by filing appropriate proceedings for fixation of
standard rent, the mutual obligations would be governed
by orders of the Court and the payment as per such
orders would be enough.

36. What emerges from the several authorities on

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27

which the learned counsel for the parties have placed

reliance, is as under :

(i) The landlord is entitled to receive the rent,
which the tenant was paying on or before 1-10-1987
without demur.

(ii) If this amount is demanded, the tenant
cannot give any excuses, like his always being ready and
willing to pay. He has to comply with the demand.

(iii) If there is a dispute about the amount

would have to

which was being paid as rent on 1-10-1987, the tenant
raise the dispute by appropriate

proceedings for fixation of standard rent. But he would
have to pay at least the amount which in his computation
is due in order to show that he has paid or was ready and

willing to pay the rent as required under clause (1) of
Section 15 of the Maharashtra Rent Control Act.

(iv) If such demand is not complied and
proceedings for fixation of standard rent are not initiated,

and the landlord files a suit for ejectment, in order to seek
the protection of Section 15 of the Maharashtra Rent
Control Act, the tenant would have to comply with the
demand made in the plaint and would have to continue to

deposit and not just the amount, which, according to the
tenant, is due, but the rent due as per the landlord’s
demand from time to time awaiting adjudication of the
exact amount due. Since the protection provided by the
Rent Control Act places curbs on the right of the landlord
to recover possession under the ordinary law of landlord

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and tenant, the tenant must comply with all these

requirements in order to avoid a decree for ejectment.

37. The facts unfolded in this case are now required
to be examined in the light of the foregoing discussion.
The rent, which the tenant was paying, was only Rs.800/-

per annum and not Rs.1,350/- per annum. The landlord
would have been entitled to receive only the amount of
municipal taxes, which he actually paid and not Rs.350/-.

Likewise, the landlord was not entitled to receive Rs.200/-

rendered.

per month as service charges, since no services were
Thus, the tenant’s claim that he had been

paying Rs.550/- per annum, apart from the rent, would
have to be accepted and this amount would have to be
adjusted towards municipal taxes actually paid and the

rent in arrears. At the cost of repetition, it has to be
pointed out that the landlord has himself made it

abundantly clear that the amount of Rs.550/- is not a part
of the rent. Therefore, he was not entitled to claim that

amount as rent and allege that the tenant was in arrears
because of failure to pay that amount.

38. Even so, it is also the fact that the tenant has

failed and neglected to pay the rent demanded within
ninety days of the notice and has not raised any dispute
about the rent demanded. He has also not deposited the
rent claimed in the suit within ninety days of service of
suit summons. He has also not regularly deposited the
amount of rent and permitted increases during the

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29

pendency of the proceedings. One deposit at the

appellate stage would not be sufficient compliance to the
provisions of sub-section (3) of Section 15 of the

Maharashtra Rent Control Act.

39. The contention of the tenant that since the suit

itself could not have been filed because of his readiness
and willingness, he was not required to comply with the
provisions of sub-section (3) of Section 15 of the

Maharashtra Rent Control Act and, therefore, does not

incur ejectment, has to be rejected. At the cost of
repetition, it has to be stated that mere desire to pay the

rent is not enough. It must be translated into action. The
tenant, who is a businessman, could have furnished the
accounts of the amounts allegedly paid in advance at the

rate of Rs.550/- per annum, could have found out from the
Municipality as to what were the municipal taxes and

could have ascertained what was the amount which he
was still liable to pay, since it is not in dispute that from

1996 nothing has been paid by the tenant. The excuse
that because a suit filed against the landlord had been
decreed, it was the landlord’s burden to recover rent, has
to be rejected. The tenant was under an obligation to

comply with the demand, and in any case to explain as to
how, in his view, nothing was due or a lesser amount was
due, and to have paid that amount. Not having done so,
he loses the protection of the Rent Act and, therefore,
would be liable to be evicted on account of failure to
comply with the requirement of sub-section (3) of Section

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30

15 of the Maharashtra Rent Control Act. In this view of the

matter, the decree of ejectment passed by the Trial Court
and confirmed on appeal by the learned District Judge

cannot be disturbed.

40. The learned counsel for the respondent has also

raised a question of splitting of tenancy, since one godown
had been taken on rent by the tenant, which had been
partitioned into two parts owned by the two brothers.

Nitinkumar’s suit had been dismissed for possession of his

part of the godown and the present petition arises out of
the suit by the other brother Jagdishchandra.

41. The learned counsel for the petitioner relied on a
judgment in Habibunnisa Begum and others v. G.

Doraikannu Chettiar (Dead) by LRs. and others, reported
at (2000) 1 SCC 74, on the question of splitting of tenancy

where the Court observed in para 2 as under :

“2. The only question that arises in this case is
as to whether it was open to the High Court to
split the single tenancy by ordering partial
ejectment of the tenant from the premises let

out to him. In S. Sanyal v. Gian Chand it was
held that where a contract of tenancy was a
single indivisible contract and in the absence of
any statutory provision to that effect, it is not
open to the court to split the tenancy. Law,
therefore, is that where there is a single

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indivisible contract of tenancy, it cannot be split

by a court unless there is a statutory provision to
that effect. In the present case it is not disputed

that the contract of tenancy is a single indivisible
contract for Doors Nos.27 and 28. It is also not
disputed that there is no provision in the Tamil

Nadu Buildings (Lease and Rent Control) Act
empowering the court to order partial ejectment
of a tenant from the premises by splitting the

single indivisible tenancy. For these reasons it

was not open to the High Court to split the
tenancy and order for partial ejectment of the

tenant from the premises.”

42. In Sk. Sattar Sk. Mohd. Choudhari v. Gundappa

Ambadas Bukate, reported at 1997(2) Bom.C.R. 690, in
relation to Hyderabad Houses (Rent, Eviction and lease)

Control Act, 1954, the Court was considering the splitting
of tenancy and recorded facts of the case in para 2 as

under :

“2. Proceedings for eviction were initiated by
the appellant on the allegations that the shop

measuring 23′ x 19′ was originally owned by his
father Shaikh Mohd. Chaudhari who died on
12-3-1956 leaving behind the appellant and his
elder brother, Shaikh Jaffar, as also two other
brothers as his heirs who inherited his properties
including the aforesaid shop. Shaikh Jaffar being

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the eldest was managing the property,

particularly as the appellant was minor in 1964
when the shop was let out to the respondent

who paid rent to Shaikh Jaffar and continued to
pay it till 1974. In the meantime, there was a
partition among the brothers and a portion of

the shop measuring 23′ x 12 ½’ fell in the share
of the appellant who informed the respondent of
the above and required him to pay rent to him.

A similar information in writing was also given to
the

respondent by Shaikh Jaffar
respondent did not pay rent to the appellant and
but the

consequently, his tenancy was terminated by
notice dated 28-7-1976. This was followed by a
petition under section 15 of the Hyderabad

House (Rent, Eviction and Lease) Control Act,
1954 for the eviction of the respondent on the

ground of wilful default in payment of rent as
also for the personal need of the appellant who

wanted to run his cutlery business in the said
shop.”

The Court noted the provisions of Sections 36 and 37 of

the Transfer of Property Act, as also Section 119 thereof,
and observed in para 37 as under :

“37. In view of the above discussion, it is
obvious that the law with regard to the splitting
of tenancy is not what the High Court has set out

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in the impugned judgment. As pointed out

earlier, a co-sharer cannot initiate action for
eviction of the tenant from the portion of the

tenanted accommodation nor can he sue for his
part of the rent. The tenancy cannot be split up
either in estate or in rent or any other obligation

by unilateral act of one of the co-owners. If,
however, all the co-owners or the co-lessors
agree among themselves and split by partition

the demised property by metes and bounds and

come to have definite, positive and identifiable
shares in that property, they become separate

individual owners of each severed portion and
can deal with that portion as also the tenant
thereof as individual owner/lessor. The right of

joint lessors contemplated by section 109 comes
to be possessed by each of them separately and

independently. There is no right in the tenant to
prevent the joint owners or co-lessors from

partitioning the tenanted accommodation
among themselves. Whether the premises,
which is in occupation of a tenant, shall be
retained jointly by all the lessors or they would

partition it among themselves, is the exclusive
right of the lessors to which no objection can be
taken by the tenant, particularly where the
tenant knew from the very beginning that the
property was jointly owned by several persons
and that, even if he was being dealt with by only

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one of them on behalf of the whole body of the

lessors, he cannot object to the transfer of any
portion of the property in favour of a third

person by one of the owners or to the partition
of the property. It will, however, be open to the
tenant to show that the partition was not

bona fide and was a sham transaction to
overcome the rigours of Rent Control laws which
protected eviction of the tenants except on

specified grounds set out in the relevant
statute.”

43. The learned counsel for the petitioner submitted
that it may be seen from the above judgment that the
provision for splitting has to be found in the relevant

statute and since there is no such provision in the
Maharashtra Rent Control Act, the splitting was not

permissible. This contention has to be rejected, first,
because it is not shown that there is any dispute among

co-owners about partition. Secondly, the premises are
also physically split by a wall separating portions owned
by the two brothers. Lastly and most importantly, the
tenant has accepted the split and has been paying rent

separately to the two brothers.

44. In view of the foregoing, the petition is
dismissed. Parties to bear their own costs.

JUDGE.

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