{"id":17097,"date":"2009-08-21T00:00:00","date_gmt":"2009-08-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/girish-gangadhar-agrawal-vs-jagdishchandra-amrutlal-on-21-august-2009"},"modified":"2016-10-25T02:22:03","modified_gmt":"2016-10-24T20:52:03","slug":"girish-gangadhar-agrawal-vs-jagdishchandra-amrutlal-on-21-august-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/girish-gangadhar-agrawal-vs-jagdishchandra-amrutlal-on-21-august-2009","title":{"rendered":"Girish Gangadhar Agrawal vs Jagdishchandra Amrutlal … on 21 August, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Girish Gangadhar Agrawal vs Jagdishchandra Amrutlal … on 21 August, 2009<\/div>\n
Bench: R. C. Chavan<\/div>\n
                                     1\n\n    IN THE HIGH COURT OF JUDICATURE AT BOMBAY,\n                 NAGPUR BENCH, NAGPUR\n\n\n\n\n                                                                               \n                     Writ Petition No.2628 of 2007\n\n\n\n\n                                                       \n    Girish Gangadhar Agrawal,\n    Age 55 years,\n    Occupation Business,\n\n\n\n\n                                                      \n    R\/o Ratanlal Plot,\n    At, Post, Tq., Dist. Akola.                   ... Petitioner\/\n                                                  Ori.Deft.\/Tenant\n\n         Versus\n\n\n\n\n                                          \n    Jagdishchandra Amrutlal Wakhariya,\n                            \n    Age 52, Business,\n    R\/o Mangaldas Market, Akola,\n    Tq. and Dist. Akola.                          ... Respondent\/\n                           \n                                                  Ori.Plff.\/Landlord\n\n\n\n    Shri A.S. Chandurkar, Advocate for Petitioner.\n      \n\n    Shri M.G. Sarda, Advocate for Respondent.\n   \n\n\n\n                  CORAM : R.C. Chavan, J.\n<\/pre>\n
                  Reserved on : 31-7-2009
\n                  Pronounced on : Aug. 21st, 2009.\n<\/p>\n
    Judgment :\n<\/p>\n
    1.            This   petition   by   tenant   is   directed        against<\/p>\n
    concurrent findings by both the learned Civil Judge and
\n    District Judge in a Suit under the Rent Act, seeking his
\n    ejectment on the ground of default in payment of arrears
\n    of rent.\n<\/p>\n
    2.            Chequered history relevant for deciding this<\/p>\n
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\n                                 2<\/span><\/p>\n
    petition is as under :\n<\/p>\n
             The petitioner is a tenant in respect of a godown<\/p>\n
    originally owned by late Amrutlal, the father of the
\n    respondent and his brother Nitinkumar. He used to pay,
\n    since before 1-10-1987, in advance Rs.1,600\/- per annum<\/p>\n
    towards rent, plus, according to him, a further sum of Rs.
\n    1,100\/- per annum as advance rent. The respondent and
\n    his brother Nitinkumar became owners of the godown in a<\/p>\n
    partition prior to Amrutlal’s death.\n<\/p>\n
    3.<\/p>\n
             Thereafter, since 1996, the petitioner started<\/p>\n
    paying Rs.800\/- plus Rs.550\/- to each of the two brothers.
\n    There is no dispute that rent was so paid up to 1996 (i.e.
\n    for year 1995-1996 – from Diwali to Diwali). According to<\/p>\n
    the petitioner, the respondent and his brother did not
\n    come to receive rent in Diwali 1996, for the year<\/p>\n
    1996-1997.     He claims to have sent the rent to the
\n    respondent and his brother, who avoided to receive it.\n<\/p>\n
    The petitioner claims to have sent rent by cheques with
\n    notices dated 25-1-1997 and 11-4-1997, which notices
\n    were refused by the landlords. Hence, the petitioner filed
\n    Regular Civil Suit No.605 of 1997 for an injunction<\/p>\n
    directing the landlords to receive the rent. Though served
\n    with suit summons and represented by an Advocate, the
\n    landlords did not tender any evidence at trial, but cross-
\n    examined the petitioner.     The suit was decreed and the
\n    decree still stands.\n<\/p>\n
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\n                                  3<\/span><\/p>\n
    4.        On 1-8-2001, the respondent issued a notice<\/p>\n
    stating that the petitioner was monthly tenant at the rate
\n    of Rs.66.67 per month (equivalent to Rs.800\/- per annum)<\/p>\n
    and was in arrears of rent for 74 months (including rent
\n    for “adhikmas”, a thirteenth month in Hindu almanac), as
\n    also municipal taxes at the rate of Rs.350\/- per annum and<\/p>\n
    services charges at the rate of Rs.200\/- per annum. The
\n    petitioner replied on 10-10-2001 denying these claims.\n<\/p>\n
    5.        The respondent filed Regular Civil Suit No.571 of<\/p>\n
    2001 seeking petitioner’s ejectment under Section 16 of
\n    the Maharashtra Rent Control Act on the grounds of<\/p>\n
    bona fide need, non-user, allowing others to use the
\n    godown, unauthorised alterations by creating a door in the
\n    wall separating two parts of godown and default in<\/p>\n
    payment of rent in arrears, taxes and permitted increases,
\n    amounting to Rs.12,127.73, inclusive of interest at the<\/p>\n
    rate of 18 per cent per annum till filing of suit.\n<\/p>\n
    6.        The petitioner contested the suit by filing a
\n    written statement. The learned Trial Judge framed issues
\n    and after considering the evidence tendered, decreed the
\n    suit by judgment dated 28-10-2004. Regular Civil Suit No.<\/p>\n
    3 of 2002 by respondent’s brother Nitinkumar for similar
\n    reliefs in respect of his half of the godown had, however,
\n    been dismissed on 15-12-2003.        The petitioner’s appeal,
\n    bearing   Regular   Civil   Appeal   No.162    of    2004,        was
\n    dismissed by the learned District Judge by judgment dated
\n    29-10-2005.    The petitioner filed Writ Petition No.369 of<\/p>\n
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\n                                     4<\/span><\/p>\n
    2006,   wherein,    by    judgment         dated        18-9-2006,           the<\/p>\n
    appellate judgment was set aside and the matter was
\n    remanded for a fresh hearing. The petitioner applied for<\/p>\n
    amendment of written statement and memo of appeal by
\n    application   Exhibit 26 before            the    District        Judge       on
\n    31-1-2007. This application was rejected by the learned<\/p>\n
    District Judge by order dated 14-3-2007.                      The learned
\n    District Judge held that the respondent had not proved his
\n    bona fide need, or non-user, or material alterations by the<\/p>\n
    petitioner, and set aside these findings of the Trial Court,<\/p>\n
    but upheld the decree of ejectment on the ground of
\n    default in payment of rent by the impugned judgment<\/p>\n
    dated 27-4-2007.       Aggrieved thereby, the petitioner has
\n    filed this petition.       The petitioner also applied on
\n    13-8-2007 vide Civil Application No.5739 of 2007 for<\/p>\n
    amendment      to   petition        to   refer   to     certain       notices
\n    exchanged between the parties.                    The petition was<\/p>\n
    admitted on 4-3-2008.\n<\/p>\n
    7.       I have heard both the learned counsel for the
\n    petitioner and the respondent.\n<\/p>\n
    8.       The learned counsel for the petitioner pointed<\/p>\n
    out that there is no dispute that rent up to Diwali of 1996
\n    had been paid to the landlord.             Thereafter, the landlord
\n    stopped receiving rent. Hence, the petitioner filed a suit
\n    bearing Regular Civil Suit No.605 of 1997 against the
\n    respondent-landlord      Jagdishchandra           and         his     brother
\n    Nitinkumar.     This     suit   was       decreed        on     14-2-1998.\n<\/p>\n
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\n                                 5<\/span><\/p>\n
    Landlord Jagdishchandra and his brother Nitinkumar were<\/p>\n
    directed to accept rent at the rate of Rs.1,600\/- per annum
\n    and also to submit accounts to the plaintiff.          They were<\/p>\n
    also directed to communicate their account numbers to
\n    enable the tenant to deposit the rent in such accounts.
\n    The landlord applied for        setting   aside this        decree,<\/p>\n
    branding it as ex parte decree.        However, his attempt
\n    failed.   He did not file any appeal against this decree.
\n    Therefore, this decree is binding on the landlord.                The<\/p>\n
    learned counsel for the petitioner submitted that in the<\/p>\n
    face of this decree, the landlord’s plea that the petitioner-
\n    tenant was in arrears of rent will have to be rejected, since<\/p>\n
    this decree would show that the petitioner had been
\n    always ready and willing to pay rent and in fact he had
\n    filed the said suit in order to deposit the rent.\n<\/p>\n
    9.        The learned counsel for the petitioner drew my<\/p>\n
    attention to the fact that there was a decree in Regular
\n    Civil Suit No.605 of 1997 mandating the landlord to<\/p>\n
    provide account number to enable the tenant to deposit
\n    the rent. He submitted that the contention of the learned
\n    counsel for the landlord that the decree did not operate
\n    res judicata, as has been held by the Courts below, was<\/p>\n
    erroneous, since the decree could not be termed as ex
\n    parate decree. In any case, it is a decree, which is still
\n    valid and binds the parties and, therefore, would govern
\n    the relations of the parties. For this purpose, he relied on
\n    a judgment of the Supreme Court in Saroja v. Chinnusamy
\n    (Dead)<\/a> by L.Rs. and another, reported at 2007(10) Scale<\/p>\n
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\n                                6<\/span><\/p>\n
    331. It may be appropriate to quote for ready reference<\/p>\n
    the observations of the Court in paras 8 and 9 of the
\n    judgment as under :\n<\/p>\n
             “8.   The learned counsel for the appellant
\n             argued that the ex parte decree passed in the<\/p>\n
             former suit could not operate as res judicata
\n             because in order to constitute res judicata within
\n             the meaning of Section 11 of the CPC, the<\/p>\n
             conditions as noted herein earlier have to be<\/p>\n
             satisfied, which on the admitted facts of this
\n             case, were not satisfied. … So far as the<\/p>\n
             conditions namely (i), (ii) and (iii) are concerned,
\n             no dispute can be raised or was raised by the
\n             parties before us as the said conditions have<\/p>\n
             been fully satisfied in the facts of this case.”<\/p>\n
             “9.   Let us, therefore, deal with Condition No.\n<\/p><\/blockquote>\n
             (iv) first which says, “the matter directly and<\/p>\n
             substantially in issue in the subsequent suit
\n             must have been heard and finally decided by the
\n             Court in the former suit. Learned counsel for the
\n             appellant sought to argue that since the former<\/p>\n
             suit was decided ex parte, it       could        not be
\n             said that it was finally heard and decided by the
\n             Court and, therefore, Condition (iv) was not
\n             satisfied and the principle of res judicata could
\n             not be applied and accordingly the ex parte
\n             decree in the former suit would not operate as<\/p>\n
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\n                               7<\/span><\/p>\n
             res judicata in the subsequent suit.           We are<\/p>\n
             unable to agree with this contention of the
\n             learned counsel for the appellant. In this case,<\/p>\n
             admittedly, summons was duly served upon
\n             Kuppusamy and inspite of such service of
\n             summons, Kuppusamy thought it fit not to<\/p>\n
             appear or to contest the suit filed against him.
\n             Once an ex parte decree is passed against
\n             Kuppusamy, in our view, the same should be<\/p>\n
             taken as a final decision after hearing. It is well<\/p>\n
             settled that an ex parte decree is binding as a
\n             decree passed after contest on the person<\/p>\n
             against whom such an ex parte decree has been
\n             passed. It is equally well settled that an ex parte
\n             decree would be so treated unless the party<\/p>\n
             challenging the ex parte decree satisfies the
\n             court that such an ex parte decree has been<\/p>\n
             obtained by fraud. Such being the position, we
\n             are unable to hold that Condition No.(iv) was not<\/p>\n
             satisfied and accordingly it cannot be held that
\n             the principle of res judicata would not apply in
\n             the   present   case.    In   the   present        case,
\n             admittedly, the appellant in her plaint had not<\/p>\n
             made any case of fraud or collusion either
\n             against Kuppusamy or against the respondents
\n             herein. …”\n<\/p><\/blockquote>\n
    10.     Though the learned counsel for the respondent-
\n    landlord could not show as to how decree in Regular Civil<\/p>\n
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\n                                8<\/span><\/p>\n
    Suit No.605 of 1997 does not bind the landlord, he<\/p>\n
    submitted that mere willingness to pay the rent would not
\n    be sufficient. It would be necessary for the tenant to show<\/p>\n
    that arrears were cleared upon demand by notice dated
\n    1-8-2001, and the tenant has not done so. He submitted
\n    that in the face of the admission that the rent after 1996<\/p>\n
    had not been paid, the tenant was under an obligation to
\n    clear it within the stipulated period upon receipt of notice
\n    dated 1-8-2001, rather than send a reply to it.\n<\/p>\n
    11.<\/p>\n
             I have considered these contentions. Though the
\n    tenant must be held to have been ready to pay the rent as<\/p>\n
    evidenced by his filing a suit for an injunction, this desire
\n    was not translated into action by tendering a cheque for
\n    such amounts, as the tenant found to be due along with<\/p>\n
    reply to notice dated 1-8-2001. Therefore, the contention
\n    of the petitioner that there was no cause of action to file<\/p>\n
    suit for ejectment on the ground of arrears of rent has to
\n    be rejected.\n<\/p>\n
    12.      The learned counsel for the petitioner next
\n    submitted that the tenant was, in fact, not at all in arrears
\n    of rent, as the landlord had been receiving Rs.550\/- per<\/p>\n
    month towards advance rent.       This was required to be
\n    adjusted towards rent allegedly in arrears.\n<\/p>\n
    13.      The    learned   counsel    for   the       respondent
\n    submitted that Rs.550\/- was not advance rent, as alleged
\n    by the petitioner. He pointed out that in the notice<\/p>\n
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\n                                9<\/span><\/p>\n
    dated 1-8-2001, in para 1, it had been specifically stated<\/p>\n
    that separate receipt for Rs.550\/- was issued to the
\n    tenant, which included municipal taxes and service<\/p>\n
    charges. Therefore, there was no question of giving any
\n    account, since no advance rent was ever paid.\n<\/p>\n
    14.      The   learned    counsel    for   the       respondent
\n    submitted that there is no finding in the judgment in
\n    Regular Civil Suit No.605 of 1997 that a sum of Rs.550\/-\n<\/p>\n
    being recovered by the landlord was advance rent.\n<\/p>\n
    According to him, Rs.550\/- was also a component of rent
\n    and relied on a number of receipts, which had been<\/p>\n
    produced before the Trial Court. He pointed out that the
\n    tenant was paying Rs.800\/- plus Rs.550\/-, i.e. Rs.1,350\/- to
\n    each of the two landlords and each of them used to issue<\/p>\n
    two separate receipts for Rs.800\/- as well as two receipts
\n    for Rs.550\/-. This was the arrangement at the instance of<\/p>\n
    the tenant himself, possibly because the tenant wanted to
\n    reduce burden of taxes on him. Such receipts have been<\/p>\n
    filed and they do show that on the same day, in the same
\n    format the same landlord had issued separate receipts for
\n    Rs.800\/- and Rs.550\/- for the same tenement and for the
\n    same period.\n<\/p>\n
    15.      The learned counsel for the petitioner submitted
\n    that there is no question of paying Rs.550\/- per month
\n    towards taxes or service charges, since no service was
\n    ever rendered by the landlord.      The premises taken on
\n    rent were a godown and hence there could be no question<\/p>\n
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\n                                   10<\/span><\/p>\n
    of any services for which the tenant was required to make<\/p>\n
    a payment.     He further submitted that the landlord was
\n    entitled only to reimbursement of the amounts paid by<\/p>\n
    him towards taxes and not to any arbitrary sums towards
\n    taxes. Therefore, unless the landlord could show that the
\n    sum of Rs.350\/-, which he claimed to have been received<\/p>\n
    towards taxes, was in fact paid to the Municipal Council,
\n    such adjustment was not permissible and, therefore, the
\n    landlord was obliged to render accounts of the amounts<\/p>\n
    received by him. According to the learned counsel, if such<\/p>\n
    accounts are taken, it would be clear that the tenant was
\n    not at all in arrears of rent.\n<\/p>\n
    16.       The learned counsel for the petitioner relied on a
\n    judgment of this Court in Madhavsingh Tulsidas since<\/p>\n
    deceased through LRs. Uday Madhavsingh Palicha and
\n    another v. Bhaktiben Narandas Paleja since deceased<\/p>\n
    through    LRs.   Jawahar     Narandas      Paleja    and        others,
\n    reported at 2006(6) Mh.L.J. 353, where the question was of<\/p>\n
    inclusion of education cess in the rent.          The Court had
\n    quoted from an earlier judgment of this Court in Vaman v.
\n    Rajaram    (Special   Civil   Application    No.2418        of     1971
\n    decided on 26-2-1976) as under :\n<\/p>\n
              “In a suit where the landlord wants to claim
\n              possession on the ground that the tenant is a
\n              defaulter because he has not paid the amount of
\n              education cess, which are permitted increases, it
\n              will be therefore obligatory on the plaintiff-\n<\/p><\/blockquote>\n
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\n                                   11<\/span><\/p>\n
              landlord as specifically plead and prove the fact<\/p>\n
              of such payment of education cess to the
\n              municipal authorities. Indeed from the provisions<\/p>\n
              of section 13(1) it is clear that there is no cause
\n              of action for claiming reimbursement from the
\n              tenant until the lessor has paid the amount of<\/p>\n
              education cess in respect of which he wants to
\n              make a claim against the defendant.”\n<\/p><\/blockquote>\n
    17.       In Dr. Rajesh s\/o Niranjan Singhania v. Surajmal
\n    s\/o   Karnidanji<\/p>\n
                       Dhadiwal    (since   deceased
\n    reported at 2009(3) ALL MR 696, on which the learned
\n                                                           thr.     LRs.),<\/p>\n
    counsel for the respondent relied, a learned Single Judge
\n    of this Court had held that rent for the purpose of Section
\n    15 of the Maharashtra Rent Control Act would include not<\/p>\n
    only the rent, but also payments, which are meant for
\n    amenities provided by the landlord under the agreement<\/p>\n
    between the landlord and tenant. In that case, the rent of
\n    Rs.8,000\/-   per   month      was   broken     up     into      three<\/p>\n
    components – Rs.3,000\/- for use and occupation of the
\n    premises; Rs.2,500\/- for the facility of well and Corporation
\n    water; and Rs.2,500\/- as service charges for fittings and
\n    fixtures. Therefore, according to the learned counsel for<\/p>\n
    the respondent, unless not only Rs.800\/- per annum, but
\n    also Rs.550\/- per annum is paid regularly, the tenant
\n    would be liable to be evicted.\n<\/p>\n
    18.       I have carefully considered the rival contentions.
\n    The landlord has not tendered any evidence to show what<\/p>\n
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\n                                        12<\/span><\/p>\n
    was the tax which he paid.                    His cross-examination at<\/p>\n
    Exhibit 21 of the record of the Trial Court would show that
\n    he did not know what was the municipal tax, though he<\/p>\n
    admitted that the receipts were with him.                     Therefore, in
\n    the absence of evidence to show that he had paid Rs.350\/-
\n    per annum towards taxes, he was not entitled to seek<\/p>\n
    reimbursement of this amount. Also, as no services were
\n    ever rendered, the landlord was not entitled to adjust any
\n    amount towards service charges.\n<\/p>\n
    19.<\/p>\n
               Judgment in Rajesh v. Surajmal<\/a> may not be of
\n    any help to the landlord, since in that case rent of Rs.\n<\/p>\n
    8,000\/- was split up in three components, which did not
\n    include taxes. The two components, apart from rent for
\n    premises, were service charges for fittings and fixtures<\/p>\n
    and charges for water.             Without showing what services
\n    were rendered for a godown, service charges at the rate<\/p>\n
    of Rs.200\/- per month could not have been recovered and
\n    taxes could not exceed those actually paid.\n<\/p>\n
    20.        The     learned     counsel           for    the      respondent
\n    submitted    that    Rs.1,600\/-          (divided      by   two      for     two
\n    landlords) per annum could not have been taken as<\/p>\n
    standard    rent    and      for        the   purpose       of    computing
\n    payment of standard rent, the entire amount, which the
\n    tenant was paying before 1st of October, 1987, would have
\n    to be considered. The learned counsel for the respondent
\n    submitted that once it is held that the tenant was paying
\n    Rs.800\/- plus Rs.550\/- per annum, it would have to be held<\/p>\n
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\n                               13<\/span><\/p>\n
    that the rent, which was recoverable by the landlord, was<\/p>\n
    Rs.1,350\/- per annum and it would be impermissible for
\n    the tenant in a suit for ejectment to claim fixation of any<\/p>\n
    different amount as standard rent. For this purpose, he
\n    placed reliance on a judgment of this Court in Filmistan
\n    Pvt. Ltd. v. Municipal Commissioner Greater Bombay,<\/a><\/p>\n
    reported at 1972 Mh.L.J. 896.       That was a case where
\n    question of fixation of rateable value by the municipal
\n    authorities for the purpose of taxation had been raised. It<\/p>\n
    was observed in para 23 of the judgment that the rent,<\/p>\n
    which is agreed, would cease to be the standard rent only
\n    when an application is made for fixation of standard rent<\/p>\n
    under the provisions of Section 11 of the Bombay Rent
\n    Act. Since such are not the facts in the present case, this
\n    contention has to be rejected, as the landlord himself split<\/p>\n
    up    the   amount,   which    he   was   receiving        in    two
\n    components : Rs.66.67 per month (=Rs.800\/- per annum)<\/p>\n
    as rent, and Rs.200\/- per annum as service charges and
\n    Rs.350\/- per annum towards taxes. Now he cannot turn<\/p>\n
    around and claim that Rs.1,350\/- per annum was the rent.\n<\/p>\n
    21.         As to the claim that rent was Rs.66.67 per
\n    month, the learned counsel for the petitioner submitted<\/p>\n
    that landlord Jagdishchandra’s brother Nitinkumar had
\n    filed Regular Civil Suit No.3 of 2002 seeking relief of
\n    eviction of the petitioner. In that suit, he had set up the
\n    case that the rent of the premises was Rs.66.67 per
\n    month.      In that suit, the tenant had filed a written
\n    statement contesting the claim of the landlord’s brother.\n<\/p>\n
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\n                               14<\/span><\/p>\n
    That suit was dismissed by judgment dated 15-2-2003,<\/p>\n
    where it was held that the landlord had failed to prove
\n    that the petitioner was a monthly tenant at the rate of Rs.\n<\/p>\n
    66.67 per month. No appeal has been preferred against
\n    that judgment.      Therefore, according to the learned
\n    counsel for the petitioner, the plea that rent of the<\/p>\n
    premises was Rs.66.67 per month payable to the landlord
\n    in the present case, as well as his brother, who was the
\n    plaintiff in Regular Civil Suit No.3 of 2002 cannot be<\/p>\n
    entertained.   He rightly pointed out that the tenant had<\/p>\n
    taken the entire godown on rent and upon partition
\n    between the respondent herein and Nitinkumar, had been<\/p>\n
    paying them      separately at the rate of Rs.800\/- per
\n    annum.   Therefore, there would be no question of any
\n    monthly rent being recoverable by the respondent.\n<\/p>\n
    22.      Sub-section (14) of Section 7 of the Maharashtra<\/p>\n
    Rent Control Act defines “standard rent” as under :\n<\/p>\n
             ” “standard rent”, in relation to any premises
\n             means,–\n<\/p><\/blockquote>\n
             (a)    where the standard rent is fixed by the
\n             Court or, as the case may be, the Controller<\/p>\n
             under the Bombay Rent Restriction Act, 1939, or
\n             the Bombay Rents, Hotel Rates and Lodging
\n             House Rates (Control) Act, 1944 or the Bombay
\n             Rents, Hotel and Lodging House Rates Control
\n             Act, 1947, or the Central Provinces and Berar
\n             Letting of Houses and Rent Control Order, 1949<\/p>\n
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\n                                  15<\/span><\/p>\n
              issued under the Central Provinces and Berar<\/p>\n
              Regulation of Letting of Accommodation Act,
\n              1946, or the Hyderabad Houses (Rent, Eviction<\/p>\n
              and Lease) Control Act, 1954, such rent plus an
\n              increase of 5 per cent, in the rent so fixed; or<\/p>\n<\/blockquote>\n
              (b)   where the standard rent or fair rent is not
\n              so fixed, then subject to the provisions of
\n              sections 6 and 8.–\n<\/p><\/blockquote>\n
                    (i)<\/p>\n
                             the rent at which the premises were
\n                    let on the 1st day of October 1987; or<\/p>\n<\/blockquote>\n
                    (ii)     where the premises were not let on
\n                    the 1st day of October 1987, or the rent at
\n                    which they were last let before that day,<\/p>\n
                    plus an increase of 5 per cent, in the rent
\n                    of the premises let before the 1st day of<\/p>\n
                    October, 1987, or<\/p>\n<\/blockquote>\n
              (c)   in any of the cases specified in section 8,
\n              the rent fixed by the court.”\n<\/p><\/blockquote>\n
    The learned counsel for the petitioner submitted this
\n    would show that the standard rent would be the rent at
\n    which the premises had been let before 1st of October,
\n    1987, which was Rs.1,600\/- per annum payable half and
\n    half to two landlords.\n<\/p><\/blockquote>\n
                                               ::: Downloaded on – 09\/06\/2013 14:55:53 :::<\/span>
\n                                16<\/span><\/p>\n
    23.      The    learned   counsel    for   the       respondent<\/p>\n
    submitted that in view of this definition, there would be no
\n    occasion for fixation of standard rent and amounts paid as<\/p>\n
    on 1-10-1987 must be taken to be standard rent. There
\n    can be no doubt that amounts paid as “rent” on 1-10-1987
\n    would be standard rent, but as already discussed, this<\/p>\n
    would not include sum of Rs.550\/- per annum claimed
\n    towards taxes and service charges.\n<\/p>\n
    24.      The learned counsel for the respondent-landlord<\/p>\n
    stated that even if it is accepted for a while that a sum of
\n    Rs.550\/- could not have been appropriated towards taxes<\/p>\n
    or service charges, it does not follow that the tenant is not
\n    in arrears. He submitted that the provisions of Section 15
\n    of the Maharashtra Rent Control Act, 1999 are very clear<\/p>\n
    and the only way whereby a tenant can avoid his
\n    ejectment is to deposit the rent or permitted increases<\/p>\n
    due within a period of ninety days from service of a notice
\n    of demand by the landlord or within a like period within<\/p>\n
    service of suit summons. He pointed out that summons in
\n    this suit was served upon the petitioner soon after the suit
\n    was filed and yet, till the appeal was filed, the tenant did
\n    not deposit a single farthing. Relying on a chart of deposit<\/p>\n
    of rent by the petitioner himself, the learned counsel for
\n    the respondent-landlord submitted that the first deposit of
\n    Rs.15,890\/- was made on 5-2-2005, when the petitioner
\n    had filed his written statement before the Trial Court way
\n    back on 23-9-2002.\n<\/p>\n
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\n                                 17<\/span><\/p>\n
    25.      The learned counsel for the petitioner, however,<\/p>\n
    submitted that the question of having recourse to
\n    sub-section (3) of Section 15 of the Maharashtra Rent<\/p>\n
    Control Act would arise only if the landlord is able to show
\n    that the tenant was not ready or willing to pay the amount
\n    of standard rent and permitted increases and to perform<\/p>\n
    the other conditions of tenancy. He further submitted that
\n    even a suit could not have been filed unless the landlord
\n    could show that there was non-payment of standard rent<\/p>\n
    or permitted increases due.\n<\/p>\n
    26.<\/p>\n
             Both the learned counsel placed reliance on a<\/p>\n
    number of judgments in support of their respective
\n    contentions.\n<\/p>\n
    27.      In Ujwalabai @ Meena Shantaram Apte since
\n    married now Mrs. Swati Rahul Datay and others v.\n<\/p>\n
    Namdeo Dnyanoba Shingare, reported at 2001(4) Mh.L..J.
\n    545, on which the learned counsel for the respondent<\/p>\n
    relied, the Court considered the applicability of Section
\n    12(3)(a) and 12(3)(b) of the Bombay Rent Act and held
\n    that the provisions of Section 12(3)(a) of the Act would be
\n    attracted, if the tenant neither offered the demanded rent<\/p>\n
    nor raised any dispute within one month from the date of
\n    receipt of suit notice.     In Ramesh Ramgopal Daga v.
\n    Vasant Baburao Khandare,<\/a> reported in 2005(4) Mh.L.J.
\n    292, a similar view has been taken.\n<\/p>\n
    28.      In    Chhaganlal    Mulchand   Jain     v.     Narayan<\/a><\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 14:55:53 :::<\/span>
\n                                   18<\/span><\/p>\n
    Jagannath Bangh, reported at 1983 Mh.L.J. 254, cited by<\/p>\n
    the learned counsel for the respondent, it was held that in
\n    a suit filed by the landlord for possession, the tenant was<\/p>\n
    not entitled to seek fixation of standard rent and that such
\n    fixation of standard rent could be sought only by making
\n    an application under Section 11 of the Bombay Rent Act.\n<\/p>\n
    The observations of the Court in para 6 of the judgment
\n    may be usefully reproduced as under :\n<\/p>\n
             “6.   This Court in the case of Jaypal Bandu<\/p>\n
             Adake and another v. Basavali Gurulingappa
\n             Mhalank and another, has also considered this<\/p>\n
             question and the following Head Note makes the
\n             position clear :–\n<\/p><\/blockquote>\n
                           “The only way to prevent a decree
\n                   for   eviction       being       passed       under       the<\/p>\n
                   provisions      of       section    12(3)(a)        of    the
\n                   Bombay Rents, Hotel and Lodging House<\/p>\n
                   Rates Control Act is that the tenant must
\n                   make an application raising a dispute
\n                   regarding rent and must ask for fixation of
\n                   standard rent under section 11(3) of the<\/p>\n
                   Bombay Rents, Hotel and Lodging House
\n                   Rates     Control          Act     as     required          by
\n                   Explanation I to section 12.                  There is no
\n                   other     mode       permissible        for     raising       a
\n                   dispute    as       to    standard       rent      for    the
\n                   purposes of section 12 of the Bombay Rent<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 14:55:53 :::<\/span>
\n                                19<\/span><\/p>\n
                   Act.   By raising a dispute with regard to<\/p>\n
                   standard rent by the tenant in a reply to
\n                   the demand notice before the expiry of<\/p>\n
                   one month without making an application
\n                   under section 11(3) read with Explanation I
\n                   to section 12, the Court will not be<\/p>\n
                   prevented      from   passing     a    decree        for
\n                   eviction under the provisions of section
\n                   12(3)(a)…”\n<\/p><\/blockquote>\n<\/blockquote>\n
              It is thus clear that whenever a Court has to
\n              consider a case under section 12(3)(a) of the<\/p>\n
              Rent Act, the question of standard rent cannot
\n              be gone into unless the tenant has made an
\n              application for that purpose within one month<\/p>\n
              from the receipt of the notice.”\n<\/p><\/blockquote>\n
    Again in para 12, the Court held that the tenant was not
\n    entitled to raise any dispute in respect of standard rent in<\/p>\n
    the suit for recovery of possession and, therefore, there
\n    could not have been any issue before the Trial Court or
\n    the District Court about fixation of standard rent.\n<\/p>\n
    29.      In Suka v. Ranchhoddas, reported at 1972 Mh.L.J.
\n    477, while considering the provisions of Section 12 of the
\n    Bombay Rents, Hotels and Lodging Houses Rates Control
\n    Act, 1947 (for short, “the Bombay Rent Act”), a learned
\n    Single Judge of this Court held in para 6 of the judgment
\n    as under :\n<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:55:53 :::<\/span>
\n                                20<\/span><\/p>\n
             “6.      … In my view the landlord cannot take
\n             advantage of his conduct in not accepting rent<\/p>\n
             sent by the tenant and then give a notice saying
\n             that the tenant is in arrears of rent for more than
\n             six months.     The intention of the Legislature<\/p>\n
             when enacting the Rent Act could not have been
\n             to protect the landlord who refused to accept
\n             rent and after six months turn round to say that<\/p>\n
             the tenant is in arrears of rent for a period of six<\/p>\n
             months or more. In my view, therefore, the facts
\n             and circumstances of the instant case show that<\/p>\n
             the petitioner-tenant was ready and willing to
\n             pay rent.    The facts also show that the tenant
\n             was not in arrears of rent voluntarily.”\n<\/p><\/blockquote>\n
    30.      In Marutrao Bhaurao Shelke v. Akbarali Noorbhai<\/p>\n
    Bohori and others<\/a>, reported at 1974 Mh.L.J. 239, on which
\n    the learned counsel for the petitioner placed reliance, this<\/p>\n
    Court had considered what constitutes readiness and
\n    willingness to pay the rent.    In paras 13 and 14 of the
\n    judgment, the Court held as under :\n<\/p>\n
             “13.        Turning to the facts of the present
\n             case, there can be no doubt that when the
\n             tenant sent the cheque and letter, he had not
\n             neglected to pay as stated in the provisions of
\n             section 12(3)(a). He made an effort to pay and
\n             avoid the application of that provision to the suit<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 14:55:53 :::<\/span>
\n                           21<\/span><\/p>\n
     which may be instituted by the landlord. It can<\/p>\n
     never be said, in the facts and circumstances of
\n     the present case, that notwithstanding the<\/p>\n
     sending of the cheque which covered the entire
\n     dues and which was accompanied by a letter
\n     explaining why the cheque was being sent, that<\/p>\n
     the tenant had neglected to make payment
\n     within   the    meaning      of   section        12(3)(a).\n<\/p><\/blockquote>\n
     Negligence is the breach of a duty caused by the<\/p>\n
     omission to do something which a reasonable<\/p>\n
     man, guided by those considerations which
\n     ordinarily regulate the conduct of human affairs,<\/p>\n
     would do, or doing something which a prudent
\n     and reasonable man would not do.”\n<\/p>\n
     “14.     In the present case, the tenant cannot
\n     be said to have neglected to pay the arrears of<\/p>\n
     rent to the landlord, when, within one month, he
\n     sent by registered post a cover containing the<\/p>\n
     cheque   to    the    landlord.   He     did      what       a
\n     reasonable and prudent man with a Bank
\n     account in these days would do.           The landlord
\n     could have accepted the cheque and after he<\/p>\n
     had accepted the same he could have cashed it
\n     by presenting to the bank. There is nothing to
\n     show that he could not have cashed the cheque
\n     by presenting it to the bank. Just because the
\n     landlord did not do what an ordinary reasonable
\n     and prudent landlord who wanted to recover<\/p>\n
                                        ::: Downloaded on – 09\/06\/2013 14:55:53 :::<\/span>
\n                                      22<\/span><\/p>\n
              rent would do, it cannot be said that the tenant<\/p>\n
              neglected to make the payment of arrears of
\n              rent within the meaning of section 12(3)(a). The<\/p>\n
              only inference that can be really drawn is that
\n              the landlord refused it only with a view to
\n              contend that section 12(3)(a) applied though the<\/p>\n
              tenant was ready and willing to accept rent, it
\n              cannot be inferred that the tenant was not ready
\n              and willing to pay rent or neglected to pay<\/p>\n
              arrears of rent. The two Courts below, therefore,<\/p>\n
              were patently in error in applying the provisions
\n              of section 12(3)(a) to the present suit, even<\/p>\n
              though section 12(1) applied to the suit.”\n<\/p>\n
    31.      The learned counsel for the petitioner submitted<\/p>\n
    that recourse to the provisions of Section 15(3) of the
\n    Maharashtra Rent Control Act was thus not permissible.\n<\/p>\n
    32.      The learned counsel for the petitioner submitted<\/p>\n
    that the requirement of Section 15 of the Maharashtra
\n    Rent Control Act that the tenant should continue to pay or
\n    tender   in   Court   regularly       such     standard          rent      and
\n    permitted     increased   till    the   suit    is     finally      decided<\/p>\n
    corresponds to a similar provision in Section 12(3)(b) of
\n    the Bombay Rent Act, which had been interpreted by the
\n    Apex Court in Mohan Laxman Hede v. Noormohamed
\n    Adam Shaikh,<\/a> reported at AIR 1988 SC 1111. In that case,
\n    the tenant had deposited the rent, but not exactly on the
\n    due dates. The Court quoted from an earlier judgment in<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 14:55:53 :::<\/span>
\n                               23<\/span><\/p>\n
    Mranalini B. Shah v. Bapalal Mohanlal Shah,<\/a> reported at<\/p>\n
    AIR 1980 SC 954, where it was held as under :\n<\/p>\n
                      “13.         The    above       enunciation,
\n             clarifies beyond doubt that the provisions of
\n             clause (b) of Section 12(3) are mandatory, and<\/p>\n
             must be strictly complied with by the tenant
\n             during the pendency of the suit or appeal if the
\n             landlord’s claim for eviction on the ground of<\/p>\n
             default in payment of rent is to be defeated. The<\/p>\n
             word “regularly” in clause (b) of Section 12(3)
\n             has a significance of its own.          It enjoins a<\/p>\n
             payment or tender characterised by reasonable
\n             punctuality, that is to say, one made at regular
\n             times or intervals. The regularity contemplated<\/p>\n
             may not be a punctuality, of clock-like precision
\n             and exactitude, but it must reasonably conform<\/p>\n
             with substantial proximity to the sequence of
\n             times or intervals at which the rent falls due.\n<\/p>\n
             Thus, where the rent is payable by the month,
\n             the tenant must, if he wants to avail of the
\n             benefit of the latter part of clause (b), tender or
\n             pay it every month as it falls due, or at his<\/p>\n
             discretion in advance. If he persistently defaults
\n             during the pendency of the suit or appeal in
\n             paying the rent, such as where he pays it at
\n             irregular intervals of 2 or 3 or 4 months – as is
\n             the case before us – the court has no discretion
\n             to   treat   what     were   manifestly        irregular<\/p>\n
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\n                                  24<\/span><\/p>\n
              payments, as substantial compliance with the<\/p>\n
              mandate of this clause, irrespective of the fact
\n              that by the time the judgment was pronounced<\/p>\n
              all the arrears had been cleared by the tenant.”\n<\/p>\n
    The learned counsel for the petitioner submitted that since<\/p>\n
    in the present case the rent was payable annually and
\n    since willingness of the tenant to pay the rent was already
\n    manifest, the tenant would not incur ejectment under<\/p>\n
    Section 15(3) of the Maharashtra Rent Act.\n<\/p>\n
    33.<\/p>\n
              In Chase Bright Steel Limited v. Shantaram<\/p>\n
    Shankar    Sawant    and<\/a>     another,   reported      at     1995(1)
\n    Bom.C.R. 561, the Supreme Court held that the tenant
\n    was under an obligation to deposit even the permitted<\/p>\n
    increases not only during the pendency of application for
\n    fixation of standard rent, but also during the pendency of<\/p>\n
    suit for eviction.\n<\/p>\n
    34.       In Indubai Sidram Mundewadi and others v.
\n    Sidramappa Baslingappa Kalyanshetti<\/a> since deceased by
\n    his   heirs    and    LRs.     and      others,     reported           at
\n    1998(1) Mh.L.J. 282, the question of irregularity in<\/p>\n
    payment of rent during the pendency of the lis had been
\n    raised and after referring to the judgment of the Supreme
\n    Court in Mranalini B. Shah v. Bapalal Mohanlal Shah,<\/a>
\n    reported at AIR 1980 SC 954, Mohan Laxman Hede v.
\n    Noormohamed Adam Shaikh,<\/a> reported at AIR 1988 SC
\n    1111, and Shantabai Vishnumal v. Ganpat Ladha,<\/a> reported<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:55:53 :::<\/span>
\n                                 25<\/span><\/p>\n
    at 1976 Mh.L.J. 332, the Court observed in para 4 as<\/p>\n
    under :\n<\/p>\n
              “4.     … It has been held that in cases falling
\n              under section 12(3)(b) of the Act the first
\n              injunction is that the tenant is required to pay or<\/p>\n
              tender in Court on the first day of the hearing of
\n              the suit the standard rent and the permitted
\n              increased then due. What is required to be paid<\/p>\n
              is standard rent and not contractual rent.\n<\/p><\/blockquote>\n
              Thereafter it is held that if the standard rent is
\n              not fixed then it is necessary for the tenant to<\/p>\n
              adopt appropriate proceedings and get the
\n              standard rent fixed either as interim or final.
\n              Thus it is held that tenant cannot be heard to<\/p>\n
              say that he is entitled to claim protection under
\n              section 12(3)(b) of the Rent Act without showing<\/p>\n
              that he had taken diligent steps to get the
\n              standard rent or interim standard rent fixed.\n<\/p><\/blockquote>\n
              Thereafter it is to be determined as to whether
\n              the tenant has continued to pay or tender in
\n              Court    regularly     such     rent     and       permitted
\n              increased till the suit is finally decided. …”\n<\/p><\/blockquote>\n
    35.       The learned counsel for the petitioner submitted
\n    that these judgments could not be applied, as they are, to
\n    the facts of the present case, as there is a difference in
\n    the provisions pertaining to fixation of standard rent as
\n    also   ejectment    under      Sections    8     and     15      of     the<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:55:53 :::<\/span>
\n                               26<\/span><\/p>\n
    Maharashtra Rent Act and the provisions of Sections 11<\/p>\n
    and 12 of the Bombay Rent Act.         He submitted that
\n    Explanation (I) to Section 12 of the Bombay Rent Act<\/p>\n
    (extracted below) is conspicuously missing in Section 15
\n    of the Maharashtra Rent Control Act.\n<\/p>\n
             ”     Explanation (I).–In any case where there is
\n             a dispute as to the amount of standard rent or
\n             permitted increases recoverable under this Act<\/p>\n
             the tenant shall be deemed to be ready and<\/p>\n
             willing to pay such amount if, before the expiry
\n             of the period of one month after notice referred<\/p>\n
             to in sub-section (2), he makes an application to
\n             the Court under sub-section (3) of section 11
\n             and thereafter pays or tenders the amount of<\/p>\n
             rent or permitted increases specified in the order
\n             made by the Court.”\n<\/p><\/blockquote>\n
    Absence of this “deeming” explanation in the Maharashtra<\/p>\n
    Rent Control Act would not help the tenant.           Rather it
\n    would make it imperative for him to pay the rent
\n    demanded without demur in order to secure protection of
\n    Section 15.   However, since when a tenant raises a<\/p>\n
    dispute by filing appropriate proceedings for fixation of
\n    standard rent, the mutual obligations would be governed
\n    by orders of the Court and the payment as per such
\n    orders would be enough.\n<\/p>\n
    36.      What emerges from the several authorities on<\/p>\n
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\n                                      27<\/span><\/p>\n
    which the learned counsel for the parties have placed<\/p>\n
    reliance, is as under :\n<\/p>\n
             (i)     The landlord is entitled to receive the rent,
\n    which the tenant was paying on or before 1-10-1987
\n    without demur.\n<\/p>\n
             (ii)    If this amount is demanded, the tenant
\n    cannot give any excuses, like his always being ready and
\n    willing to pay. He has to comply with the demand.\n<\/p>\n
             (iii)   If there is a dispute about the amount<\/p>\n
    would   have      to<\/p>\n
    which was being paid as rent on 1-10-1987, the tenant
\n                            raise    the   dispute      by    appropriate<\/p>\n
    proceedings for fixation of standard rent.               But he would
\n    have to pay at least the amount which in his computation
\n    is due in order to show that he has paid or was ready and<\/p>\n
    willing to pay the rent as required under clause (1) of
\n    Section 15 of the Maharashtra Rent Control Act.\n<\/p>\n
             (iv)    If    such     demand   is   not    complied          and
\n    proceedings for fixation of standard rent are not initiated,<\/p>\n
    and the landlord files a suit for ejectment, in order to seek
\n    the protection of Section 15 of the Maharashtra Rent
\n    Control Act, the tenant would have to comply with the
\n    demand made in the plaint and would have to continue to<\/p>\n
    deposit and not just the amount, which, according to the
\n    tenant, is due, but the rent due as per the landlord’s
\n    demand from time to time awaiting adjudication of the
\n    exact amount due. Since the protection provided by the
\n    Rent Control Act places curbs on the right of the landlord
\n    to recover possession under the ordinary law of landlord<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:55:53 :::<\/span>
\n                                28<\/span><\/p>\n
    and tenant, the tenant must comply with all these<\/p>\n
    requirements in order to avoid a decree for ejectment.\n<\/p>\n
    37.      The facts unfolded in this case are now required
\n    to be examined in the light of the foregoing discussion.
\n    The rent, which the tenant was paying, was only Rs.800\/-\n<\/p>\n
    per annum and not Rs.1,350\/- per annum. The landlord
\n    would have been entitled to receive only the amount of
\n    municipal taxes, which he actually paid and not Rs.350\/-.\n<\/p>\n
    Likewise, the landlord was not entitled to receive Rs.200\/-\n<\/p>\n
    rendered.\n<\/p>\n
    per month as service charges, since no services were
\n                Thus, the tenant’s claim that he had been<\/p>\n
    paying Rs.550\/- per annum, apart from the rent, would
\n    have to be accepted and this amount would have to be
\n    adjusted towards municipal taxes actually paid and the<\/p>\n
    rent in arrears.    At the cost of repetition, it has to be
\n    pointed out that the landlord has himself made it<\/p>\n
    abundantly clear that the amount of Rs.550\/- is not a part
\n    of the rent. Therefore, he was not entitled to claim that<\/p>\n
    amount as rent and allege that the tenant was in arrears
\n    because of failure to pay that amount.\n<\/p>\n
    38.      Even so, it is also the fact that the tenant has<\/p>\n
    failed and neglected to pay the rent demanded within
\n    ninety days of the notice and has not raised any dispute
\n    about the rent demanded. He has also not deposited the
\n    rent claimed in the suit within ninety days of service of
\n    suit summons.      He has also not regularly deposited the
\n    amount of rent and permitted increases during the<\/p>\n
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\n                                29<\/span><\/p>\n
    pendency of the proceedings.          One deposit at the<\/p>\n
    appellate stage would not be sufficient compliance to the
\n    provisions of sub-section (3) of Section 15 of the<\/p>\n
    Maharashtra Rent Control Act.\n<\/p>\n
    39.      The contention of the tenant that since the suit<\/p>\n
    itself could not have been filed because of his readiness
\n    and willingness, he was not required to comply with the
\n    provisions of sub-section (3) of Section 15 of the<\/p>\n
    Maharashtra Rent Control Act and, therefore, does not<\/p>\n
    incur ejectment, has to be rejected.        At the cost of
\n    repetition, it has to be stated that mere desire to pay the<\/p>\n
    rent is not enough. It must be translated into action. The
\n    tenant, who is a businessman, could have furnished the
\n    accounts of the amounts allegedly paid in advance at the<\/p>\n
    rate of Rs.550\/- per annum, could have found out from the
\n    Municipality as to what were the municipal taxes and<\/p>\n
    could have ascertained what was the amount which he
\n    was still liable to pay, since it is not in dispute that from<\/p>\n
    1996 nothing has been paid by the tenant. The excuse
\n    that because a suit filed against the landlord had been
\n    decreed, it was the landlord’s burden to recover rent, has
\n    to be rejected.   The tenant was under an obligation to<\/p>\n
    comply with the demand, and in any case to explain as to
\n    how, in his view, nothing was due or a lesser amount was
\n    due, and to have paid that amount. Not having done so,
\n    he loses the protection of the Rent Act and, therefore,
\n    would be liable to be evicted on account of failure to
\n    comply with the requirement of sub-section (3) of Section<\/p>\n
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\n                                30<\/span><\/p>\n
    15 of the Maharashtra Rent Control Act. In this view of the<\/p>\n
    matter, the decree of ejectment passed by the Trial Court
\n    and confirmed on appeal by the learned District Judge<\/p>\n
    cannot be disturbed.\n<\/p>\n
    40.      The learned counsel for the respondent has also<\/p>\n
    raised a question of splitting of tenancy, since one godown
\n    had been taken on rent by the tenant, which had been
\n    partitioned into two parts owned by the two brothers.\n<\/p>\n
    Nitinkumar’s suit had been dismissed for possession of his<\/p>\n
    part of the godown and the present petition arises out of
\n    the suit by the other brother Jagdishchandra.\n<\/p>\n
    41.      The learned counsel for the petitioner relied on a
\n    judgment   in   Habibunnisa     Begum   and    others       v. G.\n<\/p>\n
    Doraikannu Chettiar (Dead) by LRs. and others, reported
\n    at (2000) 1 SCC 74, on the question of splitting of tenancy<\/p>\n
    where the Court observed in para 2 as under :\n<\/p>\n
             “2.    The only question that arises in this case is
\n             as to whether it was open to the High Court to
\n             split the single tenancy by ordering partial
\n             ejectment of the tenant from the premises let<\/p>\n
             out to him.   In S. Sanyal v. Gian Chand<\/a> it was
\n             held that where a contract of tenancy was a
\n             single indivisible contract and in the absence of
\n             any statutory provision to that effect, it is not
\n             open to the court to split the tenancy.              Law,
\n             therefore, is that where       there is a single<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 14:55:53 :::<\/span>
\n                                31<\/span><\/p>\n
              indivisible contract of tenancy, it cannot be split<\/p>\n
              by a court unless there is a statutory provision to
\n              that effect. In the present case it is not disputed<\/p>\n
              that the contract of tenancy is a single indivisible
\n              contract for Doors Nos.27 and 28. It is also not
\n              disputed that there is no provision in the Tamil<\/p>\n
              Nadu Buildings (Lease and Rent Control) Act
\n              empowering the court to order partial ejectment
\n              of a tenant from the premises by splitting the<\/p>\n
              single indivisible tenancy.   For these reasons it<\/p>\n
              was not open to the High Court to split the
\n              tenancy and order for partial ejectment of the<\/p>\n
              tenant from the premises.”\n<\/p><\/blockquote>\n
    42.       In Sk. Sattar Sk. Mohd. Choudhari v. Gundappa<\/p>\n
    Ambadas Bukate,<\/a> reported at 1997(2) Bom.C.R. 690, in
\n    relation to Hyderabad Houses (Rent, Eviction and lease)<\/p>\n
    Control Act, 1954, the Court was considering the splitting
\n    of tenancy and recorded facts of the case in para 2 as<\/p>\n
    under :\n<\/p>\n
              “2.   Proceedings for eviction were initiated by
\n              the appellant on the allegations that the shop<\/p>\n
              measuring 23′ x 19′ was originally owned by his
\n              father Shaikh Mohd. Chaudhari who died on
\n              12-3-1956 leaving behind the appellant and his
\n              elder brother, Shaikh Jaffar, as also two other
\n              brothers as his heirs who inherited his properties
\n              including the aforesaid shop. Shaikh Jaffar being<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 14:55:53 :::<\/span>
\n                               32<\/span><\/p>\n
             the   eldest   was     managing        the       property,<\/p>\n
             particularly as the appellant was minor in 1964
\n             when the shop was let out to the respondent<\/p>\n
             who paid rent to Shaikh Jaffar and continued to
\n             pay it till 1974. In the meantime, there was a
\n             partition among the brothers and a portion of<\/p>\n
             the shop measuring 23′ x 12 \u00bd’ fell in the share
\n             of the appellant who informed the respondent of
\n             the above and required him to pay rent to him.\n<\/p><\/blockquote>\n
             A similar information in writing was also given to
\n             the<\/p>\n
                   respondent      by   Shaikh    Jaffar
\n             respondent did not pay rent to the appellant and
\n                                                              but      the<\/p>\n
             consequently, his tenancy was terminated by
\n             notice dated 28-7-1976. This was followed by a
\n             petition under section 15 of the Hyderabad<\/p>\n
             House (Rent, Eviction and Lease) Control Act,
\n             1954 for the eviction of the respondent on the<\/p>\n
             ground of wilful default in payment of rent as
\n             also for the personal need of the appellant who<\/p>\n
             wanted to run his cutlery business in the said
\n             shop.”\n<\/p><\/blockquote>\n
    The Court noted the provisions of Sections 36 and 37 of<\/p>\n
    the Transfer of Property Act, as also Section 119 thereof,
\n    and observed in para 37 as under :\n<\/p>\n
             “37. In view of the above discussion, it is
\n             obvious that the law with regard to the splitting
\n             of tenancy is not what the High Court has set out<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:55:53 :::<\/span>
\n                       33<\/span><\/p>\n
     in the impugned judgment.          As pointed out<\/p>\n
     earlier, a co-sharer cannot initiate action for
\n     eviction of the tenant from the portion of the<\/p>\n
     tenanted accommodation nor can he sue for his
\n     part of the rent. The tenancy cannot be split up
\n     either in estate or in rent or any other obligation<\/p>\n
     by unilateral act of one of the co-owners.                If,
\n     however, all the co-owners or the co-lessors
\n     agree among themselves and split by partition<\/p>\n
     the demised property by metes and bounds and<\/p>\n
     come to have definite, positive and identifiable
\n     shares in that property, they become separate<\/p>\n
     individual owners of each severed portion and
\n     can deal with that portion as also the tenant
\n     thereof as individual owner\/lessor. The right of<\/p>\n
     joint lessors contemplated by section 109 comes
\n     to be possessed by each of them separately and<\/p>\n
     independently. There is no right in the tenant to
\n     prevent the joint owners or co-lessors from<\/p>\n
     partitioning   the    tenanted     accommodation
\n     among themselves.        Whether the premises,
\n     which is in occupation of a tenant, shall be
\n     retained jointly by all the lessors or they would<\/p>\n
     partition it among themselves, is the exclusive
\n     right of the lessors to which no objection can be
\n     taken by the tenant, particularly where the
\n     tenant knew from the very beginning that the
\n     property was jointly owned by several persons
\n     and that, even if he was being dealt with by only<\/p>\n
                                      ::: Downloaded on – 09\/06\/2013 14:55:53 :::<\/span>
\n                                 34<\/span><\/p>\n
             one of them on behalf of the whole body of the<\/p>\n
             lessors, he cannot object to the transfer of any
\n             portion of the property in favour of a third<\/p>\n
             person by one of the owners or to the partition
\n             of the property. It will, however, be open to the
\n             tenant to show that the partition was not<\/p>\n
             bona fide and was a sham transaction to
\n             overcome the rigours of Rent Control laws which
\n             protected eviction of the tenants except on<\/p>\n
             specified    grounds     set   out   in    the     relevant
\n             statute.”\n<\/p><\/blockquote>\n
    43.      The learned counsel for the petitioner submitted
\n    that it may be seen from the above judgment that the
\n    provision for splitting has to be found in the relevant<\/p>\n
    statute and since there is no such provision in the
\n    Maharashtra Rent Control Act, the splitting was not<\/p>\n
    permissible.    This contention has to be rejected, first,
\n    because it is not shown that there is any dispute among<\/p>\n
    co-owners about partition.       Secondly, the premises are
\n    also physically split by a wall separating portions owned
\n    by the two brothers.       Lastly and most importantly, the
\n    tenant has accepted the split and has been paying rent<\/p>\n
    separately to the two brothers.\n<\/p>\n
    44.      In    view   of   the   foregoing,    the      petition       is
\n    dismissed. Parties to bear their own costs.\n<\/p>\n
                                              JUDGE.\n<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:55:53 :::<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Girish Gangadhar Agrawal vs Jagdishchandra Amrutlal … on 21 August, 2009 Bench: R. C. Chavan 1 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-17097","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nGirish Gangadhar Agrawal vs Jagdishchandra Amrutlal ... on 21 August, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/girish-gangadhar-agrawal-vs-jagdishchandra-amrutlal-on-21-august-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Girish Gangadhar Agrawal vs Jagdishchandra Amrutlal ... on 21 August, 2009 - 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