w w w . L a w y e r S e r v i c e s . i n



Shri Madhukar Krishna Dhusane Occupation v/s Smt. Mandabai Hari Choudhari & Others


Company & Directors' Information:- SHRI HARI CORPORATION LIMITED [Strike Off] CIN = U15422PN2012PLC142075

    Writ Petition No.1995 of 1990 along with Writ Petition No.4120 of 1991

    Decided On, 13 June 2008

    At, High Court of Judicature at Bombay

    By, THE HONOURABLE MR. JUSTICE V.M. KANADE

    For the Petitioner : S.G. Deshmukh, Advocate. For the Respondents: Sandesh Deshpande, Advocate.



Judgment Text

Oral Judgment:


1. Both these Writ Petitions can be disposed of by a common judgment since the Petitioners in both these Petitions are challenging the judgment and order passed by the District Court in Civil Appeal No.43 of 1996. For the sake of convenience the parties shall be hereinafter referred to as "plaintiff" and "defendant".


2. Brief fact in a nutshell are as under:-


3. The plaintiff is a landlord of the premises which consists of one room situated in a Chawl known as Chaudhari Chawl, Thane being Room No.11. The defendant is residing in the said room No.11 since 1977. The said room shall be hereinafter referred to as "the suit premises". A notice was sent by the plaintiff- landlord to the defendant which was received by the defendant on 26/02/1980 wherein it was alleged that the defendant was a licensee of the plaintiff and by oral license the defendant was permitted to reside in the suit premises for 11 months from May, 1977 and the said license was terminated for reasons set out in the said notice. It was stated therein that the defendant is not entitled to occupy the suit premises and the plaintiff demanded possession of the suit premises.


4. The defendant gave reply to the said notice through his advocate's notice dated 31/03/19980 wherein he claimed to be a tenant in respect of the suit premises at the monthly rent of Rs. 26/- including water charges and that he deposited Rs. 1000/- by way of deposit. It was also stated that he was paying monthly rent regularly upto December, 1979.However, rent receipts were not issued by the plaintiff. Hence, the monthly rent from January, 1980 was sent by money order which was refused by the plaintiff.


5. The plaintiff filed a suit being Suit No.336 of 1980 against the defendant for recovery of possession of the suit premises and for recovery of damages. In the plaint, it was alleged that the defendant is the licensee. The other ground was also taken that the defendant had committed various acts of nuisance. Alternatively, it was pleaded that if it was held that the defendant was a tenant, in that case, the premises were required bonafidely for her personal use. It was also alleged that the defendant was in arrears of rent from May 1977 to March, 1980 for a period of 33 months. The defendant filed his Written Statement and contended that he was the tenant of the suit premises and, therefore he was protected by the provisions of the Bombay Rent Act. It was further contended that his tenancy was not terminated by the plaintiff as required under section 12 of the Bombay Rent Act. It was further contended that the notice of termination of the license dated 21/02/1980 on the ground of arrears of compensation could not be treated as notice as contemplated under section 12(2) of the Bombay Rent Act.


6. The Trial Court dismissed the suit of the plaintiff and it held that the tenancy was not terminated as per the provisions of section 12 of the Bombay Rent Act and, therefore, the notice was invalid and, therefore, the plaintiff was not entitled to possession of the suit premises. The contention of the plaintiff that the suit premise was required for personal use and occupation was not accepted. It was also held that the plaintiff had not established that the defendant had created nuisance as alleged in the plaint.


7. Being aggrieved by the said order, the plaintiff preferred an appeal before the District Court. The lower Appellate Court held that the plaintiff had not proved that the suit premises were required for her bonafide use and occupation. It further held that the plaintiff had not proved that the defendant had caused nuisance. The District Court, however, held that the plaintiff was entitled to recover possession on the ground that the notice dated 21/02/1980 should be treated as notice under section 12(2) of the Bombay Rent Act and, on that ground, decreed the suit of the plaintiff.


8. The defendant has filed Writ Petition No.1995 of 1990 being aggrieved by the said judgment and order passed by the District Court. Writ Petition No.4120 of 1991 is filed by the plaintiff-landlord, challenging the order passed by both the Courts below and more particularly the finding recorded by both the Courts that the defendant was the tenant of the suit premises and it was urged in the Petition that both the Courts below ought to have held that the defendant was the licensee of the plaintiff- landlord.


9. I have heard the learned Counsel appearing on behalf of the plaintiff and the defendant at length. A short question which falls for consideration before this Court is: whether the notice which was issued by the landlord dated 21/02/1980 could be treated as notice under section 12(2) of the Bombay Rent Act?.


10. Both the Courts below had given concurrent finding that the defendant is the tenant of the suit premises and not the licensee as alleged by the plaintiff. The other grounds on which the eviction of the defendant was sought by the plaintiff have been negative by both the Courts below. It is an admitted position that the notice which was issued by the plaintiff dated 21/02/1980 merely stated that the defendant was the licensee of the plaintiff and that the said oral license had been terminated by the plaintiff by the said notice. The plaintiff has also claimed damages in the said notice. This being the admitted position, the question is as to whether such a notice could be treated as notice under section 12(2) of the Bombay Rent Act? Section 12 of the Bombay Rent Act reads as under:-


"12. (1) A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act.


(2) No suit for recovery of possession shall be instituted by a landlord against tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the Transfer of Property Act, 1882.


[(3) No decree for eviction shall be passed by the Court in any suit for recovery of possession on the ground of arrears of standard rent and permitted increases if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and together with simple interest on the amount of arrears of such standard rent and permitted increases at the rate of nine per cent. per annum; and thereafter continues to pay or tenders in Court regularly such standard rent and permitted increases till the suit is finally decided and also pays cost of the suit as directed by the Court :


Provided that, the relief provided under this sub-section shall not be available to a tenant to whom relief against forfeiture was given in any two suits previously instituted by the landlord against such tenant.]


[(4) Pending the disposal of any such suit, the Court may, out of any amount paid or tendered by the tenant pay to the landlord such amount towards payment of rent or permitted increase sue to him as the Court thinks fit.]


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.


[Explanation II. - For the purpose of subsection (2), reference to "standard rent" and "permitted increase" shall include reference to "interim standard rent" and "interim permitted increase" specified under sub-section (3) or (4) of section 11.]


[Explanation III.- For the purposes of this section where, a tenant has deducted any amount from the rent due to the landlord under section 173C of the Bombay Municipal corporation Act for recovery of any water tax or charges paid by him to the Commissioner, the tenant shall be deemed to have paid the rent to the extent of deductions so made by him.]"


Perusal of the said provision clearly discloses that only after the notice as contemplated under section 12(2) is served on the tenant, a suit can be filed by the landlord against the tenant on the ground of arrears of rent. The landlord, therefore, has to clearly state that the tenant is in arrears of rent for a period of more than six months and that he has not paid the monthly rent for a period of more than six months. Perusal of the notice dated 21/02/1980 sent by the plaintiff to the defendant reveals that the plaintiff has terminated the oral license given by him to the defendant. That being the position, the said notice cannot be treated as notice under section 12(2) of the Bombay Rent Act. The plaintiff, therefore, did not have any cause of action to file the suit on the ground mentioned in section 12(2) of the Bombay Rent Act. No such averment also has been made in the plaint. That being the position, it was not open for the District Court to have treated the said notice dated 21/02/1980 as notice under secti

Please Login To View The Full Judgment!

on 12(2). The District Judge has, therefore, clearly committed an error of law which is apparent on the face of the record. The said finding of the District Court, therefore, cannot be sustained and the order of eviction which is passed on the said finding is, therefore, liable to be quashed and set aside. 11. The contention of the plaintiff that both the Courts had erred in holding that the defendant was the tenant and not the licensee cannot be accepted. Both the Courts below have given cogent reasons before recording the said finding. No case is, therefore, made out by the plaintiff for interfering with the said finding recorded by the Courts below. 12. In the result, Writ Petition No.1995 of 1990 is allowed. The judgment and decree of the District Court in Civil Appeal No.43 of 1986 is set aside and the judgment and order passed by the Trial Court is confirmed. Rule is made absolute in terms of prayer clause (a). The Writ Petition No.4120 of 1991 is dismissed. Rule is discharged. Under the circumstances, there shall be no order as to costs.
O R