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2010 Supreme(Bom) 1504
In the High Court of Bombay at Nagpur
B.P. DHARMADHIKARI
Sriniwas Babulal
Versus
Ramakant s/o Shivnarayan Jaiswal
WRIT PETITION No. 1752 OF 2010
Decided on : 15-10-2010
For the Petitioner:S.P. Kshirsagar, Advocate.
For the Respondent:R.M. Sharma, Advocate.
Headnote:Maharashtra Rent Control Act, 1999 - Section 15(3)-Eviction of tenant - Tenant in arrears of rent-Notice for eviction-Not invalid on ground that amount of rent demanded as outstanding includes that claim also which is admittedly barred by time.-Therefore, Court finds that the Legislature has extended a further opportunity to tenant in arrears or habitually in default to clear the same and to avoid action of eviction by making payment of the admitted dues at admitted rate within 90 days of service upon him of statutory notice under Section 15(2) of the Rent Act. One more opportunity is given to him to clear all such arrears similarly within 90 days of receipt of suit summons by him. But at that stage, he has to clear said amount not as per claim in notice but till date of deposit with 15% interest and thereafter continue to pay or tender in Court regularly such admitted sum till the suit is finally decided and also pay cost of the suit as directed by the Court. In case of any dispute about quantum of rent or period of arrears, he has to deposit admitted amounts and the dispute can then be resolved as per law. If he raises a frivolous dispute only to harass the landlord, he also takes with it the risk of consequences. Here, there is no effort to pay the admitted amount and arrears as adjudicated upon concurrently are not in dispute. Rent for over 30 years was not paid. From 1.5.1973 till 1.3.2006 amount paid is only Rs. 725/-. Arrears within limitation and claimed in suit for period of three years prior to its institution i.e. from 1.9.2000 to 31.8.2003 are Rs. 885.96. So this amount due and recoverable on date of institution of suit also is not cleared. Definitely intention to condone even such lapses can be drawn from express language and scheme of Section 15. If payment made by tenant as per his sweet will as and when he made is to be accepted as enough to deny such landlord a decree for eviction, it is nothing but rewriting the said provisions. Section 15 giving concessions to tenant cannot be construed as a penal provision or more liberally to confer upon him some benefit not envisaged by the Legislature. Precedents above rightly construe is strictly and, Court does not find anything in present facts to enable it to relax its rigour. Law of limitation does not prohibit tenant from making payment of even time-barred rent. Demand thereof in notice under Section 15 by landlord is not wrong and in any case, it is not fatal. The petitioner tenant could have ignored that part of demand and shown his bona fides by depositing rent due as per his calculations. Court does not find said notice illegal and decree of eviction based upon it is perfectly legal and valid.
1. Tenant has filed this petition invoking both Articles 226 and 227 of the Constitution Of India challenging the judgment and order dated 27/4/2006 passed by Second Additional Small Cause Court, Nagpur in Civil Suit No.458/2003 as also judgment order dated 21/11/2006 by District Judge4, Nagpur in Regular Civil Appeal No.377/2006. Matter has been heard finally as jointly requested by making Rule returnable forthwith.
2. Both the Courts have found that Respondent / Plaintiff has proved that Tenant is in arrears of rent and he is entitled to recover possession under Section 15(3) of the Maharashtra Rent Act, 1999, hereinafter referred to as Rent Act. Landlord's bonafide need is also held established under Section 16(1)(g) thereof and issue of the comparative hardship is also answered in his favour by both the Courts.
3. Before this Court the Landlord has given up the “need” and hence validity of that part of order/judgment does not fall for consideration here. That part of judgment therefore, does not operate to the prejudice of Petitioner Tenant. Said part granting decree of eviction on account of the bonafide need is therefore unsustainable and therefore, same is accordingly quashed and set aside. Hence, the Tenant has only argued the issue of validity of notice under Section 15 of Rent Act.
4. Shri S.P. Kshirsagar, learned Counsel for tenant has assailed the finding of both the Courts on the ground that in statutory notice under Section 15 of Rent Act the amount of rent demanded as outstanding includes that claim also which is admittedly time barred and hence, that notice is bad. It can not support the suit before the Small Cause Court and a decree for eviction. Such notice has to be valid in all respects and considering its effect as also scheme of Section 15 of Rent Act, this requirement must be fulfilled. The provision is penal and all efforts must be made to interpret it in favour of Tenant. In the alternative, he submits that as arrears are already deposited, the eviction can not be ordered. He has placed reliance upon (2009) 9 SCC 359(Arjunan vs. Universal Fertilizer Corporation), 1998(3) Mh.L.J. 237 (Lalji Lachhamandas vs. Amiruddin Amanulla) and 2006(1) RCJ 149 (Union of India vs. Jethalal Ladhuram Maniar).
5. Shri R.M. Sharma, learned Counsel for Landlord has supported the judgments. He argued that expiry of limitation only denies the remedy but the default or arrears can be used by the landlord for seeking a decree of eviction under Section 15 of Rent Act. He has also urged that if the tenant disputes the correctness of the demand made by landlord, law obliges him to pay him arrears at rate and for period accepted by him to show his bonafides. That omission by him and his default therefore is fatal for him. He has pointed out the Pursis placed on record in High Court to justify the figure of Rs. 1160. 96 arrived at by the Courts and the decree of eviction passed on its basis. He contends that provisions are neither in favour of tenant nor in favour of landlord and law contemplates its unbiased and impartial implementation. He has relied upon Narayan Bhoite vs. Smt. Rampyari Gupta – (2001(3) Mh.L.J. 234), Sri Bhimseri Gupta vs. Sri Bishwanath Prasad Gupta (AIR 2004 SC 1770=2004(1) RCJ 70 (SC), Vasant Raghoseth Tambe vs. Bholadasji Mandir – (2008 (4) Mh.L.J. 275), Hari Bhuraji Mahajan vs. Rajendra Shankar Dawknor –(2009 (6) Mh.L.J. 483) and Lalji Ramnath Pande vs. Smt. Hawabi Abdulla Shaikh – (2004 (4) Mh.L.J. 1020).
6. The calculations placed on record by Landlord vide Pursis stamp No.6838/2010 on 2/7/2010 is not even disputed by the Tenant. He is not denying nonpayment of rent at all. The said Pursis and accounts as shown therein as also judgments reveal that statutory notice dated 7/5/2003 at Exh. 28 under Section 15 claimed rent arrears at Rs. 24.61 per month from 1/5/1973 to 30/4/2003 and total amount claimed is Rs. 8859.60 for 360 months. Tenants acknowledgment thereof, which is Ex. 30 dated 10/5/20
