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In the High Court of Bombay at Nagpur
B.P. DHARMADHIKARI & A.P. BHANGALE, JJ.
Chandiram Dariyanumal Ahuja
Versus
Akola Zilla Shram Wahtuk Sahakari Sanstha
LETTERS PATENT APPEAL NO. 307 OF 2012 IN WRIT PETITION NO.1101 OF 2007 (D)
Decided on : 23-10-2012
A tenant, habitual defaulter, by paying all arrears of rent in response to notice, not protected from eviction on view of Section 15(1) of Act, 1999. - Habitual irregular payment of rent and permitted increases by the tenant will prejudice and jeopardize very survival of such landlords who survive on rental income only. Therefore, such a tenant who may be habitually irregular in payment of standard rent and permitted increases can invite eviction in view of Section 15(1) of the Maharashtra Rent Act when the Court considers the case of such a tenant who commits breach of conditions of tenancy as also remains habitual in rental arrears. In such exceptional case, provisions of Section 15(1) are applicable and procedural compliances under Section 15(2) and 15(3) will not apply. Even otherwise, when compliance by landlord with Section 15(2) is not necessary for filing suit against tenant under Section 15(1) of the Maharashtra Rent Act, alleged compliance by tenant with notice dated 7.8.2000 is immaterial or inconsequential.
Thus, a tenant habitually in arrears and always irregular in payment of rent may not succeed in avoiding the eviction by paying all arrears either in response to initial notice or then in the Court after filing of the suit if such suit does not seek his eviction only on the ground of non-payment of standard rent and permitted increases.
A tenant who is inadvertently or casually but not deliberately in arrears or in arrears for stipulated number of months may not always be branded as a tenant who can be classified as habitually irregular. If the tenant wants to enjoy protection under Section 15(1) of the Maharashtra Rent Act, he will have to prove that he pays and had been paying rent voluntarily and not only when coerced.
In a given contingency, he may prove his readiness and willingness to pay. Thus, ingredients of Section 15(2) and (3) are not germane when landlord’s grievance is that his tenant does not pay or is not ready and willing to pay. Conversely the tenant will be required to prove that he was is ready and willing to pay rent i.e. that quantum of rent which formed subject-matter of landlord’s grievance.
Thus, characteristics or factors which are relevant for finding out whether "the tenant pays," equally apply to concept implicit in "is ready and willing to pay." Thus, factors relevant for deciding the mental habit of tenant to commit defaults are determinative under said sub-section (1) of Section 15 of the Maharashtra Rent Act.
To put it otherwise, when tenant does not pay rent as agreed or pays rent only when legal notice is served upon him or Court summons is issued against him, the landlord is not helpless because sub-section (1) of Section 15 enables the landlord to insist upon the tenant to pay rent and perform the conditions of tenancy. The tenant who disobeys legal provisions under Section 15(1) of the Act can be evicted independently, though such tenant may not necessarily be in arrears of rent on the date of institution of the suit.
A.P. Bhangale, J.
1. Appellant Chandiram is tenant while respondent/Akola Zilla Shram Wahatuk Sahakari Sanstha is landlord in respect of premises i.e. shop block in a building situated on Nazul Plot No.7, Sheet No.27/C, Old Cotton Market, Akola. Appellant/tenant was inducted in the suit premises under a Lease deed, dated 4th February, 1986 on a monthly rent of Rs.500/-payable in advance. Appellant had kept security deposit of Rs.1,00,000/-with the respondent-landlord. Appellant had actually occupied the tenanted premises with effect from 1st August, 1986. Tenancy month is governed as per English Calendar Month. Parties had agreed under the Lease deed that rent of the tenanted premises would be increased @ 20 % after every five years. Copy of Lease deed is on record which contains various terms and conditions.
2. The respondent-landlord filed Civil Suit No.22 of 2003 for eviction alleging inter alia that the appellant-tenant paid rent regularly till 31.1.1991. However, thereafter, the appellant-tenant adopted practice of remaining in arrears of rent. It was also averred that the appellant-tenant did not pay municipal taxes and the respondent-landlord had to pay the same. When the appellant-tenant fell in arrears of six months' rent and Municipal Corporation taxes amounting respectively to Rs.49,968/-and Rs.43,460/-(total Rs.93,428/-), the respondent-landlord recovered and adjusted the same from the amount of security deposit of Rs.One lakh. The landlord restricted the claim for recovery of rent for a period from 1.2.1992 to 31.3.2003 amounting to Rs.21,740/-. The landlord claimed ejectment of tenant on the ground that he defaulted in payment of rent. Secondly, it was averred that the respondent-landlord was working for weaker section of the Society and it is in need of funds. There are number of people who approach the respondent with a request to let them some shop block and there are offers for higher amount of rent. Since the appellant-tenant is a rank defaulter and the respondent-landlord is in need of funds, eviction of tenant was sought on the ground of bona fide need also. The respondent-landlord sent legal notice dt.7.8.2000 terminating tenancy of the appellant expiring with the midnight of 30.11.2000. The respondent-landlord further pleaded that the suit premises was located at a prime location and it could fetch minimum rent of Rs.3,000/-per month and, therefore, the appellant-tenant be directed to pay rent @ Rs.3,000/-per month during pendency of the suit. The respondent-landlord also prayed for enquiry into mesne profits.
3. The appellant-tenant failed to file Written Statement and an order was passed by the trial Court for proceeding with the suit without Written Statement of appellant-tenant. This was not challenged in the Appellate Court.
4. The learned trial Judge, after going through the evidence led by the respondent-landlord, decreed the suit partly directing the appellant-tenant to pay arrears of rent amounting to Rs.9,980/-for thirty-six months due since prior to the institution of suit. The learned trial Judge held that though the rent was deposited in the Court by the tenant, he failed to comply with the condition laid down in Section 15 (3) of the Maharashtra Rent Control Act, 1999 (hereinafter referred to as “the Maharashtra Rent Act”). The trial Court further held that the landlord has proved its bona fide need in relation to the suit premises and, therefore, directed the tenant to deliver vacant possession of the suit premises to the landlord. The learned trial Judge directed enquiry into mesne profit under Order XX, Rule 12 of the Code of Civil Procedure. It also directed that the decretal amount shall carry interest @ 15 % per annum from the date of institution of the suit till its realization.
5. The appellant-tenant carried an appeal under Section 34 of the Rent Act being Regular Civil Appeal No.19 of 2005. Learned Principal District Judge, Akola maintained the order of the trial Court di
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