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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
R.M. BORDE, R.V. GHUGE AND SANGITRAO S. PATIL, JJ.
Babulal – Appellant
Vs.
Suresh and Ors. – Respondents
Civil Revision Application No. 76 of 2010
Decided On : 12-06-2017
Sub - Section (2) of Section 15 mandates that no suit for recovery of possession shall be instituted by the landlord against at tenant on the ground of non-payment of the standard rent or permitted increases due, until expiration of 90 days next after notice in writing for payment of standard rent or permitted increases has been served upon the tenant in the manner provided in Section 106 of the Transfer of Property Act, 1887.
A suit by the landlord is thus not entertainable on the ground of recovery of possession for non-payment of the standard rent or permitted increases without transmitting a notice to the tenant 90 days before institution of such suit, in the manner as provided in Section 106 of the Transfer of Property Act, 1882. Sub - Section (3) of Section 15 provides that the Court shall not pass a decree of eviction on the ground of arrears of standard rent and permitted increases if within a period of 90 days from the date of service of summons of the suit, the tenant pays or tenders in the Court standard rent and permitted increases then due together with simple interest on the amount of arrears at the rate of 15% 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.
There is no whisper in the provisions of Section 15 putting an embargo on the entitlement of the landlord to file a suit for eviction against a tenant except subject to compliance of the preconditions specified in sub - Section (2) of Section 15 of the Maharashtra Rent Control Act. To infer that once the tenant pays the amount recorded in the notice or tenders the same, the landlord has no right to institute a suit for recovery of possession for non-payment of those arrears or continue with such proceeding for eviction and no decree for possession can be asked for, is not within contemplation of provisions of Section 15 of the Act.
The provision does not interfere with the right of the landlord to initiate proceeding for eviction, however, sub - Section (2) of Section 15 prescribes precondition for presentation of suit, that is to say that no suit can be initiated without issuing a notice within contemplation of said sub - Section (2) of Section 15 and tenant`s entitlement to claim relief against forfeiture shall be subject to fulfilment of conditions stipulated under sub - Section (1) and (3) of Section 15 of the Rent Act. 1984 Mh LJ 313-Overruled and 2013 (1) MhLJ 28-Affirmed.
Maharashtra Rent Control Act, 1999 - Section 15(1)-Protection to tenant from eviction.-Tenant who pays rent or has established his readiness and willingness to pay arrears of rent, entitled to protection from eviction under Section 15(1) of Act.
The tenant who "pays" or "is ready and willing to pay" is only required to be protected on recording findings in that regard. Sub - Section (1) of Section 15 of the Maharashtra Rent Control Act provides that the landlord shall not be entitled to recovery of possession of any premises so long as tenant pays or is ready and willing to pay the amount of standard rent and permitted increases if any, and observes and performs the other conditions of tenancy insofar as they are consistent with the provisions of the Act. Protection is extended to the tenant who pays or is ready and willing to pay the amount of standard rent and permitted increases.
The latter part of the sub - Section also mandates the tenant to observe and perform other conditions of tenancy insofar as they are consistent with the provisions of the Act. The term "tenant pays or is ready and willing to pay" read with observance and performance of other conditions of tenancy would surely include observance of the terms of the tenancy and one of the terms of tenancy which is consistent with the provisions of the Act is regularity in payment of rent.
A tenant who is irregular in payment of rent and pays the amount only under the threat of action of eviction or only after issuance of notice for recovery of rent cannot be considered to have complied with the mandate of sub - Section (1) in respect of payment of rent and readiness and willingness on the part of the tenant so as to claim relief against forfeiture cannot be presumed. 2008 (3) Mh LJ 610; 1984 MhLJ 313-Overruled and 2013 (1) Mh LJ 28-Affirmed.
Maharashtra Rent Control Act, 1999 - Section 15(2) and (3)-Transfer of Property Act, 1882, Section 106-Right of landlord to recover possession.-Initiation of proceedings for recovery of possession by landlord is subject to issuance of notice under Section 106 of T.P. Act as provided under Section 15(2) of Rent Act.
R.M. Borde, J.
1. The issue referred for consideration of the Full Bench is recorded below:
If the tenant complies the notice issued by the landlord demanding arrears of rent and pays the entire amount as demanded within the time stipulated under section 15(2) of the Maharashtra Rent Control Act, then whether the landlord can still file a suit for eviction on the ground of arrears of rent and whether the eviction can be ordered by invoking provisions of section 15(3) of the Maharashtra Rent Control Act?
2. The learned Single Judge of this Court noticing conflict of views on the issue by the two different Division Benches of this Court in the matter of Narhar Damodar Wani Vs. Narmadabai T. Nave, 1984 Mh.L.J. 313 and Chandiram Dariyanumal Ahuja Vs. Akola Zilla Shram Wahtuk Sahakari Sanstha, Akola, 2013 (1) All MR 177 has framed the question for consideration and, the papers were directed to be placed before the Honourable the Chief Justice in accordance with Rule 7 Chapter I of the Bombay High Court Appellate Side Rules, 1960. The Honourable the Chief Justice has directed placement of the matter before us for consideration, and decision on the issue.
3. The facts in the nutshell giving rise to the dispute can be stated briefly thus:
Respondents-landlords have presented suit for eviction against the tenant on the grounds that the premises are required by the landlords reasonably and bona fide for their own use and occupation, the tenant is using the suit shop for the purpose other than for which it was leased and has also committed default in payment of rent of the suit premises. Trial Court negatived the plea of the landlords based on the ground of bona fide requirement and change of user however, decreed the suit on the ground that tenant has committed default in payment of rent. Appeal presented by tenant to the District Court has been dismissed and the decree of eviction against tenant on the ground of default in payment of rent has been confirmed.
4. During the course of hearing of the matter, it was submitted on behalf of the tenant that on receipt of notice dated 01.08.2006 from the landlords, reply was tendered vide exh. 21 and the tenant not only remitted the cheque of the amount demanded by landlords but also paid rent upto the date of reply to the notice. According to tenant, in view of provisions of section 15(2) of the Maharashtra Rent Control Act, the plaintiffs-landlords do not have any cause of action to file a suit for eviction on the ground of recovery of rent. According to tenant, the cause of action to file the suit for eviction on the ground of arrears of rent ceases to exist the moment the tenant tenders rent as demanded by landlords within 90 days of receipt of notice. According to tenant, admittedly, the rent as demanded has been deposited and as such no decree could have been passed on the ground of default in payment of rent. Reliance is placed on the judgment of the Division Bench in the matter of Narhar Vs. Narmadabai (Supra) to contend that cause of action ceases to exist for proceeding against the tenant in pursuance of the notice of demand. According to the tenant, section 15(3) of the Maharashtra Rent Control Act also would not be applicable as the provisions of section 15(2) themselves are not attracted. The landlords were disabled from filing suit for recovery of possession on the ground of default in payment of rent in view of provisions of section 15(2) of the Act and, as a consequence thereof, no question arises as regards applicability of provisions of section 15(3) of the Maharashtra Rent Control Act.
5. In order to rebut the contentions, it has been contended on behalf of the landlords that the judgment of Division Bench of this Court in the matter of Chandiram Ahuja Vs. Akola Zilla Shram Wahtuk Sahakari Sanstha (supra) holds the field and, even assuming that there is compliance of section 15(2) of the Maharashtra Rent Control Act, section 15(3) can be pressed in service independently. It is
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