Uma Ramji Tiwari v. Ashok Manilal Dubey Thr. Lrs. & Ors.

1) The revisionary jurisdiction of this Court is invoked to set up a challenged to the judgment and decree dated 24 March 2022 passed by Appellate Bench of the Small Causes Court dismissing Applicant's Appeal No. 93 of 2019 and confirming the eviction decree ___Page No.1 of 12___ dated 11 March 2019 passed by the Learned Judge of the Small Causes Court in R.A.E. & R. Suit No. 113/355 of 1994.

2) I have heard Mr. Chaturvedi, the learned counsel appearing for the Applicant and Vinay Ashok Dwivedi-Respondent No.1a in person. I have considered the submissions canvassed by them and have also gone through the findings recorded by the Trial and the Appellate Courts as well as the documents and evidence placed on record.

3) It appears that the suit was initially filed by the Respondents/Plaintiffs seeking recovery of possession of the suit premises on the ground of non-user, change of user, default in payment of rent, unauthorized additions and alterations, acquisition of suitable alternate accommodation and commission of acts contrary to Section 108(o) of the Transfer of Property Act, 1882. The Trial Court accepted the grounds of non-user, change of user, default in payment of rent, unauthorized additions and alterations and acquisition of suitable alternate accommodation. The Trial Court however rejected the ground of commission of acts contrary to provisions of Section 108(o) of the Transfer of Property Act, 1882 read with Section 13(1)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bombay Rent Act). The Trial Court directed the Applicant/Defendant to hand over possession of the suit premises to the Plaintiff with further direction for conduct of enquiry into mesne profit under Order 20 Rule 12 of the Civil Procedure Code. ___Page No.2 of 12___ 4) The Applicant/Defendant challenged eviction decree dated 11 March 2019 before the Appellate Bench of the Small Causes Court. She has partly succeeded in her Appeal as the Appellate Bench of the Small Causes Court has rejected the grounds of non-user, change of user and unauthorized additions and alterations. The eviction decree is ultimately sustained by the Appellate Court on twin grounds of default in payment of rent and acquisition of suitable alternate accommodation. Applicant/Defendant has challenged the decree passed by the Appellate Bench directing her eviction on the grounds of default in payment of rent and acquisition of suitable alternate accommodation in the present Revision Application.

5) So far as the ground of default in payment of rent is concerned, it appears that demand notice as required under Section 12(2) of the Bombay Rent Act was served on the Defendant, demanding the arrears of rent from March 1993 onwards. It appears that the cheque was handed over to the Plaintiffs/Landlords dated 21 September 1993 of Rs.1620/- towards arrears of rent. The cheque was however dishonored. Mr. Chaturvedi has submitted that the said cheque was never drawn by the Applicant/Defendant and that therefore the inference of default in payment of rent cannot be drawn in the present case. He would also dispute service of the demand notice on the Defendant-Tenant. However, both the Courts have concurrently recorded a finding of fact that the Demand Notice dated 10 August 1993 has been served on the Defendant-Tenant. I do not find any valid reason to interfere in the said finding of fact by instituting a fresh enquiry into the aspect of service of the demand notice by reappreciating the evidence. ___Page No.3 of 12___ 6) The Defendant thus failed to avail the first opportunity of making good the default after service of the demand notice. Under provisions of Sub-Section (3) of Section 12, the Defendant had second opportunity of making good the default by depositing in the Court before first day of hearing of the suit, the entire arrears of rent 'then due' together with interest at the rate of 9% per annum as well as costs of the suit. If the entire amount as contemplated under Section 12(3) of the Bombay Rent Act was to be deposited in the Court on or before first date of hearing of the suit, the decree for eviction on the ground of default in payment of rent could be obviated. By now it is well settled position of law that the first date of hearing of the suit as contemplated under Section 12(3) of the Bombay Rent Act is the date on which issues are framed by the Court. In the present case, though the suit was instituted in the year 1994 the issues were belatedly framed on 13 November 2003. Before framing of issues, Defendant took out Interim Notice No. 1026 of 2002 on 3 July 2002 for seeking permission to deposit the arrears of rent. The Small Causes Court passed following on order on 30 September 2002 on Interim Notice No. 1026 of 2002: The Plaintiff is duly served as per the bailiff's report dated 9.7.2002 but are absent, no reply filed. In view of the grounds in the application the following order. Order Notice made absolute. Defendant is allowed to deposit in this court arrears of rent amounting to Rs. 11,300/- from March 1993 till July 2002 on or before 29.10.2002. Defendant is further directed to go on depositing rent at the rate of Rs.100/- per month from August 2002 till Sept. 2002 on or before 29.10.2002. Defendant is further directed to go on depositing Rs.100/- per month from 1.10.2002 on or before 10th day each succeeding month. ___Page No.4 of 12___ Plaintiffs are at liberty to withdraw the amount as and when deposited by the Defendant. The above order is without prejudice to the rights and contentions of the parties. No order as to costs.

7) According to Mr. Chaturvedi, the entire amount directed by the Court by Order dated 30 September 2002 was deposited by the Defendant-Tenant and she was regular in deposit of rent of Rs.100/throughout pendency of the proceedings.

8) However, what is missed out by Mr. Chaturvedi is the position that the deposit made by Defendant-Tenant in pursuance of order dated 30 September 2002 did not conform to the requirement under Section 12(3) of the Bombay Rent Act which provides thus:

12. No ejectment ordinarily to be made if tenant pays or is ready and willing to pay standard rent and permitted increases. (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. ___Page No.5 of 12___ 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 due to him as the Court thinks fit. Explanation I - In any case where there is a dispute as to the amount of standard rent of 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 purposes of sub-section (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 or 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.

9) Thus, what was required to be deposited by the Defendant- Tenant before the date of framing of issues is the entire amount of rent then due, interest at the rate of 9% thereon as well as costs of the suit. There is purpose why the statute has made in mandatory to the defaulter tenant to deposit not just the entire arrears of rent, but also interest as well as costs of the suit. Rent control legislation confers protection from rent escalation and eviction for a tenant. The tenant who continues to pay standard rent and permitted increases to the landlord enjoys protection from eviction unless one of the grounds specified in Section 13 of the Bombay Rent Act is made out by the ___Page No.6 of 12___ landlord. Thus, the minimum that is expected from a tenant, who enjoys protection from rent escalation and eviction, is to pay to the landlord standard rent and permitted increases. The Bombay Rent Act has provided twin safeguards to ensure that a decree for eviction is not passed against a tenant, who has defaulted in payment of rent. The Act first enjoins duty on the landlord to serve a notice at contemplated under Sub-section (2) of Section 12 on the tenant demanding the entire arrears of rent and wait for a period of one month for the tenant to make good the default before filing of the eviction suit. This is the first opportunity provided to the tenant to make good the default in payment of rent within a period of one month of receipt of the demand notice. However, if the tenant fails to pay to the landlord the arrears of rent within a period of one month from the date of receipt of demand notice, the Act provides one more opportunity to the defaulter tenant to frustrate landlord’s suit for eviction. The defaulter tenant, who forces the landlord to incur expenditure in filing a suit, is statutorily required to deposit in the Court not only the entire arrears of rent then due, but also interest as well as costs of the suit to obviate an eviction decree. This is the broad statutory objective behind making compulsory deposit of interest as well costs of the suit when the tenant fails to avail first opportunity of paying the arrears of rent within one month of receipt of demand notice. Therefore, the tenant who merely deposits the entire arrears of rent without interest or costs of suit cannot obviate a decree for eviction.

10) In the present case, Defendant was not paying rent to the landlord since March 1993. The rent payable in March 1993 has ultimately been deposited by the Defendant in the Court on ___Page No.7 of 12___ 30 September 2002, i.e after 11 long years. The rent ultimately represents return on investment made on land and building for the landlord. True it is that on account of provisions of rent control legislation freezing the standard rent and putting an embargo on the landlord to enhance the rent, the amount of standard rent no longer represents even remotely the real return on investment of the landlord. However, the minimum that is required is that the tenant pays atleast the paltry sum of standard rent regularly without any delay. Therefore, where a tenant who (i) does not pay rent regularly, and (ii) who does not make good the default after receipt of demand notice, and (iii) decides to await filing of suit and avails second opportunity for obviating the eviction decree under provisions of Section 12(3) of the Bombay Rent Act, it is incumbent that such tenant deposits in the Court, not just the amount of arrears, but also 9% interest and costs of suit. Thus, when Defendant had not paid rent for the month of March 1993 and was depositing the same in the Court in the year 2002, the lease that was required that the Defendant-Tenant deposited the rent for the month of March 1993 alongwith interest for over 11 long years. In the present case, however Defendant neither applied to the Court for deposit of interest nor deposited interest on arrears of rent for a period of 11 long years. She took calculated risk of not paying to the landlord arrears of rent since March 1993 and thereafter further took further risk of not even depositing the same for 8 long years after filing of the suit. The suit was filed in the year 1994. The Defendant-Tenant took the benefit of non-framing of issues by the Court till 13 November 2003 and filed application for deposit of rent only on 3 July 2002. True it is that the Defendant-Tenant cannot really be blamed for doing so, as the law granted her opportunity to deposit the arrears of rent up to the date of ___Page No.8 of 12___ framing of the issues. However, the law also required her to deposit the arrears of rent alongwith 9% interest and costs of the suit. In the present case, since the arrears of rent were not deposited alongwith interest at the rate of 9% per annum as statutorily required under provisions of Section 12(3) of the Bombay Rent Act, the Court was left with no other discretion but to pass a decree for eviction against the Defendant.

11) Apart from non-deposit of interest, the Defendant also did not pay to the landlord costs of the suit which again is a mandatory requirement for obviating a decree for eviction under Section 12(3) of the Bombay Rent Act. Mr. Chaturvedi has relied upon direction in the order dated 30 September 2002 that 'no order as to costs' in support of this contention that the Court itself directed that the Defendant need not pay any costs to the Plaintiff, I am unable to agree. The Court did not impose costs in Interim Notice No. 1026 0f 2022. The Court neither directed nor could have directed non-payment of costs of the suit to the Plaintiff as statutorily required under Section 12(3) of the Bombay Rent Act.

12) Apart from failure to deposit interest and costs of the suit, deposit of Rs.100/- per month in pursuance of order dated 30 September 2002 did not represent deposit of entire amounts 'then due'. Under provisions of Section 12(3) of the Bombay Rent Act what the tenant is required to deposit in the Court is the amount of arrears of rent 'then due'. As on 30 September 2002, Maharashtra Rent Control Act, 1999 had come into force on 30 March 2000. Under provisions of ___Page No.9 of 12___ Section 7(14)(b) of the MRC Act, the standard rent got increased by 5% as on 31 March 2000, and the rent accordingly became Rs.105/-. Thereafter, under provisions of Section 11 of the MRC Act, the rent was required to be increased by 4% per annum every year after 31 March 2000. The Defendant-Tenant did not deposit in the Court even correct principal amount of standard rent which was due as on 30 September 2002.

13) Thus, there is complete failure on the part of the Defendant-Tenant in depositing i) correct principal amount of arrears of rent ii) interest at the rate of 9% from March 1993 till September 2002 and iii) costs of the suit. In the light of failure on the part of the Defendant-Tenant to deposit the entire amount as required under Section 12(3) of the Bombay Rent Act, the Trial Court was left with no other option but decree the suit by ordering eviction of the Defendant- Tenant.

14) In my view, therefore, the Trial Court has rightly decreed the suit on the ground of default in payment of rent and the decree has correctly been upheld by the Appellate Bench of the Small Causes Court. No interference is warranted in exercise of revisionary jurisdiction by this Court under Section 115 of the Code of Civil Procedure in the concurrent decrees on the ground of default in payment of rent.

15) So far as the ground of acquisition of suitable alternate premises is concerned, it appears that the suit was amended on ___Page No.10 of 12___ 4 September 2009 after coming into effect of provisions of MRC Act on 31 March 2000. Under Section 16 of the MRC Act, the ground of acquisition of suitable alternate accommodation is no longer available for the landlord to seek eviction of a tenant. It therefore becomes questionable as to whether it was open for the Plaintiff to seek decree for eviction against the Defendant on the ground of acquisition of suitable alternate accommodation by amending the suit on 4 December