Sakhubai Baburao Kadam and others v. Sudhakar Sambhaji Kadam and others

11) The Trial Court accused Plaintiffs of not being diligent in seeking proper information from the Court about deposit of rent and in selectively procuring information in the form of Nazir report on 20 November 1981. The Trial Court noticed that after the said report of 20 November 1981, rent was deposited on 22 December 1983, 10 July 1984 and 9 August 1984 and that Plaintiff ought to have taken note of the said deposits while selectively relying on Nazir’s report of 1981 when the notice was sent in the year 1985. The Trial Court thereafter held that it could not be said that the Defendant had failed to pay the rent at any point of time. The Trial Court also took note of deposition of the Defendant about the approach made by her to the Plaintiff for payment of rent, on noticing their refusal to accept the rent, deposits were made in the Court. It also appears that an admission was given by Plaintiff No.1 during the course of his cross-examination that ‘It is true that Defendant had deposited rent in earlier proceedings also’ and ‘It is true that the rent deposited in the Court has been withdrawn by him’. However, the said admissions could be in respect of the deposit of rent during the course of previous round of litigation and therefore not much can be inferred on the basis of said admissions.

12) If chart of payment of rent reflected in para-6 of the Trial Court’s judgment is taken into consideration, it appears that the last deposit was made by the Defendant on 9 August 1984 of Rs. 50/-. Before that, another deposit appears to have been made on 10 July 1984 of Rs.200/-. This shows that during the year 1984, two deposits totaling Rs.250/- were made by the Defendant in the Court. However, there are no particulars in respect of such deposits. The Trial Court has not conducted any exercise as to whether the three deposits amounting to Rs.550/- were sufficient to take care of the entire rent payable upto the date of filing of the suit.

13) When Plaintiff dispatched Notice dated 7 January 1985, Defendant took a defence in para-7 of the written statement that the notice was ludicrous and therefore she thought that Plaintiff would not institute a fresh suit on the basis of such notice and therefore in order to save expenses towards sending reply to the notice, she did not respond to the same. Thus, receipt of notice is not disputed by the Defendant. The Notice dated 7 January 1985 was for twin reasons of communicating the factum of non-payment of rent, as well as increase in municipal taxes. Plaintiffs communicated to Defendant that from the year 1981, there was increase in municipal taxes which warranted increase in the rent from Rs. 8.60/- to Rs. 9.40/-. In the standard rent application (Misc. Application No.140 of 1985) the Small Causes Court has fixed the standard rent at Rs.9.40/- by its decree dated 24 November 1988. Thus Plaintiff’s demand of increased rent from 1981 of Rs.9.40/- is ultimately found to be valid. In such circumstances, if Defendant did not even bother to respond to the notice either by intimating deposit of rent in Court to Plaintiffs or disputing the increased rent of Rs.9.40/-, this factor would definitely go against the Defendant and would show that she was in default of payment of rent.

14) Coming to the deposit of amount of Rs.550/- by Defendant in the Court, in my view, it was necessary for her to atleast give an intimation to Plaintiff about deposit of rent in the Court. The rent is paid to the landlord towards tenant’s use and occupation of the premises owned by him/her. If tenant by his/her conduct, prevents the landlord from enjoying the amount of rent by paying the same on the due date, the same amounts to default making the landlord entitled to claim possession of the suit premises. Ultimately, the rent payable by the tenant to the landlord constitutes, atleast to some extent, return on investment. Though the provisions of the Bombay Rent Act has capped the amount of rent payable by tenant, it still doesn’t change the position that rent payable in respect of the premises would constitute some return for the landlord towards ownership of the premises by him/her. Seen from this angle, tenant’s act in depriving the landlord to enjoy the return on his property in the form of rent would clearly constitute breach of covenants of tenancy. This is also clear from the fact that under the provisions of the Maharashtra Rent Control Act, 1999 which is a subsequent legislation, the tenant is made liable for payment of 15% interest on arrears of rent to save his tenancy. Though the provision for payment of interest is not to be found under Section 12(b) of the Bombay Rent Act, the same would not alter the position that rent ultimately represents some form of return to the landlord in respect of his ownership over the suit premises. Seen from this angle, Defendant’s action in clandestinely depositing random amounts in the Court, in absence of pendency of suit and thereby depriving the landlord from enjoying the rent for over 5 years would clearly constitute breach of conditions of tenancy.

15) In my view, therefore it was incumbent for the Defendant to atleast intimate to the Plaintiff that she was depositing some amount intermittently in the Court so that Plaintiff could have alteast approached the Court and withdrawn the said amount. A tenant cannot randomly make some deposits in the court in absence of pendency of any suit, or give intimation of such deposits to the landlord, makes the landlord incur expenses for service of notice and for filing of the suit and then raise a specious defence that the rent was actually deposited in the Court. In my view therefore the Defendant was entitled to serve notice under Section 12(2) of the Bombay Rent Act.

16) It is also a matter of fact that Defendant in the present case has not paid or tender in the Court arrears of rent under Section 12(3) of the Bombay Rent Act. Section 12 of the Bombay Rent Act as it applied at the relevant time reads thus:

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 instituted by a landlord against tenant on the ground of non-payment of 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) (a) Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-section (2), the Court shall pass a decree for eviction in any such suit for recovery of possession. (b) In any other case, no decree for eviction shall be passed in any such suit 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 thereafter continues to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court. (4) Pending the disposal of any such suit, the Court may out of any amount paid or tendered by the tenant pay to the land such amount towards payment of rent or permitted increases 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 or permitted increases recoverable under this Act the tenant shallbe 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-I II- For the purposes of sub-section (2), reference to “standard rent” and to “permitted increase” shall include reference to “interim standard rent” and “interim permitted increase” specified under sub-section (3) or (4) of section 11.

17) Thus, in order to save herself from decree of eviction, it was incumbent for the Defendant to pay to the landlord or alteast tender in the Court, the standard rent and permitted increases, then due and thereafter continue to pay or tender in the Court regularly, such rent and permitted increases till final decision of the suit, in addition to payment of costs of the suit. True it is that under Explanation-I, tenant’s readiness and willingness is required to be inferred if an application is made under Section 11(3) of the act for fixation of standard rent and payment/deposit of rent or permitted increases is made after passing of order by the Court on such application. In the present case, after service of the suit summons, it appears that Defendant was advised to file Misc. Application No. 140 of 1985 seeking fixation of standard rent in respect of the suit premises. Perusal of averments in the said application would indicate that the same was made only for the purpose of avoiding payment of rent. It is also a matter of fact that in the said Application, standard rent came to be ultimately fixed at Rs.9.40/- by order dated 24 November 1988 which was the amount demanded by the Plaintiff in the notice dated 7 January 1985 payable from the year 1981. As observed above, Defendant never disputed the increased amount of rent by responding to the Notice dated 7 January

1985. In the previous proceedings, the standard rent of the premises was fixed at Rs.8.60/- by order dated 30 March 1978. Plaintiffs had clearly intimated to Defendant that there was increase in the monthly taxes in the form of water charges and sewage charges and accordingly increased rent of Rs.9.40/- was demanded w.e.f. April 1981. The increase in the rent was by minuscule amount of 80 paise. However, Defendant unnecessarily filed application for fixation of standard rent immediately after receipt of suit summons in absence of any dispute about the rent demanded by the landlord. In my view, therefore the findings recorded by the Appellate Court about lack of bonafides in filing fresh application for standard rent cannot really be found fault with.

18) Mr. Kshirsagar has relied upon judgment of this Court in Shamrao Abaji Jadhav in support of his contention that deposits made even in suit dismissed for default, would come to the aid of the tenant in protecting possession of the suit premises. This Court held in paras-6 and 7 as under:

6. Now, it is relevant to note that in this suit a total claim towards rent was Rs.210/- which was far less than the amount of Rs.232 already deposited long back by the tenant in two standard rent proceedings aforesaid. There was, therefore, no question of the tenant being in any arrears as such of rent either at the date of the quit notice or on the date of the suit. The trial court rightly, therefore, came to the conclusion that this was not a case where any decree for possession of the suit premises could be passed in favour of the landlord under the provisions of S. 12(3)(a) of the Rent Act. The Appellate court, unfortunately for the tenant, reversed this finding on the ground that the deposit made by the tenant in the first standard rent proceedings after the said proceedings were dismissed for default cannot come to the aid of the tenant in protecting his possession of the suit premises. In other words, the reasoning was that the deposits made in the first standard rent proceedings after the same were dismissed for default were not valid tenders and, therefore, had to be excluded from consideration while determining the readiness and willingness of the tenant in terms of S. 12(1) of the Rent Act.

7. It is difficult to accept this reasoning and the ultimate conclusion of the Appellate court. There is no dispute of the fact of the aforesaid deposits. There is also no dispute of the fact that these deposits covered the entire period of arrears. There is also no dispute of the fact that the deposits in fact covered even payment of advance rent. There is also no dispute of the fact the as at the date of the suit notice issued to the tenant in Mar. 1973, the tenant was factually not in any arrears at all. Nor is there any dispute of the fact that even as at the date of the suit, the tenant was factually not in arrears at all. Whole claim in support of her case for eviction by the plaintiff was that though the tenant had made full deposits and though the tenant was factually not in arrears at the date of the quit notice or at the date of the suit itself, payment made in the standard rent proceedings after the said proceedings stood dismissed for default cannot be termed as valid tenders and, therefore cannot come to the aid of the tenant for protecting his possession of the suit premises. In my view, to accept such a contention would be a hypertechnical approach in a matter relating to eviction of the tenant from the suit premises. In enacting sec. 12 of the Rent Act. It cannot be said to be the intention of the Legislature to penalise a person such as the tenant herein and bisit him with the penalty of eviction even though he has paid the entire arrears in judicial proceedings between the parties and even though he is found factually not to be in any arrears at all either at the date of the quite notice or at the date of the suit itself. Indeed, the intention of the Legislature is, at the outset, clear from the provisions of sub-sec. (1) of S. 12 of the Rent Act. By virtue of the said provisions, the Legislature has, at the very threshold, put a bar against a landlord's claim for possession by enacting that he shall not be entitled to 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. Thus, if the tenant is found to have paid or if the tenant is found to be ready and willing to pay, it is not open to the landlord to recover possession. This readiness and willingness has, of course, been interpreted as being, in a case to which S. 12(3)(a) may apply readiness and willingness within a period of one month of the receipt of the notice referred to herein. But even in that light, when we see the facts of the present case, it is clear that much prior to the notice in question and even before receipt of any notice by the landlord to the tenant. the tenant had himself deposited in judicial proceedings between the parties the entire amount of rent which covered not only the entire period of arrears but also period subsequent thereto. Here is, in my view, a case of a tenant who has paid the entire rent long prior to the receipt of the quite notice. On this ground itself, he deserved to be protected in his possession of the suit premises.

19) In my view, the judgment of learned Single Judge of this Court in Shamrao Abaji Jadhav, rendered in the facts of that case would not constitute a binding precedent that in every case, random deposits made by tenant in Court without giving intimation to landlord of such deposits would constitute readiness and willingness on the part of the tenant to pay the rent. Another distinguishing factor in the present case is Defendant’s non-response to the Plaintiff’s notice dated 7 January 1985 which not only alleged arrears of rent but also demanded enhanced rent on account of increase in the municipal taxes.

20) In the present case, Defendant has prevented Plaintiff from enjoying the rent for over 5 years by clandestinely making some deposits in the Court in which no proceedings were pending.

21) After considering the overall conspectus of the case, no palpable error is traced in the judgment and order passed by the Appellate Court, which has rightly held that there was default in payment of rent on the part of the Defendant. I therefore do not find any valid ground to interfere in the decree passed by the Appellate Court. The Writ Petition is devoid of merits and is accordingly dismissed. Rule is discharged. There shall be no order as to costs.

SANDEEP V. MARNE, J.