Final Order 6

Order Details: Copy of Judgment
Pdf Text: 1 (Judg.) 2(a) Appeal No.19 of 2023
MHSCA30005052023 Presented on : 25.05.2023
Registered on : 19.06.2023
Decided on : 02.11.2023
Duration : Yrs. Ms. Ds.
00 05 08
IN THE COURT OF SMALL CAUSES AT BOMBAY
(APPELLATE COURT)
(BANDRA BRANCH)
2(a) Appeal No.19 of 2023
In
R.A.E Suit No.438 of 2017
Mr.Dilip Jasaramji Mali
Aged 45 years, Occ.Business
Residing at Flat No.2B, 2nd Floor,
Saxena House, 13, Jai Prakash Nagar,
Road No.2, Goregaon East, ....Appellant
Mumbai 400 063. (Orig.Defendant)
Versus
Mr.Ramesh Ganesh Saxena
Aged 69 years, Indian Inhabitant,
Occ.Retired Govt.Servant,
Residing at Saxena House, 13,
Jai Prakash Nagar, Road No.2, ….Respondent
Goregaon (E), Mumbai 400 063. (Orig.Plaintiff)
Advocates appeared :
Mr.Lalit Jain, Advocate for Appellant.
Mr.N.H.Pathak i/b Shweta Agrawal, Advocate for Respondent.
Coram : M. S. Pathan,
Addl. Chief Judge
&
D. S. Dabhade, Judge
C.R. No.41,
Date : 02.11.2023
O R A L J U D G E M E N T
(Per M. S. Pathan, Addl. Chief Judge)
Being aggrieved of a Judgement and decree dated
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2 (Judg.) 2(a) Appeal No.19 of 2023
20.04.2023 passed in RAE Suit No.438 of 2017 by the learned trial
Judge of Court Room No.33, original defendant has preferred this
appeal. The brief facts led to appeal are as under.
2. The plaintiff has filed suit for eviction of defendant from
the premises known as – Flat No.2B, 2nd floor, Saxena House, 13, Jai
Prakash Nagar, Road No.2, Goregaon (East), Mumbai 400 063
(hereinafter be referred to as “the suit premises”) on the grounds
contemplated under section 15(1) and 16(1)(a) of the Maharashtra Rent
Control Act, 1999 (for short, MRC Act). The plaintiff is co-owner and
landlord of the suit premises. The suit premises was rented out to
defendant on monthly basis being a residential premises by virtue of
rent agreement dated 15.12.2005. The defendant was found regular
defaulter in payment of monthly rent of the suit premises, for plaintiff
was required to sent notices dated 21.01.2009 and 14.07.2012, asking
him to pay regular monthly rent. Although, the said notices were
replied by defendant on 18.08.2012, but he was not regular in payment
of monthly rent. The plaintiff has stated that, there are several
instances, particularly enumerated in paragraph 6 of pleading
suggesting that, defendant was irregular and not ready and willing to
pay monthly rent. Therefore, plaintiff has sought eviction on the
ground of regular default in monthly payment of rent.
3. The suit summons were served upon defendant. He
appeared and put in his plea at exhibit 9. He strongly opposed to all
materials averments in the plaint. According to him, plaintiff is not the
owner of the suit premises. He has signed tenancy agreement, as a
Constituted Attorney of Smt.Taradevi Ganesh Saxena. After demise of
Smt.Taradevi Saxena, who was the original landlady, the legal heirs of
deceased Smt.Taradevi Saxena have not been joined in this suit. The
defendant has also raised the contention that, the suit premises was
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purchased by – Shri Shwetambar Murti Pujak Tapogachh Jain Sangh
to the extent of 37.5 % share in the suit premises from some of the legal
heirs of deceased Smt.Taradevi Saxena, therefore, suit is not tenable
on that count also. It is also contended that, the modus operandi of
accepting rent was quarterly rest. There was no instance to suggest
that, appellant was not ready and willing to pay rent. The averments
made by plaintiff in that regard are absolutely false and baseless, for
suit is liable to be dismissed with costs.
4. Upon rival contentions of parties, the learned trial Judge
has framed issues at exhibit 14, and parties were put to trial.
Accordingly, they have led in their evidence. The learned trial Judge
upon consideration to the entire record and proceeding found that,
appellant was irregular in payment of monthly rent of the suit
premises. It is also found that, he has disputed the title of the landlord,
for he has made breach of the tenancy agreement and, therefore,
decree of eviction stands suffered against him. This is the impugned
Judgement and decree under challenge.
5. Heard learned counsel appearing for appellant Mr.Lalit
Jain and replied by the learned counsel appearing for respondent
Mr.N.H.Pathak. Having regard to facts and circumstances of case,
following points arise for our consideration, to which we record our
findings against each of them, for the reasons stated below.
POINTS FINDINGS
1. Does plaintiff prove that, defendant was not
ready and willing to pay monthly rent of the
suit premises ?
Yes
2. Does plaintiff further prove that, defendant
has breached the terms and conditions of
tenancy agreement ?
Yes
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3. Does defendant prove that, plaintiff is not co-
owner of the suit premises ?
No
4. Is plaintiff entitled to relief of eviction decree
under section 15(1) & 16(1)(a) of the MRC
Act ?
Yes
5. Is impugned judgement and decree passed by
learned Trial Court legal, correct and proper ?
Yes
6. Is interference at the hands of this court
needed ?
No
R E A S O N S
As to all points :
6. The learned counsel appearing for appellant Mr.Jain
assailed the impugned Judgement and decree on one amongst
following other grounds. According to him, suit was filed without
sending demand notice under section 15(2) of the MRC Act and,
therefore, suit is not liable to be decreed. He has further contended
that, 37.5 % share of the suit premises were held by Shri Shwetambar
Murti Pujak Tapogachh Jain Sangh and, therefore, suit is defective for
not joining necessary party. It is further submitted that, there was a
modus operandi of accepting rent at quarterly rest of every three
months, therefore, it cannot be said that, appellant was not ready and
willing to pay monthly rent. The Judgement and decree of the learned
trial Judge is absolutely perverse in that regard. He has not
appreciated all these facts in its proper perspective and arrived at a
wrong conclusion, for the finding needs to be set aside.
7. The learned counsel appearing for respondent Mr.Pathak
has categorically submitted that, suit is under section 16(1)(a) of the
MRC Act, for demand notice is not required. It is submitted that, suit
can be filed under section 15(1) of the MRC Act independently, if the
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tenant was found not ready and willing to pay monthly rent. To make
out his contention more clear, he has categorically placed reliance upon
following Judgements, it read thus;
01. Shivnath s/o Anandram Mundada V/s.Ramdayal
Surajmal Rathi [2011(3) Mh.L.J.860]
02. Chandiram Dariyanumal Ahuja V/s.Akola Zilla Shram
Wahatuk Sahakari Sanstha Akola [2013(1) Mh.L.J.28]
03. Babulal s/o Fakirchand Agrawal V/s.Suresh s/o
Kedarnath Malpani and ors. [2017(4) Mh.L.J.406]
8. We are privileged to go through ratio laid down in all case
laws (discussed supra). We had an occasion to go through the pleadings
of parties and the evidence placed on record. Obviously, very pleadings
of plaintiff clearly reveals that, suit has been brought under section
15(1) read with section 16(1)(a) of the MRC Act. In that regard,
judgements relied upon by appellant are very material. In Shivnath’s
case, (discussed supra) it has been categorically held by the Hon’ble
Bombay High Court that, in case of monthly tenancy, the obligation to
pay monthly rent arises every month. Likewise, in Chandiram Ahuja’s
case (discussed supra), the Division Bench of Hon’ble Bombay High
Court has categorically held that, the tenant who disobeys provisions of
section 15(1) can be evicted independently though such tenant may not
necessarily be in arrears of rent on the date of institution of suit.
Furthermore, in another landmark Judgement of the Full Bench of the
Hon’ble Bombay High Court in case of Babulal Agrawal (discussed
supra), the ratio laid down in earlier Judgement of Chandiram Ahuja’s
case was upheld and it was further held that, the landlord is entitled to
file an independent suit under section 15(1) of the MRC Act. The Full
Bench judgment of the Hon’ble Bombay High Court has categorically
held that, the provision of the MRC Act only protects tenant, who pays
rent, and has established his readiness and willingness to pay the
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monthly rent. Therefore, having regards to all these case laws
(discussed supra), we are clear in our mind that, suit under section
15(1) read with section 16 (1) (a) of the MRC Act can be independently
instituted.
9. Now, coming to pleadings of parties and evidence led by
them. The plaintiff has categorically placed on record one rent receipt
of dated 15.03.2017, it is for November-December 2016 and January-
February 2017. The terms and conditions given beneath the receipt also
suggest that, tenants are required to pay rent strictly in advance.
Besides this, plaintiff has also placed on record the Rent Agreement
dated 15.12.2005, it was executed in between plaintiff, being
Constituted Attorney of Smt.Tarabai Saxena as a owner and landlord of
the suit premises on one hand and defendant being tenant on the other
hand. The clause (5) of the tenancy agreement clearly says that, tenant
shall pay a sum of Rs.810/-, being monthly rent in respect of the said
flat per month regularly to the owner, and tenant has also agreed to pay
permissive increases in rent to the owner from time to time and tenant
would also undertake to pay the said rent on or before every 10th day of
calender month.
10. Therefore, this is a clear stipulation of terms and
conditions of tenancy, as to how they shall behave. Obviously, it is a
tenancy of residential house, and tenant is required to pay monthly
rent. However, if one will go through the table given by plaintiff in
paragraph (6) of his pleading, it reveals that, at no given point of time,
defendant has paid monthly rent. It seems that, vide Bill No.578, the
rent of three months collectively was paid. Likewise, the next entry
suggest that, defendant has paid rent sometime for – 4, 2, 3, 5 & 6
months respectively. Nowhere it suggest that, there was uniformity in
payment of rent with quarterly rest, as pleaded by the defendant. Even
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this has not been denied by appellant. According to him, there was a
modus operandi of paying rent at quarterly rest, and accordingly, he
was paying regularly. In support of his contention, he has also placed
on record the receipt of earlier tenant namely – Polymer Industries,
which also suggests that, rent was paid for January to March, 2005
collectively for three months on 01.03.2005. Thus, according to him,
this was acceptable from both sides, and thus, it cannot be said that, he
was not ready and willing to pay monthly rent.
11. As a matter of fact, the law is very sticker in that regard.
Parties can not mould the law as per their sweet choice. Shortly put, the
law can not be changed by the consent of parties. The law has to be
interpreted as it stood for. The defendant/tenant is required to pay
rent regularly in every month, and failure to which, it may be treated as
defaulter in payment of monthly rent. The material phrase in section
15(1) of the MRC Act “so long as tenant pays” is very significant.
Therefore, the initial burden will be upon the landlord to demonstrate
that, his tenant is not paying rent. And thereafter, if tenant wants to
enjoy the protection under section 15(1) of the MRC Act, he has to
prove that, he has been paying rent voluntarily and not when coerced
by the landlord. In this fact situation, the ingredients of section 15(2) &
15 (3) of the MRC Act are not germane, when the landlord's grievance is
that, the tenant does not pay or is not ready and wiling to pay monthly
rent. In other words, this is not a suit for arrears of rent, so that the
compliance under section 15(2) & 15 (3) of the MRC Act is required.
12. The ratio laid down in Chandiram Ahuja’s case (discussed
supra) was equally referred to and relied upon by the Full Bench of the
Hon’ble Bombay High Court in Babulal Agrawal’s case, (discussed
supra) as this position we have already dealt with in the earlier part of
our judgment. But in this connection, one must recall that, in
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Chandiram Ahuja's case, (discussed supra) the Hon'ble Bombay High
Court by relying upon the ratio of Honble Apex Court in Mistry
Premjibhai Vithaldas V/s.Ganeshbhai Kshavji [(1977) 3 SSC 11], has
defined the phrase “ready and willing”. In that case, the Hon’ble Apex
Court has observed that, the readiness and willingness of the tenant to
pay could be found only, if he had complied with the provisions of the
Act. The Act does not cover the case of a person who is unable to pay
owing to want of means, but is otherwise “ready and willing” to pay.
Such a case is no doubt a hard one, but unfortunately, it does not
enable Courts to make a special law for such hard cases which fall
outside the statutory protection. Thus to our considered mind, any
mutual consent between the parties, when tenant is not able to pay rent
because of not having means, does not necessarily mean that, the
mandatory law enumerated under section 15(1) of the MRC Act in
respect of readiness and willingness has to be relaxed. The basic law in
that regard is that, so long as the tenant pays rent, and is ready and
willing to pay the monthly rent, then only the protection under the
State Rent legislation is available to the tenant. Therefore, having
regards to all these facts, we are of a considered opinion that, the
instances placed on record clearly suggest that, the tenant was not
regularly paying the monthly rent. The submission of the appellant in
that regard has no sum and substance.
13. Be that as it may, the plaintiff has placed on record notice
dated 21.01.2009 at exhibit 35, which also suggest that, plaintiff is a
co-owner of the suit property, and he contend that, tenant is not paying
monthly compensation to its landlord. Besides this, several other
grounds for eviction i.e breach of tenancy have also been raised in that
notice. Again, the second notice of dated 14.07.2012 was issued, in
which, it has been categorically observed that, the tenant is not paying
monthly rent of the suit premises, and he is paying a lumpsum amount
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at the end of three months. Both these notices were served upon
defendant, for he has replied at exhibit 40. In paragraph 2 of that
notice, the defendant has categorically mentioned that, he was paying
rent regularly, and hence onwards, he would regularly tender monthly
rent to the landlord, irrespective of the fact that, landlord is accepted it
or not. The said reply was given by defendant on 18.08.2012. However,
the table placed at paragraph 6 of plaint is from 01.04.2013 to
15.03.2017. But, at no given point of time, and even after assurance in
the notice by the defendant, he appears to have paid the monthly rent
regularly. All the while, the rent paid was for 3, 4, 5 & 6 months
respectively, at one go. Therefore, to us, this much evidence is more
than sufficient to conclude that, appellant is irregular in payment of
monthly rent despite notice given to him to mend his ways and,
therefore, he is liable to be evicted solely on this ground under section
15 (1) read with section 16(1)(a) of the MRC Act. This is one aspect of
the case.
14. Now, coming to the second issue of denial of title.
Obviously, the rent receipts have been issued by plaintiff. The
defendant is contending that, Smt.Taradevi Saxena was the original
landlady of the suit premises. She has other legal heirs than plaintiff,
who have not been joined and, therefore, plaintiff is not entitled to file
this suit. As a matter of fact, plaintiff is one of the sons and legal
representatives of Smt.Taradevi Saxena, to whom General Power of
Attorney has been given. True, there are other legal heirs of deceased
Taradevi. However, this is a settled law throughout that, one of the co-
owners or rent collector can file a suit. This has been rightly dealt with
by the learned trial Judge in the impugned Judgement. The record
further reveals that, some of the legal heirs of Smt.Taradevi Saxena
have also sold their share in the suit property to Shri Shwetambar
Murti Pujak Tapogachh Jain Sangh to the extent of 37.5%. However,
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fact remains that, plaintiff is one of the co-owners of the suit property,
and he is equally entitled to file a suit for eviction, if tenant was found
breaching to the terms and condition of the tenancy agreement.
15. In this context, it is to be recalled that, the legal heirs of
Mrs.Dinesh Saxena have filed one application at exhibit 28 for joining
them as a necessary party to suit before the learned trial Court, but the
learned trial Court has rejected the said application. The applicants
therein have, therefore, filed the Revision Application No.7 of 2022, by
which, the Appellate Bench of Court of Small Causes has allowed them
to join the proceeding. Again, being aggrieved of it, the plaintiff has
moved to the Hon’ble Bombay High Court in Writ Petition No.15427 of
2022, but no proceeding has been stayed of this case. The learned trial
Judge has, therefore, observed that, whatever may be the outcome of
this litigation will have to be operated subject to the decision of the
above Writ Petition filed before the Hon’ble Bombay High Court.
Therefore, in such circumstance, we find that, there is absolutely no
restriction for plaintiff to file this suit for eviction, as the Small Causes
Court is the only forum to avail such relief.
16. Besides, there is absolutely no evidence to show that, after
receipt of notice, defendant was tendering rent regularly on monthly
basis, and plaintiff has declined to accept it. Thus, with this stand
point, we find that, there is absolutely no irregularities in the impugned
Judgement and decree of the learned trial Court. The learned trial
Court has rightly observed that, defendant was not ready and willing to
pay monthly rent in spite of repeated instructions and notices. Even,
the record clearly suggest that, the defendant has gone one step ahead
and denied the title of respondent, and thereby, made breach to the
terms and conditions of tenancy agreement. The tenor of the cross
examination of defendant in the oral evidence suggest alike to that.
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According to him, there were two landlords and, therefore, whom he
shall pay rent of the suit premises, is the question before him.
However, record clearly suggest that, rent receipts were issued by
plaintiff, none of the rent receipt have been issued by Shri Shwetambar
Murti Pujak Tapogachh Jain Sangh, therefore, there is absolutely no
substance in the submission of appellant. This also indirectly suggest
that, defendant is disputing title of plaintiff, for which, he is not
allowed under section 116 of Evidence Act. This much evidence placed
on record is sufficient enough to claim that, defendant is denying title
of plaintiff irrespective of the fact that, plaintiff is issuing rent receipts
in favour of defendant. Thus, the finding given by the learned trial
Court is absolutely perfect in that regard, for we find no fault in it.
Thus, we answer all points accordingly and proceed to pass following
order.
O R D E R
1. 2A- Appeal is dismissed.
2. The Judgement and decree dated 20.04.2023 passed in
RAE Suit No.438 of 2017 by the learned trial Judge of
Court Room No.33, is hereby confirmed.
3. Parties to bear their own costs.
4. Decree be drawn up accordingly.
I agree
Sd/- Sd/-
(D.S.Dabhade) (M.S. Pathan)
Judge Additional Chief Judge
Court Room No.41 Court Room No.41
Dt.02.11.2023 Dt. 02.11.2023
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