It is well settled law that law of limitation bars the remedy of the claimant to recover the rent for the period beyond three years prior to the institution of the suit, but that cannot be a ground for defeating the claim of the landlord for decree of eviction on satisfaction of the ingredients of the said section.
DATE : JANUARY 15, 2009.
Equivalent Citation: AIR1983Bom212, 1982(84)BOMLR537, 1983MhLJ254
1. Both these cross Petitions by the landlord and the tenant are disposed of by this common Judgement.
2. The suit property consists of four rooms on the ground floor of building situated at Shivaji Nagar, Sangli. It is stated that originally Satyabhama Vithal Joshi was the owner of the building in which the suit property is situated. The said Satyabhamabai by registered Gift deed bequeathed the entire property being C.S.No.151 and the building standing thereon in favour of Sadashiv Joshi, Jaydev Joshi and Smt. Sarala Yeshwant Joshi. Nonetheless Satyabhamabai alongwith Sadashiv, Jaydev and Sarala sent legal notice on 21st November, 1977 to the Respondent Rajashree Pardeshi, who is the tenant in the suit property. The said communication clearly informs the tenant that the ownership stands transferred in the names of Sadashiv, Jaydev and Sarala in view of the registered Gift deed executed by Satyabhamabai and that the tenant was obliged to pay rent in respect of suit property to them. It is also noted in this communication that the Respondent 3
tenant was monthly tenant in relation to the suit property on monthly rent of Rs.165/- plus Rs.50/- and was in default for several years. It is then noted that the outstanding amount payable by the tenant was Rs.1,345/-. In addition, the tenant was liable to pay towards water and electricity charges. The amount payable under that head however, is not specified and left blank. The communication calls upon the tenant to pay the outstanding dues within 15 days from the receipt of the said legal notice and also to vacate the suit premises as tenancy stands terminated with effect from 31st December, 1977. This communication was duly served on the tenant, who sent reply on 13th December, 1977. In her reply the tenant asserted that one Abasaheb Joshi(Krishnaji Vithal Joshi) was looking after the property and was paid amount towards rent from time to time up to end of May, 1977 and he has issued receipts for that purpose. The tenant denied the fact that she was in arrears in the sum of Rs.1,345/- as alleged by the landlords. The tenant also denied that she was in arrears in respect of water and electricity charges. The tenant also asserted that the additional rent demanded of Rs.50/- is excessive and illegal. It is then stated that the tenant was ready and willing to pay the amount towards standard rent in respect of 4
suit property and that she was in fact paying the same to Abasaheb Joshi. However, the said Abasaheb Joshi was now refusing to accept the same. In view of this development, the tenant would be resorting to appropriate legal action. It is further stated in the reply that the tenant was unaware about any Gift deed or transfer of property in the name of above said Sadashiv, Jaydev and Sarla. The tenant asserted that the demand made in the legal notice by the alleged owners was illegal and false. Therefore, tenancy cannot be terminated on that basis. It is further stated that although the relationship of landlord and tenant would exist, it may be clarified as to who would be entitled to receive rent. Significantly, besides sending above reply the tenant proceeded to file standard rent application on 20th December, 1977, which was later on numbered as Application No.7 of 1978. In the said application, the tenant has asserted that the rent was initially Rs.50/- and later on increased to Rs.90/-, Rs.115/- and eventually Rs.215/-. That increase was excessive and illegal. According to the tenant the standard rent of suit property ought to be Rs.50/- per month. It is not necessary to elaborate on other matters stated in the standard rent application. The other relevant fact asserted therein which requires to be 5
noted is that the tenant was not in a position to discern as to who should be paid monthly rent in relation to the suit premises. In view of the confusion the tenant sought following direction in the said application.
(1) to fix standard rent of the suit property.
(2) it be clarified as to the rent should be paid to whom ?
Although the said standard rent application was filed, no application was moved by the tenant for fixing interim rent nor any amount was deposited by the tenant in the said proceeding. As a result, second legal notice was issued by Sadashiv Joshi, Jaydev Joshi and Sarla Joshi dated 26th April, 1979 reiterating the position stated in the earlier legal notice. It is stated that tenant has committed default since June, 1977 and called upon the tenant to pay the said amount to one of them to Smt.Sarala forthwith and also vacate the suit premises as the tenancy was already terminated in terms of legal notice dated 21st November, 1977 on or before 31st May, 1979. What is relevant to notice is that the 6
second legal notice dated 26th April, 1979 makes express reference to the first legal notice dated 21st November, 1977 and also reiterates the position stated therein and once again calls upon the tenant to pay the outstanding dues in respect of suit premises, which were not paid since June, 1977 and also to hand over vacant possession thereof soonafter 31st May, 1979. Even this notice has been duly received by the tenant, which fact is reinforced from the reply given by the tenant on 21st May, 1979.
3. Once again the tenant reiterated the same position, as asserted in the earlier reply. In addition, it is stated that the tenant had paid Rs.19,000/- towards earnest money for purchasing the suit property and was occupying the same as part performance of the said agreement. With regard to the liability to pay amount towards standard rent, it is stated that since there was no direction issued by the concerned Court to pay interim standard rent amount, question of paying any amount or depositing any amount in court did not arise. In substance, the Tenant refuted the claim of the owners not only regarding demand made towards arrears of rent but also to hand over vacant and peaceful possession. Although the above said two legal notices were 7
issued, the owners did not institute any suit for possession. However, suit for possession has been instituted in respect of the suit property against the tenant by one Subhash J. Kulkarni. The said Subhash J.Kulkarni has filed suit for possession in the capacity of Court Receiver. He has been appointed as Court Receiver in Suit filed by Sadashiv, Jaydev and Sarla against five tenants being RCS No.174 of 1980. Here it may be relevant to refer to the said proceedings only to indicate as to the background in which the Plaintiff Subhash Kulkarni instituted suit against the tenants for possession on the ground of default on the basis of legal notice referred to above in respect of the owners of the property. The said suit being RCS No.174 of 1980 is filed by the persons who claim to have become owners on account of the Registered Gift Deed. It is stated by them that the property C.S.No.151 is being waisted and damaged. It is stated that as the Plaintiffs were residents of Mumbai, behind their back, the Defendant Nos. 3 to 5 in the said suit, namely, Krishna Joshi, Makarand Joshi and Arvind Joshi, forcibly entered into tenements on the ground floor and later on inducted Defendant No.1 Shailaja Dhamke and Defendant No.2 Madhuri Dhamake illegally and without the knowledge or permission of the owners. 8
The owners have also asserted in the said suit that they apprehended that the Defendant Nos. 3 to 5 would create obstruction in the peaceful enjoyment of the property bearing CS No.151. On this assertion the owners prayed for following relief in the said suit:
(a) Defendants be directed to hand over
possession of the property described in
paragraph-1 of the plaint.
(b) Defendant Nos. 1 and 2 be ordered to
pay damages in respect of suit premises
occupied by them of monthly amount of
Rs.1350/-.
(c) The Defendant Nos. 1 and 2 be
ordered to pay mesne profit in respect of
premises occupied by them at the rate of
Rs.150/- per month till handing possession
thereof.
(d) The Defendant Nos. 3,4 and 5 be
restrained from interfering with the
possession and or obstructing possession of
the Plaintiffs/owners in relation to the CS
No.151 in any manner(Permanent injunction).
In the said suit, Application was moved for appointment of Court Receiver at the instance of Defendant No.3. The Court appointed the said Defendant No.3 as the Court Receiver. However, later on the owners moved the Court for changing the Court Receiver on the allegation that the Defendant No.3 had not discharged his duties properly as Court Receiver. That Application was contested and was 9
granted. Eventually the Plaintiff in the present proceedings S.J.Kulkarni came to be appointed as Court Receiver. Later on, the newly appointed Court Receiver was permitted to institute the present suit against the tenant for possession on the ground of default on the basis of legal notice sent to her by the owners. It is in this backdrop the present Plaintiff S.J.Kulkarni instituted suit being RCS No.491 of 1984 against the tenant for possession of the suit premises.
4. The present suit came to be filed on 29th September, 1984. However, one development which took place before the institution of the present suit needs to be adverted to. In that, on 8th September, 1983, the tenant moved the Court where standard rent application was pending and requested the Court to allow her to withdraw the standard rent application being Mis. Application No.7 OF 1978 on the assertion that the Court Receiver has been appointed in respect of the suit property. As is noted earlier, one of the grievance made in the standard rent application as well as in the reply sent to the suit notice on behalf of the tenant was that it was not clear to the tenant as to rent should be paid to whom. Obviously, after appointment of Court Receiver, since there was 10
no doubt, the tenant was well-advised to withdraw the standard rent application. At her instance, the standard rent application stood disposed of on 8th September, 1983. What is relevant to note further is that during pendency of the said standard rent application, the tenant had moved the application for fixing interim standard rent. On the said Application, on 19th January, 1983, the interim standard rent was fixed at Rs.200/- per month. Significantly, inspite of the said order the tenant did not bother to pay the arrears since June, 1977 at the said rate nor made any attempt to deposit future rent after January, 1983. Similarly, even after withdrawal of standard rent application on 8th September, 1983-on the ground that now Receiver has been appointed in respect of suit property-no payment has been made by the tenant towards arrears to the Court Receiver either in full or in part. It is not the case of the tenant that such attempt was made and the Court Receiver refused to accept rent. Obviously, since no rent was paid by the tenant, the Court Receiver with a view to protect the property, which was subject matter of suit No.174 of 1980, sought direction of the said Court to permit him to file the present suit against the tenant and it is in that background present suit for eviction has been 11
filed by the Plaintiff Subhash J. Kulkarni-Court Receiver.
5. In the plaint as filed by the Court Receiver which was registered as RCS No.491 of 1984, the background in which he was appointed as Court Receiver is mentioned. It is asserted that he has been appointed as Court Receiver and has been permitted by the Court in RCS No.174 of 1980 to institute the present suit. Reference is then made to the legal notice sent on 21st November, 1977 as well as the second legal notice dated 26th April, 1979. It is stated that the tenant was a monthly tenant. Further, the Agreed rent payable in respect of suit property was Rs.215/- per month. That the tenant remained in arrears since June, 1977 and inspite of the demand notice, she has not bothered to pay the arrears so far. Accordingly, it was prayed that decree of possession be passed on the ground of willful default committed by the tenant and the tenant be directed to pay amount of Rs.9244.80ps towards arrears of rent which were legally recoverable as per the provisions of limitation Act. The computation of that amount can be discerned from paragraph-6 of the plaint.
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6. The suit was contested by the tenant. In the Written Statement it is asserted that there was no relationship of landlord and tenant between the Plaintiff and the defendants. As such, the suit cannot proceed. The tenant has asserted that the Plaintiff was not appointed as Court Receiver in respect of suit property possessed by the tenant; also for that reason, the present suit cannot proceed. It is then stated that the Plaintiff has failed to produce permission given by the Court for institution of the suit. On merits, it is stated that although the tenant was aware about the ownership, however, was not clear about the landlord's right as to who was the landlord in respect of the suit property. It is stated that standard rent application instituted by the tenant after receipt of first legal notice was withdrawn as there was technical defect therein and it was not a dishonest application. In paragraph-7 of the Written Statement, it is stated that the tenant was paying rent to Krishnaji Joshi and has not committed any default. In paragraph-10 it is stated that the present suit could not proceed as no prior legal notice was given by the present Plaintiff/Court Receiver.
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7. Both sides examined one witness each. Plaintiff examined one of the owner, Jaydev Vithal Joshi. The tenant examined her husband. In the evidence of the Plaintiff's witness, it is asserted that he alongwith others became co-owners on the basis of a Gift Deed. Thereafter, notice of demand regarding arrears of rent was issued to the tenant, which was duly replied by the tenant but the amount demanded therein remained unpaid. He has also referred to the second legal notice and also spoke about the break up of the amount which was payable by the defendant tenant in respect of the suit property. It is stated that inspite of two legal notices, neither the amount was paid nor the possession of the premises was handed over nor any amount was deposited in Court till date. He has specifically stated that the Plaintiff has been appointed as Receiver by the Court for the suit property i.e. whole property including the suit premises and has taken permission of the Court to file the present suit. The relevant applications and orders passed have been produced by him, which have been exhibited. The Plaintiff's witness has been cross examined at length.
8. Insofar as the defendant's witness is concerned, he has admitted in his examination in 14
chief that the rent in respect of suit premises was Rs.215/- per month. He has stated that when the tenant took premises there was electricity and water charges in it and it was agreed that the light and electricity charges are included in the rent. He has then stated that the standard rent application was filed. Further, after the death of Satyabhamabai, Krishnaji and his sons, Jaydev, Sadashiv and daughter Sarala started claiming rent. As there was no clarity as to whom rent should be paid, the standard rent application was filed by the tenant. He has then stated that Jaydev, Sadashiv and Sarala agreed to sell the property to the tenant. He has, however, candidly accepted that the said suit for specific performance filed by the tenant has been dismissed, which decree has been confirmed by the High Court. Further, he stated that he would prefer appeal before the Supreme Court. In his evidence for the first time, he has stated that he withdrew the standard rent application on account of institution of specific performance suit. He has further stated that he was ready and willing to pay the rent to the landlord and did not admit the arrears claimed by the Receiver. Indeed, in the evidence, he has asserted that the Receiver has never collected rent from the tenant nor has the tenant paid any rent to the 15
Receiver. He further stated that no notice has been received from the Plaintiff(Court Receiver). In the cross-examination, the Defendant's witness has conceded that he did not know if injunction was claimed in RCS No.174 of 1980 for the whole of C.S.No.151. He has admitted that Court Receiver was appointed as per Exh. 62. He has also admitted in the cross-examination that standard rent application was withdrawn as property went in possession of the Court Receiver. He has also admitted that in the standard rent proceeding, direction was issued by the Court to deposit rent at the rate of Rs.200/- p.m. within 15 days from the date of the order. He has admitted that he has not paid the amount to the owners or the Court Receiver nor deposited any amount in Court as per the said order. When he was called upon to produce rent receipts, he expressed his inability but at the same time admitted that in recitals thereof it is mentioned that the net rent was Rs.215/-. He has admitted that he was required to pay Rs.40-45/- p.m. for electricity charges and Rs.25-30/- towards water charges.
9. The Trial Court on analysing the oral as well as documentary evidence, which has come on record, proceeded to answer the issues. The first issue 16
dealt with by the Trial Court is whether the Plaintiff was the Court Receiver of the suit property. This issue has been answered keeping in mind the contents of the averments in RCS No.174 of 1980 as a whole and not limited to the description of property in paragraph-1 thereof. The Trial Court adverted to paragraph-2 of the said plaint which gives the description of whole of the CS No.151. Reference is also made to paragraph-3 where it is stated that even though the Plaintiffs are owners of CS No.151, the tenant obstructed their enjoyment of the property. Reliance is also placed on contents of paragraph-8 of the plaint which categorically mentions that the defendants should not obstruct enjoyment of whole CS No.151. At the end, the Trial Court has referred to the prayer clause 19 whereby relief of perpetual injunction is claimed against the Defendant Nos. 3,4 and 5 to restrain them from obstructing the Plaintiffs' enjoyment in CS No.151. On analysing the plaint as a whole, the Trial Court opined that the subject matter of the suit (RCS No.174 of 1980) was whole of CS No.151. Besides referring to the plaint, the Trial Court has adverted to the application Exh.70 filed in the said suit for appointment of Court Receiver. The said application was rejected. In appeal being Misc Civil Appeal 17
No.82 of 1981, the order to appoint Court Receiver came to be passed. The said Judgment is Exh.61. Reading the Judgment as a whole the Trial Court proceeded to opine that the Receiver was appointed by the said order for the whole of CS No.151, which can be discerned from the reasons given by the Appellate Court at different places. The Trial Court has also adverted to say given by Jaydev and others (Exh.62) for appointment of Receiver, wherein it is categorically mentioned that it is just and appropriate to appoint Receiver in respect of whole of CS No.151 for proper management of that property. On analysing the above material, the contentious issue was answered against the Defendant and in favour of the Plaintiff.
10. The Court then proceeded to examine the issue as to whether the Plaintiff has obtained permission from the Court to file the present suit. For answering this issue, the Trial Court has referred to Exh.28-which is certified copy of the application given by the Receiver in RCS No.174 of 1980 dated 29th September, 1984 and the order passed thereon. The application clearly records that permission for institution of the present suit against the tenant on the ground of default and possession was sought. 18
That request was accepted and permission was granted to the Receiver. In view of this documentary evidence, even that issue was answered against the tenant and in favour of the Plaintiff.
11. The Trial Court then went on to answer Issue No.6 as to whether the suit under Rent Act was bad in law. At the outset, it is recorded that no arguments were advanced in relation to the said issue on behalf of the tenant. Nevertheless, the Court observed that the Receiver was covered by the expansive definition of landlord under section 5(3) of the Bombay Rent Act. There was relationship of landlord and tenant between the Plaintiff and Defendant. It went on to observe that the Receiver was entitled to institute suit for possession on the ground of default committed by the tenant for a period of more than six months and moreso, the tenant was not ready and willing to pay rent. Accordingly, even that plea of the Defendant has been negatived.
12. The Trial Court then proceeded to examine the issue as to whether the description of the suit property was correct. Even that issue has been answered in the affirmative and against the defendant on the finding that there was no serious dispute 19
about the description.
13. Thereafter, the Trial Court proceeded to consider other contentious issue as to whether the Plaintiff has proved that the Defendant has committed default in non-payment of rent for more than six months. Relying on the evidence of Jaydev Vithal Joshi(Exh.21), wherein he has deposed that the agreed rent in respect of the suit property was Rs.215/- p.m. and that the tenancy begins on the first date of the British Calender month and terminates at the end of the month and that the defendant did not pay the rent from June, 1977; coupled with the fact that the demand notice was issued on November 21, 1977(Exh.22) and that the tenant received the said notice and also gave reply on 31st December, 1977 but failed and neglected to pay the arrears as claimed. Taking all these aspects into account, the Court proceeded to hold that Jaydev and others were claiming rent on the basis of Gift Deed. Besides, the said communication clearly informs the tenant as to who was the landlord and the rent should be paid to whom. Inspite of that the tenant failed and neglected to tender rent in terms of the demand notice. Instead, the tenant filed standard rent application No.7 of 1978. However, subsequently 20
withdrew the said application. The Trial Court has noted that significantly, the tenant did not pay any amount towards arrears or deposited any amount in Court inspite of the order fixing interim rent, but proceeded to withdraw the standard rent application. The Trial Court then adverted to the notice Exh. 48 dated 26th April, 1979, which calls upon the tenant to pay the outstanding rent since June, 1977, which notice was duly served on the defendant, who in turn sent reply on 21st May, 1979. The Trial Court having noticed that inspite of the said notice the Defendant failed to pay the amount as demanded or deposit any amount in Court, was clearly a willful defaulter. Essentially on this finding, the Trial Court proceeded to decree the suit against the defendant.
14. Insofar as the grievance of the defendant that the suit was barred by limitation, that has been answered by the Trial Court on the finding that the suit is for possession under the Bombay Rent Act and the arrears of rent which are barred by limitation are not claimed by the Plaintiff.
15. Against this decision, the defendant carried the matter in appeal being Regular Civil Appeal No.319 before the District Judge, Sangli. The 21
District Judge on the other hand, was pleased to set aside the Judgment and decree passed by the Trial Court and instead dismissed the suit. The Appellate Court in the first place noted that no demand has been made in notice dated 26th April, 1979. According to the Appellate Court, nothing is mentioned as to what is due towards light charges, water charges, education cess and other charges specifically in the said notice. For that reason, notice was not clear. With regard to the second demand notice Exh.48 dated 26th April, 1979, it found that the same was totally vague. It then proceeded to hold that even if the rent was payable up to the date of second notice, the same had become time barred as the suit was filed in the year 1984. It has taken the view that this suit could be proceeded by the Plaintiff only after issuing fresh notice to the defendant/tenant. In absence of such fresh notice, the suit cannot be based on the earlier notice issued by the owners at Exh.48 or Exh.22. It then went on to observe that the Plaintiff has failed to call upon the Defendant to produce original notice dated 21st November, 1979 and 26th April, 1979 from the defendant. It is found that the notice Exh.22 and Exh. 48 on record cannot be said to be authenticated document or legal document for want of 22
signature of the landlord or their advocate. It has found that the notice produced was defective and invalid and cannot be acted upon by the Court. It is then observed that the Plaintiff had no locus standi at all to claim any arrears of rent prior to the date of his appointment as Receiver and in any case, was obliged to issue fresh notice to the defendant/tenant for recovery thereof in his capacity as Court Receiver. The Appellate Court then observed that the Court Receiver had no locus standi to file the suit as he cannot be said to be person aware of the facts of the suit before taking over the charge of the suit property. This opinion is on the assumption that Jaydev, who has been examined as Plaintiff's witness could not have spoken about the facts after the Court Receiver had taken over charge of the suit property. Instead, the Court Receiver ought to have entered the witness box, which would have established that he had demanded rent from the tenant and the defendant refused to pay the same. It found that Jaydev was not competent to depose on those facts and his evidence will have to be discarded. It is on the above reasoning the Appellate Court reversed the view taken by the Trial Court and instead dismissed the suit.
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16. Against the above said decision, both the Plaintiff as well as the Defendant filed cross Writ Petitions under Article 227 before this Court. Present Writ Petition being WP No.2286 of 1993 is filed by the Plaintiff, whereas the Writ Petition No. 2162 of 1995 was filed by the Defendant/tenant. In the tenant's Writ Petition, grievance was that although specific plea was taken by the tenant that the Court Receiver/Plaintiff had no authority to maintain the suit for possession, the said issue was not even adverted to by the Appellate Court. This grievance was accepted by this Court on 7th September, 2001. By the said decision, this Court thought it appropriate to invite finding of the Appellate Court on the issue as to whether the Plaintiff was the Court Receiver and had authority in fact or in law to maintain the suit for possession against the tenant in respect of the suit premises. The Court disposed of the tenant's Writ Petition by the said decision. Consequent to the said order, the matter proceeded for enquiry before the District Court at Sangli. The District Court at Sangli in turn, after having evaluated the evidence on record, returned its finding on the referred issue on 15th March, 2002. The District Court more or less has reiterated the opinion recorded by the Trial Court on 24
the relevant issue Nos. 4 and 5 of the suit. In other words, it has been found that the Plaintiff was appointed as Court Receiver for the whole of CS No.151 and that he was permitted by the concerned Court to institute the present suit. Correctness of the said opinion recorded by the District Court in its finding dated 15th March, 2005, is questioned in the fresh Petition filed by the Defendant/tenant being Writ Petition No.761 of 2009. Accordingly, this Petition is also heard alongwith pending Writ Petition No.2286 of 1993 as the questions involved are overlapping.
17. After having considered the rival submissions, the foremost controversy that needs to be addressed is to consider the correctness of the finding reached by the Appellate Court. The Appellate Court in the first place has found that the demand notice dated 21st November, 1977 is vague as it does not mention what amount is due towards rent payable by the defendant and towards light charges, water charges, education cess and other taxes. Indeed, the said notice leaves amount towards electricity and water charges as blank. However, the notice clearly records that the rent in respect of the suit premises was Rs.165/- plus Rs.50/- i.e. 25
Rs.215/- per month and that the defendant was in arrears for several years. After having said this, the amount of outstanding dues is stated as Rs.1,345/- and then calls upon the tenant to pay the said amount within the specified time. It is well established position that the demand notice need not be strictly construed. It is a communication between the landlord and the tenant as is observed by the Division Bench of our High Court in the case of Chhaganlal Mulchand Jain V/s. Narayan Jagannath Bangh reported in 1983 MLJ 254. While dealing with the similar contention, the Division Bench has observed that the notice is communication between the landlord and the tenant and both the parties know their rights and liabilities about the payment of rent. In such a notice, any mistake in making a demand for the larger amount would not render the notice invalid. This statement of law is restated on the basis of exposition of the Apex Court in the case of Raghunath Ravji Dandekar V/s. Anant Narayan Apte[Civil Appeal No.378 of 1964 decided on 4-5-1966] and in the case of Lalshankar Mulji v/s.Kantilal reported in 74 Bom.L.R.241. Keeping the said observations in mind, it would necessarily follow that the details given in the notice dated 21st November, 1977(Exh.22) clearly informed the tenant 26
about the total amount payable towards arrears of rent, which is outstanding. The specific period has not been mentioned, but that could be discerned on the basis of quantum of rent already indicated in the notice itself being Rs.165/- plus Rs.50/-(i.e. Rs.215/-) per month. Moreover, a clear demand is made to pay the outstanding dues forthwith. Such a notice by no standard can be said to be vague. In other words, finding recorded by the Appellate Court in relation to the said notice will have to be overturned being error apparent on the face of the record, if not perverse.
18. With regard to the second legal notice sent by the owners dated 26th April, 1979(Exh.48), the Appellate Court has observed that the contents thereof are totally vague. The Appellate Court has not elaborated as to why it has found that the demand in the said notice is vague. Reverting to the second legal notice dated 26th April, 1979(Exh.48), the contents thereof have already been adverted to in the earlier part of this Judgment. The said notice clearly records that the tenant was in arrears from June, 1977. What is overlooked by the Appellate Court is that the period during which the tenant is in arrears is specifically mentioned in this notice. 27
Besides, this notice makes reference to earlier legal notice dated 21st November, 1977 which in turn records the amount payable per month. Besides, the first legal notice specifies the total outstanding amount payable towards rent. The tenant has been called upon to pay the amount specified in the said notice dated 21st November, 1977, which according to the owners was still not paid. In my opinion, on fair reading of Notice dated 26th April, 1979(Exh.48), it is not possible to sustain the opinion recorded by the Appellate Court that the same is vague. As aforesaid, specific period for which rent is outstanding has been mentioned; besides the tenant is called upon to pay the rent with reference to the amount which is already specified in the earlier legal notice dated 21st November, 1977(Exh.22). In view of the tenor of notice dated 26th April, 1979, contents of notice dated 21st November, 1977 stood incorporated and it can be safely assumed that the tenant was fully aware about the nature of his liability to pay the outstanding dues. That position is reinforced from the reply sent by the Defendant to both the legal notices. There was absolutely no confusion in the mind of the tenant as to what amount was demand as payable by the tenant. The tenant in the two replies sent by her 28
has accepted that the rent was Rs.90, which was enhanced by Rs.50/-. It is amply clear that the tenant was put to clear notice about her liability and was called upon to pay the outstanding dues within specified time. Thus understood, it is not possible to uphold the view taken by the Appellate Court that the suit should fail on the ground that the legal notice was totally vague. Even this finding is error apparent on the face of record, if not perverse.
19. The Appellate Court then went on to observe that even if it is assumed that the tenant was in arrears till second notice was issued on 26th April, 1979 however, the suit was barred as the same was filed in 1984. According to the Appellate Court, arrears prior to 26th April, 1979 had become time barred and could not be claimed in this suit. That opinion of the Appellate Court will only have to be stated to be rejected. It is well established position that there is distinction between the expression "lawfully payable and lawfully recoverable". The Apex Court in the case of Bhimsen Gupta v/s. Bishwanath Prasad Gupta reported in (2004) 4 Supreme Court Cases 95 had occasion to deal with the similar argument, while referring to the 29
provisions of Bihar Buildings(Lease, Rent and Eviction) Control Act, 1982. The Apex Court has noted that section 11(1)(d) has nothing to do with the recovery of arrears of rent. On the contrary, Section 11(1)(d) provides a ground for eviction of the tenant in the eviction suit. It went on to observe that it is well settled law that law of limitation bars the remedy of the claimant to recover the rent for the period beyond three years prior to the institution of the suit, but that cannot be a ground for defeating the claim of the landlord for decree of eviction on satisfaction of the ingredients of the said section. It will be useful to refer to another decision of the Apex Court in the case of Khadi Gram Udyog Trust V/s. Ram Chandraji Virajman Mandir, reported in (1978) 1 Supreme Court Cases 44. In that case the Apex Court was considering provisions of U.P.Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. It is observed that law is well settled that thought the remedy is barred a debt is not extinguished. It went to observe that under the scheme of the said Act it was clear that the statute has conferred a benefit on the tenant to avoid a decree for eviction by complying with the requirement of Section 20(4). In that case, the tenant had not deposited the entire amount due, 30
namely, the amount time barred, therefore, it was held that the protection was not extended to such tenant. Indubitably, the scheme of the Bombay Rent Act regarding the ground for eviction of tenant who is a wilful defaulter is no different. Applying the same analogy to the fact situation of the present case, it would follow that the tenant having failed to tender the outstanding demanded amount or to deposit the same in Court, has denied himself of the protection available under the provisions of the Bombay Rent Act. If any authority of our High Court is required, we can usefully refer to the exposition in the case of Karamchand Deoji Sanghavi Vs. Tulshiram Kalu Kumawat reported in 1992(1) Mh.L.J.560. Similar contention has been rejected. Even in that case, the landlord, who had purchased the suit premises on 20th March, 1971, issued notice to the tenant under section 12 of the Bombay Rent Act, claiming amount towards arrears of rent from the beginning of 1967 till April, 1975. The landlord filed suit for possession on 26th April, 1976. The argument of the tenant that the claim towards arrears of rent was time barred was rejected. Following the principle expounded in this decision, I have no hesitation in taking the view that the opinion recorded by the Appellate Court that the suit ought 31
to fail as it was in respect of a claim which was time barred will have to be only stated to be rejected. Indeed, there is nothing in the provisions of the Bombay Rent Act to take the view that a suit for recovery of possession should be instituted within a specified time from the date of issuance of demand notice. It is well established position that a suit for possession by the landlord can be instituted within 12 years from the date of termination of tenancy. Article 67 of the Limitation Act governs this position. The fact that last notice in the present case was issued in 1979 and suit was filed in 1984, therefore, will make no difference. The fact remains that after the first notice was issued by the owners, the tenant proceeded to file standard rent application. The second notice was issued by the owners on 26th April, 1979 when the standard rent application was pending. It is possible to contend that in such a situation provisions of section 12(3)(a) (as applicable at the relevant time) would not be attracted and the case ought to proceed as per the regime of section 12(3)(b) of the Act, as it would be covered by the expression "any other case". Be that as it may, the standard rent application was eventually withdrawn by the tenant on 8th September, 1983. It is not in 32
dispute that during the pendency of the said standard rent application, the tenant was directed to pay interim standard rent fixed at the rate of Rs.200/- by the order dated 19th January, 1983. Neither the tenant deposited the arrears on the basis of interim standard rent so fixed by the court nor deposited any future rent on that basis. This position is indisputable. Keeping that position in mind, it would necessarily follow that the tenant made himself liable to eviction in view of the mandate of section 12 of the Act as applicable at the relevant time. With the withdrawal of the standard rent application, the protection which otherwise was available to the tenant automatically stood withdrawn. In other words, consequent to the withdrawal of the standard rent application on 8th September, 1983, the tenant exposed himself to the risk of being proceeded for default under section 12(3)(a) of the Act, as the suit has been filed for recovery of possession on the ground of default on 29th September, 1984. Assuming that it were to be a case under section 12(3)(b), on the first date of hearing of the suit the tenant was obliged to tender rent in Court as demanded by the landlord and then continue to deposit future monthly rent on regular basis. In the present case, the tenant has not bothered to pay any amount at all. 33
Neither the amount towards arrears of rent or for that matter towards future rent payable on month to month basis. Accordingly, no protection is available to such a tenant. The inevitable consequence is to pass a decree of eviction and dispossession.
20. The next reason, which weighed with the Appellate Court is that the Court Receiver should have given fresh notice to the Defendant/tenant. I have already addressed this aspect in the earlier part of this Judgment. In law, once the tenant fails to discharge his obligation upon receipt of demand notice within the specified time, it is open to the landlord to institute suit for possession within a period of 12 years in terms of Article 67 of the Limitation Act. In the present case the Plaintiff herein was espousing the cause of the owners under the orders of the Court. The owners became entitled to relief of possession on the basis of the demand notices. Therefore, no fresh notice was expected from the Plaintiff herein. The fact that there was lapse of almost five years from the date of issuance of notice by the owners cannot be the basis to nonsuit the landlord. In the present case, it will have to be kept in mind that because of dispute between the owners and Krishnaji Joshi, Makarand and 34
Arvind on the other hand, owners were required to institute suit being RCS No. 174 of 1980. It is in those proceeding Court Receiver has been appointed to protect and preserve the suit property. The Plaintiff after being appointed as Court Receiver approached the Trial Court for permission to institute suit against the tenant as it was noticed that no rent was being paid by the tenant. That permission was granted to the Court Receiver on 29th September, 1984 and immediately thereafter, the Court Receiver filed the present suit on 7th November, 1984. It cannot be overlooked that almost five years were lost after issuance of legal notice by the owners on account of stalemate situation. Court Receiver was therefore, authorised to pursue the legal action against the tenant who was found to be a wilful defaulter, so as to protect the property.
21. The next reason recorded by the Appellate Court is that the Plaintiff did not call upon the Defendant to produce the original notice. There is no requirement of law that the Plaintiff should call upon the Defendant to produce original copy of the notice received by him. The Plaintiff who has sent the legal notice is expected to produce and prove office copy of the said notice. That has been done 35
in the present case. The fact that original copy of the legal notice has not been produced or has not come on record cannot militate against the Plaintiff. As a matter of fact the Defendant has neither disputed the existence of notice or the contents thereof. The Appellate Court observed that copy of notice Exh.22 and Exh.48 did not bear signature of either landlord or their advocate. This finding completely overlooks the fact that what has been produced and exhibited as Exh. 22 and 48 is the office copy of the legal notice sent by the Plaintiffs' Advocate. The fact that no signature of the landlord or advocate is appearing thereon cannot be the basis to hold that the same is not admissible in evidence. Moreover, the contents of the notice have been spelt out by the owner Jaydev himself, who has been examined by the Plaintiffs. The contents thereof revealed in his evidence have not been challenged in the cross-examination. The Appellate Court however, proceeds to hold that the fact that the notice has been admitted by the Defendant is of no avail to the Plaintiff. Even this reasoning does not commend to me. Once the contents of the legal notice are not disputed by the defendant, the proof of notice becomes insignificant. In such a case, even if the notice is not on record, as the factum of 36
service of notice and the contents of notice which have remained undisputed, the matter could proceed on that basis. Accordingly, even this opinion of the Appellate Court will have to be overturned being manifestly wrong.
22. The Appellate Court has then proceeded to hold that the Court Receiver could not have instituted the suit founded on the notice given by the owners of the property. This opinion clearly overlooks the settled legal position. It is well established position that upon appointment of a person as Court Receiver, the property does not vest in him. The ownership of the property continues to remain with the original owner. In the present case, it is the original owners who had issued legal notice. The Court Receiver was only espousing the cause of the true owners, since he was appointed for that purpose by the Court of law. Thus understood, the opinion of the Appellate Court that the Court Receiver could not have instituted the suit in relation to the cause of eviction accrued to the owners is unacceptable.
23. The Appellate Court has then observed that at best the Court Receiver could have claimed arrears of 37
rent only from the date of taking over possession of the property. Even this opinion recorded by the Appellate Court deserves to be stated to be rejected. The Court Receiver as aforesaid, was espousing the cause of the real owners under the orders of the Court of competent jurisdiction. In such a case it would be incomprehensible to limit the suit claim only from the date from which the Court Receiver came in possession of the suit property. Whereas, the Court Receiver would be obliged to pursue the legal remedy to espouse the entire claim of the real owners, though it may be in anterior point of time to the date of his appointment and taking over possession of the suit property.
24. The Appellate Court has then opined that the Court Receiver ought to have issued fresh notice before institution of the present suit. It has opined that at no point of time, the Court Receiver demanded the rent from the tenant. Indeed, the Court Receiver has not issued any fresh notice. However, the Court Receiver was espousing the cause of the real owners. The persons claiming to be the real owners have already issued legal notice and the suit claim is founded on such notice. The Appellate Court has then discarded the evidence of Jaydev on the 38
specious reasoning that it is only the Court Receiver who could have deposed in the suit, as no other person would have the authority to do so after the Court Receiver has taken over the charge of the suit property. This opinion clearly overlooks that Jaydev is no other than the one claiming to be the co-owner on the basis of a Gift Deed. Jaydev is the proper and competent person to depose on the facts pertaining to issuance of the legal notice. The Court Receiver could not have deposed on those matters for lack of personal knowledge about those facts. The suit claim is to be adjudicated on the basis of facts necessitating issuance of demand notice and failure of the tenant to fulfil his obligation and not on facts relevant after the Court Receiver has taken over possession of the suit property. The Appellate Court has therefore committed manifest error in discarding evidence of Jaydev and on that basis proceed to hold that the suit must fail. The Appellate Court has then observed that the Court Receiver should have entered the witness box to establish that he had demanded the rent himself and yet the tenant failed to comply with that requisition. That evidence would have been relevant only if the tenant were to assert that she made effort to tender rent to the Court Receiver but 39
the same was declined. That is not the case pleaded or proved by the tenant at all. Therefore, non examination of Court Receiver would not militate in the fact situation of the present case.
25. That takes me to the challenge by the tenant/defendant to the finding recorded by the District Court on the referred issue as to whether the Plaintiff was the Court Receiver and had authority in fact or in law to maintain the suit for possession against the defendant/tenant in respect of the suit premises. I have already adverted to the detail reasons recorded by the Trial Court on this issue. The Appellate Court in its finding returned to this Court, on appreciating the evidence on record has come to the same conclusion which has been recorded by the Trial Court. It has been concurrently found that the Plaintiff was appointed as Court Receiver in Suit No.174 of 1980 for the whole of C.S.No.151 which not only covers the two rooms on the ground floor but also the suit premises. It is also concurrently found that the Plaintiff had applied to the said Court for permission to institute suit for eviction and possession against the Defendant and such permission was granted. All these facts are established from the record and both the 40
Courts below have answered the same against the defendant/tenant. I see no propriety in overturning the said concurrent finding of fact. In my opinion, no other view is possible on the basis of material referred to by the Trial Court to reach at the said finding. That is the only view which can be taken on the basis of the said material. Thus understood, even this grievance of the defendant/tenant will have to be answered against the defendant/tenant.
26. According to the Counsel for the Defendant/tenant, however, the suit filed by the Plaintiff was without authority. According to the defendant/tenant, although the application for appointment of Court Receiver specifically refers to the building and property at CS No.151, however, the suit property is not part and parcel of the said suit property. The argument is already addressed in the earlier part of this Judgment and is of no avail to the tenant. An attempt was made to persuade me that the Suit No.174 of 1980 has already been disposed of and the Court Receiver would necessarily stand discharged. However, there is no material to establish that position. The fact that observation has been made in one of the proceeding that nothing survives in Suit No.174 of 1980 does not necessarily 41
mean that the said suit is already disposed of; and in any case it does not necessarily lead to the conclusion that the Court Receiver appointed in the said Suit stands discharged. Till such formal order is passed by the appropriate Court, the Court Receiver is expected to continue to pursue the proceedings already instituted by him or against him. Accordingly, there is no substance in this submission.
27. Counsel for the Respondent/tenant would then argue that several aspects, which have been raised in the Written Statement and specifically in the Appeal memo were urged before the Appellate Court, which have not been dealt with by the Appellate Court. This argument clearly overlooks that the tenant had filed substantive Writ Petition No.2161 of 1995 questioning the decision of the Appellate Court in relation to the findings which were adverse to the tenant. No such grievance was made in the said Petition. If any such grievance was available to the tenant should have been addressed in the said proceedings. However, the said Petition has been disposed of on the basis of sole argument canvassed at the relevant time that the Plaintiff herein was not appointed as Court Receiver in respect of the 42
present suit property and that he had no authority to pursue suit claim against the Defendant/tenant. That grievance has already been considered by the District Court and the finding returned thereon is no different than the one reached by the Trial Court in the context of issue Nos. 4 and 5. In other words, the tenant cannot be permitted to urge any other ground which could have been legitimately pursued by the tenant in her Writ Petition No.2162 of 1995, which already stands disposed of long back. No reply affidavit has been filed in the present Writ Petition to reiterate the same contention. The Plaintiff in the present Petition cannot be taken by surprise by permitting the Defendant/tenant to urge any new ground, that too in the Writ Petition filed by the landlord. Taking any view of the matter, there is no substance in the challenge to the opinion recorded by the District Court on 15th March, 2002 on the referred issue. The tenant's challenge in Writ Petition No.766 of 2009 would therefore fail.
28. Accordingly, I proceed to pass following operative order.
(i) Writ Petition No.2286 of 1993 filed by the Plaintiff is made absolute. The 43
impugned Judgment and Order of the third Additional District Court, Sangli dated 20th January, 1993 in Regular Civil Appeal No.319 of 1986 is set aside. Instead, the Judgment and Decree passed by the IInd Joint Civil Judge, Junior Division, Sangli dated 25th July, 1986 in Regular Civil Suit No.49 of 1984 is restored and the Suit is decreed in favour of the Plaintiff with costs.
(ii) Writ Petition No.761 of 2009 filed by the defendant/tenant questioning correctness
of the opinion recorded by the third Additional District Judge, Sangli on the referred issue fails and the same is dismissed.
29. At this stage, Counsel for the Respondent/tenant prays that the operation of this order be kept in abeyance for eight weeks so as to enable the tenant to go in appeal, if so advised. Although this request is opposed by the Counsel for the Plaintiff/landlord, however, the same being reasonable one, is accepted. In other words, execution of decree shall remain in abeyance for a period of eight weeks from today, on tenant filing 44
usual undertaking in this Court within two weeks from today. In addition, the tenant shall pay all the outstanding dues as of today within two weeks from today. Failure to comply with any of these conditions, interim protection granted to the tenant shall stand vacated forthwith without further reference to the Court and in which case the Plaintiff shall be free to proceed with the execution of the decree. Ordered accordingly.
(A.M.KHANWILKAR,J)
Print Page
Bombay High Court
Shri Subhash Janardhan Kulkarni vs Smt.Rajashree W/O Avinash ... on 15 January, 2009
CORAM: A.M.KHANWILKAR,JDATE : JANUARY 15, 2009.
Equivalent Citation: AIR1983Bom212, 1982(84)BOMLR537, 1983MhLJ254
2. The suit property consists of four rooms on the ground floor of building situated at Shivaji Nagar, Sangli. It is stated that originally Satyabhama Vithal Joshi was the owner of the building in which the suit property is situated. The said Satyabhamabai by registered Gift deed bequeathed the entire property being C.S.No.151 and the building standing thereon in favour of Sadashiv Joshi, Jaydev Joshi and Smt. Sarala Yeshwant Joshi. Nonetheless Satyabhamabai alongwith Sadashiv, Jaydev and Sarala sent legal notice on 21st November, 1977 to the Respondent Rajashree Pardeshi, who is the tenant in the suit property. The said communication clearly informs the tenant that the ownership stands transferred in the names of Sadashiv, Jaydev and Sarala in view of the registered Gift deed executed by Satyabhamabai and that the tenant was obliged to pay rent in respect of suit property to them. It is also noted in this communication that the Respondent 3
tenant was monthly tenant in relation to the suit property on monthly rent of Rs.165/- plus Rs.50/- and was in default for several years. It is then noted that the outstanding amount payable by the tenant was Rs.1,345/-. In addition, the tenant was liable to pay towards water and electricity charges. The amount payable under that head however, is not specified and left blank. The communication calls upon the tenant to pay the outstanding dues within 15 days from the receipt of the said legal notice and also to vacate the suit premises as tenancy stands terminated with effect from 31st December, 1977. This communication was duly served on the tenant, who sent reply on 13th December, 1977. In her reply the tenant asserted that one Abasaheb Joshi(Krishnaji Vithal Joshi) was looking after the property and was paid amount towards rent from time to time up to end of May, 1977 and he has issued receipts for that purpose. The tenant denied the fact that she was in arrears in the sum of Rs.1,345/- as alleged by the landlords. The tenant also denied that she was in arrears in respect of water and electricity charges. The tenant also asserted that the additional rent demanded of Rs.50/- is excessive and illegal. It is then stated that the tenant was ready and willing to pay the amount towards standard rent in respect of 4
suit property and that she was in fact paying the same to Abasaheb Joshi. However, the said Abasaheb Joshi was now refusing to accept the same. In view of this development, the tenant would be resorting to appropriate legal action. It is further stated in the reply that the tenant was unaware about any Gift deed or transfer of property in the name of above said Sadashiv, Jaydev and Sarla. The tenant asserted that the demand made in the legal notice by the alleged owners was illegal and false. Therefore, tenancy cannot be terminated on that basis. It is further stated that although the relationship of landlord and tenant would exist, it may be clarified as to who would be entitled to receive rent. Significantly, besides sending above reply the tenant proceeded to file standard rent application on 20th December, 1977, which was later on numbered as Application No.7 of 1978. In the said application, the tenant has asserted that the rent was initially Rs.50/- and later on increased to Rs.90/-, Rs.115/- and eventually Rs.215/-. That increase was excessive and illegal. According to the tenant the standard rent of suit property ought to be Rs.50/- per month. It is not necessary to elaborate on other matters stated in the standard rent application. The other relevant fact asserted therein which requires to be 5
noted is that the tenant was not in a position to discern as to who should be paid monthly rent in relation to the suit premises. In view of the confusion the tenant sought following direction in the said application.
(1) to fix standard rent of the suit property.
(2) it be clarified as to the rent should be paid to whom ?
Although the said standard rent application was filed, no application was moved by the tenant for fixing interim rent nor any amount was deposited by the tenant in the said proceeding. As a result, second legal notice was issued by Sadashiv Joshi, Jaydev Joshi and Sarla Joshi dated 26th April, 1979 reiterating the position stated in the earlier legal notice. It is stated that tenant has committed default since June, 1977 and called upon the tenant to pay the said amount to one of them to Smt.Sarala forthwith and also vacate the suit premises as the tenancy was already terminated in terms of legal notice dated 21st November, 1977 on or before 31st May, 1979. What is relevant to notice is that the 6
second legal notice dated 26th April, 1979 makes express reference to the first legal notice dated 21st November, 1977 and also reiterates the position stated therein and once again calls upon the tenant to pay the outstanding dues in respect of suit premises, which were not paid since June, 1977 and also to hand over vacant possession thereof soonafter 31st May, 1979. Even this notice has been duly received by the tenant, which fact is reinforced from the reply given by the tenant on 21st May, 1979.
3. Once again the tenant reiterated the same position, as asserted in the earlier reply. In addition, it is stated that the tenant had paid Rs.19,000/- towards earnest money for purchasing the suit property and was occupying the same as part performance of the said agreement. With regard to the liability to pay amount towards standard rent, it is stated that since there was no direction issued by the concerned Court to pay interim standard rent amount, question of paying any amount or depositing any amount in court did not arise. In substance, the Tenant refuted the claim of the owners not only regarding demand made towards arrears of rent but also to hand over vacant and peaceful possession. Although the above said two legal notices were 7
issued, the owners did not institute any suit for possession. However, suit for possession has been instituted in respect of the suit property against the tenant by one Subhash J. Kulkarni. The said Subhash J.Kulkarni has filed suit for possession in the capacity of Court Receiver. He has been appointed as Court Receiver in Suit filed by Sadashiv, Jaydev and Sarla against five tenants being RCS No.174 of 1980. Here it may be relevant to refer to the said proceedings only to indicate as to the background in which the Plaintiff Subhash Kulkarni instituted suit against the tenants for possession on the ground of default on the basis of legal notice referred to above in respect of the owners of the property. The said suit being RCS No.174 of 1980 is filed by the persons who claim to have become owners on account of the Registered Gift Deed. It is stated by them that the property C.S.No.151 is being waisted and damaged. It is stated that as the Plaintiffs were residents of Mumbai, behind their back, the Defendant Nos. 3 to 5 in the said suit, namely, Krishna Joshi, Makarand Joshi and Arvind Joshi, forcibly entered into tenements on the ground floor and later on inducted Defendant No.1 Shailaja Dhamke and Defendant No.2 Madhuri Dhamake illegally and without the knowledge or permission of the owners. 8
The owners have also asserted in the said suit that they apprehended that the Defendant Nos. 3 to 5 would create obstruction in the peaceful enjoyment of the property bearing CS No.151. On this assertion the owners prayed for following relief in the said suit:
(a) Defendants be directed to hand over
possession of the property described in
paragraph-1 of the plaint.
(b) Defendant Nos. 1 and 2 be ordered to
pay damages in respect of suit premises
occupied by them of monthly amount of
Rs.1350/-.
(c) The Defendant Nos. 1 and 2 be
ordered to pay mesne profit in respect of
premises occupied by them at the rate of
Rs.150/- per month till handing possession
thereof.
(d) The Defendant Nos. 3,4 and 5 be
restrained from interfering with the
possession and or obstructing possession of
the Plaintiffs/owners in relation to the CS
No.151 in any manner(Permanent injunction).
In the said suit, Application was moved for appointment of Court Receiver at the instance of Defendant No.3. The Court appointed the said Defendant No.3 as the Court Receiver. However, later on the owners moved the Court for changing the Court Receiver on the allegation that the Defendant No.3 had not discharged his duties properly as Court Receiver. That Application was contested and was 9
granted. Eventually the Plaintiff in the present proceedings S.J.Kulkarni came to be appointed as Court Receiver. Later on, the newly appointed Court Receiver was permitted to institute the present suit against the tenant for possession on the ground of default on the basis of legal notice sent to her by the owners. It is in this backdrop the present Plaintiff S.J.Kulkarni instituted suit being RCS No.491 of 1984 against the tenant for possession of the suit premises.
4. The present suit came to be filed on 29th September, 1984. However, one development which took place before the institution of the present suit needs to be adverted to. In that, on 8th September, 1983, the tenant moved the Court where standard rent application was pending and requested the Court to allow her to withdraw the standard rent application being Mis. Application No.7 OF 1978 on the assertion that the Court Receiver has been appointed in respect of the suit property. As is noted earlier, one of the grievance made in the standard rent application as well as in the reply sent to the suit notice on behalf of the tenant was that it was not clear to the tenant as to rent should be paid to whom. Obviously, after appointment of Court Receiver, since there was 10
no doubt, the tenant was well-advised to withdraw the standard rent application. At her instance, the standard rent application stood disposed of on 8th September, 1983. What is relevant to note further is that during pendency of the said standard rent application, the tenant had moved the application for fixing interim standard rent. On the said Application, on 19th January, 1983, the interim standard rent was fixed at Rs.200/- per month. Significantly, inspite of the said order the tenant did not bother to pay the arrears since June, 1977 at the said rate nor made any attempt to deposit future rent after January, 1983. Similarly, even after withdrawal of standard rent application on 8th September, 1983-on the ground that now Receiver has been appointed in respect of suit property-no payment has been made by the tenant towards arrears to the Court Receiver either in full or in part. It is not the case of the tenant that such attempt was made and the Court Receiver refused to accept rent. Obviously, since no rent was paid by the tenant, the Court Receiver with a view to protect the property, which was subject matter of suit No.174 of 1980, sought direction of the said Court to permit him to file the present suit against the tenant and it is in that background present suit for eviction has been 11
filed by the Plaintiff Subhash J. Kulkarni-Court Receiver.
5. In the plaint as filed by the Court Receiver which was registered as RCS No.491 of 1984, the background in which he was appointed as Court Receiver is mentioned. It is asserted that he has been appointed as Court Receiver and has been permitted by the Court in RCS No.174 of 1980 to institute the present suit. Reference is then made to the legal notice sent on 21st November, 1977 as well as the second legal notice dated 26th April, 1979. It is stated that the tenant was a monthly tenant. Further, the Agreed rent payable in respect of suit property was Rs.215/- per month. That the tenant remained in arrears since June, 1977 and inspite of the demand notice, she has not bothered to pay the arrears so far. Accordingly, it was prayed that decree of possession be passed on the ground of willful default committed by the tenant and the tenant be directed to pay amount of Rs.9244.80ps towards arrears of rent which were legally recoverable as per the provisions of limitation Act. The computation of that amount can be discerned from paragraph-6 of the plaint.
12
6. The suit was contested by the tenant. In the Written Statement it is asserted that there was no relationship of landlord and tenant between the Plaintiff and the defendants. As such, the suit cannot proceed. The tenant has asserted that the Plaintiff was not appointed as Court Receiver in respect of suit property possessed by the tenant; also for that reason, the present suit cannot proceed. It is then stated that the Plaintiff has failed to produce permission given by the Court for institution of the suit. On merits, it is stated that although the tenant was aware about the ownership, however, was not clear about the landlord's right as to who was the landlord in respect of the suit property. It is stated that standard rent application instituted by the tenant after receipt of first legal notice was withdrawn as there was technical defect therein and it was not a dishonest application. In paragraph-7 of the Written Statement, it is stated that the tenant was paying rent to Krishnaji Joshi and has not committed any default. In paragraph-10 it is stated that the present suit could not proceed as no prior legal notice was given by the present Plaintiff/Court Receiver.
13
7. Both sides examined one witness each. Plaintiff examined one of the owner, Jaydev Vithal Joshi. The tenant examined her husband. In the evidence of the Plaintiff's witness, it is asserted that he alongwith others became co-owners on the basis of a Gift Deed. Thereafter, notice of demand regarding arrears of rent was issued to the tenant, which was duly replied by the tenant but the amount demanded therein remained unpaid. He has also referred to the second legal notice and also spoke about the break up of the amount which was payable by the defendant tenant in respect of the suit property. It is stated that inspite of two legal notices, neither the amount was paid nor the possession of the premises was handed over nor any amount was deposited in Court till date. He has specifically stated that the Plaintiff has been appointed as Receiver by the Court for the suit property i.e. whole property including the suit premises and has taken permission of the Court to file the present suit. The relevant applications and orders passed have been produced by him, which have been exhibited. The Plaintiff's witness has been cross examined at length.
8. Insofar as the defendant's witness is concerned, he has admitted in his examination in 14
chief that the rent in respect of suit premises was Rs.215/- per month. He has stated that when the tenant took premises there was electricity and water charges in it and it was agreed that the light and electricity charges are included in the rent. He has then stated that the standard rent application was filed. Further, after the death of Satyabhamabai, Krishnaji and his sons, Jaydev, Sadashiv and daughter Sarala started claiming rent. As there was no clarity as to whom rent should be paid, the standard rent application was filed by the tenant. He has then stated that Jaydev, Sadashiv and Sarala agreed to sell the property to the tenant. He has, however, candidly accepted that the said suit for specific performance filed by the tenant has been dismissed, which decree has been confirmed by the High Court. Further, he stated that he would prefer appeal before the Supreme Court. In his evidence for the first time, he has stated that he withdrew the standard rent application on account of institution of specific performance suit. He has further stated that he was ready and willing to pay the rent to the landlord and did not admit the arrears claimed by the Receiver. Indeed, in the evidence, he has asserted that the Receiver has never collected rent from the tenant nor has the tenant paid any rent to the 15
Receiver. He further stated that no notice has been received from the Plaintiff(Court Receiver). In the cross-examination, the Defendant's witness has conceded that he did not know if injunction was claimed in RCS No.174 of 1980 for the whole of C.S.No.151. He has admitted that Court Receiver was appointed as per Exh. 62. He has also admitted in the cross-examination that standard rent application was withdrawn as property went in possession of the Court Receiver. He has also admitted that in the standard rent proceeding, direction was issued by the Court to deposit rent at the rate of Rs.200/- p.m. within 15 days from the date of the order. He has admitted that he has not paid the amount to the owners or the Court Receiver nor deposited any amount in Court as per the said order. When he was called upon to produce rent receipts, he expressed his inability but at the same time admitted that in recitals thereof it is mentioned that the net rent was Rs.215/-. He has admitted that he was required to pay Rs.40-45/- p.m. for electricity charges and Rs.25-30/- towards water charges.
9. The Trial Court on analysing the oral as well as documentary evidence, which has come on record, proceeded to answer the issues. The first issue 16
dealt with by the Trial Court is whether the Plaintiff was the Court Receiver of the suit property. This issue has been answered keeping in mind the contents of the averments in RCS No.174 of 1980 as a whole and not limited to the description of property in paragraph-1 thereof. The Trial Court adverted to paragraph-2 of the said plaint which gives the description of whole of the CS No.151. Reference is also made to paragraph-3 where it is stated that even though the Plaintiffs are owners of CS No.151, the tenant obstructed their enjoyment of the property. Reliance is also placed on contents of paragraph-8 of the plaint which categorically mentions that the defendants should not obstruct enjoyment of whole CS No.151. At the end, the Trial Court has referred to the prayer clause 19 whereby relief of perpetual injunction is claimed against the Defendant Nos. 3,4 and 5 to restrain them from obstructing the Plaintiffs' enjoyment in CS No.151. On analysing the plaint as a whole, the Trial Court opined that the subject matter of the suit (RCS No.174 of 1980) was whole of CS No.151. Besides referring to the plaint, the Trial Court has adverted to the application Exh.70 filed in the said suit for appointment of Court Receiver. The said application was rejected. In appeal being Misc Civil Appeal 17
No.82 of 1981, the order to appoint Court Receiver came to be passed. The said Judgment is Exh.61. Reading the Judgment as a whole the Trial Court proceeded to opine that the Receiver was appointed by the said order for the whole of CS No.151, which can be discerned from the reasons given by the Appellate Court at different places. The Trial Court has also adverted to say given by Jaydev and others (Exh.62) for appointment of Receiver, wherein it is categorically mentioned that it is just and appropriate to appoint Receiver in respect of whole of CS No.151 for proper management of that property. On analysing the above material, the contentious issue was answered against the Defendant and in favour of the Plaintiff.
10. The Court then proceeded to examine the issue as to whether the Plaintiff has obtained permission from the Court to file the present suit. For answering this issue, the Trial Court has referred to Exh.28-which is certified copy of the application given by the Receiver in RCS No.174 of 1980 dated 29th September, 1984 and the order passed thereon. The application clearly records that permission for institution of the present suit against the tenant on the ground of default and possession was sought. 18
That request was accepted and permission was granted to the Receiver. In view of this documentary evidence, even that issue was answered against the tenant and in favour of the Plaintiff.
11. The Trial Court then went on to answer Issue No.6 as to whether the suit under Rent Act was bad in law. At the outset, it is recorded that no arguments were advanced in relation to the said issue on behalf of the tenant. Nevertheless, the Court observed that the Receiver was covered by the expansive definition of landlord under section 5(3) of the Bombay Rent Act. There was relationship of landlord and tenant between the Plaintiff and Defendant. It went on to observe that the Receiver was entitled to institute suit for possession on the ground of default committed by the tenant for a period of more than six months and moreso, the tenant was not ready and willing to pay rent. Accordingly, even that plea of the Defendant has been negatived.
12. The Trial Court then proceeded to examine the issue as to whether the description of the suit property was correct. Even that issue has been answered in the affirmative and against the defendant on the finding that there was no serious dispute 19
about the description.
13. Thereafter, the Trial Court proceeded to consider other contentious issue as to whether the Plaintiff has proved that the Defendant has committed default in non-payment of rent for more than six months. Relying on the evidence of Jaydev Vithal Joshi(Exh.21), wherein he has deposed that the agreed rent in respect of the suit property was Rs.215/- p.m. and that the tenancy begins on the first date of the British Calender month and terminates at the end of the month and that the defendant did not pay the rent from June, 1977; coupled with the fact that the demand notice was issued on November 21, 1977(Exh.22) and that the tenant received the said notice and also gave reply on 31st December, 1977 but failed and neglected to pay the arrears as claimed. Taking all these aspects into account, the Court proceeded to hold that Jaydev and others were claiming rent on the basis of Gift Deed. Besides, the said communication clearly informs the tenant as to who was the landlord and the rent should be paid to whom. Inspite of that the tenant failed and neglected to tender rent in terms of the demand notice. Instead, the tenant filed standard rent application No.7 of 1978. However, subsequently 20
withdrew the said application. The Trial Court has noted that significantly, the tenant did not pay any amount towards arrears or deposited any amount in Court inspite of the order fixing interim rent, but proceeded to withdraw the standard rent application. The Trial Court then adverted to the notice Exh. 48 dated 26th April, 1979, which calls upon the tenant to pay the outstanding rent since June, 1977, which notice was duly served on the defendant, who in turn sent reply on 21st May, 1979. The Trial Court having noticed that inspite of the said notice the Defendant failed to pay the amount as demanded or deposit any amount in Court, was clearly a willful defaulter. Essentially on this finding, the Trial Court proceeded to decree the suit against the defendant.
14. Insofar as the grievance of the defendant that the suit was barred by limitation, that has been answered by the Trial Court on the finding that the suit is for possession under the Bombay Rent Act and the arrears of rent which are barred by limitation are not claimed by the Plaintiff.
15. Against this decision, the defendant carried the matter in appeal being Regular Civil Appeal No.319 before the District Judge, Sangli. The 21
District Judge on the other hand, was pleased to set aside the Judgment and decree passed by the Trial Court and instead dismissed the suit. The Appellate Court in the first place noted that no demand has been made in notice dated 26th April, 1979. According to the Appellate Court, nothing is mentioned as to what is due towards light charges, water charges, education cess and other charges specifically in the said notice. For that reason, notice was not clear. With regard to the second demand notice Exh.48 dated 26th April, 1979, it found that the same was totally vague. It then proceeded to hold that even if the rent was payable up to the date of second notice, the same had become time barred as the suit was filed in the year 1984. It has taken the view that this suit could be proceeded by the Plaintiff only after issuing fresh notice to the defendant/tenant. In absence of such fresh notice, the suit cannot be based on the earlier notice issued by the owners at Exh.48 or Exh.22. It then went on to observe that the Plaintiff has failed to call upon the Defendant to produce original notice dated 21st November, 1979 and 26th April, 1979 from the defendant. It is found that the notice Exh.22 and Exh. 48 on record cannot be said to be authenticated document or legal document for want of 22
signature of the landlord or their advocate. It has found that the notice produced was defective and invalid and cannot be acted upon by the Court. It is then observed that the Plaintiff had no locus standi at all to claim any arrears of rent prior to the date of his appointment as Receiver and in any case, was obliged to issue fresh notice to the defendant/tenant for recovery thereof in his capacity as Court Receiver. The Appellate Court then observed that the Court Receiver had no locus standi to file the suit as he cannot be said to be person aware of the facts of the suit before taking over the charge of the suit property. This opinion is on the assumption that Jaydev, who has been examined as Plaintiff's witness could not have spoken about the facts after the Court Receiver had taken over charge of the suit property. Instead, the Court Receiver ought to have entered the witness box, which would have established that he had demanded rent from the tenant and the defendant refused to pay the same. It found that Jaydev was not competent to depose on those facts and his evidence will have to be discarded. It is on the above reasoning the Appellate Court reversed the view taken by the Trial Court and instead dismissed the suit.
23
16. Against the above said decision, both the Plaintiff as well as the Defendant filed cross Writ Petitions under Article 227 before this Court. Present Writ Petition being WP No.2286 of 1993 is filed by the Plaintiff, whereas the Writ Petition No. 2162 of 1995 was filed by the Defendant/tenant. In the tenant's Writ Petition, grievance was that although specific plea was taken by the tenant that the Court Receiver/Plaintiff had no authority to maintain the suit for possession, the said issue was not even adverted to by the Appellate Court. This grievance was accepted by this Court on 7th September, 2001. By the said decision, this Court thought it appropriate to invite finding of the Appellate Court on the issue as to whether the Plaintiff was the Court Receiver and had authority in fact or in law to maintain the suit for possession against the tenant in respect of the suit premises. The Court disposed of the tenant's Writ Petition by the said decision. Consequent to the said order, the matter proceeded for enquiry before the District Court at Sangli. The District Court at Sangli in turn, after having evaluated the evidence on record, returned its finding on the referred issue on 15th March, 2002. The District Court more or less has reiterated the opinion recorded by the Trial Court on 24
the relevant issue Nos. 4 and 5 of the suit. In other words, it has been found that the Plaintiff was appointed as Court Receiver for the whole of CS No.151 and that he was permitted by the concerned Court to institute the present suit. Correctness of the said opinion recorded by the District Court in its finding dated 15th March, 2005, is questioned in the fresh Petition filed by the Defendant/tenant being Writ Petition No.761 of 2009. Accordingly, this Petition is also heard alongwith pending Writ Petition No.2286 of 1993 as the questions involved are overlapping.
17. After having considered the rival submissions, the foremost controversy that needs to be addressed is to consider the correctness of the finding reached by the Appellate Court. The Appellate Court in the first place has found that the demand notice dated 21st November, 1977 is vague as it does not mention what amount is due towards rent payable by the defendant and towards light charges, water charges, education cess and other taxes. Indeed, the said notice leaves amount towards electricity and water charges as blank. However, the notice clearly records that the rent in respect of the suit premises was Rs.165/- plus Rs.50/- i.e. 25
Rs.215/- per month and that the defendant was in arrears for several years. After having said this, the amount of outstanding dues is stated as Rs.1,345/- and then calls upon the tenant to pay the said amount within the specified time. It is well established position that the demand notice need not be strictly construed. It is a communication between the landlord and the tenant as is observed by the Division Bench of our High Court in the case of Chhaganlal Mulchand Jain V/s. Narayan Jagannath Bangh reported in 1983 MLJ 254. While dealing with the similar contention, the Division Bench has observed that the notice is communication between the landlord and the tenant and both the parties know their rights and liabilities about the payment of rent. In such a notice, any mistake in making a demand for the larger amount would not render the notice invalid. This statement of law is restated on the basis of exposition of the Apex Court in the case of Raghunath Ravji Dandekar V/s. Anant Narayan Apte[Civil Appeal No.378 of 1964 decided on 4-5-1966] and in the case of Lalshankar Mulji v/s.Kantilal reported in 74 Bom.L.R.241. Keeping the said observations in mind, it would necessarily follow that the details given in the notice dated 21st November, 1977(Exh.22) clearly informed the tenant 26
about the total amount payable towards arrears of rent, which is outstanding. The specific period has not been mentioned, but that could be discerned on the basis of quantum of rent already indicated in the notice itself being Rs.165/- plus Rs.50/-(i.e. Rs.215/-) per month. Moreover, a clear demand is made to pay the outstanding dues forthwith. Such a notice by no standard can be said to be vague. In other words, finding recorded by the Appellate Court in relation to the said notice will have to be overturned being error apparent on the face of the record, if not perverse.
18. With regard to the second legal notice sent by the owners dated 26th April, 1979(Exh.48), the Appellate Court has observed that the contents thereof are totally vague. The Appellate Court has not elaborated as to why it has found that the demand in the said notice is vague. Reverting to the second legal notice dated 26th April, 1979(Exh.48), the contents thereof have already been adverted to in the earlier part of this Judgment. The said notice clearly records that the tenant was in arrears from June, 1977. What is overlooked by the Appellate Court is that the period during which the tenant is in arrears is specifically mentioned in this notice. 27
Besides, this notice makes reference to earlier legal notice dated 21st November, 1977 which in turn records the amount payable per month. Besides, the first legal notice specifies the total outstanding amount payable towards rent. The tenant has been called upon to pay the amount specified in the said notice dated 21st November, 1977, which according to the owners was still not paid. In my opinion, on fair reading of Notice dated 26th April, 1979(Exh.48), it is not possible to sustain the opinion recorded by the Appellate Court that the same is vague. As aforesaid, specific period for which rent is outstanding has been mentioned; besides the tenant is called upon to pay the rent with reference to the amount which is already specified in the earlier legal notice dated 21st November, 1977(Exh.22). In view of the tenor of notice dated 26th April, 1979, contents of notice dated 21st November, 1977 stood incorporated and it can be safely assumed that the tenant was fully aware about the nature of his liability to pay the outstanding dues. That position is reinforced from the reply sent by the Defendant to both the legal notices. There was absolutely no confusion in the mind of the tenant as to what amount was demand as payable by the tenant. The tenant in the two replies sent by her 28
has accepted that the rent was Rs.90, which was enhanced by Rs.50/-. It is amply clear that the tenant was put to clear notice about her liability and was called upon to pay the outstanding dues within specified time. Thus understood, it is not possible to uphold the view taken by the Appellate Court that the suit should fail on the ground that the legal notice was totally vague. Even this finding is error apparent on the face of record, if not perverse.
19. The Appellate Court then went on to observe that even if it is assumed that the tenant was in arrears till second notice was issued on 26th April, 1979 however, the suit was barred as the same was filed in 1984. According to the Appellate Court, arrears prior to 26th April, 1979 had become time barred and could not be claimed in this suit. That opinion of the Appellate Court will only have to be stated to be rejected. It is well established position that there is distinction between the expression "lawfully payable and lawfully recoverable". The Apex Court in the case of Bhimsen Gupta v/s. Bishwanath Prasad Gupta reported in (2004) 4 Supreme Court Cases 95 had occasion to deal with the similar argument, while referring to the 29
provisions of Bihar Buildings(Lease, Rent and Eviction) Control Act, 1982. The Apex Court has noted that section 11(1)(d) has nothing to do with the recovery of arrears of rent. On the contrary, Section 11(1)(d) provides a ground for eviction of the tenant in the eviction suit. It went on to observe that it is well settled law that law of limitation bars the remedy of the claimant to recover the rent for the period beyond three years prior to the institution of the suit, but that cannot be a ground for defeating the claim of the landlord for decree of eviction on satisfaction of the ingredients of the said section. It will be useful to refer to another decision of the Apex Court in the case of Khadi Gram Udyog Trust V/s. Ram Chandraji Virajman Mandir, reported in (1978) 1 Supreme Court Cases 44. In that case the Apex Court was considering provisions of U.P.Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. It is observed that law is well settled that thought the remedy is barred a debt is not extinguished. It went to observe that under the scheme of the said Act it was clear that the statute has conferred a benefit on the tenant to avoid a decree for eviction by complying with the requirement of Section 20(4). In that case, the tenant had not deposited the entire amount due, 30
namely, the amount time barred, therefore, it was held that the protection was not extended to such tenant. Indubitably, the scheme of the Bombay Rent Act regarding the ground for eviction of tenant who is a wilful defaulter is no different. Applying the same analogy to the fact situation of the present case, it would follow that the tenant having failed to tender the outstanding demanded amount or to deposit the same in Court, has denied himself of the protection available under the provisions of the Bombay Rent Act. If any authority of our High Court is required, we can usefully refer to the exposition in the case of Karamchand Deoji Sanghavi Vs. Tulshiram Kalu Kumawat reported in 1992(1) Mh.L.J.560. Similar contention has been rejected. Even in that case, the landlord, who had purchased the suit premises on 20th March, 1971, issued notice to the tenant under section 12 of the Bombay Rent Act, claiming amount towards arrears of rent from the beginning of 1967 till April, 1975. The landlord filed suit for possession on 26th April, 1976. The argument of the tenant that the claim towards arrears of rent was time barred was rejected. Following the principle expounded in this decision, I have no hesitation in taking the view that the opinion recorded by the Appellate Court that the suit ought 31
to fail as it was in respect of a claim which was time barred will have to be only stated to be rejected. Indeed, there is nothing in the provisions of the Bombay Rent Act to take the view that a suit for recovery of possession should be instituted within a specified time from the date of issuance of demand notice. It is well established position that a suit for possession by the landlord can be instituted within 12 years from the date of termination of tenancy. Article 67 of the Limitation Act governs this position. The fact that last notice in the present case was issued in 1979 and suit was filed in 1984, therefore, will make no difference. The fact remains that after the first notice was issued by the owners, the tenant proceeded to file standard rent application. The second notice was issued by the owners on 26th April, 1979 when the standard rent application was pending. It is possible to contend that in such a situation provisions of section 12(3)(a) (as applicable at the relevant time) would not be attracted and the case ought to proceed as per the regime of section 12(3)(b) of the Act, as it would be covered by the expression "any other case". Be that as it may, the standard rent application was eventually withdrawn by the tenant on 8th September, 1983. It is not in 32
dispute that during the pendency of the said standard rent application, the tenant was directed to pay interim standard rent fixed at the rate of Rs.200/- by the order dated 19th January, 1983. Neither the tenant deposited the arrears on the basis of interim standard rent so fixed by the court nor deposited any future rent on that basis. This position is indisputable. Keeping that position in mind, it would necessarily follow that the tenant made himself liable to eviction in view of the mandate of section 12 of the Act as applicable at the relevant time. With the withdrawal of the standard rent application, the protection which otherwise was available to the tenant automatically stood withdrawn. In other words, consequent to the withdrawal of the standard rent application on 8th September, 1983, the tenant exposed himself to the risk of being proceeded for default under section 12(3)(a) of the Act, as the suit has been filed for recovery of possession on the ground of default on 29th September, 1984. Assuming that it were to be a case under section 12(3)(b), on the first date of hearing of the suit the tenant was obliged to tender rent in Court as demanded by the landlord and then continue to deposit future monthly rent on regular basis. In the present case, the tenant has not bothered to pay any amount at all. 33
Neither the amount towards arrears of rent or for that matter towards future rent payable on month to month basis. Accordingly, no protection is available to such a tenant. The inevitable consequence is to pass a decree of eviction and dispossession.
20. The next reason, which weighed with the Appellate Court is that the Court Receiver should have given fresh notice to the Defendant/tenant. I have already addressed this aspect in the earlier part of this Judgment. In law, once the tenant fails to discharge his obligation upon receipt of demand notice within the specified time, it is open to the landlord to institute suit for possession within a period of 12 years in terms of Article 67 of the Limitation Act. In the present case the Plaintiff herein was espousing the cause of the owners under the orders of the Court. The owners became entitled to relief of possession on the basis of the demand notices. Therefore, no fresh notice was expected from the Plaintiff herein. The fact that there was lapse of almost five years from the date of issuance of notice by the owners cannot be the basis to nonsuit the landlord. In the present case, it will have to be kept in mind that because of dispute between the owners and Krishnaji Joshi, Makarand and 34
Arvind on the other hand, owners were required to institute suit being RCS No. 174 of 1980. It is in those proceeding Court Receiver has been appointed to protect and preserve the suit property. The Plaintiff after being appointed as Court Receiver approached the Trial Court for permission to institute suit against the tenant as it was noticed that no rent was being paid by the tenant. That permission was granted to the Court Receiver on 29th September, 1984 and immediately thereafter, the Court Receiver filed the present suit on 7th November, 1984. It cannot be overlooked that almost five years were lost after issuance of legal notice by the owners on account of stalemate situation. Court Receiver was therefore, authorised to pursue the legal action against the tenant who was found to be a wilful defaulter, so as to protect the property.
21. The next reason recorded by the Appellate Court is that the Plaintiff did not call upon the Defendant to produce the original notice. There is no requirement of law that the Plaintiff should call upon the Defendant to produce original copy of the notice received by him. The Plaintiff who has sent the legal notice is expected to produce and prove office copy of the said notice. That has been done 35
in the present case. The fact that original copy of the legal notice has not been produced or has not come on record cannot militate against the Plaintiff. As a matter of fact the Defendant has neither disputed the existence of notice or the contents thereof. The Appellate Court observed that copy of notice Exh.22 and Exh.48 did not bear signature of either landlord or their advocate. This finding completely overlooks the fact that what has been produced and exhibited as Exh. 22 and 48 is the office copy of the legal notice sent by the Plaintiffs' Advocate. The fact that no signature of the landlord or advocate is appearing thereon cannot be the basis to hold that the same is not admissible in evidence. Moreover, the contents of the notice have been spelt out by the owner Jaydev himself, who has been examined by the Plaintiffs. The contents thereof revealed in his evidence have not been challenged in the cross-examination. The Appellate Court however, proceeds to hold that the fact that the notice has been admitted by the Defendant is of no avail to the Plaintiff. Even this reasoning does not commend to me. Once the contents of the legal notice are not disputed by the defendant, the proof of notice becomes insignificant. In such a case, even if the notice is not on record, as the factum of 36
service of notice and the contents of notice which have remained undisputed, the matter could proceed on that basis. Accordingly, even this opinion of the Appellate Court will have to be overturned being manifestly wrong.
22. The Appellate Court has then proceeded to hold that the Court Receiver could not have instituted the suit founded on the notice given by the owners of the property. This opinion clearly overlooks the settled legal position. It is well established position that upon appointment of a person as Court Receiver, the property does not vest in him. The ownership of the property continues to remain with the original owner. In the present case, it is the original owners who had issued legal notice. The Court Receiver was only espousing the cause of the true owners, since he was appointed for that purpose by the Court of law. Thus understood, the opinion of the Appellate Court that the Court Receiver could not have instituted the suit in relation to the cause of eviction accrued to the owners is unacceptable.
23. The Appellate Court has then observed that at best the Court Receiver could have claimed arrears of 37
rent only from the date of taking over possession of the property. Even this opinion recorded by the Appellate Court deserves to be stated to be rejected. The Court Receiver as aforesaid, was espousing the cause of the real owners under the orders of the Court of competent jurisdiction. In such a case it would be incomprehensible to limit the suit claim only from the date from which the Court Receiver came in possession of the suit property. Whereas, the Court Receiver would be obliged to pursue the legal remedy to espouse the entire claim of the real owners, though it may be in anterior point of time to the date of his appointment and taking over possession of the suit property.
24. The Appellate Court has then opined that the Court Receiver ought to have issued fresh notice before institution of the present suit. It has opined that at no point of time, the Court Receiver demanded the rent from the tenant. Indeed, the Court Receiver has not issued any fresh notice. However, the Court Receiver was espousing the cause of the real owners. The persons claiming to be the real owners have already issued legal notice and the suit claim is founded on such notice. The Appellate Court has then discarded the evidence of Jaydev on the 38
specious reasoning that it is only the Court Receiver who could have deposed in the suit, as no other person would have the authority to do so after the Court Receiver has taken over the charge of the suit property. This opinion clearly overlooks that Jaydev is no other than the one claiming to be the co-owner on the basis of a Gift Deed. Jaydev is the proper and competent person to depose on the facts pertaining to issuance of the legal notice. The Court Receiver could not have deposed on those matters for lack of personal knowledge about those facts. The suit claim is to be adjudicated on the basis of facts necessitating issuance of demand notice and failure of the tenant to fulfil his obligation and not on facts relevant after the Court Receiver has taken over possession of the suit property. The Appellate Court has therefore committed manifest error in discarding evidence of Jaydev and on that basis proceed to hold that the suit must fail. The Appellate Court has then observed that the Court Receiver should have entered the witness box to establish that he had demanded the rent himself and yet the tenant failed to comply with that requisition. That evidence would have been relevant only if the tenant were to assert that she made effort to tender rent to the Court Receiver but 39
the same was declined. That is not the case pleaded or proved by the tenant at all. Therefore, non examination of Court Receiver would not militate in the fact situation of the present case.
25. That takes me to the challenge by the tenant/defendant to the finding recorded by the District Court on the referred issue as to whether the Plaintiff was the Court Receiver and had authority in fact or in law to maintain the suit for possession against the defendant/tenant in respect of the suit premises. I have already adverted to the detail reasons recorded by the Trial Court on this issue. The Appellate Court in its finding returned to this Court, on appreciating the evidence on record has come to the same conclusion which has been recorded by the Trial Court. It has been concurrently found that the Plaintiff was appointed as Court Receiver in Suit No.174 of 1980 for the whole of C.S.No.151 which not only covers the two rooms on the ground floor but also the suit premises. It is also concurrently found that the Plaintiff had applied to the said Court for permission to institute suit for eviction and possession against the Defendant and such permission was granted. All these facts are established from the record and both the 40
Courts below have answered the same against the defendant/tenant. I see no propriety in overturning the said concurrent finding of fact. In my opinion, no other view is possible on the basis of material referred to by the Trial Court to reach at the said finding. That is the only view which can be taken on the basis of the said material. Thus understood, even this grievance of the defendant/tenant will have to be answered against the defendant/tenant.
26. According to the Counsel for the Defendant/tenant, however, the suit filed by the Plaintiff was without authority. According to the defendant/tenant, although the application for appointment of Court Receiver specifically refers to the building and property at CS No.151, however, the suit property is not part and parcel of the said suit property. The argument is already addressed in the earlier part of this Judgment and is of no avail to the tenant. An attempt was made to persuade me that the Suit No.174 of 1980 has already been disposed of and the Court Receiver would necessarily stand discharged. However, there is no material to establish that position. The fact that observation has been made in one of the proceeding that nothing survives in Suit No.174 of 1980 does not necessarily 41
mean that the said suit is already disposed of; and in any case it does not necessarily lead to the conclusion that the Court Receiver appointed in the said Suit stands discharged. Till such formal order is passed by the appropriate Court, the Court Receiver is expected to continue to pursue the proceedings already instituted by him or against him. Accordingly, there is no substance in this submission.
27. Counsel for the Respondent/tenant would then argue that several aspects, which have been raised in the Written Statement and specifically in the Appeal memo were urged before the Appellate Court, which have not been dealt with by the Appellate Court. This argument clearly overlooks that the tenant had filed substantive Writ Petition No.2161 of 1995 questioning the decision of the Appellate Court in relation to the findings which were adverse to the tenant. No such grievance was made in the said Petition. If any such grievance was available to the tenant should have been addressed in the said proceedings. However, the said Petition has been disposed of on the basis of sole argument canvassed at the relevant time that the Plaintiff herein was not appointed as Court Receiver in respect of the 42
present suit property and that he had no authority to pursue suit claim against the Defendant/tenant. That grievance has already been considered by the District Court and the finding returned thereon is no different than the one reached by the Trial Court in the context of issue Nos. 4 and 5. In other words, the tenant cannot be permitted to urge any other ground which could have been legitimately pursued by the tenant in her Writ Petition No.2162 of 1995, which already stands disposed of long back. No reply affidavit has been filed in the present Writ Petition to reiterate the same contention. The Plaintiff in the present Petition cannot be taken by surprise by permitting the Defendant/tenant to urge any new ground, that too in the Writ Petition filed by the landlord. Taking any view of the matter, there is no substance in the challenge to the opinion recorded by the District Court on 15th March, 2002 on the referred issue. The tenant's challenge in Writ Petition No.766 of 2009 would therefore fail.
28. Accordingly, I proceed to pass following operative order.
(i) Writ Petition No.2286 of 1993 filed by the Plaintiff is made absolute. The 43
impugned Judgment and Order of the third Additional District Court, Sangli dated 20th January, 1993 in Regular Civil Appeal No.319 of 1986 is set aside. Instead, the Judgment and Decree passed by the IInd Joint Civil Judge, Junior Division, Sangli dated 25th July, 1986 in Regular Civil Suit No.49 of 1984 is restored and the Suit is decreed in favour of the Plaintiff with costs.
(ii) Writ Petition No.761 of 2009 filed by the defendant/tenant questioning correctness
of the opinion recorded by the third Additional District Judge, Sangli on the referred issue fails and the same is dismissed.
29. At this stage, Counsel for the Respondent/tenant prays that the operation of this order be kept in abeyance for eight weeks so as to enable the tenant to go in appeal, if so advised. Although this request is opposed by the Counsel for the Plaintiff/landlord, however, the same being reasonable one, is accepted. In other words, execution of decree shall remain in abeyance for a period of eight weeks from today, on tenant filing 44
usual undertaking in this Court within two weeks from today. In addition, the tenant shall pay all the outstanding dues as of today within two weeks from today. Failure to comply with any of these conditions, interim protection granted to the tenant shall stand vacated forthwith without further reference to the Court and in which case the Plaintiff shall be free to proceed with the execution of the decree. Ordered accordingly.
(A.M.KHANWILKAR,J)
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