Saturday, 11 August 2018

Whether notice demanding excess rent is valid?

Shri Naik, learned counsel appearing on behalf of the petitioner, submitted that the two courts below were in error in decreeing the suit on the ground of default. The principal contention urged by the learned counsel is that the contractual rent as claimed by the landlord was not Rs. 25/- but Rs. 12/-. Shri Naik submits that as the notice under Section 12(2) of the Act demanded rent at the rate of Rs. 25/- the notice was invalid and consequently decree of eviction cannot be passed. It is not possible to accede to the submission of the learned counsel. The finding of the two courts below is that the tenant was in arrears of rent for more than six months and notice under Section 12(2) was duly served. The tenant did not pay rent even at the rate of Rs. 12/- per month nor did file any application for determination of standard rent. It is undoubtedly true that the trial court held that the contractual rent was Rs. 12/- and the Appellate Court disturbed that finding without any reasonable ground. The Appellate court held that if the landlord is claiming that the rent was Rs. 25/- it should be so. The reasoning is entirely faulty and defective. The trial judge has given sound reasons for holding that the rent was Rs. 12/- per month. Accepting that finding, still the tenant cannot escape the decree of eviction because the tenant did not tender even that rent at the rate of Rs. 12/- within period of one month. The submission of Shri Nath that the notice is bad because excess rent was demanded cannot be accepted as it has been repeatedly held by this court that notice would not be invalid solely on that count. In case the tenant would have tendered rent at the rate of Rs. 12/- then readiness and willingness would have been established beyond any doubt. In these circumstances, the decree of eviction cannot be disturbed. Accordingly, petition fails and rule is discharged. In the circumstances of the case, there will be no order as to costs.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 531 of 1988

Decided On: 29.06.1989

 Sumatibai Sunderlal Awale Vs.  Banusaheb Peter Chavan

Hon'ble Judges/Coram:
M.L. Pendse, J.



1. The petitioner is tenant of premises situated on the ground floor of House No. 242 situated at Aundh Gaon in Pune District. The respondent-landlord claimed that the premises were leased out to the petitioner at the monthly rent of Rs. 25/- and the petitioner is running a cycle repairing shop in part of the premises and in the remaining portion sugar-cane juice stall. The respondent-landlord purchased the property on 7th July, 1974 from one Kalu Ranu Sonavane. The respondent then served notice dated 24th March, 1982 on the petitioner demanding possession and arrears of rent from 1st September, 1974. The notice was followed by suit instituted in the Court of Small Causes at Pune. The possession was sought on the ground o default, change of user and bonafide personal requirement. The suit was resisted by the petitioner-tenant claiming that the contractual rent was Rs. 12/- and the entire rent was paid to the former landlord but rent receipts were not issued because of the good relations between the parties. The tenant denied change of user and the fact that the landlord required the premises bonafide. The trial Court after recording evidence held that the ground of change of user as well as bonafide requirement was not established. The trial Court further held that the agreed rent was Rs. 12/- per month plus the education less. The trial court concluded that the landlord is entitled to recovery of possession as the petitioner was in arrears of rent for more than six months and has not cleared the arrears or filed application under Section 11(4) of the Bombay Rents, Hotel and Lodging House Rents Control Act, 1947 (hereinafter referred to as "the Rent Act") for determination of standard rent within 30 days of the date of service of notice under Section 12(2) of the Rent Act. The decree of eviction passed by the trial Judge was confirmed in appeal by 6th Addl. District Judge, Pune by judgment dated 5th December, 1987, and these judgments are under challenge in this petition filed under Article 227 of the Constitution of India.

2. Shri Naik, learned counsel appearing on behalf of the petitioner, submitted that the two courts below were in error in decreeing the suit on the ground of default. The principal contention urged by the learned counsel is that the contractual rent as claimed by the landlord was not Rs. 25/- but Rs. 12/-. Shri Naik submits that as the notice under Section 12(2) of the Act demanded rent at the rate of Rs. 25/- the notice was invalid and consequently decree of eviction cannot be passed. It is not possible to accede to the submission of the learned counsel. The finding of the two courts below is that the tenant was in arrears of rent for more than six months and notice under Section 12(2) was duly served. The tenant did not pay rent even at the rate of Rs. 12/- per month nor did file any application for determination of standard rent. It is undoubtedly true that the trial court held that the contractual rent was Rs. 12/- and the Appellate Court disturbed that finding without any reasonable ground. The Appellate court held that if the landlord is claiming that the rent was Rs. 25/- it should be so. The reasoning is entirely faulty and defective. The trial judge has given sound reasons for holding that the rent was Rs. 12/- per month. Accepting that finding, still the tenant cannot escape the decree of eviction because the tenant did not tender even that rent at the rate of Rs. 12/- within period of one month. The submission of Shri Nath that the notice is bad because excess rent was demanded cannot be accepted as it has been repeatedly held by this court that notice would not be invalid solely on that count. In case the tenant would have tendered rent at the rate of Rs. 12/- then readiness and willingness would have been established beyond any doubt. In these circumstances, the decree of eviction cannot be disturbed. Accordingly, petition fails and rule is discharged. In the circumstances of the case, there will be no order as to costs.




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