Friday, 20 December 2019

Whether landlord will be barred from filing eviction suit on ground of arrears of rent if he had previously filed eviction suit on ground of bonafide need?

As regards the submission pertaining to Order II Rule 2 of the CPC, the Courts below have correctly analyzed the said provision and applied it to the facts of the present case. A landlord is entitled to seek a decree of eviction against the tenant under various provisions specified in the aforesaid Act. The causes of action available for the landlord under the various statutory provisions of the said Act are clearly distinct and separate. Therefore, it cannot be said that when the landlord filed the suit for eviction on the ground of bona fide need, he ought to have included all the grounds for eviction that may have been available to him. In fact, the cause of action for arrears of rent specifically arises only when the contingencies contemplated in Section 15 of the said Act occur. Therefore, in a given case, although the landlord may claim that a cause of action on the ground of bona fide need has accrued to him, it is not necessary that at the very same time a cause of action for grant of decree of eviction on the ground of arrears of rent has arisen. The petitioner was not justified in claiming that failure on the part of the respondents to invoke the ground of arrears of rent in the earlier suit filed for grant of decree on the ground of bona fide need, was fatal and that subsequent suit could not have been filed. The Courts below have correctly applied the provision of Order II Rule 2 of the CPC to reject the said contention raised on behalf of the petitioner.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 279 of 2016

Decided On: 11.09.2018

Ataullahkhan  Vs. Kernath Jaywantrao Nagargoje 

Hon'ble Judges/Coram:
Manish Pitale, J.

Citation: 2019(1) RCR(Rent) 531


1. By this Writ Petition, the petitioner (tenant) has challenged concurrent orders of eviction passed by the two Courts below on a suit for eviction filed by the respondents (original plaintiffs/landlords). During the pendency of this Writ Petition, the original tenant died and his legal representatives were brought on record. For the sake of convenience the tenant is being referred to as the 'petitioner'.

2. The facts of the present case in brief are that the petitioner entered into the suit premises being two shop blocks as a tenant since the year 1977- 1978. There was no dispute about the payment of rent by the petitioner till 01-08-1997. But, thereafter, the respondents claimed that the petitioner failed to make deposit of rent at the rate of Rs. 800/- per month from 01-08-1997 to 31-05-2000. Accordingly, on 17-05-2000 (Exhibit-55) the respondents issued notice to the petitioner claiming arrears of rent. Thereafter, the respondent issued another notice on 12-06-2000 (Exhibit-56) to the petitioner claiming rent for the aforesaid period and stated that in case of failure to deposit of the arrears of rent for the aforesaid period, the tenancy would stand terminated on 30-09-2000.

3. On 26-06-2000, the petitioner sent a reply (Exhibit-57) to the notice dated 17-05-2000 (Exhibit-55) sent by the respondents and disputed the quantum of rent. It was claimed by the petitioner that the rent was Rs. 500/- per month and not Rs. 800/- per month. On 29-06-2000, the petitioner sent another reply (Exhibit-120) to the notice dated 12-06-2000 (Exhibit-56) sent by the respondents. Thereafter, the respondents filed suit bearing Small Cause Suit No. 1 of 2002 on 01-01-2002, seeking eviction of the petitioner from the suit shop premises.

4. At this stage, it would be relevant to state that the respondents had also filed another suit on 12-06-2000, bearing Small Case Suit No. 54 of 2001, seeking eviction of the petitioner on the ground of bona fide need. The said suit was dismissed on 03-07-2003 and the appeal against such dismissal was rejected on 21-04-2011.

5. In the suit for eviction filed on 01-01-2002 by the respondents on the ground of arrears of rent for the period 01-08-1997 to 31-05-2000, the petitioner filed his written statement and he also filed an application for fixation of standard rent on 11-11-2002 (Exhibit-20). The respondents also filed an application on 10-12-2002 (Exhibit-24), seeking a direction to the petitioner to deposit the arrears of rent at the rate of Rs. 800/- per month and since the petitioner was disputing the said quantum, at least at the rate of Rs. 500/- per month as the amount of rent claimed by the petitioner himself. On 15-01-2003, the Civil Judge Junior Division (trial Court) passed an order (Exhibit-24) directing the petitioner to deposit the arrears of rent at Rs. 400/- per month. Thereafter, the trial Court passed an order on 07-01-2004 at Exhibit-20, fixing the standard rent at Rs. 750/- per month as on 01-01-2002 and directed that there shall be increase at the rate of 4% per annum in the said amount after lapse of one year commencing from 01-01-2002. The petitioner deposited an amount of Rs. 16,250/- on 16-02-2000. It was also claimed by the petitioner that after the amount was deposited, there was no default on his part either in payment of arrears of rent or the amount that was due.

6. The parties led evidence in support of their claims. The petitioner claimed that the respondents were not justified in demanding monthly rent at the rate of Rs. 800/- per month because the initial rent for the suit shop premises was only Rs. 150/- per month, which gradually increased to the amount of Rs. 500/- per month. According to the petitioner, he was ready and willing to deposit the said rent at the rate of Rs. 500/- per month but the respondents were not willing to accept the same, due to which he had sent money orders which were refused. Thereafter, the petitioner claimed that he opened a separate account in his own name in a bank and deposited the amount of Rs. 500/- per month as the respondents had refused to accept the rent from him. According to him, he had informed the respondents about his intention to do so in his reply dated 29-06-2000 (Exhibit-120).

7. On the other hand, the respondents claimed in the evidence that the petitioner was never sincere in deposit of monthly rent and that he had defaulted thereby exposing him to a decree of eviction on the ground of arrears of rent.

8. By judgment and order dated 12-02-2005, the trial Court decreed the suit and directed the petitioner to hand over vacant possession of the suit shop to the respondents within two months from the date of the judgment. The trial Court found that the petitioner failed to deposit rent within 90 days from the receipt of notice and suit summons and therefore a case for issuance of decree of eviction against the petitioner was made out under the provisions of the Maharashtra Rent Control Act, 1999, particularly Section 15 thereof. It was found that the petitioner failed to pay rent within 90 days from the receipt of notice and therefore, under Section 15 of the said Act the respondents were entitled for a decree in their favour.

9. Aggrieved by the said judgment and decree passed by the trial Court, the petitioner filed Regular Civil Appeal No. 11 of 2006 in the Court of District Judge, Yavatmal (appellate Court). By the impugned judgment and order dated 07-08-2015, the appellate Court dismissed the appeal and confirmed the decree. The appellate Court found that the evidence and material on record demonstrated that the petitioner had defaulted in payment of rent, as he had failed to pay rent within 90 days from the date of service of suit summons and that some part of the arrears of rent amounting to Rs. 16220/- was deposited after 114 days from the receipt of suit summons. The appellate Court also disbelieved the theory of the petitioner that he had opened a separate account in his name and he was depositing amount of Rs. 500/- per month in the said account as the respondents had refused to accept the rent from him. The appellate Court confirmed the decree passed by the trial Court and also agreed with the trial Court on a question raised by the petitioner pertaining to Order II Rule 2 of the Code of Civil Procedure, 1908 (CPC). It had been contended on behalf of the petitioner that when the respondents had filed the earlier suit for eviction on the ground of bona fide need, failure on their part to take the said ground of arrears of rent debarred the respondents from filing the subsequent suit for eviction of the petitioner. Both the Courts below have found that the causes of action in two suits were not the same and that the said contention of the petitioner was unworthy of consideration. Accordingly, the decree of eviction was confirmed against the petitioner.

10. Shri A.V. Bhide, learned Counsel appearing on behalf of the petitioner submitted that the Courts below had committed a grave error in rejecting the ground of challenge raised pertaining to Order II Rule 2 of the CPC. It was contended that the period for which the arrears of rent were claimed by the respondents as a ground for eviction was prior to point of time when suit for eviction on the ground of bond fide need was filed and that therefore, failure on the part of the respondents to seek eviction on the ground of arrears of rent also, in the earlier suit, was fatal for the subsequent suit filed by them. It was further submitted that even on merits the evidence and material had been erroneously appreciated by the two Courts below while granting the decree of eviction. It was claimed that the petitioner had raised bona fide dispute regarding quantum of rent and therefore, it could not be said that the petitioner was in arrears of rent and he had committed default for suffering a decree under Section 15 of the aforesaid Act.

11. On the other hand, Shri S.C. Bhalerao, learned Counsel appearing on behalf of the respondents submitted that the cause of action in the earlier suit for eviction was distinct and different from the cause of action in the present suit in which the decree for eviction was passed against the petitioner. It was submitted that the provision of Order II Rule 2 of the Code and the law laid down in that context, would not apply to the facts of the present case. It was also submitted that the two Courts below had concurrently granted decree of eviction against the petitioner on proper appreciation of the evidence and material on record and that therefore, no case was made out by the petitioner for this Court to exercise writ jurisdiction in his favour.

12. Heard learned Counsel for the parties. Before considering the contentions raised on behalf of the rival parties, it would be appropriate to take into consideration the fact that the correctness or otherwise of the orders of the two Courts below is being examined by this Court while exercising writ jurisdiction. While doing so, this Court is not acting as an appellate Court to go into each and every detail of the matter and it is for the petitioner to demonstrate gross error and perversity in the findings rendered by the two Courts below for exercising writ jurisdiction in his favour. The scope of examining the correctness of the impugned order is considerably limited in writ jurisdiction.

13. A perusal of the evidence and material on record and the orders of the two Courts below demonstrates that while the respondents claimed arrears of rent from the petitioner at the rate of Rs. 800/- per month, the said amount was disputed by the petitioner and he claimed that he was liable to pay rent only at the rate of Rs. 500/- per month. The tenor of the notices issued by the respondents and the manner in which the replies were sent by the petitioner show that there was indeed a dispute raised by the petitioner as regards the quantum of rent that he was liable to pay for the suit shop premises to the respondents. Even if this Court proceeds on the basis that there was indeed a dispute raised by the petitioner and that according to him he was liable to pay rent only at the rate of Rs. 500/- per month and that the standard rent was fixed by the trial Court at Rs. 750/- by order dated 07-01-2004 (Exhibit-20), it would have to be demonstrated by the petitioner that he was indeed depositing/paying rent at the rate of Rs. 500/- per month regularly and that he did not commit any default for suffering a decree under Section 15 of the aforesaid Act.

14. The evidence and material on record demonstrate that the trial Court passed an order on 15-01-2003 (Exhibit-24) directing the petitioner to deposit rent at the rate of Rs. 400/- per month. The trial Court further passed an order on 07-01-2004 (Exhibit-20) holding that the standard rent was Rs. 750/- per month as on 01-01-2002 and that there was to be an increase of 4% per annum after lapse of one year from 01-01-2002.

15. In this situation, it was for the petitioner to demonstrate firstly, that he was regular in payment of rent at the admitted rate of Rs. 500/- per month and that he was not in arrears, secondly that he had paid arrears of rent in compliance with order dated 15-01-2003 (Exhibit-24) and order dated 07-01-2004 (Exhibit-20) passed by the trial Court. It has come on record that the petitioner has not been able to prove his claim of his willingness to deposit the amount at the rate of Rs. 500/- per month. Hence, the respondents were constrained to approach the Court by filing the suit for eviction on the ground of arrears of rent. The Courts below have examined the evidence and material on record and they have found that the claim of the petitioner that he had taken steps to deposit the rent by way of money orders or opening a separate account in his own name and deposited the amount regularly, was not supported by any material on record. If the petitioner was serious about his claim of having deposited the monthly amount of Rs. 500/- in a separate account opened by him due to refusal of the respondents to accept the rent at Rs. 500/- per month from him, the moment he was served with the suit summons, he ought to have transferred the amount from such an account before the trial Court to show his bona fides. In that regard, no steps were taken by the petitioner.

16. The respondents had clearly stated in their notices (Exhibits-55 and 56) dated 17-05-2000 and 12-06-2000, that they were claiming arrears of rent at Rs. 800/- per month from the period 01-01-1997 to 31-05-2000. Even if it is accepted that the petitioner was raising a dispute about the quantum of rent and according to him he was required to pay rent only at the rate of Rs. 500/- per month, there was nothing on record to show that the petitioner deposited the arrears for the said period even at Rs. 500/- per month within a period of 90 days from the receipt of the said notices.

17. The material on record also shows that even after the fixation of standard rent by the trial Court by an order dated 07-01-2004 at the rate of Rs. 750/- per month, the petitioner did not deposit the entire arrears from 01-01-2002 up to date within 90 days from the said order dated 07-01-2004. Therefore, upon minutely scrutinizing the evidence and material on record, it is seen that the petitioner had clearly committed default and thereby exposed himself for grant of eviction decree on the ground of arrears of rent under subsections 1, 2 and 3 of Section 15 of the aforesaid Act. The petitioner has failed to demonstrate any perversity in the findings rendered by the Courts below concurrently, on the basis of material and evidence on record. In such a situation, this Court cannot exercise writ jurisdiction in favour of the petitioner to reverse the decree of eviction granted by the trial Court and confirmed by the appellate Court.

18. As regards the submission pertaining to Order II Rule 2 of the CPC, the Courts below have correctly analyzed the said provision and applied it to the facts of the present case. A landlord is entitled to seek a decree of eviction against the tenant under various provisions specified in the aforesaid Act. The causes of action available for the landlord under the various statutory provisions of the said Act are clearly distinct and separate. Therefore, it cannot be said that when the landlord filed the suit for eviction on the ground of bona fide need, he ought to have included all the grounds for eviction that may have been available to him. In fact, the cause of action for arrears of rent specifically arises only when the contingencies contemplated in Section 15 of the said Act occur. Therefore, in a given case, although the landlord may claim that a cause of action on the ground of bona fide need has accrued to him, it is not necessary that at the very same time a cause of action for grant of decree of eviction on the ground of arrears of rent has arisen. The petitioner was not justified in claiming that failure on the part of the respondents to invoke the ground of arrears of rent in the earlier suit filed for grant of decree on the ground of bona fide need, was fatal and that subsequent suit could not have been filed. The Courts below have correctly applied the provision of Order II Rule 2 of the CPC to reject the said contention raised on behalf of the petitioner.

19. Therefore, it is found that the petitioner has failed to make out a case for exercise of writ jurisdiction of this Court in his favour. Accordingly, this writ petition is dismissed and the decree of eviction granted against the petitioner is confirmed.

20. The learned Counsel for the petitioner has submitted that the petitioner has deposited rent up to December, 2018 and since he has a running business in the suit premises he may be granted reasonable time of at least six months for vacating the suit shop. The learned Counsel for the respondents, on instructions, states that the respondents would be agreeable for grant of such a request only on an undertaking given by the petitioner that he would continue to pay rent regularly for the period up to 31-03-2019 and that he would not create any third party rights in the suit shop and further he would hand over peaceful possession of the same to the respondents on or before 31-03-2019. In the light of the above, it is directed as follows:-

(a) The petitioner shall furnish an undertaking before this Court within a period of four weeks stating that he shall handover peaceful possession of the suit shop blocks to the respondents on or before 31-03-2019.

(b) The petitioner shall pay rent for the months of January, 2019, February, 2019 and March 2019 at the same rate at which he has already deposited advance rent up to December, 2018, without any default. Such deposit of rent for the aforesaid three months shall be made by him on or before the 5th day of each month.

(c) The petitioner shall not create any third party rights in the suit shop premises and that he shall handover peaceful and vacant possession of the suit shop blocks to the respondents on or before 31-03-2019.

21. The writ petition is disposed of in above terms.


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