Whether Court should dismiss eviction suit filed before the expiry of the statutory period prescribed U/S 15(2) of Maharashtra rent control Act as a premature suit?

I have given due consideration to the respective submissions. The facts on record indicate that the respondent who is the landlord had issued a notice to the tenant on 11-2-2008 demanding arrears of rent. This notice was served on the tenant on 19-2-2008 but the same was not complied. The suit was filed on 1-3-2008. In this factual background, the aspect whether the petitioner can be permitted to raise the plea that the suit as filed was before expiry of the statutory period of ninety days from service of the demand notice deserves to be considered.

The provisions of section 15(2) of the said Act read thus:

Section 15(2): No suit for recovery of possession shall be instituted by a landlord against the tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of ninety days next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the Transfer of Property Act, 1882.

What has been prohibited is the institution of a suit for recovery of possession against the tenant on the ground of non-payment of standard rent or permitted increases. Unless the period of ninety days has expired after service of the notice of demand on the tenant, such suit cannot be instituted. Hence there would be no jurisdiction with the Court to entertain a suit that has been instituted prior to the expiry of the statutory period of ninety days. In Vitthalbhai (P) Ltd. (supra) the Honourable Supreme Court considered the fate of a premature suit. In paragraph 22 thereof it was observed thus:

"... However, the court shall not exercise its discretion in favour of decreeing a premature suit in the following cases (i) when there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event: (ii) when the institution of the suit before the lapse of a particular time or occurrence of a particular event would have the effect of defeating a public policy or public purpose; (iii) if such premature institution renders the presentation itself patently void and the invalidity is incurable such as when it goes to the root of the court's jurisdiction; and (iv) where the lis is not confined to parties alone and affects and involves persons other than those arrayed as parties, such as in an election petition which affects and involves the entire constituency."

The case in hand pertains to contingency No. (i) as contemplated by the Honourable Supreme Court. The said defect of premature institution also renders the presentation of the suit void thereby affecting the court's jurisdiction.

6. From the facts noted hereinabove, it is crystal clear that the suit was filed by the respondent prior to expiry of ninety days from the service of the demand notice. The presentation of the suit itself being void and going to the court's jurisdiction, the aforesaid plea would have to be permitted to be raised though it was not raised earlier. The aforesaid defect being incurable as the landlord could not have cured the said defect after filing the suit is without any doubt. Even if such plea was raised in the written statement, the defect in question was incurable. On the other hand if it is found that the Court has entertained the suit on the basis of presentation of the plaint which was patently void and affecting the jurisdiction of the Court, said legal plea would have to be permitted to be raised. This plea does not call for any factual adjudication as the date of service of the notice on the tenant and the date of presentation of the plaint are not in dispute. Moreover, the decree for eviction has been passed only on the ground of arrears of rent. The observations of learned Single Judge in paragraph 6 of the decision in Digambar Hari Sonpatki (supra) can be relied upon.

7. In view of aforesaid, the only conclusion that can be drawn from the aforesaid facts is that the suit for eviction was filed in a manner contrary to provisions of section 15(2) of the said Act. The trial Court had no jurisdiction to entertain such a prematurely instituted suit. 

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

W.P. No. 3788 of 2015

Decided On: 07.07.2016

Jitendra Nagarkar vs Mohanlal Agrawal,

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

Citation: MANU/MH/2659/2016,2016 SCC ONLINE BOM 7056,

(2016) 6 Mah LJ 797 : (2016) 6 Bom CR 743, 2017(2) ALLMR 69

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Questions and answers on rent law

1) What is difference between S 15(2) and S 15 (3) of Maharashtra rent control act?
Ans -1) As per S 15(2) No eviction suit is to be filed against tenant unless Demand notice is issued to him prior to filing of eviction suit  demanding arrears of rent. As per S 15 (3) no eviction decree should be passed by court if tenant deposits arrears of rent, interest,permitted increase and costs of suit within 90 days from date of receipt of summons and thereafter continue to deposit rent and permitted increases till disposal of suit.
2) S 15(2) is applicable at pre trial stage and S 15(3) is applicable after filing of eviction suit.

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When court should not entertain premature suit?

I have given due consideration to the respective submissions. The facts on record indicate that the respondent who is the landlord had issued a notice to the tenant on 11-2-2008 demanding arrears of rent. This notice was served on the tenant on 19-2-2008 but the same was not complied. The suit was filed on 1-3-2008. In this factual background, the aspect whether the petitioner can be permitted to raise the plea that the suit as filed was before expiry of the statutory period of ninety days from service of the demand notice deserves to be considered.

The provisions of section 15(2) of the said Act read thus:

Section 15(2): No suit for recovery of possession shall be instituted by a landlord against the tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of ninety days next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the Transfer of Property Act, 1882.

What has been prohibited is the institution of a suit for recovery of possession against the tenant on the ground of non-payment of standard rent or permitted increases. Unless the period of ninety days has expired after service of the notice of demand on the tenant, such suit cannot be instituted. Hence there would be no jurisdiction with the Court to entertain a suit that has been instituted prior to the expiry of the statutory period of ninety days. In Vitthalbhai (P) Ltd. (supra) the Honourable Supreme Court considered the fate of a premature suit. In paragraph 22 thereof it was observed thus:

"... However, the court shall not exercise its discretion in favour of decreeing a premature suit in the following cases (i) when there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event: (ii) when the institution of the suit before the lapse of a particular time or occurrence of a particular event would have the effect of defeating a public policy or public purpose; (iii) if such premature institution renders the presentation itself patently void and the invalidity is incurable such as when it goes to the root of the court's jurisdiction; and (iv) where the lis is not confined to parties alone and affects and involves persons other than those arrayed as parties, such as in an election petition which affects and involves the entire constituency."

The case in hand pertains to contingency No. (i) as contemplated by the Honourable Supreme Court. The said defect of premature institution also renders the presentation of the suit void thereby affecting the court's jurisdiction.

6. From the facts noted hereinabove, it is crystal clear that the suit was filed by the respondent prior to expiry of ninety days from the service of the demand notice. The presentation of the suit itself being void and going to the court's jurisdiction, the aforesaid plea would have to be permitted to be raised though it was not raised earlier. The aforesaid defect being incurable as the landlord could not have cured the said defect after filing the suit is without any doubt. Even if such plea was raised in the written statement, the defect in question was incurable. On the other hand if it is found that the Court has entertained the suit on the basis of presentation of the plaint which was patently void and affecting the jurisdiction of the Court, said legal plea would have to be permitted to be raised. This plea does not call for any factual adjudication as the date of service of the notice on the tenant and the date of presentation of the plaint are not in dispute. Moreover, the decree for eviction has been passed only on the ground of arrears of rent. The observations of learned Single Judge in paragraph 6 of the decision in Digambar Hari Sonpatki (supra) can be relied upon.

7. In view of aforesaid, the only conclusion that can be drawn from the aforesaid facts is that the suit for eviction was filed in a manner contrary to provisions of section 15(2) of the said Act. The trial Court had no jurisdiction to entertain such a prematurely instituted suit. The Appellate Court by dismissing the appeal also exercised jurisdiction thereby confirming the decree passed in the suit of which the trial Court could not have taken cognizance. The only inevitable result is that the decree passed by the trial Court as maintained by the Appellate Court is without jurisdiction.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

W.P. No. 3788 of 2015

Decided On: 07.07.2016

 Jitendra Vs.  Mohanlal

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

Citation: 2017(2) ALLMR 69

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Whether landlord can file eviction suit even if tenant has paid rent as per notice issued by him?

The view expressed by Division Bench in the matter of Chandiram Ahuja (supra) lays down correct preposition and we are in agreement with the view expressed by the Division Bench in aforesaid matter. The view expressed by Division Bench in the matter of Narhar Wani (supra) does not lay down correct law and we disagree with the view expressed therein.

To infer that once the tenant pays the amount recorded in the notice or tenders the same, the landlord has no right to institute a suit for recovery of possession for non-payment of those arrears or continue with such proceeding for eviction and no decree for possession can be asked for, is not within contemplation of provisions of section 15 of the Act. The provision does not interfere with the right of the landlord to initiate proceeding for eviction, however, sub-section (2) of section 15 prescribes precondition for presentation of suit, that is to say that no suit can be initiated without issuing a notice within contemplation of said sub-section (2) of section 15 and tenant's entitlement to claim relief against forfeiture shall be subject to fulfillment of conditions stipulated under sub-section (1) and (3) of section 15 of the Rent Act.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Civil Revision Application No. 76 of 2010

Decided On: 12.06.2017

 Babulal Vs. Suresh and Ors.

Hon'ble Judges/Coram:

R.M. Borde, R.V. Ghuge and Sangitrao S. Patil, JJ.

Citation:2017(4) MHLJ 406 (FB)

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Whether landlord can withdraw prayer for eviction on ground of bonafide need and subletting?

It is well settled that even if eviction of a tenant is
sought on various grounds under provisions of Section 15(2) and
Section 16(1) of the said Act and a decree is passed on some of the
grounds in favour of the landlord, such decree for eviction can be

supported even on a singular ground of eviction.  In the present
case, the eviction of the tenants was sought on the ground that
they were in arrears of rent, the act of subletting the premises and
bonafide need of the landlady.  Though the trial Court decreed the
suit on all the three grounds, the landlady in the appeal preferred
by one of the tenants and the sub­tenant chose to support the
decree for eviction only on the ground of arrears of rent.   Such
course was always permissible for the landlady. Merely because
the grounds of bonafide need and subletting were not pressed by
the landlady before the appellate Court, the same by itself cannot
be fatal to the case of the landlady. It was open for her to seek
eviction of the tenant on the ground of arrears of rent. Hence,
much capital cannot be made by the tenant of the act of the
landlady of giving up the prayer for eviction on the ground of

bonafide need and subletting.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.6936 OF 2015

Shri  Sagar   Bhagwat, 
                                                       
                                      ­V

Smt.   Kiran   Wife   of   Ishkumar
Leekha,  
CORAM: A.S. CHANDURKAR, J.

DATED: 28­-07-­2016.
Citation: 2016(6) MHLJ368

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Whether notice issued under S 15(2) of Maharashtra Rent Control Act should contain stipulation regarding termination of lease?

  The provisions of Section 15(2) of the Act of 1999 are
clear wherein the stipulation is only with regard to demand of standard rent
and permitted increases. In absence of any requirement of terminating the
lease, insistence of compliance with provisions of Section 106(1) of the Act of
1882 would be going beyond said statutory provisions.
In this regard, it would be profitable to refer to the Constitution
Bench   decision   of   the   Supreme   Court   in  V.   Dhanpal   Chettier   V.   Yasoda
Ammal 1979 Mh.L.J. 773 (SC) wherein in paragraph 17 it has been observed
thus :  
“ …. determination  of a lease in accordance with  the Transfer  of
Property   Act   is   unnecessary   and   a   mere   surplusage   because   the
landlord cannot get eviction even after such determination.  The tenant
continues to be so even thereafter.  That being so, making out a case
under the Rent Act for eviction of the tenant by itself is sufficient and it
is   not   obligatory   to   found   the   proceeding   on   the   basis   of   the
determination of the lease by issue of a notice in accordance with
section 106 of the Transfer of Property Act.”   
It is thus clear that notice to terminate the tenancy under Section

106   of   the   Act   of   1882   is   not   necessary   when   eviction   is   sought   under
provisions of Section 15 of the Act of 1999. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.252 OF  2014
Baban S/o Kisan Sarad,

­vs
Abdul Hafiz S/o Abdul Ajij Khan, 

CORAM  :  A.S.CHANDURKAR J.
                                                    DATE   :  MARCH 11, 2015
Citation: 2015(4)MhLj608

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What will be consequences if tenant is not complying with notice issued as per S 15(2) of maharashtra rent control Act?

 Provision of section 15(2) of the Act shows that
the landlord cannot file suit for possession on the ground
of default unless the period of 90 days has expired after
the date of service of written notice given by him to the
tenant. The notice is expected to be as per the provision
of Section 106 of the Transfer of Property Act, 1882. This
provision shows that time is given to the tenant of 90 days

to the take protection of section 15(2) of the Act. If he
pays or shows readiness and willingness to pay the rent
due, he gets protection of section 15(2) of the Act. If he
has no dispute with regard to the agreed rate of rent and
it is not his case that it is not the standard rent and he
admits that he had committed default, then he should
deposit or pay the entire amount demanded in the
statutory notice. If he pays or deposits the rent amount
demanded in the statutory notice within prescribed time,
the landlord will not get decree of eviction on this ground.
However, if the tenant disputes the rent or disputes the
calculation made by the landlord and he deposits only
some of the amount or pays only some of the amount then
he takes risk. If at the end, the Court finds that the
amount paid or tendered by the tenant was less than the
amount due, it will be open to the Court to give decree on
the ground of default and in such a case the Court can
come to conclusion that the tenant was not ready and
willing to pay the rent and he had not paid rent which had
become due. Thus the tenant will lose the protection
which is made available under section 15(2) of the Act in
such circumstances.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Civil Revision Application No.70 of 2014

Anant Tulshiramji Bajaj, 
Versus
Sunil s/o Gajanan Rasne
 CORAM: T.V. NALAWADE, J.

 DATE : 30th JULY 2015

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