Whether landlord is entitled to get eviction decree if tenant fails to pay time barred rent?

The issue involved in this petition is; whether the plaintiff-landlord was entitled to decree of eviction in a suit filed on 5th September, 1994 on the ground of default in payment of rent for February, 1998 and December, 1990, even though the same fell beyond the period of three years prior to the date of the suit.

 At this stage we may clarify that the decree of eviction has been sustained by both the courts below on both the aforestated grounds namely personal necessity of the landlord and willful default in payment of rent by the tenant.

 In this case we are concerned with the ground of default which falls under Section 11(1)(d) and which states that where the amount of two months rent, lawfully payable by the tenant and due from him is in arrears by reason of non payment within the time fixed by the contract or in the absence of such contract by the last day of the month next following that for which rent is payable then such default would constitute ground for eviction. It is interesting to note that the expression used in Section 1 l(l)(d) is "lawfully payable" and not "lawfully recoverable" and therefore, Section 11(1)(d) has nothing to do with recovery or arrears of rent On the contrary Section 11 (l)(d) provides a ground for eviction of the tenant in the eviction suit. It is well settled 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 Section 11 (l)(d) of the said Act, 1982. In the case of Bombay Dyeing & Manufacturing Co. Ltd. v. The State of Bombay and Ors., reported in AIR (1958) SC 328 it has been held that when the debt becomes time barred the amount is not recoverable lawfully through the process of the court, but it will not mean that the amount has become not lawfully payable. Law does not bar a debtor to pay nor a creditor to accept a barred debt.

For the foregoing reasons special leave petition is dismissed.

 Supreme Court of India

Sri Bhimsen Gupta vs Sri Bishwanath Prasad Gupta on 3 February, 2004

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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

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Whether transferee landlord is entitled to get arrears of rent which accrued prior to transfer of tenanted premises?

In view of the cases referred to above, in our opinion, the correct position of law is that a transferee is not entitled to recover the arrears as rent for the property on transfer unless the right to recover the arrears is also transferred. If right to recover the arrears is assigned, then the transferee/landlord can recover those arrears as rent and if not paid maintain a petition for eviction under the rent laws for those arrears as well. Since in this case we have found that there was an assignment of right to recover the arrears in favour of the respondent transferee he was entitled to recover the same as arrears of rent. 

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 5485-86 of 1993

Decided On: 04.08.2003

Shaikh Noor  Vs.  G.S. Ibrahim (Dead) by Lrs.

Hon'ble Judges/Coram:

R.C. Lahoti and Ashok Bhan, JJ.

 Citation : AIR 2003 SC 4163

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Supreme court: It is not mandatory for tenancy court to strike off defence of tenant for non payment of arrears of rent

The inevitable result on comparison of Section 13(5) of the Act,

1952 and Section 15(7) of Act, 1958 be that the Court would not be

bound to strike out the defence against ejectment in case of default in

payment of rent in compliance to the order passed under Section 15(1)

of the Act, 1958 and it is always open to the Controller to examine the

facts of each case while exercising its discretion which obviously has

to be judicious in approach and with circumspection.

18. While interpreting Section 15(7) of Act 1958, V.R. Krishna Iyer, J.

in Miss. Santosh Mehta Vs. Om Prakash and Ors. 2 1980(3) SCC 610  held that the

power to strike out a party’s defence is an exceptional step and has

only to be exercised where a “mood of defiance” and “gross negligence”

on the part of the tenant is detected. This Court warned against the

landlord using Section 15(7) as a “booby trap” to get the tenant

evicted. It would be better to reproduce the passage which indicate

the approach which has to be adopted in such matters by the Court.

The relevant paras 3 & 4 are as under:“

3. We must adopt a socially informed perspective while

construing the provisions and then it will be plain that the

Controller is armed with a facultative power. He may, or may

not strike out the tenant's defence. A judicial discretion has

builtinselfrestraint,

has the scheme of the statute in mind,

cannot ignore the conspectus of circumstances which are

present in the case and has the brooding thought playing on

the power that, in a court, striking out a party's defence is

an exceptional step, not a routine visitation of a punitive

extreme following upon a mere failure to pay rent. First of all,

there must be a failure to pay rent which, in the context,

indicates wilful failure, deliberate default or volitional nonperformance.

Secondly, the section provides no automatic

weapon but prescribes a wise discretion, inscribes no

mechanical consequence but invests a power to overcome

intransigence. Thus, if a tenant fails or refuses to pay or

deposit rent and the court discerns a mood of defiance or

gross neglect, the tenant may forfeit his right to be heard in

defence. The last resort cannot be converted into the first

resort; a punitive direction of court cannot be used as a

booby trap to get the tenant out. Once this teleological

interpretation dawns, the mist of misconception about

matterofcourse

invocation of the power to strike out will

vanish. Farewell to the realities of a given case is playing

truant with the duty underlying the power.

4. …..The effect of striking out of the defence under Section

15(7) is that the tenant is deprived of the protection given by

Section 14 and, therefore, the powers under Section 15(7) of

the Act must be exercised with due circumspection.”

19. Subsequent decisions rendered on the subject also recognises

that mere failure to pay rent on the part of the tenant is not enough to

justify an order striking out the defence. It is only a wilful failure or

deliberate default or volitional of nonperformance

that can call for the

exercise of the extraordinary power vested in the Court. More

importantly, the plentitude of the discretionary power of the Court

under Section 15(7) of the Act, 1958 is with the Rent Controller

whether or not to strike out the defence, needless to say that the effect

of striking out the defence under Section 15(7) of Act, 1958 is that the

tenant be deprived of the protection available to him under Section 14

and it is imperative that such power vested with the Rent Controller

under Section 15(7) of the Act, 1958 must be exercised with due care

and circumspection.

20. In Smt. Kamla Devi Vs. Shri Vasudev 3, this Court reiterated

3 1995(1) SCC 356

that the power to strike out the defence simply vested the Rent

Controller with the discretion to do so. It was not mandatory for the

Rent Controller to strike out the defence simply because a default had

occurred. It is imperative that exercise of discretion vested with the

authority obviously depends upon the facts and circumstances of each

case and is not open to be exercised under the rule of thumb.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s). 4563 OF 2014

DINA NATH Vs  SUBHASH CHAND SAINI 

Rastogi, J.

Dated:SEPTEMBER 24, 2019

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Whether landlord is barred from filing suit on ground of non payment of arrears of rent after filing 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 and Ors.

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Whether tenant who has failed to deposit standard rent within ninety days of order is liable to be evicted?

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.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 279 of 2016

Decided On: 11.09.2018

 Ataullahkhan Vs.   Kernath Jaywantrao Nagargoje and Ors.

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2019(2) MHLJ 471

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Whether court should condone delay in depositing of arrears of rent if rent is paid at belated stage?

 In the subsequent application, prayer was made for condoning the delay in depositing the amount. The deposit had already been made by the Appellant which was also accepted by the Respondent which is clear from the order of the Trial Court dated 15.01.2018 as noted above. The circumstance that in execution proceedings the amount has been deposited and accepted by the landlady was a relevant fact for condonation of delay in depositing the amount. The power and jurisdiction of the High Court vested Under Sections 226 and 227 is for the purpose of securing ends of justice. In the facts of the present case, the High Court vide its order dated 01.11.2017 has already permitted the Appellant to continue in occupation of the tenanted premises in question upto 30.04.2019.

16. It is true that there was delay in depositing the arrears of rent by the tenant as per order dated 01.11.2017 but subsequently in execution proceedings deposits were made and further deposits were made in the bank account covering the period upto February, 2018, which facts were not adverted to by the High Court while rejecting the application for condonation of delay in deposit.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 3687-3688 of 2018 (Arising out of SLP (C) Nos. 6972-73 of 2018)

Decided On: 05.04.2018

 Nonihal Singh Vs. Maya Devi

Hon'ble Judges/Coram:

A.K. Sikri and Ashok Bhushan, JJ.

Citation: 2019(1) MHLJ 606

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Whether tenant paying less amount towards arrears of rent than demanded by landlord is liable to be evicted?

This Court in the above case has held that arrears
of rent as envisaged in provision of Section 14(1)(a)
24
of the Delhi Rent Control Act are the arrears demanded
by the notice for payment of arrears of rent. In the
present case arrears demanded by the notice i.e.
Rs.16,564/per
month starting from December, 2003 to
February, 2004 totalling Rs.1,15,945/were
required to
be paid by the tenant, the tenant having paid only
Rs.95,200/as
per his calculation of the rent at the
rate of Rs.13,600/per
month has committed default.
According to the learned counsel for the tenant, the
rent paid by the tenant was sufficient to cover the
rent upto December, 2003 and part of January, 2004,
admittedly, the arrears as demanded having not been
paid and we having found that the landlord has demanded
arrears of rent for seven months according to rate of
rent Rs.16,564/per
month which was being paid by the
tenant even before the enforcement of the Act, 2001 and
after the enforcement of the Act, 2001. The landlord
having not added 10% increase in the rent demanded,
there was no breach of Section 6 and the High Court has
committed error in allowing the writ petition of the
tenant.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.1256112562
OF 2017

HARBANS KAUR  Vs IQBAL SINGH & ANR.

Dated:January 29, 2019.
ASHOK BHUSHAN, J.

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Whether person refusing to accept registered letter is deemed to have knowledge of its contents?

 Section 27 of the General Clauses Act, 1897 deals with the topic-'Meaning of service by post' and says that where any Central Act or Regulation authorises or requires any document to be served by post, then unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting it by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. The section thus arises a presumption of due service or proper service if the document sought to be served is sent by properly addressing, pre-paying and posting by registered post to the addressee and such presumption is raised irrespective of whether any acknowledgement due is received from the addressee or not. It is obvious that when the section raises the presumption that the service shall be deemed to have been effected it means the addressee to whom the communication is sent must be taken to have known the contents of the document sought to be served upon him without anything more. Similar presumption is raised under Illustration (f) to Section 114 of the Indian Evidence Act whereunder it is stated that the Court may presume that the common course of business has been followed in a particular case, that is to say, when a letter is sent by post by pre-paying and properly addressing it the same has been received by the addressee . Undoubtedly, the presumptions both under Section 27 of the General Clauses Act as well as under Section 114 of the Evidence Act are rebuttable but in the absence of proof to the contrary the presumption of proper service or effective service on the addressee would arise. In the instant case, additionally, there was positive evidence of the postman to the effect that the registered envelope was actually tendered by him to the appellant on November 10, 1966 but the appellant refused to accept. In other words, there was due service effected upon the appellant by refusal. In such circumstances, we are clearly of the view, that the High Court was right in coming to the conclusion that the appellant must be imputed with the knowledge of the contents of the notice which he refused to accept. It is impossible to accept the contention that when factually there was refusal to accept the notice on the part of the appellant he could not be visited with the knowledge of the contents of the registered notice because, in our view, the presumption raised under Section 27 of the General Clauses Act as well as under Section 114 of the Indian Evidence Act is one of proper or effective service which must mean service of everything that is contained in the notice. It is impossible to countenance the suggestion that before knowledge of the contents of the notice could be imputed the sealed envelope must be opened and read by the addressee or when the addressee happens to be an illiterate person the contents should be read over to him by the postman or someone else. Such things do not occur when the addressee is determined to decline to accept the sealed envelope. It would, therefore, be reasonable to hold that when service is effected by refusal of a postal communication the addressee must be imputed, with the knowledge of the contents thereof and in our view, this follows upon the presumptions that are raised under Section 27 of the General Clauses Act, 1897 and Section 114 of the Indian Evidence Act.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1402 of 1979

Decided On: 20.02.1981

 Harcharan Singh  Vs. Shivrani and Ors.

Hon'ble Judges/Coram:

V.D. Tulzapurkar, D.A. Desai and A.N. Sen, JJ.

Citation: (1981) 2 SCC 535

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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.

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Whether tenant is liable to be evicted if he fails to make payment of arrears of rent within 90 days from service of summons?

 The appellate Court has considered the provisions of section 15(3) of the Maharashtra Rent Control Act, 1999 (for short, referred to as the said Act) in the light of rival submissions and evidence brought on record and in para 16 of the judgment, observed as under:

16. I on perusal of record and proceeding in Civil Application as well as Civil Suit came to know that the tenant deposited nothing in the court along with arrears of rent, interest, costs of the suit etc. as per section 15(3) of the Maharashtra Rent Control Act. Of course some payment made in the court as per Exh.18, 28, 50, 51, 55 and by virtue of some applications dated 14/12/2005, 18/7/2006, 15/2/2007, 13/8/2007 and 7/1/2009 (those applications are without exhibits). But according to me payments made thereto will not allow the tenant to claim relief against forfeiture. The tenant could have avoided passing of decree for possession on the ground of arrears of rent by making payment to that effect within the period of 90 days from the date of service of summons. This mistake on his part has made entitled the landlords to claim relief of eviction on the ground of default. The ratio from the cited case is squarely applicable to the present case. Therefore point no.4 & 5 is answered in favour of landlords.

(Emphasis supplied).

The aforesaid conclusion reached by the appellate Court is in consonance with the evidence brought on record by the parties. Therefore, the said findings are confirmed.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 168 of 2011

Decided On: 20.10.2011

Sunil Mulchand Jain Vs.  Purnima Prakash Kulkarni

Hon'ble Judges/Coram:

S.S. Shinde, J.

Citation: 2012(2) ALLMR 752

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When court should grant decree for eviction of tenant on ground of inadequate and delayed payment of arrears of rent?

A further indisputable position has emerged that after institution of the suit for eviction by the plaintiff, the defendant had faltered in complying with mandatory prescription stipulated under section 15 (3) of the Maharashtra Rent Control Act making deposit of arrears of rent along with interest within the period of ninety days from the date of service of suit summons and the arrears of rent were deposited with fifty three days delay, without interest @ 15% as required. Judgment in the case of "Vinayak Narayan Deshpande" (Supra) relied upon on behalf of the applicant, in paragraph No. 14 makes reference to that if the tenant chooses not to pay arrears of rent as required under section 15 (3) of the Maharashtra Rent Control Act, the landlord cannot be denied a decree for ejectment on the ground of default in making payment of rent, if he proves that the tenant is in arrears of rent.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Civil Revision Application No. 113 of 2016

Decided On: 23.03.2017

 Shila Ramchandra Sachdeva Vs.  Vinod Harchamal Santani

Hon'ble Judges/Coram:

S.P. Deshmukh, J.

Citation: 2017(6) MHLJ 396

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Whether eviction decree can be passed against tenant for non payment of arrears of rent due prior to transfer of tenanted premises?

It is to be seen here that in so far as the decree passed on the ground of arrears of rent is concerned, the Court has observed that the demand notice was issued by the landlords to the tenant on 3rd November, 1976, demanding the arrears of rent from 1-4-1976. The sale deed in favour of the landlords is dated 16th November, 1976. The Appellate Court has held that the landlords were claiming their entitlement to recover the rent from 1-4-1976 on the basis of the agreement of sale and copy of that agreement of sale has never been produced on record. The Appellate Court has held that in the absence of copy of the agreement of sale being placed on record, the landlords cannot be held to be entitled to the rent from 1-4-1976. The Appellate Court has further relying on the provisions of section 109 of the Transfer of Property Act, held that a transferee does not become entitle to arrears of rent due before the date of transfer and therefore, the landlords could not have claimed the arrears of rent for the period before 16-11-1976.

4. The learned Counsel appearing for the petitioners urged before me that as in the sale deed, there is a recital that by agreement of sale, right to recover the rent from 1-4-1976 was given to the landlords, the landlords were entitled to recover the rent from 1-4-1976. It is however, to be seen here that firstly the document of agreement of sale is not produced on record and secondly, in view of the provision of section 109 of the Transfer of Properly Act, it is crystal clear that a transferee is not entitled to arrears of rent due before the date of transfer and therefore, the amount of rent due from the tenant for the period before the date of transfer cannot be recovered as an arrears of rent and therefore a decree of eviction cannot be passed against the tenant under section 12 of the Bombay Rent Act, for non payment of those dues. I find no fault with the findings recorded by the Appellate Court.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 4600 & 4599 of 1986

Decided On: 05.02.1998

Sukhlal Chunilal Ghagani Vs. Harish Suvarne & another

Hon'ble Judges/Coram:

D.K. Deshmukh, J.

Citation: 1998(3) ALLMR 761

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Whether transferee of tenanted premises can recover past arrears of rent?

 That being so, it cannot be said that the tenant had neglected to pay the rent. Then again as on the date of notice, there were no arrears of outstanding for a period of six months or more. What is important to be noted is that the lease deed was executed on 8.6.67 in favour of the appellant. In that lease deed, no where is any assignment of rent. Section 109 of the Transfer of Property Act reads as under:

If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so along as he is the owner of it; but the lessor shall not, by reason only of such transfer, cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him: Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again not transferee.

22. In view of the proviso, the appellant-assignee is not entitled to rent before the assignment. The rent is merely a debt.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2729(N) of 1979

Decided On: 12.07.1994

N.M. Engineer  Vs.  Narendra Singh Virdi and Ors.

Hon'ble Judges/Coram:

S. Mohan and N.P. Singh, JJ.

Citation: 1995(2) Bom CR 376

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Important provisions of Maharashtra Rent control Act (Part 1)

S.2 Application:

This Act shall apply to premises let for the purposes of residence, education, business, trade or storage.

S 3 Exemption:

1) This Act shall not apply:

a) to any premises belonging to government or local authority.

b) to any premises let out to banks, any public sector undertakings or any corporation, foreign missions, international agencies, multi-national companies and private limited companies and public limited companies having paid up capital of Rupees one crore or more.

S 7,(9) Definition of premises-Open space is excluded from maharashtra rent control Act.

S 7(15) Tenant means any person by whom or on whose account rent is payable for any premises.

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When court should not condone delay in deposit of rent?

 The second contention of the Appellant is that the court below has not considered condonation of delay in payment of rent having regard to the decision in Ram Murti (supra). It is his submission that the decision relied on by the High Court in Hem Chand (supra) has been impliedly overruled in Shyamcharan Sharma (supra). In Hem Chand (supra) this Court has held that the Rent Controller has no discretion to extend the time for payment of rent Under Section 15(1) of the Act. However, in Ram Murti (supra) this Court after taking into consideration the decision in Shyamcharan Sharma (supra) has held that Rent Controller has power to condone the default on the part of the tenant in making payment or deposit of the future rents. This decision has application in a case where the tenant seeks condonation of delay in payment of rents. It is relevant to notice here that the tenant is a willful defaulter of rents. He took a stand before the Rent Controller that he had paid the entire arrears of rent. The Rent Controller passed an order dated 07.02.2005 Under Section 15(1) of the Act directing him to pay or deposit the rent at the rate of Rs. 500/- per month with effect from 1.10.2004 and continue to pay the same at the aforesaid rate month by month. Admittedly, he has failed to pay the rent in terms of the said order. After conclusion of the trial, the Rent Controller allowed the petition by order dated 27.4.2010 Under Section 14(1)(a) of the Act. The Rent Controller held that the tenant failed to prove that he had tendered the rent to the landlord pursuant to the demand notice dated 19.1.2004. The Rent Controller directed the Nazir to submit a report for the purpose of consideration of entitlement of the tenant to the benefit Under Section 14(2) of the Act. The Nazir's report showed that the tenant had not paid the rent regularly in compliance with the order passed Under Section 15(1) of the Act. There was a long delay in deposit of rents. Condonation of delay can take place only when the defaulting tenants so pleads with justifiable reasons which would show that he was prevented from compliance by circumstances beyond his control. The tenant has not offered any explanation for the delay in deposit of rents. Therefore, we do not find any justification to interfere with the order of the High Court.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6461 of 2017 (Arising out of S.L.P. (Civil) No. 36427 of 2014)

Decided On: 09.05.2017

 Pawan Kumar Gupta Vs.  B.R. Gupta

Hon'ble Judges/Coram:

Jasti Chelameswar and S. Abdul Nazeer, JJ.

Citation: (2017) 14 SCC 541

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Whether it is permissible for tenant to raise dispute of standard rent in written statement?

So far as the first ground of eviction of arrears of rent is concerned, it is an admitted case that the tenant Manilal was in arrears of rent from 06.07.1974 to 05.05.1976 amounting to Rs. 660/- and proper notice (Ex. 31) was issued asking him to vacate premises in case he fails to make good the arrears of rent. Though the tenant Manilal received the said notice, no reply was sent there to; nor the dispute of standard rent was raised. It is only in the written statement filed by him, the dispute was raised for the first time as to the standard rent. Notably, the tenant Manilal had never applied for fixation of the standard rent earlier nor within one month of the service of notice had he applied for fixation of the standard rent. As noted earlier, the tenant Manilal did not even send reply notice disputing the standard rent.

13. According to the Appellant-landlord, the property is situated on main road and Gajrawadi bus stand is also nearby and hence, the standard rent of the demised property cannot be less than Rs. 30/- per month. It is also pertinent to note that at relevant point of time, first floor of the tenanted premises was let out to another tenant namely Chimanlal Jaiswal who was using the same for residence and had been paying rent of Rs. 30/- per month. Likewise, the second floor was let out to one tenant named Rikhavchand who was also using it as residence and the ground floor was let out for hair cutting salon on the rent of Rs. 30/- per month. Upon consideration of evidence, the trial court recorded that rent of Rs. 30/- per month for the salon in the ground floor cannot be said to be excessive. There is no bona fide in the dispute raised by the tenant as to the standard rent. From the evidence of Appellant-landlord admittedly there was default in payment of rent for more than six months and the tenant was liable to be evicted Under Section 12(3)(a) of the Bombay Rent Control Act.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5284 of 2006

Decided On: 12.04.2017

 Anil Kumar Dadurao Dhekle Vs. Rukhiben and Ors.

Hon'ble Judges/Coram:

Kurian Joseph and R. Banumathi, JJ.

Citation: (2017) 14 SCC 215

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Whether landlord can seek eviction of tenant on basis of arrears of rent if arrears of rent are paid in accordance with notice?

It has to be pointed out that when the tenant pays the entire amount demanded by the notice under Section 12(2), the notice becomes ineffective and in case the landlord wants to claim possession on the ground of arrears of rent for the period other than that in respect of which the notice has been given, the provisions of Section 12(2) will once again come into operation and the landlord will have to serve a fresh notice because the arrears for non-payment of which possession is now claimed are not arrears in respect of which a notice contemplated by Section 12(2) had been earlier given. Service of a notice under Section 12(2) is a condition precedent to a claim for possession on the ground of arrears of rent and such a claim cannot be made unless a period of one month is allowed to expire from the date of service of the notice. We are, therefore, unable to agree with the view of the learned Judge that there is no extinction of cause of action by reason of the payment of existing arrears demanded by the notice under Section 12(2).

IN THE HIGH COURT OF BOMBAY

Spl. C.A. No. 2922 of 1978

Decided On: 30.01.1984

Decided On: 01.02.1984

 Narhar Damodar Wani Vs. Narmadabai T. Nave

Hon'ble Judges/Coram:

M.N. Chandurkar, C.J. and R.A. Jahagirdar, J.

Citation: 1984 Mh.LJ 313 

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Whether it is mandatory for court to frame issue that tenant was ready and willing to pay all rent due?

It seems that, in the trial Court, no issue was framed with regard to the amount of standard rent as the issue was not pressed by the defendant. The trial Court found that the registered letter containing the cheque was refused by the plaintiffs on May 4, 1967, that when it was opened it contained a cheque dated April 29, 1967 and the reply dated April 28, 1967. In the written statement exh. 16, in para. 2, the petitioner had clearly averred that he was always ready and willing to pay all the rent due and that he was in the past and also in future prepared to pay the rent.

4. It is rather strange that notwithstanding all this, although the defendant was a lawyer, he did not insist on a specific issue being framed under Section 12(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. It-was, however, the duty of the Court to frame such an issue, as it is the main protection which is given by the Bombay Rent Act to the tenant in respect of termination of the tenancy on the ground of non-payment of rent notwithstanding the readiness and willingness to pay rent on the part of the tenant. It is also clear from the record that, even during the pendency of the suit in the trial Court, the tenant paid all the arrears of rent and costs.

IN THE HIGH COURT OF BOMBAY

Special Civil Application No. 1564 of 1969

Decided On: 03.08.1972

 Marutrao Bhaurao Shelke Vs.  Akbaralli Noorbhai Bohori

Hon'ble Judges/Coram:

M.S. Vaidya, J.

Citation: 1974 MHLJ 239

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Whether landlord can be denied interest on arrears of rent if he denies amenities to tenant?

The statutory provision is very clear. Whenever payment of rent including arrears is permitted to be paid in installments, the Statute contemplates that the beneficiary shall be granted interest. This is irrespective of the justification or explanation, if any, available for the non-payment. No doubt, under Section 34 in case the landlord has refused to provide the amenities and in case the landlord spent money for providing the amenities, the said amount, subject to the conditions therein, can be set off. Though, there is such a case set up by the tenant, yet no set off has been granted by the Trial Court, and the tenant was permitted to pay the dues in installments. Once the arrears are permitted to be paid in installments, there is no discretion available with the Court to deny interest. It is not a discretionary relief; it is the statutory right and entitlement of the landlord to get interest.

SUPREME COURT OF INDIA

Bhagirath Agarwal Vs. M/s. Simplex Concrete & Piles India Pvt. Ltd. & Ors.

[Civil Appeal Nos.7544-7546 of 2008]

Dated: 23-3- 2017

KURIAN, J.

Citation:(2017) 13 SCC 199

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