Writ Petition No.1101 of 2007

25th June, 2012

Petitioner Counsel: Shri C.A. JOSHI
Respondent Counsel: Shri A.S. CHANDURKAR

Cases Cited:
Narhar Damodar Wani Vs. Narmadabai T. Nave, 1984 Mh.L.J. 313 [Para 5]
Sitaram Narayan Shinde and others Vs. Ibrahim Ismail Rais and others, 2005(1) ALL MR 74=2005(1) Mh.L.J. 35 [Para 6]

JUDGMENT

JUDGMENT :- In Small Cause Suit No.22 of 2003, the learned Joint Civil Judge, Junior Division, Akola, passed a decree for eviction and possession on 17-12-2004 on the ground of arrears of rent for 36 months. Regular Civil Appeal No.19 of 2005 filed by the petitioner-tenant challenging the decree passed by the Trial Court has been dismissed by the learned Principal District Judge, Akola, by his judgment and order dated 16-1-2007. Hence, this petition challenging the concurrent findings of fact recorded by both the Courts below holding that there was non-compliance of Section 15(3) of the Maharashtra Rent Control Act, 1999.

2. In para 13 of the judgment and order delivered by the Trial Court, the question of compliance of Section 15(3) of the Maharashtra Rent Control Act has been considered. It has been held that the petitioner-tenant has failed to tender the standard rent and permitted increases with simple interest on the arrears and hence by virtue of sub-section (3) of Section 15 of the said Act, the respondent-landlord is held entitled for the decree of possession. It has further been held that the arrears of Rs.21,740/-, as claimed by the respondent-landlord, were deposited by the petitioner-tenant on 12-8-2004 as per the order passed on the application Exhibit 24 and this was after expiry of the period of 90 days from 11-7-2003 when for the first time the petitioner-tenant appeared before the Court. There is nothing on record to show that during the pendency of the suit or appeal, the petitioner-tenant deposited regularly the amount of standard rent and permitted increases, as required by Section 15(3) of the said Act. The non-compliance of Section 15(3) of the said Act is clearly established. Hence, no fault can be found with the view taken by the Courts below on this aspect.

3. The contention of Shri Joshi, the learned counsel for the petitioner-tenant, is that sub-section (3) of Section 15 of the Maharashtra Rent Control Act will not come into operation if the provision of sub-section (2) of Section 15 of the said Act has been complied with. According to him, it is an undisputed position that sub-section (2) of Section 15 of the said Act has been complied with by the petitioner-tenant. He submits that this point was raised before the Courts below, but the same has not been dealt with. Since it is purely a question of law, it can be decided by this Court.

4. In order to consider the said point, the provisions of Section 15(2) and (3) are required to be reproduced as under :

"15. No ejectment ordinarily to be made if tenant pays or is ready and willing to pay standard rent and permitted increases.-

(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 (IV of 1882).

(3) No decree for eviction shall be passed by the Court in any suit for recovery of possession on the grounds of arrears of standard rent and permitted increases if, within a period of ninety days from the date of service of the summons of the suit, the tenant pays or tenders in Court the standard rent and permitted increases then due together with simple interest on the amount of arrears of fifteen per cent. per annum; and thereafter continues to pay or tenders in Court regularly such standard rent and permitted increases till the suit is finally decided and also pays cost of the suit as directed by the court."

Sub-section (2) of Section 15 of the said Act creates a bar for institution of the suit for recovery of possession by a landlord against the tenant on the ground of non-payment of standard rent or permitted increases due, until the expiration of ninety days next after the 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. If the notice, as contemplated by sub-section (2) of Section 15 of the said Act, is not issued, then the suit for recovery cannot be instituted. So the issuance of the notice in writing, service of it upon the tenant in the manner provided in Section 106 of the Transfer of Property Act and expiration of the period of ninety days are only the conditions precedent for institution of the suit for recovery of possession. This, however, does not mean that if compliance of sub-section (2) of Section 15 of the said Act is shown, the suit cannot be instituted. This provision merely creates certain statutory obligation upon the landlord and upon compliance of it, permits the landlord to proceed to institute a suit and it has no other effect.

Sub-section (3) of Section 15 of the said Act operates only upon institution of suit after compliance of sub-section (2) of Section 15 and it creates a bar for passing a decree for eviction if certain conditions specified therein are complied with. The conditions are - (i) that the tenant deposits in the Court the arrears of rent and permitted increases due together with simple interest on the amount of arrears at fifteen per cent per annum within a period of ninety days from the date of service of the summons, (ii) that the tenant continues to pay or tenders in Court regularly such standard rent and permitted increases till the suit is finally decided, and (iii) that the tenant also pays the cost of the suit, as directed by the Court. This provision creates a statutory obligation upon the tenant to comply with these conditions to save himself from a decree of eviction. It is only upon compliance of these conditions by the tenant, the bar for passing a decree for eviction operates.

Thus there is a distinction between the provisions of sub-sections (2) and (3) of Section 15 of the said Act and it is that (a) sub-section (2) creates a statutory obligation upon the landlord to comply with the conditions laid down therein, whereas sub-section (3) creates a statutory obligation upon the tenant to comply with the conditions specified therein, (b) sub-section (2) does not permit institution of a suit without compliance of the requirements therein, whereas sub-section (3) does not permit passing of a decree for eviction if the conditions specified therein are fulfilled by the tenant, (c) the compliance of the conditions in sub-section (2) clears the way for institution of suit, whereas non-compliance of the conditions in sub-section (3) clears the way for passing the decree for eviction, and (d) the bar under sub-section (2) operates for institution of the suit, whereas the bar under sub-section (3) operates for passing of a decree. In view of this distinction, the argument of Shri Joshi for the petitioner-tenant that sub-section (3) of Section 15 will not come in operation if the provision of sub-section (2) of Section 15 of the said Act is complied with, cannot be accepted. The petitioner-tenant will have to show that he has discharged the statutory obligations under sub-section (3) of Section 15 of the said act to save himself from a decree of eviction.

5. The decision of this Court relied upon by Shri Joshi for the petitioner-tenant in the case of Narhar Damodar Wani v. Disting Narmadabai T. Nave, reported in 1984 Mh.L.J. 313, is rendered on the unamended provisions of Section 12(2) and (3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, which are not in pari materia with the provision of Section 15(3) of the Maharashtra Rent Control Act, 1999. In view of this, the decision relied upon by the learned counsel for the petitioner-tenant is not applicable to the facts of the present case.

6. The another decision of this Court relied upon by Shri Joshi for the petitioner-tenant in the case of Sitaram Narayan Shinde and others v. Ibrahim Ismail Rais and others, reported in 2005(1) Mh.L.J. 35 : [2005(1) ALL MR 74], is about maintainability of the suit in view of the bar created under sub-section (2) of Section 15 of the Maharashtra Rent Control Act, which is in pari materia with the provision of sub-section (2) of Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. As pointed earlier, the noncompliance of Section 15(2) of the said Act is not in question in the present case, but the question is of non-compliance of Section 15(3) of the said Act. Hence, this decision is also of no help to the learned counsel for the petitioner-tenant.

7. Shri Joshi for the petitioner-tenant further submits that the Courts below ought to have provided an opportunity to the petitioner-tenant to file the written statement, and should have taken into consideration the stand of the petitioner-tenant. The argument does not require any consideration, for the reason that for non-compliance of Section 15(3) of the Maharashtra Rent Control Act, what is required to be pointed out is the facts, which are borne out from the record. As pointed out earlier, since non-compliance of Section 15(3) of the said Act is undisputed, no prejudice is caused if the written statement of the petitioner-tenant is not taken on record. Undoubtedly, there was a ground of bona fide requirement of suit premises and it did not find favour with the Appellate Court and no decree for eviction is passed on the ground of bona fide requirement. The point, therefore, loses its significance.

8. In the result, no interference is called for in the judgments and orders impugned in this petition. The petition is dismissed. Rule stands discharged. No order as to costs.

9. At this stage, Shri Joshi for the petitioner-tenant prays that the interim order passed by this Court on 15-3-2008 while admitting the petition, be continued for a further period of thirty days so as to enable the petitioner-tenant to avail appropriate remedies.

Shri Chandurkar, the learned counsel for the respondent, opposes the said prayer. However, keeping in view the fact that the interim order is continuing from 15-1-2008, the same is continued for a further period of thirty days; after expiry of which, it shall stand automatically vacated.

Petition dismissed.