- (1.) SHANTABAI Mohansingh Pardeshi, landlady, filed a suit bearing number 461/1974 in the Court of Civil Judge (S. D.), Ahmednagar, against Laxmikant and Vasudeo, sons of Ravachand Bhojwani, for the eviction of defendants - tenants from premises described as Bungalow No. 13 situated in Cantonment, Ahmednagar. It was pleaded by the landlady that the original rent agreed between the parties was Rs. 70/- per month. But since the municipal taxes were increased, it was agreed that the rent should be enhanced to Rs. 80/- per month. Tenants were in arrears from 1st April 1971. Tenants paid a sum of Rs. 450/- but rest of the amount has not been paid and they have not handed over the possession back to the landlady. Landlady also requires the premises for her bona fide personal use. A notice was issued by her on 28th July, 1972 terminating the tenancy and requiring the tenants to pay the arrears of the rent and, therefore, the suit. This suit was instituted on 3rd September 1974. Suit was preceded by a notice under section 12 (2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "bombay Rent Act" for the purpose of brevity ). A copy of the notice sent by the landlady to the tenant is at Exhibit 41. It is admitted fact that this notice was received by tenant-respondent on 1st August, 1972. It is the case of the landlady that despite this notice under section 12 (2) of the Bombay Rent Act, tenant neglected to make payment of the arrears of the rent and, therefore, they are liable to be evicted by virtue of the provisions of section 12 (3) (a) since the arrears were of more than six months, and in the alternative, under section 12 (3) (b) of the said Act; whereas it is the case of tenants-respondents that essential repairs were carried out by the tenants with the consent of the landlady and the landlady had agreed to permit the tenants to deduct the expenses incurred by them from the arrears of the rent and, therefore, there is actually no default authorizing the landlord to evict the tenants under section 12 of the Bombay Rent Act. The learned trial Judge was pleased to decree the suit. Whereas the appeal was allowed by the learned Extra Assistant Judge, Ahmednagar. This writ petition challenges this decree passed in Regular Civil Appeal No. 168/1981 on 21st August, 1984.
(2.) SHRI R. G. Karmarkar, learned Counsel appearing for petitioners/landlords (Legal representatives of original landlady), submitted that the appellate Judge was in error in holding that the landlords are not entitled for the eviction under section 12 (3) (a) or under section 12 (3) (b ). The whole amount incurred for the repairs cannot be deducted from the rent due and any deductions to be allowed would be within the permissible limits of section 23 of the said Act. Therefore, the landlord is entitled for the eviction. Shri D. A. Gurusahani, learned Counsel appearing for tenants-respondents, submitted that the standard rent has not been fixed and unless standard rent is fixed, the default clause does not become operative. In the first place, the rent was Rs. 70/- and it is alleged that it was enhanced to Rs. 80/- per month. This enhancement is not permissible in law. Since there was an agreement permitting the tenants to deduct the expenses incurred by them for the repairs carried out under the instructions of the landlady, any demand of rent made at the rate of Rs. 80/- per month, that too without deducting the expenses incurred by the tenants for the repairs of the building in question, would be an unauthorized demand and any notice making such a demand would be invalid. In support of this submission, Shri Gurusahani, relied on the judgment of learned Single Judge of this Court in the case of (Ramchandra Appaji Manjage deceased by L. R. s v. Mahavir Gajanan Mug) 1992 Mh. L. J. 436. He further submitted that the receipt Exhibit 56 passed by the landlady contains an agreement between the parties permitting the deduction of expenses incurred by the tenants for the repairs from the rent due and the learned appellate Judge has rightly interpreted this agreement and dismissed the suit. He further submitted that even assuming that the deductions which were agreed were only to the extent of Rs. 30/- per month. The rent due on the date of the notice was from 1st January, 1972 to 30th June, 1972. The total amount recoverable of the rent for this period comes to Rs. 480/- from which the deduction permitted by the agreement was Rs. 180 and, therefore, tenants had to pay a sum of Rs. 300/- only for the compliance of section 12 (2 ). In fact, the tenant has remitted a sum of Rs. 400/- by Money Order on 1st September, 1972 and, therefore, the tenants are not liable to be evicted by applying provisions of section 12 (3) (a ). He further submitted that since the notice itself is not valid, the further consideration of the liability of the tenants to be evicted under section 12 (3) (a) or (b) does not arises. Shri Gurusahani further contended that the remittance of the money due by Money Order on 1st September, 1972 is within one month as contemplated by the statute and, therefore, the tenants were not liable to be evicted. He also contends that if a landlord ask the tenant to get the building repaired and agrees that he will adjust the amount from the rent, the restrictions on deduction as imposed by section 23 of the Act would not be applicable and agreement contrary to the terms of section 23 is permissible. In support of this submission, Shri Gurusahani relied on the judgment of this Court in the case of (Sukchand Hemchand Shrewagi v. Ramdas Shakar Shukla) 1988 Bombay Rent Cases, 37 and lastly submits that since there is a concurrent finding of fact that there were no arrears, this Court should not interfere in the exercise of its powers of superintendence under Article 227 of the Constitution of India.
(3.) PARTIES have proceeded in the litigation on the basis that rent is Rs. 80/- per month. This is very much clear from the Notice Exhibit 41 sent by the landlady and the reply thereof sent by the tenant (Exhibit 73 ). Therefore, the agreed rent between the parties was Rs. 80/- per month when the suit was filed. It is contended by the learned Counsel appearing for tenants - respondents, that standard rent has not been fixed by the Court and no order is also passed by the Court fixing the standard rent and requiring the tenants to pay that amount and, therefore, there is no default. I am afraid, that this contention cannot be allowed to be raised. If there is no dispute about the standard rent, the tenant will have to pay the rent demanded by the landlord and agreed between the parties. If there is a dispute, then such dispute will have to be raised before the expiry of one month from the date of the receipt of the notice under section 12. Unless such a dispute has been raised within time stated above, it cannot be held that the quantum of rent is in dispute. The law in this respect is settled by the judgment of Supreme Court in the case of (Harbanslal Jagmohandas and another v. Prabhudas Shivlal) A. I. R. 1976 S. C. 2005, wherein Supreme Court laid down that such a dispute cannot be raised for the first time in the written statement or subsquently thereafter and it had to be raised at the latest before the expiry of one month from the date of service of the notice under section 12 (2 ). Admittedly, no such dispute has been raised by the tenants about the standard rent in the instant case and, therefore, tenant cannot take a shelter under dispute about the quantum of rent to defend him against the consequences of default.;