Judgment:
Bhatia J.H., J.
1. Parties in both these writ petitions are common and some questions of facts are also common. Therefore, these petitions may be disposed of by the common judgment.
2. Rule. Rule made returnable forthwith. With consent of the learned Counsel for both the parties, the petitions are taken up for final hearing, immediately.
3. Admitted, facts are that the present petitioner is the tenant and deceased Surajmal was the landlord. Respondents in both the petitions are legal heirs of said Surajmal. The petitioner was inducted as a tenant in the suit premises admeasuring about 1500 sq. ft. on 1/4/1996 and he started his Nursing Home in name and style as 'Shubham Nursing Home'. As per the terms of the agreement, the petitioner was to pay amount of Rs. 3000/- towards rent for use and occupation of the premises, Rs. 2500/- towards the facility of Well and uninterrupted water supply to the Nursing Home and Rs. 2500/-towards service charges for fittings and fixtures. The petitioner made this payment up to 31/3/1998. Surajmal, who was the landlord, had filed two suits against the petitioner/defendant. Civil Suit No. 194 of 1999 was filed by him for recovery of amount of Rs. 1,12,001.52 Ps. towards arrears of rent, service charges, water charges and Corporation taxes. According to him, as per the agreement, the rent was to increase by 5 % after two years and therefore, the defendant/petitioner was liable to pay rent for the use and occupation of the premises at the rate of Rs. 3,150/-, Rs. 2625/- towards water charges and Rs. 2625/- towards service charges for fittings and fixtures. Besides this, the defendant is also liable to pay corporation taxes. According to the plaintiff, for the period from 1/4/1998 to 30/6/1999, the defendant was to pay rent at the rate of Rs. 8400/- per month on all three heads and thus amount of Rs. 1,26,000/- was to be paid by him. Besides this, amount of Rs. 64,101.22 ps. was due towards Corporation taxes. He also claimed amount or Rs. 1000/- towards notice charges. According to him, the total amount due was Rs. 1,91,801.22 Ps. However, out of that, the defendant had paid amount of Rs. 79,800/- and hence the claim of Rs. 1,12,001.22 Ps. 4. The defendant contested the suit by filing written statement and denied that the water charges were increased by 5 % from 1/4/1998. He also contended that water supply was disconnected from February, 1998 about which a notice was issued by him to the landlord. He also contended that even though service charges for fitting and fixtures were fixed, the furniture was not supplied and therefore, he is not liable to pay the same. He also denied that he was liable to pay the Corporation taxes.
5. After herring the evidence of both the parties, the trial Court rejected the claim on account of corporation tax and decreed the suit for payment of Rs. 46,200/- being the difference in the rent on all the three heads and the actual payment. That judgment and decree was challenged by the defendant in Reg. Civil Appeal No. 8 of 2003. The appeal was partly allowed. The Appellate Court concurred with the findings of the trial Court that there were no agreement to pay Corporation tax. The Appellate Court also came to conclusion that the landlord had stopped the water supply and the tenant was required to purchase water from outside and therefore, plaintiff was not entitled to claim the water charges. The Appellate Court, however, concurred with the trial Court that the defendant/tenant is liable to pay amount of Rs. 3150/- towards rent of premises and Rs. 2650/- towards the service charges on account of furniture and fixtures supplied to him. The contention of the tenant that the furniture was not supplied to him as per the agreement came to be rejected. In the result, the decree passed by the trial Court came to be modified and the Appellate Court directed the tenant to pay amount of Rs. 6825/- being the arrears after deduction of payment already made by him. That judgment and decree have been challenged by the tenant in Writ Petition No. 4038 of 2008.
6. The landlord/plaintiff issued a notice dated 16/9/2000 to the defendant/petitioner and in that notice he contended that excluding the period for which the above referred suit was filed for recovery of arrears, the defendant was in arrears of rent from 1/7/1999 at the rate of Rs. 8400/- per month. He also claimed that the defendant was liable to pay amount of Rs. 21,600.11 Ps. towards the Corporation taxes from 1/4/1999 to 31/3/2000. Thus, total amount due from defendant was shown to be Rs. 1,72,800.11 Ps. and out of that amount of Rs. 44,100/- was paid and therefore, by the said notice the plaintiff called upon the defendant to pay balance amount of Rs. 1,28,700.11 Ps. within 90 days from the date of service of the notice. By the said notice, he also terminated the tenancy by the end of December, 2000. From the notice it appears that the landlord had claimed the rent till the end of December, 2000 when the tenancy was to be terminated. The notice was replied by the defendant and the claim was denied particularly in respect of water charges, service charges as well as corporation tax. As defendant did not make any payment as per the said notice, the plaintiff/landlord filed Regular Civil Suit No. 458 of 2001 on 5/11/2001 for ejectment and recovery of possession under Section 15 of the Maharashtra Rent Control Act, 1999. The defendant contested the suit by filing the written statement. Besides taking the above referred plea regarding the water charges, services charges in respect of the furniture and fixtures and the corporation taxes, the defendant contended that he had paid the rent at the rate of Rs. 3150/- per month from 1/4/1998 as per the agreement and that amount was being regularly paid. He contended that the water supply was already disconnected and therefore, he is not liable to pay for the water charges. He contended that furniture was not supplied and he was required to purchase the furniture and therefore, he is not liable to pay even service charges in respect of furniture and fixtures. The amount shown in the notice was not due and therefore, the notice is not valid and the suit is liable to be dismissed.
7. The trial Court by its judgment dated 6th December, 2006, dismissed the suit holding that there was no agreement about the corporation taxes and as amenities were not provided, the landlord is not entitled to water charges and service charges. That judgment was challenged in Regular Civil Appeal No. 35 of 2007 by the legal representatives of original plaintiff. The Appellate Court, however, decreed the suit by the impugned judgment dated 3/5/2008. The Appellate Court came to conclusion that even though the defendant/tenant was not liable to pay corporation taxes and water charges because water supply was disconnected, he is liable to pay service charges towards the furniture and fixtures as per the original agreement. The Appellate Court passed the decree for eviction and possession on account of default in payment of service charges. That judgment has been challenged by the original defendant in Writ Petition No. 3495 of 2008.
8. Heard the learned Counsel for the parties. Perused the relevant record and the judgments by the courts below. There is a concurrent finding of both the courts below that there was no agreement about the Corporation taxes. The Appellate Court in both the matters also came to conclusion that the landlord has stopped the supply of water and therefore, he is not entitled to claim water charges. These findings have not been challenged before this Court by the plaintiffs/respondents. There is also no dispute that defendant was paying the rent at the rate of Rs. 3000/- in respect of premises from 1/4/1996 to 31/3/1998 and as per the agreement there was to be increase of 5 % from 1/4/1998 and accordingly he has paid rent for the use of premises at the rate of Rs. 3150/- per month from 1/4/1998 onwards. In both the matters, the Appellate Court found that the defendant is liable to pay service charges in respect of fittings and fixtures as per the agreement and on that ground both the suit were decreed. Therefore, in the present petition the limited question of fact is in respect of the liability of the petitioner in respect of service charges towards fittings and fixtures.
9. It is admitted by both the parties that at the time of entering into the agreement, the memorandum of understanding was entered into and there in rent of Rs. 8000/-per month was fixed, as follows:
(a) Rs. 3000/- - for the use and occupation of the premises.
(b) Rs. 2500/- -for the facility of Well and Corporation water.
(c) Rs. 2500/- - service charges for fittings and fixtures.
The rent was to increase at 5 % from 1/4/1998. It appears that the said memorandum of understanding was not registered and therefore, the objection was taken to its admissibility in the evidence. However, the record reveals that the contents of the said memorandum of understanding were extensively used by both the parties for the purpose of cross-examination of each other and the document is also exhibited as Exh. 159. The Appellate Court also noted that the agreement of tenancy is required compulsorily to be registered under Section 55 of the Maharashtra Rent Control Act, 1999. However, as this memorandum of understanding was executed in the year 1996, the provisions of Section 55 of the Act are not applicable and therefore, the documents was not compulsorily required to be registered under the Rent Act.
10. On behalf of the petitioner, it is contended that even though Section 55 is not applicable, the document still required to be registered in view of the provisions of Section 107 of Transfer of Property Act. Section 107 provides that a lease of immovable property from year to year or for any term exceeding one year, can be made only by a registered instrument. The learned Counsel also pointed out that the Memorandum of understanding was required to be duly stamped under the Bombay Stamp Act and the stamp duty was not paid and as it was on plain paper, it could not be admissible in evidence. The Appellate Court noted that the none of the parties requested the trial Court to impound the document and nor the document is impounded. In my considered opinion, taking into consideration the admissions of both the parties and their conduct, practically there is no dispute about the terms of the contract between the parties and therefore, even if the memorandum of understanding is not admitted in evidence, it does not make much difference in the matter.
11. According to the plaintiff, the defendant was liable to pay Rs. 2500/- per month towards the service charges towards fitting and fixtures, as described in the plaint. The defendant also admitted that he was liable to pay service charges but on account of furniture and fixtures. However, according to him, the furniture was not supplied to him and he had purchased the furniture himself. It is material to note that the defendant paid the service charges on this count continuously for two years from 1/4/1996 to 31/3/1998. Never before April, 1998 the defendant had ever raised the question of non supply of the furniture and fixtures as per the contract. The learned Counsel for the petitioner contended that the petitioner continued to pay the service charges on this count under bona fide belief that the landlord would comply with the terms of the contract. One can understand if the rent was required to be paid in advance and the payment was made in advance under the belief that the landlord would supply the necessary furniture or fixtures. It is also possible that he could wait for some time for compliance of the terms of the contract on the part of the landlord. However, the payment of service charges on this count for continuous two years till the dispute occurred between the parties on account of water supply runs contrary to the plea of the defendant and against the natural human conduct. If the landlord had failed to comply with the terms of the contract in this respect, the tenant would have either stopped the payment of service charges or at least issued a notice to him in that regard. Admittedly, the tenant issued a letter to the landlord for the first time in February, 1998 making a grievance about disconnection of water supply. Even in that letter no grievance was made about non-supply of the furniture as per terms of the contract. That grievance was raised for the first time in April, 1998. In view of this, the plea of the defendant that the landlord had failed to comply with the terms of the contract about supply of the furniture appears to be after thought story.
12. It may be noted that on behalf of the defendant Dr. Sakina Lirani was examined. Her evidence show that before she had started her Nursing Home in this premises, a group of doctors was running the Nursing Home. After them she was inducted as a tenant. As per her evidence, the furniture had come to her from the earlier doctors and she sold the said furniture to the petitioner for consideration of Rs. 75000/- for which the payment was made to her. She also executed the indemnity bond (Exh. 80) and receipt (Exh. 144) in favour of the petitioner in respect of equipments, nursing material, furniture, bed-sheet, instrument and electrical equipment. This transaction appears to have taken place on 15th April, 1996. It means, the said furniture, equipments etc. were purchased by the petitioner from Dr. Lirani on 15/4/1996. From this it is clear that the agreement between the petitioner and the landlord could not have been about the supply of said equipments, nursing material, furniture, utensils, electrical equipments etc. which are peculiarly required for running the Nursing Home. If the agreement between the petitioner and his landlord would be to pay the service charges in respect of that material, the petitioner would not purchase the same from Dr. Lirani and having purchased the same, would have never paid the service charges beyond the first payment which was made in advance. According to the defendant, the said service charges were for providing certain number of doors, 14 window pelmets, 24 water tapes, 10 water basins etc. These were the fixtures and the fittings. The learned Counsel for the petitioner vehemently contended that these fittings could not be treated separate fittings for premises. However, taking into consideration the conduct of the petitioner, the plea of the defendant has to be accepted. If besides those fittings and fixtures, the landlord was expected to supply the other furniture, which was eventually purchased from Dr. Lirani, the petitioner would have never paid the service charges on that count and particularly for a long period of two years from the date of entering into the premises. Taking into consideration the facts and circumstances and the conduct of the petitioner, I am satisfied that the learned Appellate Court was right in coming to conclusion that as per the terms of the contract, the petitioner was liable to pay amount of Rs. 2500/- per month initially and at the rate of Rs. 2625/- w.e.f. 1/4/1998 onwards towards service charges.
13. The learned Counsel for the petitioner vehemently contended that the Appellate Court had not considered the evidence and the reasons given by the trial Court particularly in the judgment in Reg. Civil Suit No. 458 of 2001 while dismissing the suit for eviction. As pointed out earlier, in both the suits the only contested issue is now pertaining to non-payment of services charges. The learned Counsel contended that the judgment of the Appellate Court is based on conjecture and surmises and therefore, it is liable to be set aside. The learned Counsel placed reliance upon (Santosh Hazxari v. Purushottam Tiwari (Deceased) by Lrs.) : 2002(Supp. 2) Bom.C.R. 746 (S.C.) : 2001 DGLS (soft) 216 : 2001(3) S.C.C. 179 wherein Their Lordships made following observations in para No. 15.
15. ...While writing a judgment of reversal the Appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the Appellate Court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the Appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the Appellate Court is entitled to interfere with the finding of fact. See (Madhusudan Das v. Narayanibai) : 1983 B.C.I. (soft) 47(S.C.): 1982 DGLS (soft) 197 : 1983(1) S.C.C. 35 : A.I.R. 1983 S.C. 114. The rule is - and it is nothing more than a rule of practice-that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the Appellate Court should not interfere with the finding of the trial Judge on a question of fact. See (Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh) : 1950 DGLS (soft) 36 : A.I.R. 1951 S.C. 120. Secondly, while reversing a finding of fact the Appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first Appellate Court had discharged the duty expected of it. We need only remind the first Appellate Courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first Appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first Appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first Appellate Court even on questions of law unless such question of law be a substantial one.
14. There can be no dispute about the legal propositions made in the above observations of Their Lordship of the Supreme Court. After perusal of the impugned judgments in both the matters by the Appellate Court, I find that the Appellate Court had minutely considered the evidence led by the parties as well as the circumstances and conduct of the petitioner as noted above. It is also material to note that in respect of service charges, the trial courts had given different findings in the two suits. In Reg. Civil Suit No. 194 of 1999 for recovery of arrears of rent, the trial Court had decreed the suit not only in respect of the water charges but also service charges while in Reg. Civil Suit No. 458 of 2001 for eviction and possession, the trial Court had not accepted the claim of the landlord in respect of water charges as well as service charges. The Appellate Court after minutely considering the evidence came to conclusion in both the appeals that because of disconnection of water supply, the tenant was not liable to pay the water charges. However, in view of the evidence on record, the Appellate Court came to conclusion that the tenant is liable to pay the service charges and in view of this, Reg. Civil Appeal No. 8 of 2003 was partly allowed and the decree passed by the trial Court for recovery of Rs. 46,200/- towards the arrears came to be modified and the tenant was required to pay only amount of Rs. 6825/-. Thus the Appellate Court upheld the finding of trial Court in R.C.S. No. 194 of 1999 that the defendant is liable to pay service charges. The conflicting findings of fact on same issue in the two suits could not be upheld. Therefore, I do not find any fault with the approach of the Appellate Court in this regard and, I fully agree with the Appellate Court that the petitioner/tenant was liable to pay the service charges as per the contract.
15. The learned Counsel for the petitioner vehemently contended that by the notice issued under Section 15 of the Rent Control Act on 16/9/2000, the landlord had made excessive claim in respect of water charges, service charges and even corporation taxes which the tenant was not liable to pay and therefore, if payment was not made as per the claim made in that notice, it cannot be said that the tenant had failed to pay the rent as per the provisions of Section 15 of the Rent Control Act. He also contended that the landlord had shown only amount of Rs. 3000/- and then Rs. 3150/- as rent of the premises in the returns submitted to the Municipal Corporation for the purpose of property tax and the service charges, and the water charges were not shown in the said return and therefore, the plaintiff cannot claim that the said amount is part and parcel of the agreed rent of the premises. According to him, the non-payment of the service charges would not amount to non-payment of rent and therefore, there is ho ground made out for eviction and possession under Section 15 of the Act. The learned Counsel contended that demand has to be made only for the amount which is legally due and recoverable by the notice in writing. According to him, the amount claimed in the said notice is neither due nor there could be legal recovered. According to him, as the demand was for excessive amount, the notice was not valid and on the basis of such notice, decree for eviction and possession cannot be passed.
16. In support of this contention, the learned Counsel for the petitioner placed reliance upon (Ramchandra Appaji Manjage v. Mahavir Gajanan Mug) : 1991(4) Bom.C.R. 381 : 1992 Mh.L.J. 436. On perusal of the judgment in Ramchandra Appaji rendered by the learned Single Judge of this Court, it appears that the landlord had purchased the property and the tenant was already in occupation on the basis of an agreement with the original landlord. The plaintiff/landlord issued a notice claiming rent at the rate of Rs. 50/- per month while according to the tenant the contractual rent was Rs. 7/- per month only. The trial Court had come to conclusion that the standard rent was liable to be fixed at Rs. 50/- per month. However, the Appellate Court found that the contractual rent was Rs. 7/- per month and the standard rent was also Rs. 7/- per month while the demand was made by the plaintiff at the rate of Rs. 50/- per month. The Appellate Court came to conclusion that even though the contractual rent was Rs. 7/-, the demand at the rate of Rs. 50/- could not be considered as mala fide and the notice was held to be valid. In these circumstances and after referring to certain authorities, the learned Single Judge came to conclusion that the demand made by the plaintiff/landlord was excessive and there was no mistake in the computation of dues, the notice was wrong and therefore, the tenant was not bound to comply with that notice. The learned Single Judge observed in para Nos. 8 and 9 as follows:
8. Section 12(2) of the Bombay Rent Act reads as under:
12(2). No suit for recovery of possession shall be instituted by a landlord against tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of one month 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.
9. No suit for eviction on the ground of nonpayment of rent or permitted increases can be filed unless a valid notice of demand is served by the landlord on the tenant demanding amount of standard rent or permitted increases which was due from the tenant. No such suit can be filed on the said ground unless the valid notice of demand remains uncomplied with by the tenant within the period of one month next after the notice is served on the tenant in the manner provided in Section 106 of the Transfer of Property Act, 1882. If no valid notice is served, the landlord has no cause of action to file a suit for ejectment on the ground of non-payment of rent and the Court has no jurisdiction to entertain the suit for eviction on the ground of non-payment of rent.
17. About this proposition, there cannot be any dispute. Almost similar provisions can be found in Section 15(2) and (3) of the Maharashtra Rent Control Act, 1999 under which the present suit was filed. Section 15(2) and (3) of the Act read as follows:
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.
(3) No decree for eviction shall be passed by the Court in any suit for recovery of possession on the ground 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.
18. In Ramchandra Appaji Manjage v. Mahavir Gajanan Mug, following observations of the Supreme Court in (Chimanlal v. Mishnlal) : 1984 DGLS (soft) 311 : 1985(1) S.C.C. 14, were quoted.
The notice referred to in Section 12(1)(a) must be a notice demanding the rental arrears in respect of accommodation actually let to the tenant. It must be a notice (a) demanding the arrears of rent in respect of the accommodation let to the tenant and (b) the arrears of rent must be legally recoverable from the tenant.
The learned Single Judge also noted that in (Shantilal v. Sadashiv) 1989 Bombay Rent Cases 407, the learned Single Judge has held that if the landlord claims excessive or exaggerated amount from the tenant in the notice of demand, the notice of demand is liable to be considered as invalid unless the difference between the amount claimed and the amount actually due was marginal.
19. The judgment in Ramchandra Appaji also reveals that a Division Bench authority in (Chhaganlal Mulchand Jain v. Narayan Jagannath Bangh) 1983 B.C.I. (soft) 28 : 1983 Mh.L.J. 254 was relied upon on behalf of the landlord. In that judgment it was held that if the landlord claimed the arrears of rent amount by notice, any mistake as regards the quantum of rent would not render the notice invalid and the tenant had occasion to make the payment of the amount which is due according to his own calculation. The Division Bench observed in para No. 11 as follows:
11. Reliance was placed on behalf of the tenant on the decision of Aggarwal, J. in the case of (Ganpat v. Motilal) : A.I.R. 1977 Bom. 344. In that case a grossly untenable claim of permitted increases and municipal taxes amounting to over Rs. 500 was made in the notice and the question arose as to whether such a notice was bad. Aggarwal J., held that having regard to the facts and circumstances of the case the demand as was made by the notice was fatal and such a notice could not form a basis for eviction proceedings. Certain observations in paragraph 17 of the said judgment were relied upon for the purpose of contending that the notice must not be construed liberally. In our opinion, this will not be a correct proposition. The normal rule is that a notice exchanged between the landlord and the tenant should be construed liberally and not for the purpose of finding any fault. This has been so held by the Supreme Court in the case of (Bhagabandas Agarwalla v. Bhagwandas and Ors.) : 1977 DGLS (soft) 107 : A.I.R. 1977 S.C. 1120 : 1977(2) S.C.C. 646. We have already observed that the landlord and the tenant both are presumed to know as to what is the quantum of rent and permitted increases that had remained unpaid and hence when the landlord claimed the payment of such arrears by a notice, any mistake as regards the quantum of rent would not make the notice bad. It will be very difficult to accept the contention that a mistake here or a mistake there in the demand notice would entail the dismissal of the suit. It is possible that in a particular case, the landlord may make a false and untenable demand of certain amount along with the claim about which there will not be any dispute. In such a case the tenant will have an option to pay the undisputed amount of rent and to give a reply that the rest of the claim was a false one. If in due course of time at the stage of the suit the claim is proved to be false, the tenant obviously would be protected as he has made the payment of the amount that was actually due. But he will not be able to resist the same if within one month from the notice he has not paid even the arrears to which the landlord is entitled. The view expressed in the case of Ganpat v. Motilal (supra) that the notice would be bad if the notice includes untenable claim is too general a statement and we disagree with it. Even in such a case the tenant is under an obligation to remit within the prescribed time the permissible amount payable by him. Of course, he will have to take the risk if ultimately the Court finds that such payment would not cover all the arrears. In case of such a finding the landlord would be entitled to a decree for possession. But there would not be such a decree if the payment was sufficient to clear off all the arrears which were payable to the landlord. Thus everything will depend upon the facts of each case, but primarily one has to proceed on the basis that the notice should be construed liberally and not with a view to find fault in it.
20. It appears that the learned Single Judge in Ramchanda Appaji held that the statement of law propounded by the Division Bench is not complete statement of law and the learned Single Judge did not follow the Division Bench and relied on the above referred observations of the Supreme Court in Chimanlal v. Mishrilal, and held that the notice is bad in law. With respect, I am unable to agree with the learned Single in Ramchandra Appaji. In my considered opinion, there is not much conflict in law laid down by the Supreme Court in Chimanlal v. Mishiral, and the observations made by the Division Bench of this Court in Chhaganlal v. Narayan. As per the judgment of the Supreme Court, notice must be a notice demanding the rental in respect of accommodation actually let to the tenant and it must be a notice demanding arrears of rent and the rent must be legally recoverable from the tenant.
21. In the present case, admittedly as per the original agreement, the rent was fixed at Rs. 8000/- per month and it was bifurcated in three parts i.e. Rs. 3000/- for use and occupation of the premises, Rs. 2500/- for facility of well and Corporation water and Rs. 2500/- towards service charges for fittings and fixtures. The defendant had paid the rent at that rate up to 31/3/1998. As per the agreement, there was increase of 5 % w.e.f. 1/4/1998. However, the defendant paid only Rs. 3150/- per month but failed to pay the water charges and service charges. As found by the Appellate Court, the water supply was disconnected and therefore, he was not liable to pay the water charges but he was liable to pay service charges for fitting and fixtures. When the notice was issued under Section 15, the tenant could point out and had in fact pointed out his dispute about the payment of water charges but at the same time he had taken false plea that he was not liable to pay service charges as, according to him, the landlord had failed to supply the furniture and fixtures as per the contract. He could have paid the service charges as per the contract and could dispute the water charges. If he would have exercised that option, the plaintiff would be out of the Court. Under Section 15(2), no suit for recovery of possession shall be instituted by landlord on the ground of non-payment of the standard rent or permitted increases due, until the expiration of ninety days next after service of notice. It means the tenant gets 90 days from the date of service of notice to make the payment of arrears. If he makes the payment, the suit cannot be instituted. Now under Section 15(3) of the Act, even after institution of the suit if a tenant makes a payment or tenders arrears within 90 days from the date of service of summons of the suit, with interest at the rate of fifteen per cent and thereafter continues to pay or tenders in Court regularly such standard rent and permitted increases till the suit is finally decided, the decree for eviction cannot be passed.
22. In the present case, inspite of the service of notice dated 16/9/2000, the defendant did not pay even the amount of service charges which he could not deny. Not only this, even after institution of suit and service of summons he did not make the payment as provided under Section 15(3) of the Rent Control Act. In the notice sent by the landlord clear bifurcations were shown and had pointed out also how the amount was due. Therefore, it was not difficult for the tenant to point out which amount was payable and which amount was not payable. Now, it has been held that the service charges were payable, which he did not pay and therefore, in my considered opinion, the notice cannot be treated to be invalid merely on the ground that the demand was also made in respect of water charges and corporation charges in the said notice.
23. In (P.L. Kureel Talib Mankab v. Beni Prasad and Anr.) : A.I.R. 1976 Allahabad 362, it was held that rent includes all payments agreed by the defendant to be paid to his landlords for the use and occupation not only of the building but also of furnishing, electric installation and other amenities. In (Seva International Rashions v. Smt. Suman Kathpalia and Ors.) : A.I.R. 2000 Delhi 69, it was held that rent includes all payments by tenant to be paid to his landlord for not only what is originally described as rent in agreement between landlord and tenant but also those payments which are made for amenities provided by landlord under the agreement between them. Same view appears to have been taken by this Court in (Muktabai Gangadhar Kadam v. Smt. Muktabai Laxman Palwankar) 1971 Mh.L.J. Notes of Cases No. 72. I fully agree with the above propositions made in Allahabad and Delhi High Court (supra) and in my considered opinion, in view of contract between the parties in the present case, the service charges in respect of fittings and fixtures were part of the rent and non-payment of it entails the liability of eviction. In view of this, I am unable to accept the contentions of the learned Counsel for the petitioner that the rent should be treated to be Rs. 3000/- or Rs. 3150/- only because that much amount was shown as rent in the returns submitted to the Municipal Corporation for the purpose of property tax. The property tax may be charged only on the rent payable for the use and occupation of the premises and not on the other charges levied for the purpose of use of amenities, which are provided by the landlord, but still they are included within the definition of the rent as stated above.
24. Taking into consideration the facts and legal position stated above, I find no fault in the impugned judgment of the Appellate Court in both the matters. Therefore, both the petitions are liable to be dismissed.
25. In the result, both the writ petitions stand dismissed.
Parties shall bear their own costs.