Pratapsingh Mohansingh Pardeshi (Deceased) Through Legal Representatives Vs. Laxmikant Revachand Bhojwani and anr. - Court Judgment

Excerpt:
tenancy - eviction - sections 11, 12 (3) and 23 of bombay rents, hotel and lodging house rates control act, 1947 - matter pertaining to eviction - non-payment of rent on ground that landlord has to repay amount incurred by tenant - tenant not entitled to deduct expenses incurred by them from arrears of rent - tenant not entitled to such deduction unless expressly permitted by statute - tenant failed to comply with section 12 (3) (b) - landlord entitled to decree of eviction under section 12 (3) (a). - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - 1,473/- to be deducted from the rent due in lump sum is not well founded. therefore, at best, it can be inferred that the parties agreed to deduct rs. shri gurusahani submits that the notice was received by the tenant on 1st august, 1972 and he has remitted the rent on 1st september 1972. if the payment of rent is made on 1st september, 1972, it will be well within time in the light of the term `month' interpreted by this court in the case of smt. therefore, if the payment is made on 1st september, 1972 by the tenant who has received notice under section 12 on 1st august, 1972, it would be well within time and to this extent, the submission made by shri gurusahani will have to be accepted. even assuming that section 12(3)(b) is only applicable, the tenant does not have a better defence. facts in this case would clearly show that section 12(3)(b) has also not been complied by the tenants. 80/- per month, at best, tenant was entitled to deduct a sum of rs.n.p. chapalgaonker, j. 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, : [1976]3scr628 , wherein supreme court laid down that such a dispute cannot be raised for the first time in the written statement or subsequently 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.4. notice at exhibit 41 sent by the landlady specifically mentions that the rent agreed is rs.80/- per month. tenants were in arrears from 1st april, 1971 and towards those arrears an amount of rs. 450/- have been paid about two months before and a signature of the landlady has been obtained on a receipt. what was demanded was arrears from 1st april, 1971 minus rs. 450/-. in view of this, there is absolutely no ambiguity in the notice. there is no excess demand as was alleged by the learned counsel appearing on behalf of tenants - respondents and the notice cannot be held to be invalid on the ground that there was any excessive amount demanded or any amount which is not legally payable and due was demanded or there is an error in the computation which is not marginal or insubstantial. the judgment of this court in ramchandra's case (supra) has no application to the facts at hand.5. it is an agreed fact that the tenant had undertaken some repairs on instructions of the landlady and had incurred some expenditure. it is contended by the tenants that exhibit 56 receipt authorizes that an amount of rs. 1,473/- incurred by them be deducted from the rent payable. it is true that the learned single judge of this court in sukchand's case (supra) has held that if there is an agreement contrary to the restriction placed by section 23 of the bombay rent act, that deduction on account of the expenses incurred for the repairs by the tenant would not exceed to 1/6th of the rent due in one year, would not be applicable. we will have to examine whether the receipt contains an agreement permitting the deduction of rs. 1,473/- being expenses incurred by the tenant in lump sum from the amount due. the contents of exhibit 56 titled as receipt dated 28th may, 1972 are quoted below:--'received with thanks from shri l.r. bhojwani, tenant of bungalow no. 13, g.p.o. road, ahmednagar, being rent at rs. 80/- p.m. an amount of rs. 720/- (rupees seven hundred twenty only) out of which rs. 450 (rupees four hundred fifty) in cash & rs. 270/- (rs. two hundred seventy only) by adjustment towards capital expenditure incurred by him as per my receipt dated 1-4-69. this amount of rs. 720/- is rent for nine months from 1-4-71 to 31-12-71. the capital expenditure yet to be reimbursed to shri bhojwani is rs. 1,473/-. the rent for january 1972 onwards to be paid in june 1972 when capital expenditure for repairs carried out in december 1971 by shri bhojwani will be considered and allowed.'contents of exhibit 56 acknowledge that the landlord had permitted the adjustment of a sum of rs. 270/- towards the expenditure incurred by the tenants. further adjustments were to be considered and allowed. therefore, there is no specific agreement permitting adjustment of all the expenses from the rent due. the amount of rs. 1,473/- was agreed by the landlord as the expenses incurred by the tenants for the repairs. the deduction of rs. 270/- from the rent of nine months period appears to be on the basis of rs. 30/- per month. even if we assume that the landlord by his conduct permitted the tenants to deduct a sum of rs. 30/- per month, the tenants will not be authorized to deduct any amount on the ground of incurred expenditure for the repairs which is more than rs. 30/- or which is more than the permissible limit prescribed by section 23. shri gurusahani's contention that exhibit 56 evidences the agreement by the landlord to allow the amount of rs. 1,473/- to be deducted from the rent due in lump sum is not well founded. what has been promised by the landlord in the receipt exhibit 56 is to consider and then allow the deductions. therefore, at best, it can be inferred that the parties agreed to deduct rs. 30/- per month from the rent payable by the tenants to the landlord. when the notice was received by the tenants, tenants were in arrears of more than six months i.e. from 1st january, 1972 to 30th june, 1972. the total amount of the rent for these six months comes to rs. 480. even assuming that the tenant was entitled to deduct a sum of rs. 180/- (i.e. at the rate of rs. 30/- per month) on account of repairs carried out by the tenants on instructions of the landlord, the tenant should have paid a sum of rs. 300/- to the landlord in compliance with the requirement of section 12. admittedly, the notice was received by the tenants on 1st august, 1972. on 1st september 1972, a sum of rs. 400/- was remitted by the landlord to the tenant by money order. according to shri gurusahani, learned counsel appearing on behalf of tenants-respondents, this was a sufficient compliance of section 12 of the bombay rent act to protect the tenants against the eviction. in support of this submission, shri gurusahani relied on the judgment of supreme court in the case of smt. priya bala ghosh and others v. bajranglal singhania and another, : air1992sc639 . interpreting the provisions of bihar buildings (lease, rent & eviction) control act (3 of 1947), supreme court was pleased to observe that remittance by a money order is a valid tender of the rent under the bihar act and it does not become an invalid tender on the ground that the money order reached late i.e. beyond the period specified for the payment of the rent. shri gurusahani submits that payment by money order is one of the accepted modes of tendering the rent and if the tenant tenders the amount by sending it through a money order, it shall be sufficient compliance by him for the requirement of section 12(3)(a). postal delays and other factors are likely to intervene. sometimes it is likely that the landlord may not be present in the house and the postman has to go back and again come when he is available and, therefore, it is always uncertain as to on what date the money order was received by the landlord. therefore, we will have only to see the date of despatch of the money order. shri gurusahani also pointed out that the landlord is residing at ahmedabad and, therefore, it is not possible for the tenants to pay the money in person who are residing at ahmednagar. he, therefore, contends that if the money order is sent by the tenant within the period of one month, he cannot be said to have neglected to make the payment until the expiry of the period of one month 6. protection given by the rent legislation against eviction will have to be read alongwith the obligation created by the contract between the landlord and the tenant. normally, rule of the contract between the landlord and the tenant is that the tenant should pay the rent as and when it becomes due. rent legislations have been brought into force to protect the tenants under certain circumstances. therefore, if a tenant does not observe the normal rule of the contract to pay the rent every month in time, then he will have to prove that he is exempted from the clutches of the law of contract because of certain provisions specifically made under the rent legislation to protect him. when a class of citizens is protected and even exempted from the consequences of the general law, it is for that class to prove that they come within the exemptions provided by the special statute. when tenant makes a default, he is certainly infringing the law. whether the infringement is condoned by the special statute will have to be examined by construing that statute. unlike some other rent laws, bombay rent act protects the tenants even if the default is of so many years if he complies strictly with the provisions of section 12 of the act. the law condoned the default made by the tenant even for years together and even if it is wilful, if he pays the rent demanded within the statutory period of one month after the receipt of the notice. shri gurusahani submits that the notice was received by the tenant on 1st august, 1972 and he has remitted the rent on 1st september 1972. if the payment of rent is made on 1st september, 1972, it will be well within time in the light of the term `month' interpreted by this court in the case of smt. pushpaben narayan rathod v. uttamchand bhurmal nahar since deceased by his legal heirs rukminibai uttamchand nahar etc., : air1986bom82 . the learned judge of this court was pleased to hold that the expression 'expiration of one month next after notice' in section 12(3)(a) would mean one calendar month expiring on the corresponding day in the next month. therefore, if the payment is made on 1st september, 1972 by the tenant who has received notice under section 12 on 1st august, 1972, it would be well within time and to this extent, the submission made by shri gurusahani will have to be accepted. the question is whether the remittance of the rent is a payment made and whether there is sufficient compliance of the requirement of section 12(2) of the bombay rent act.7. section 12(3)(a)) as it stood then reads thus:-'where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-section (2), the court shall pass a decree for eviction in any such suit for recovery of possession.'therefore, the tenant will have to prove that he has not neglected to make the payment of the arrears for a period of six months or more until the expiration of the period of one month after notice referred to in sub-section (2). what is required thus is making the payment of arrears within the period of one month. this is contrary to the provisions of the bihar act considered by the supreme court in smt. priya bala's case (supra). bihar buildings (lease, rent and eviction) control act, 1947 by its section 11(1)(d) provided that where the amount of two months rent lawfully payable by the tenant due from him is in arrears by not having been paid by the last day of the month next following that for which the rent is payable or by not having been validly remitted or deposited in accordance with section 13(1), the tenant shall be liable to eviction. thus the provisions of the bihar act requires the tenant either to pay or remit or deposit the rent. if he tenders the rent by any of these three modes, it was a sufficient compliance under the bihar act. whereas the bombay rent act provides that the tenant should not neglect to make the payment of the arrears within that period. the word `payment' signifies the actual receipt of the amount by the person who is entitled to receive it and the word `remit' as defined in the concise oxford dictionary, means to send (money etc.) in payment, cause to be conveyed by post. bihar act permitted the tenant to remit the rent by money order or deposit in the court and it was valid tender of the rent. no such provision is there in the bombay rent act. as aforesaid, protection against eviction on certain conditions is an exception to the general rule that a tenant must respect his obligations under a contract and, therefore, they will have to be construed strictly. therefore, remittance of sum of rs. 400/- by money order on 1st september 1972 is not sufficient compliance of the obligation of the tenant under section 12 of the bombay rent act. as already observed, there was no contract to permit deduction and the rate of rs. 30/- per month in future also vide exhibit 56. therefore, deduction from rent payable cannot exceed 1/6 of the rent per month as per section 23 of the bombay rent act. hence tenant would have been justified in deducting total sum of rs. 80. rs. 400/- should have been paid to landlord by tenant within statutory period. this was not done and hence the landlord is entitled to have a decree of eviction under section 12(3)(a) of the bombay rent act as it stood then.8. the learned extra assistant judge was of the opinion that section 12(3)(a) was not applicable since there was a dispute over the quantum of rent. as already pointed out that no dispute was raised in respect of the standard rent as prescribed by law. therefore, the ground on which the learned extra assistant judge refused to apply section 12(3)(a) does not stand. even assuming that section 12(3)(b) is only applicable, the tenant does not have a better defence. section 12(3)(b) would be applicable when the arrears of rent are less than six months. section 12(3)(b) contemplates that the tenant pays or tenders in the court the standard rent and permitted increases then due and thereafter continues to pay or tender in court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the court. facts in this case would clearly show that section 12(3)(b) has also not been complied by the tenants. suit came to be flied on 3rd september, 1974 and there was no payment till 7th december, 1979. therefore, for about five years after the filing of the suit, no rent was deposited in the court or paid by the tenant. therefore, the tenant is not protected even by section 12(3)(b). in the absence of the agreement, parties were bound by the provisions of section 23 of the act and the rent being rs. 80/- per month, at best, tenant was entitled to deduct a sum of rs. 13.34 paise from every month's rent towards the repairs carried out by him. non-payment of the rent on the ground that the landlord has to repay a sum of rs. 1,473/- incurred by the tenant will not absolve tenant from the liability to pay the rent regularly. even if in the opinion of the tenant, landlord owes certain amount to him, he will not be entitled to deduct that amount from the rent payable unless expressly permitted by the statute. a useful reference can be made in this respect to the judgment of supreme court in the case of maganlal chhotabhai desai v. chandrakant motilal, : [1969]1scr58 . considering the provisions of section 20 of the bombay rent act, learned judges of the supreme court were pleased to observe that if the deduction is permitted under section 20, then only the tenant can deduct the amount from the rent which he owes to the landlord. if it is not permissible by the provision of the act, he will have to file a civil suit for the recovery of any sum which he owes from the landlord and any deduction would be impermissible.9. in the result, writ petition is allowed. the judgment and decree passed by the learned extra assistant judge, ahmednagar, in regular civil appeal no. 168/1981 on 21st august, 1984 is hereby set aside. the judgment and decree passed by the learned iind joint civil judge (s.d.), ahmednagar, in regular civil suit no. 461/1974 on 6th april, 1981 is hereby restored. the suit filed by the landlord for the recovery of the possession is decreed. rule is made absolute in the above terms. there shall be no order as to costs of this petition.10. at this stage, shri d.a. gurusahani, learned counsel appearing for tenants-respondents, prayed that the decree passed by the learned trial judge be not executed for a period of four months from today to enable the respondents to move the supreme court. prayer granted. the decree passed by the learned iind joint civil (judge) (s.d.), ahmednagar, in regular civil suit no. 461/1974 on 6th april, 1981 shall not be executed for a period of four months from today to enable tenants-respondents to move the supreme court.rule made absolute.