Ansuyaben
Kantilal Bhatt Vs. Rashiklal Manilal Shah & ANR [1997] INSC 418 (9 April
1997)
K.
RAMASWAMY, D.P. WADHWA
ACT:
HEADNOTE:
O R D
E R This is one of the classic instances of the cases holding the law that "
delay defeats justice". The landlord filed a suit in 1966 for eviction of
the tenant for personal occupation and today after 31 years, we are disposing
of the matter at the level of this court. It is not necessary to detail all the
circumstances leading to the filing of the petition. Suffice it to state that
the landlord who was just to retire from private service having four unmarried
grow-up daughters and one son aged 24 years had filed an application for
eviction of the tenant under the Bombay Rents, Hotel & Lodging House Rated
control Act, 1947 (for short, the 'Act'). The application was filed on two
grounds, namely, one she needs the premises for personal occupation and the
tenant also has committed default in the payment of the rent for more than six
months. When a notice was issued by the landlady- appellant calling upon the
respondents to vacate the premised on the above grounds, reply came with the
allegation is not in need in arrears of the rents and the appellant is not in
need of the premise. Thus, necessitated the respondent to file the suit for
eviction. In the written statement, a defence was taken that the standard rent.
As a consequence, the rent payable to the respondent was less.
Therefore,
he has not committed default in payment of the rent. Though an application
under Section 11 for fixation of the standard rent was not filed, the
determination in that behalf was made at Rs. 101/- per month. The Rent
controller allowed the petition. But, on appeal, the District Judge dismissed
the appeal holding that the respondent needs the houses for personal occupation
and also the default was committed by him. On revision, the High court reversed
the order. Thus, this appeal by special leave.
The
High court proceeded on two premises, namely, that the landlady was not in need
of the house since her husband has by then become too old and secondly it was
held that the comparative hardship to the tenant was not taken into
consideration and, therefore, the premises on which the appellate authority
proceeded is wrong in law. The High Court came to the conclusion that under the
contract, since the property tax was required to be paid by the tenant, the
contract of monthly tenancy as well as the payment of properly tax being a
composite tenancy, there is no default in payment of the rent. Shri M.C. Bhandare,
learned senior counsel appearing for the appellant, contends that the view
taken by the High court is not correct in law. He contends that bona fide
recruitment requires to be considered at the time when the need arises and mere
fact that he has become old at the time when the petition came up., it is not
relevant ground. Through we find force in the contention, it need not be now
decided due to long lapse of time of 31 years. Now, he is not in a position to
set any business. At the time when he filed the application, admittedly, he was
54 years of age by now he is 87 years. Under these circumstances, the need of
the landlady for her husband to set up the business cannot be said to be
subsisting. At that time, they had four unmarried daughters, obviously, he had
to set up the business but now they have already been married and need,
therefore, no longer subsists, It is further stated that his son who was 24
years of age is now going to retire in another four and a half years. Under
these circumstances, as and when he retires from service and if he intends to
set up the business, it is always open to make necessary application. On such
suit being filed, necessarily the tenant requires to give place to the landlord
to occupy the premises. The Rent Controller/civil court, therefore, is directed
that on filing the petition and satisfying that there is need for his starting
the business, the order of eviction requires to be passed.
With
regard to the view taken by the High court on the default of the payment of
rent, it is contended by Shri M.C. Bhandare that the view taken that the
monthly tenancy gets converted into yearly tenancy is untenable. Though the
tenancy is a composite one, the monthly rent requires to be paid at the end of
every succeeding month. If there is any written agreement within the stipulated
time, the contracted monthly tenancy cannot be, by judicial interpretation,
converted into yearly tenancy. On that premise, it cannot be held that he has
not committed default in payment of rent, but we need not decide it on the view
we have taken. Since the standard rent has already been fixed by the court and
deposited by the tenant, the default does not subsist. The concept of wilful
default does not apply to the action under this Act. Therefore, if there is any
default in payment of the rent and if the amount so paid gets adjusted after
the determination of the standard rent, necessarily, the default originally existing
ceases to operate. Suffice it to state that when standard rent was fixed as
Rs.101/- per month, it is unrealistic as of date. Therefore, we requested Mr.
P.H. Parekh, learned counsel practising in this court to obtain the prevailing
rentals in the Bank street in Baroda. He was
good enough to contact the people there and he has furnished the information
that there is two tier system, one legal and one extra-legal prevailing in that
area. We cannot hive legitimacy to the illegal practice prevailing in that area
but the legal rentals payable are how as on date range between Rs.4,000/- to Rs.6,000/-
per month to a tenancy of 250 sq.fts. Under these circumstances, we think that
the rentals may be spread over which may be acceptable to both the parties.
Thus, the appeal in this court came to be filed in December 1976, the rent from
January 1, 1977 to December 31, 1980 shall be paid @ Rs.2,000/- per month. Rent from January 1, 1981 to December 31, 1991 shall be paid @ Rs.2,500/- per month and from January 1, 1992 till date of vacating the premise @
Rs. 3,500/- per month. The amount shall be paid accordingly.
All
the arrears shall be paid in ten bi-monthly equal instalments as on date
starting from May 1,
1997. The rent from April 1, 1997 shall be paid on or before the 10th
of every succeeding months @ Rs.3,500/- per month. If the respondent commits
default, he shall be liable to ejectment even before filing of the application
for personal occupation.
The
appeal is accordingly disposed of.
Back
Pages: 1 2