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Kamlabai Baburao Kabade v. Smt. Laxmibai Janardan Jagtap And Others
Structured Summary of the Opinion
Factual and Procedural Background
This petition under Article 227 of the Constitution of India was filed by a tenant of premises forming part of a building bearing C.T.S No. 5-E, Godoli Satara No. 2, Hari Kripa Building, Anandwadi, Dattamandir, Satara. The premises were originally owned by the late Shri Janardan Jagtap; the respondents are his heirs. The tenant alleged that she was in possession under a tenancy with a monthly rent of Rs. 15/-. Shri Janardan Jagtap died in October 1975. The respondents (heirs) served a notice dated 1 March 1976 demanding arrears from 1-1-1973 to 29-2-1976. The tenant replied on 31 March 1976 denying arrears, asserting payment of rent up to September 1975, and stating that the landlord refused rent paid by money orders for October and November 1975.
The respondents sued in the Court of the Civil Judge, Junior Division, Satara for eviction on grounds of default and bona fide requirement. The trial Court (judgment dated 3-4-1984) dismissed the suit, accepting the tenant's defence that rent was paid but rent receipts were not issued, and that the landlord refused money orders tendered for October/November 1975. The District Court, Satara (Appellate Court), reversed the trial Court on the ground of default under section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (the "Bombay Rent Act"), but affirmed dismissal on bona fide requirement; it therefore decreed the suit on the default ground (order dated 25-3-1987). The tenant challenged the Appellate Court's judgment by way of this writ petition under Article 227.
Legal Issues Presented
- Whether the tenant was a wilful defaulter within the meaning of section 12(3)(a) of the Bombay Rent Act, thereby justifying eviction on the ground of default.
- Whether the tenant's payments (including alleged payments up to September 1975 without receipts and the money orders tendered for October and November 1975) defeated the respondents' claim of arrears sufficient to found a default-based eviction.
- Whether the Appellate Court erred in reversing the trial Court's factual findings by relying solely on the non-production of counterfoils of rent receipts and failing to consider other evidence on record.
Arguments of the Parties
Petitioner's (Tenant's) Arguments
- The tenant paid rent regularly to the landlord up to September 1975, but the landlord never issued rent receipts as a matter of practice.
- The tenant tendered rent for October and November 1975 by money orders (Exhibit 96 dated 8-12-1975), but the landlord refused to accept those money orders with an oblique motive, intending to create evidence of default.
- If the payments by money order for October/November 1975 are treated as having been accepted (or if refusal cannot create a cause of action), then arrears would be less than six months at the date of the notice and no cause of action for default would arise.
Respondents' (Landlords') Arguments
- The Appellate Court correctly reversed the trial Court and found the tenant to be a defaulter within the meaning of section 12(3)(a) of the Bombay Rent Act.
- Whether rent receipts were issued is a pure question of fact; the Appellate Court, after re-examining the record, rejected the tenant's assertion that receipts were not issued.
- The non-production of counterfoils of rent receipts undermines the tenant's defence and does not permit an adverse inference sufficient to non-suit the landlord.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Suka Ishram v. Ranchhoddas, 1972 Mh.L.J 477 : 74 (1971) B.L.R 220 | The proposition that if payments made by money order are treated as having been accepted by the landlord, then no cause of action arises for a default-based eviction where arrears would thereby be less than six months. | The Court relied on this decision to support the position that the tenant's tender of rent by money order for October and November 1975, if deemed accepted, would negate the respondents' cause of action for eviction on the ground of default. |
| Madhukar Govind Vaidya v. Narayan Harishchandra Surve (Writ Petition No. 3227 of 1987, decided June 8, 2000) | Followed the view in Suka Ishram regarding treatment of money orders as defeating a default cause of action. | The Court noted that the view in Suka Ishram had been followed recently in this cited writ petition, using it as supporting authority for the legal position relied upon by the petitioner. |
Court's Reasoning and Analysis
The Court conducted a focused review of the trial Court's factual findings, the Appellate Court's reversal, and the evidentiary record.
First, the Court examined the written statement and oral evidence. The tenant in the written statement and in evidence asserted payment of rent up to September 1975; though the written statement did not specify mode of payment, the tenant's evidence stated she paid rent in person and no receipts were issued. The tenant also produced D.W.2 (Anandrao Shripati Jagtap), a former tenant of the landlord, who supported the assertion that the landlord did not issue rent receipts as a practice. The landlord's witness (P.W.1) denied the tenant's payment, but in cross-examination P.W.1 admitted willingness to produce counterfoils of rent receipts; those counterfoils were never produced.
The trial Court weighed these materials and concluded that the tenant had established payment up to September 1975 and that she was not a wilful defaulter. The trial Court also relied on the evidence that money orders for October and November 1975 had been sent and refused by the landlord (Exhibit 96), and drew an adverse inference from the landlord's failure to produce counterfoils when confronted.
The Appellate Court reversed solely on the ground that mere non-production of counterfoils by the landlord cannot automatically lead to an adverse inference to non-suit the landlord. The Appellate Court did not address other evidence relied upon by the trial Court (the testimony of D.W.1 and D.W.2 and the trial evidence of P.W.1) that had direct bearing on whether rent had been paid and receipts were customarily not issued.
The present Court found the Appellate Court's conclusion unsustainable because it overlooked the totality of the crucial evidence supporting the trial Court's finding. The Court accepted the trial Court's appraisal that the tenant had paid rent up to September 1975 and that the landlord refused the money orders for October/November 1975. Relying on the authority in Suka Ishram (and its subsequent application in Madhukar Govind Vaidya v. Narayan Harishchandra Surve), the Court emphasized that if the money orders are treated as effectively constituting payment (or if the landlord's refusal cannot create a cause of action), then arrears would not amount to six months and the statutory ground for eviction under section 12(3)(a) would not be made out.
Weighing the evidence and legal principles, the Court concluded that the tenant was not a wilful defaulter and that the Appellate Court erred in reversing the trial Court by failing to consider the evidence in its entirety.
Holding and Implications
Holding: Writ petition allowed; the judgment and order of the Appellate Court dated 25-3-1987 in Regular Civil Appeal No. 244 of 1984 is set aside, and the judgment of the trial Court dated 3-4-1984 in Regular Civil Suit No. 11 of 1977 is restored.
Implications:
- Direct effect on the parties: The suit filed by the respondents (landlords) stands dismissed; the tenant's possession is vindicated by restoration of the trial Court's dismissal of the eviction suit.
- Costs: The writ petition was allowed with no order as to costs, as expressly recorded by the Court.
- Precedential effect: The Court applied existing authorities (Suka Ishram and a subsequent decision applied in Madhukar Govind Vaidya) to the facts; the decision reinstates the trial Court's factual findings rather than announcing a new legal principle. The opinion does not purport to create a new precedent beyond the application of cited authorities to the record before the Court.
Final Disposition: Writ petition allowed; trial Court judgment restored; suit dismissed. (Order: no costs.)
1. This petition, under Article 227 of the Constitution of India, is by the tenant in respect of the premises which are part of a building bearing C.T.S No. 5-E, Godoli Satara No. 2, Hari Kripa Building, Anandwadi, Dattamandir, Satara. The premises were originally owned by late Shri Janardan Jagtap, who is survived by the respondents. It is common ground that the premises were let out to the petitioner during the lifetime of the said Shri Janardan Jagtap. The monthly rent of the suit premises is stated to be Rs. 15/-. The said Shri Janardan Jagtap died sometime in October 1975. The respondents, who are the heirs of the said Shri Janardan Jagtap, caused to send notice to the petitioner demanding arrears from 1-1-1973 to 29-2-1976. The notice is dated March 1, 1976. There is no dispute that the said notice was received by the petitioner, and in response thereto a reply was sent on March 31, 1976. The petitioner denied that she was in arrears of rent. The specific case made out by the petitioner-tenant is that she had paid the entire rent till September 1975 to the landlord, but as per the practice the landlord has not issued receipts in spite of the payment. The petitioner further asserted that the petitioner had offered rent to the landlord for the period October and November 1975 by money orders, but the landlord refused to accept the money orders with an oblique motive so as to create an evidence against the petitioner for filing a suit on the ground of default. It is an admitted position that after the receipt of the notice, the petitioner did not tender the rent as demanded by the respondents within one month, nor did she raise any dispute for fixation of standard rent.
2. In the circumstances, the respondents instituted suit before the Court of the Civil Judge, Junior Division, Satara, praying for eviction of the petitioner from the suit premises on the ground of default as well as bona fide requirement. The trial Court, after considering the rival contentions by its judgment and order dated April 3, 1984 was pleased to negative both the grounds and thus dismissed the respondent's suit. The trial Court accepted the plea of the petitioner that the petitioner had paid the rent regularly to the respondents' husband, but no receipts were issued. For reaching this conclusion, the trial Court relied upon the evidence led by the petitioner-defendant by examining herself as well as by examining D.W 2 Anandrao Shripati Jagtap, who is the former tenant of the landlord and who has supported the defence taken by the petitioner-defendant, that the practice has been that the landlord never issued rent receipts for the payments which were made by the tenant from time to time. The trial Court further relied upon the circumstance that when the plaintiff was confronted with this evidence, he offered to produce the counterfoils of the rent receipts which were never produced. In the circumstance, the trial Court drew adverse inference against the plaintiff for having failed to produce the counterfoils of the receipts before the Court. Taking totality of the evidence on record, the trial Court concluded that the petitioner was not a wilful defaulter and was not liable to be evicted as she was always ready and willing to pay the rent which was evident from the fact that the petitioner had tendered the rent for the period October and November 1975 by money order (Exhibit 96) dated December 8, 1975, which money order was refused by the landlord.
3. The respondents preferred an appeal before the District Court, Satara. The District Court was pleased to reverse the order passed by the trial Court dismissing the suit and preferred to decree the suit in favour of the plaintiff on the ground of default as can be seen from paragraphs (13) to (16) of that judgment. The District Judge, on re-examining the rival contentions and the materials on record was pleased to upset the finding recorded by the trial Court and held that, admittedly, the tenant had failed to tender the rent as demanded by the landlord within one month of the receipt of the notice, nor had he raised a dispute for fixation of standard rent and as such the provisions of section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as “the Bombay Rent Act”) were clearly attracted. The Appellate Court, however, confirmed the finding of the trial Court insofar as the ground of bona fide requirement. Consequently, the Appellate Court was pleased to decree the suit only on the ground of default under section 12(3)(a) of the Bombay Rent Act.
4. The petitioner tenant has preferred the present writ petition challenging the judgment and decree of the Appellate Court on the ground of default. The respondents have not filed any cross petition challenging the finding on the ground of bona fide requirement. The main contention raised on behalf of the petitioner is that the petitioner had tendered rent regularly to the landlord, but the landlord had never issued rent receipts in that behalf and taking advantage of the said position, the landlord is falsely alleging that the petitioner tenant was in arrears from 1-1-1973 to 29-2-1976. According to the petitioner, besides regularly paying rent to the landlord till September 1975, the petitioner had offered rent to the landlord by money orders for the month of October/November 1975. However, the landlord with an oblique motive refused to accept the said money order so as to create an evidence against the petitioner-tenant for maintaining the suit on the ground of default. It was contended that, if the said payment made by the money orders is held to be deemed to have been accepted by the respondents-landlords. In that case the ground for maintaining the suit on the ground of default will not be available to the respondents as no cause of action can be said to have arisen since the arrears were less than six months on the date of the suit notice. On the other hand, the respondents contend that the final fact finding Court had rightly reversed the conclusion of the trial Court while reaching the conclusion that the petitioner-tenant was a defaulter within the meaning of section 12(3)(a) of the Bombay Rent Act. The fact whether the rent receipts were issued or not is a pure question of fact. The Appellate Court, on examination of the relevant material on record, has held that the claim putforth by the petitioner-tenant that no receipts were issued cannot be accepted. It is not possible for this Court in exercise of jurisdiction under Article 227 of the Constitution to re-appreciate the evidence and take a different view.
5. After having considered the rival contentions I would first proceed to examine the defence taken by the petitioner before the trial Court. In the written statement, the petitioner clearly asserted that she had paid the entire rent till September 1975 to the landlords. It is true that the written statement does not specifically set out the mode of payment. However, in her evidence, the petitioner has specifically asserted that she was paying rent in person during the lifetime of the plaintiff's husband, but he did not issue any rent receipts. In evidence, the petitioner has asserted that she has paid the entire rent upto September 1975. In addition, the petitioner caused to examine D.W 2 Anandrao Shripati Jagtap, who is former tenant of the landlord and who has supported the defence taken by the petitioner-defenant that the landlord never issued rent receipts. This witness D.W 2 Anandrao Shripati Jagtap has been cross-examined on behalf of the plaintiff and has denied the suggestion put to him that the rent receipts were issued. On the other hand, P.W 1 who was examined on behalf of the plaintiff, though asserted in the examination in chief that the petitioner was in arrears and also denied the suggestion put to her during the cross-examination that the petitioner had paid rent upto September, 1975 to her husband. When confronted with the defence, the respondent's witness P.W 1 during her cross-examination deposed that she was willing to produce the counterfoils of the rent receipts which were issued by her husband. However, the said rent receipts were never produced before the Court. Taking totality of the evidence on record, the trial Court rightly came to the conclusion that the petitioner had established her defence that the rent was regularly paid to the landlords till September 1975, but no rent receipts were issued. It is an admitted position that the petitioner had sent money orders towards the rent for October and November 1975, but the landlord refused to accept the money orders. In other words, if it is held that the landlords have deemed to have accepted rent for October and November 1975 sent by money orders, in that case there would be no cause of action to either issue suit notice or to maintain the suit against the petitioner on the ground of default. This legal position has been considered by this Court is the decision in the case of Suka Ishram v. Ranchhoddas, 1972 Mh.L.J 477 : 74 (1971) B.L.R 220. The view taken in the said decision has been followed recently by this Court in Writ Petition No. 3227 of 1987 (Madhukar Govind Vaidya v. Narayan Harishchandra Surve decided on June 8, 2000.
6. On careful examination of the judgment of the Appellate Court, it will be seen that the Appellate Court proceeded to reverse the order passed by the trial Court dismissing the suit, on the sole ground that mere non-production of counterfoils of rent receipts by the landlord cannot lead to an adverse inference against the landlord so as to non suit the landlord. The Appellate Court has not even adverted to the other factors which weighed with the trial Court, namely, the evidence of D.W 1 and D.W 2 as well as of P.W 1 which, had direct bearing on the point in issue. In my view, the trial Court was right in holding that the plaintiff had failed to prove that the tenant was a wilful defaulter or had neglected in paying the rent to the landlord. As pointed out earlier, the conclusion reached by the Appellate Court is wholly unsustainable as it clearly overlooks the crucial evidence referred to above.
7. Learned counsel for the respondents-landlords vehemently argued that the trial Court has not recorded a clear finding that the tenant had paid rent till September, 1975 and in the absence of the said finding, it was not open for the trial Court to conclude that the tenant was not in arrears for more than six months. I have already considered this aspect while examining the evidence on record. In my view, the trial Court has accepted the defence of the tenant as a whole that she had paid the rent till September 1975 to the husband of the plaintiff for which no rent receipts were issued. The petitioner having succeeded in establishing that the practice was of not issuing the rent receipts, although the rent was paid, it necessarily follows that the petitioner has paid the rent to the husband of the plaintiff till September, 1975. It has come on record that the tenant offered the rent for the months of October and November, 1975 by money orders, which was refused by the respondent-landlord. In the circumstances, having regard to the totality of the evidence on record, I am inclined to affirm the conclusion reached by the trial Court that the tenant was not a wilful defaulter or had neglected in paying the rent as alleged. In the circumstances, no decree could be made under section 12(3)(a) of the Bombay Rent Act.
8. For the aforesaid reasons, the writ petition is allowed with no order as to costs. Consequently, the judgment and order passed by the 2nd Additional District Judge, Satara, dated 25-3-1987 in Regular Civil Appeal No. 244 of 1984 is set aside and the judgment passed by the 4th Joint Civil Judge, Junior Division, Satara dated 3-4-1984 in Regular Civil Suit No. 11 of 1977 is restored. Accordingly, the suit filed by the respondent stands dismissed.
Writ petition allowed.
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