Tenant Cannot Escape Eviction U/S 12(3)(a) Of Bombay Rent Act In Absence Of Any Valid Dispute About Rent Amount Or Increases: High Court

“In my view, therefore, in absence of any valid dispute created by Defendant about the amount of standard rent or permitted increases by filing application for fixation of standard rent under Section 11(3) within 30 days of receipt of demand notice, tenant cannot escape the eviction under Section 12(3)(a) of the Bombay Rent Act.”

The Court further observed that a Trial Court cannot look into the issue of 'readiness and willingness to pay rent' of the tenant, if there is no dispute about the amount of rent payable.

“Section 12(3)(a) did not leave any discretion for the Trial Court to go into the issue of readiness and willingness to pay rent since there was no dispute about amount of rent nor Defendant file application for fixation of standard rent within notice period. The statutory scheme of Section 12(3)(a) is such that immediately upon noticing the non-payment of arrears of rent and permitted increases to the landlord within the statutory notice period provided under Section 12(2), the eviction decree becomes imminent.”

Background

A single judge bench of Justice Sandeep V. Marne was considering the petitioner/defendant's challenge to the order of the Appellate Bench of the Small Causes Court/Trial Court, by which it allowed the appeal of respondent/plaintiff and set-aside the order of the Small Causes Court.

The Appellate Bench reversed the finding of the Trial Court on the issue of default in payment of rent and directed the petitioner/defendant to handover possession of the suit premises to the respondent/plaintiff-landlord.

The plaintiff is the owner of the suit premises and the defendant was her monthly tenant. The plaintiff alleged that the defendant was irregular in payment of rent and also did not pay the water pump charged and permitted increases of repair cess and education tax since October 1972.

The plaintiff thus filed a suit in the Trial Court for recovery of possession of the suit premises and for recovery of the amount towards arrears of rent, permitted increases and water pump charges. The defendant opposed the suit and stated in his written statement that he was always ready and willing to pay standard rent and permitted increases in respect of the suit premises. He also said that he was willing to pay arrears of standard rent, permitted increases alongwith interest and the cost of the suit as provided under Section 12 of the BRA.

The Trial Court dismissed the plaintiff's suit on the ground that the defendant was ready and willing to pay the amount of standard rent and permitted increases. However, the Appellate Bench set-aside this order and directed the defendant to vacate the suit premises.

Eviction under Section 12(3)(a) of Bombay Rent Act

The High Court referred to Section 12 as it stood prior to the 1987 amendment, at the timing of filing the present suit. Under Section 12 of the Bombay Rent Act, landlord was not entitled to seek recovery of possession so long as tenant paid or was ready and willing to pay amount of standard rent and permitted increases.

Section 12(2) mandated landlord to serve a demand notice in respect of the arrears of standard rent and permitted increases, Further, no suit for eviction could be filed before expiry of period of one month after service of notice. If the tenant defaulted payment within a period specified under Section 12(2), the landlord became entitled to recover possession of premises under Section 12(3).

The Court noted that under Section 12(3)(a), if the tenant neglects to make payment within one month period after service of demand notice in cases where (i) rent is payable by month, (ii) there is no dispute regarding amount of standard rent or permitted increases (iii) if the rent or increases are in arrears for a period of six months or more, a decree of eviction can be passed by a Court.

In the present case, the Court noted that the case is governed by Section 12(3)(a) as all the three elements are satisfied. It observed that the defendant did not dispute the amount of pump charges, repairs cess or education tax were to be paid on monthly basis. It stated that the first element of Section 12 (3)(a) is satisfied as the defendant did not dispute that either rent or permitted increases were payable on monthly basis.

The Court also observed that the defendant did not dispute the quantum of rent in the written statement. Thus, the second element of Section 12 (3)(a) is satisfied. Further, it observed as the defendant did not pay rent since October 1972, the third element is satisfied,

The Court thus opined that the case is covered by Section 12(3)(a) of BRA.

The Court stated that the Trial Court did not appreciate the language used in Section 12(3)(a) of BRA which uses the words 'court shall pass a decree for eviction'. It stated that the word 'shall' leaves no discretion for the Court to pass a decree for eviction once the case is covered under Section 12(3)(a).

The Court held that the Trial Court was incorrect in considering the issue of readiness or willingness on the part of the defendant to pay the rent and permitted increases.

The Court stated that as the defendant did not dispute about the amount of standard rent or permitted increases, he cannot escape the eviction under Section 12(3)(a). It was of the view that the ground of default in payment of rent under Section 12(3(a) was established.

The Court thus upheld the Appellant Bench's order in quashing the Trial Court's judgment. It granted the petitioner/defendant three months to vacate the suit premises.

Case title: Sudhir Kumar Sengupta vs. Kusum Pandurang Keni (WRIT PETITION NO.5355 OF 1999 WITH INTERIM APPLICATION NO.10193 OF 2024)