Case Note & Summary
The case involves a landlord's suit for eviction of tenants from two rooms in Mumbai on the ground of default in payment of rent. The landlord issued a notice of demand on 27 June 1972 claiming arrears from February 1970 to September 1971 at Rs. 35.70 per month and from October 1971 at Rs. 36.12 per month. The notice was sent by registered post and returned with the remark 'refused'; a copy was also sent under Certificate of Posting and pasted on the premises. The tenants denied receipt of the notice and claimed readiness to pay. The Trial Court dismissed the suit on 30 November 1991, holding that service of notice was not proved and that education cess under the Maharashtra Education (Cess) Act, 1962 was not payable monthly, so Section 12(3)(a) of the Bombay Rents, Hotel and Lodging Rates (Control) Act, 1947 was not attracted; the case fell under Section 12(3)(b). The Appellate Bench of the Small Causes Court reversed the Trial Court's findings and decreed eviction. The tenants filed a writ petition in the High Court. The High Court examined the evidence and found that the Trial Court's finding on non-service of notice was based on the tenant's denial and the landlord's failure to prove service. The High Court also noted that the Trial Court correctly followed the Supreme Court's decision in Raju Kakara Shetty v. Ramesh Prataprao Shirole, holding that education cess is not payable monthly, and therefore the rent was not payable monthly, making Section 12(3)(a) inapplicable. The High Court allowed the petition, set aside the Appellate Bench's order, and restored the Trial Court's dismissal of the suit.
Headnote
A) Rent Control - Eviction - Notice of Demand - Service - Landlord failed to prove service of notice of demand where tenant denied receipt and postal packet returned with remark 'refused' - Trial Court's finding of no service upheld - Held that landlord must establish service of notice to claim eviction for default (Paras 2-3). B) Rent Control - Eviction - Default in Payment of Rent - Monthly Rent - Education Cess - Education cess under Maharashtra Education (Cess) Act, 1962 is not payable monthly - Since education cess forms part of rent, rent was not payable monthly - Section 12(3)(a) of Bombay Rents, Hotel and Lodging Rates (Control) Act, 1947 not attracted - Case governed by Section 12(3)(b) - Held that where rent is not payable monthly, Section 12(3)(a) does not apply (Para 3).
Issue of Consideration
Whether the landlord proved valid service of notice of demand for arrears of rent, and whether the rent was payable monthly so as to attract Section 12(3)(a) of the Bombay Rents, Hotel and Lodging Rates (Control) Act, 1947.
Final Decision
The High Court allowed the writ petition, set aside the order of the Appellate Bench of the Small Causes Court, and restored the Trial Court's judgment dismissing the suit.
Law Points
- Service of notice of demand must be proved by landlord
- Education cess not payable monthly
- Section 12(3)(a) not attracted when rent not payable monthly
- Section 12(3)(b) applies
