1. Heard. Admit. By consent of the learned counsel for both the sides, the matter is taken up for final hearing at the admission stage.

2. By the present revision application under Section 115 of the Code of Civil Procedure, 1908, the applicant is challenging the order dated 16/07/2024 passed below Exhibit No. 28 in Regular Civil Suit No. 373 of 2019 by the learned 5th Joint Civil Judge, Senior Division, Amravati, whereby the application filed under Order-VII Rule 11 of the Code of Civil Procedure, 1908 came to be rejected.

3. The present applicant is the original defendant, whereas the non-applicant is the original plaintiff in Regular Civil Suit No. 373 of 2019. For the sake of brevity, the parties to the present Revision Application shall hereinafter be referred to in their original status.

4. The non-applicant/plaintiff instituted Regular Civil Suit No. 373 of 2019 before the learned 5th Joint Civil Judge, Senior Division, Amravati, seeking a decree for possession of the suit premises, recovery of arrears of rent, permitted increase in rent, damages and costs under Section 15(1), (2) and (3) of the Maharashtra Rent Control Act, 1999. The said suit relates to Shop Nos.1/4 and 1/5 situated at Sumitra Complex, Amravati, of which the defendant is the tenant and the plaintiff is the owner.

5. According to the plaintiff, the defendant was occupying the suit premises on a monthly rent of Rs. 2500/-, inclusive of municipal taxes and maintenance charges payable in advance on or before the 5th day of every month. The plaintiff further pleaded that the defendant was liable to pay permitted increases in rent at the rate of 4% per annum with interest at the statutory rate of 15% on the arrears of rent.

6. According to the plaintiff, the defendant had been irregular in making payments of rent prior to 1/4/2014 and failed to pay the rent with permitted increase continuously w.e.f. 01/04/2014 to 31/05/2019. Accordingly, the plaintiff prepared the statement of accounts showing the arrears of rent and the Defendant issued a cheque of Rs. 1,11,000/- till 31/08/2017 but, the said cheque was returned to the Defendant because of wrong calculation. According to the Plaintiff he is entitled for recovery of arrears of rent to the tune of Rs. 1,31,108.32/- + Rs. 79,127/- + Rs. 5967/- Total Rs. 02,16,202.32/- alongwith interest @ 15% thereon from the date of amount due till actual payment of rent.

7. The plaintiff issued a statutory notice dated 10/05/2019 under Section 15(2) of the Maharashtra Rent Control Act and called upon the defendant to pay the arrears of rent from 01/09/2017 till 31/05/2019, together with permitted increases of rent and interest, within a period of 90 days from the date of service of notice.

8. The plaintiff further pleaded that, prior to the institution of the suit, several communications had been exchanged between him and the defendant about arrears of rent and the amount payable. After receiving the notice dated 10/05/2019, the defendant submitted a detailed reply and forwarded a banker’s cheque for an amount of Rs. 2,42,108.32/- towards arrears of rent for the period w.e.f. 01/04/2014 to 31/05/2019.

9. Accordingly, the plaintiff issued a reply to the notice dated 11/07/2019 and returned the said cheque on the ground that, there was miscalculation of the arrears of rent on the part of defendant. Subsequently, on 05/08/2019, the defendant again forwarded a banker’s cheque of Rs. 2,53,766.32/- but the said cheque was returned to the defendant alongwith a communication dated 12/08/2019. Thereafter, the plaintiff filed Regular Civil Suit No. 373 of 2019 seeking possession of the suit premises, recovery of arrears of rent and damages under Section 15(1), (2) and (3) of the Maharashtra Rent Control Act,1999.

10. The Defendant was duly served with the suit notice on 16/01/2020 and entered appearance through his counsel on 20/01/2020. During the pendency of the suit, with leave of the learned Trial Court, the defendant had deposited a cheque of Rs. 3,89,376.67/- but it was not honoured due to a technical error. Thereafter, the defendant again filed a fresh application and prayed for permission to deposit the arrears of rent of Rs. 3,89,377/-. The learned Trial Court had granted said permission. Accordingly, the defendant deposited the said amount before the learned trial Court. The defendant also filed a written statement and resisted the claim of the plaintiff.

11. The defendant also filed Exhibit No. 28, an application under Order VII Rule 11(a) and (d) of the CPC and prayed for rejection of the plaint on the ground that, the plaintiff's suit was based on suppressing material facts, it did not disclose any cause of action and it is barred under the provisions of Section 15 of the Maharashtra Rent Control Act, 1999.

12. The plaintiff filed a reply and strongly opposed the application on the ground that, the questions raised by the defendant in Exhibit No. 28 involved mixed questions of fact and law, which required adjudication upon conclusion of the trial, hence, prayed for rejection of the application.

13. On 16/07/2024, the learned 5th Joint Civil Judge, Senior Division, Amravati, passed the impugned order holding that, the plaintiff did not seek any relief of injunction but prayed for a decree of eviction, possession and recovery of arrears of rent, therefore, the provision of Sec. 41(h) of the Specific Relief Act,1963, has no application to the suit and issues involved in the case can be decided after conclusion of the trial.

14. Learned counsel appearing for the applicant/defendant canvassed that, both the shop premises were initially owned by the Shri Anurag Harish Udasi and that the defendant was occupying the said shops on monthly rent of Rs. 700/- and Rs. 1000/-, respectively inclusive of municipal taxes. The tenancy commenced on the first day of every month and expired on the last day of the said month. However, the applicant's landlord used to receive rent on quarterly basis. The Defendant was served with a notice dated 18/01/2013 regarding the acquired status of ownership by the Plaintiff over the suit premises by virtue of sale deed dated 26/12/2012. Therefore, the defendant continued to pay the rent as per the previous practice, but the plaintiff refused to accept the same.

15. Learned counsel appearing for the applicant/defendant further canvassed that the defendant regularly paid rent till June-2015 but the plaintiff failed to issue the receipts to that effect. Hence, the defendant started paying the future rent through electronic money order, but the plaintiff did not claim the said rent.

16. It is further canvassed that the plaintiff instituted the suit and specifically prayed for a decree for possession/eviction under Section 15(1),(2) and (3) of the Maharashtra Rent Control Act,1999, as well as recovery of Rs. 2,46,202.32 along with interest thereon at the rate of 15% from the date of amount due until its realization and further recovery of damages. However, the plaintiff, with due permission, deposited the entire amount of arrears of rent with the Court within a period of 90 days from the date of service of summons of the suit. Therefore, as per the provisions of sub-Section (3) of Section 15 of the Maharashtra Rent Control Act, the suit filed by the plaintiff is barred.

17. In support of these submissions, learned counsel appearing for the applicant placed reliance on the following dictums:-

                    i) Judgment dated 26/10/2023 passed by this Court in Civil Revision Application No. 03 of 2022 with connected matters (Ashok T. Gemnani Vs Prashant Murlidhar Rathi and another), wherein it had been held that cause for filing of the suit was solely on the ground of default in payment of arrears of rent and not on the ground of bonafide requirement of the tenanted premises. It was further held that, if the tenant had already paid the rent and had further shown willingness to pay the rent with permitted increases and in compliance with the notice under Section 15(2), paid the rent with permitted increases from the month of issuance of notice, there would be no cause for filing the suit. Hence, the plaint would be barred by law and the Court would be bound to reject the plaint in terms of Order-VII Rule-11, more particularly under clause(a) of Rule-11.

                    ii) Dahiben V Arvindbhai Kalyanji Bhanusali (Gajra) (D) thr L.Rs and Ors. AIR 2020 SUPREME COURT 3310, wherein it has been held that, under Order-VII Rule-14 of Code of Civil Procedure, 1908, the documents filed along with plaint are required to be taken into consideration while deciding the application under Order-VII Rule-11(a) of CPC. It is held that when a document referred to in the plaint forms the basis of the plaint, it should be treated as part of the plaint, and the Court is required to determine whether the assertions made in the plaint are contrary to the statutory law are judicial dictum while deciding whether a case for rejection of the plaint at the threshold is made out. The test for exercising the powers under Order-VII Rule-11 is whether the averments made in the plaint are taken in their entirety, in conjunction with the documents relied upon, the same would result in a decree being passed. If, on a meaningful reading of the plaint, it is found that the suit is manifestly vexations and without any merit and does not disclose a right to sue, the Court would be justified in exercising the power under Order-VII Rule-11 of the CPC.

                    iii) Bharvagi Constructions and Another Vs Kothakapu Muthayam Reddy and others 2018 (1) ALL MR 459 (SC),wherein it has been held that, the expression “law” occurring in Order-VII Rule-11(d) includes not only legislative enactments but also judicial precedents.

                    iv) Kamladevi Raychand Shah of Mumbai and others Vs Bhupendra Yashwant Ajinkya of Mumbai and others, 2024 SCC OnLine Bom 1242, wherein it has been held that, after transposing defendant No.6 as a plaintiff, there would be no claim available against original defendants.

18. Per contra, learned counsel appearing for the non-applicant/plaintiff submits that the plaintiff had filed the suit for possession under Section 15(1), (2) and (3) of the Maharashtra Rent Control Act, along with reliefs for recovery of the amount, damages and costs. The plaintiff had not prayed for any relief seeking injunction. Therefore, Section 41 (h) of the Specific Relief Act, 1963, dealing with refusal of injunction, would not be applicable to the facts and circumstances of the case.

19. It is further canvassed that, prior to 01/04/2014, the applicant/defendant was not regular while making payment of rent despite repeated demands. The defendant had neither paid the rent nor permitted increase in rent at the rate of 4% w.e.f. 01/04/2014 till 31/05/2019. It was further submitted that the defendant has permitted to increase of rent, which was payable @ 4% from 01/09/2017. Therefore, on 10/05/2019, the plaintiff issued a statutory notice and called upon the applicant/defendant to pay maintenance charges as well as increased rent with interest and arrears of rent within prescribed period but despite of service of notice, the Applicant/defendant failed to pay the rent.

20. On 11/07/2019, the defendant issued reply to notice dated 10/05/2019 and contended that, there was an agreement of sale between him and the plaintiff in respect of the suit premises and the amount of Rs.1,11,000/- had been paid towards earnest money. The plaintiff issued counter-reply and specifically contended that no agreement for sale was ever executed between him and the defendant, also, he had received the Cheque of Rs.1,11,000/- towards arrears of rent but he returned the said cheque due to miscalculation. The Revision applicant/ defendant failed to pay the arrears of rent with permitted increases despite service of notice, on the contrary, the defendant issued false reply on 11/07/2019, which was received by the plaintiff on 14/07/2019, hence, the cause of action arose on 11/07/2019, soon upon receipt of reply from the applicant/defendant.

21. Learned counsel further relied upon the Full Bench judgment in the case of Babulal s/o Fakrichand Agrawal Vs. Suresh s/o Kedarnath Malpani and others reported in [2017 (4) Mh.L.J. 406] , wherein it is held that, Sec. 15 (1) (2) and (3) of the Maharashtra Rent Control Act must be read independently and harmoniously. Payment of arrears after receiving notice under Sec. 15 (2) does not automatically wipe out the landlord's cause of action to claim protection from eviction, the tenant must not only pay the arrears within the statutory period but must also continue to pay or deposit rent and permitted increases regularly during the pendency of the suit. A tenant who fails to comply with the obligation under Section 15(3) can still be evicted even if earlier arrears were paid. It was further held that, the landlord's right to institute an eviction suit is an inherent right, subject only to compliance with the statutory preconditions such as issuing a valid notice under Sec. 15 (2). The payment of arrears does not by itself, extinguish that right.

22. In the case in hand, the core question arises that, whether the suit can be continued even after the tenant had deposited arrears of rent with permissiable increase within the period of 90 days from the date of service of the suit summons u/s 15(3) of the Maharashtra Rent Control Act, 1999?

23. In order to answer the above question, it is necessary to consider the provisions of Sec. 15 of the Act, which reads as under:

                    15. No ejectment ordinarily to be made if tenant pays or is ready and willing to pay standard rent and permitted increases.

                    (1) A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act.

                    (2) No suit for recovery of possession shall be instituted by a landlord against the tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of ninety days next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in Section 106 of the Transfer of Property Act, 1882.

                    (3) No decree for eviction shall be passed by the Court in any suit for recovery of possession on the ground of arrears of standard rent and permitted increases if, within a period of ninety days from the date of service of the summons of the suit, the tenant pays or tenders in Court the standard rent and permitted increases then due, together with simple interest on the amount of arrears at fifteen per cent per annum; and thereafter continues to pay or tenders in Court regularly such standard rent and permitted increases till the suit is finally decided and also pays the cost of the suit as directed by the Court.

                    (4) Pending the disposal of any suit, the Court may, out of any amount paid or tendered by the tenant, pay to the landlord such amount towards the payment of rent or permitted increases due to him as the Court thinks fit.

24. In the case in hand, it prima facie appears that, the non-applicant/plaintiff filed a Regular Civil Suit No. 373 of 2019 under Section 15(1), (2) and (3) of the Maharashtra Rent Control Act, and prayed for decree as under :-

                    i) By passing a decree for possession under section 15(1), (2) and (3) of MRC Act of suit premises the defendant be directed to deliver the vacant possession of the suit premises.

                    ii) A decree for recovery of Rs. 2,46,202.32 paise along with interest thereon @ 15% from the date of amount due till realisation be passed against the defendant.

                    iii) A decree for recovery of damages @ Rs. 1000/-per day from the date of decree till delivery of possession alongwith interest thereon @ 18% p.c. p.a. from the date of decree till realisation, defendant be directed to pay said amount to plaintiff in the alternative an inquiry into future mesne profit be ordered.

                    iv) Plaintiffs’ costs and any other suitable relief be decreed against the defendants.

25. It is matter of record that, on 16-01-2020, the revision applicant/Defendant was duly served with the suit notice. During the pendency of the suit, the applicant has filed various applications viz. Exhibit Nos.21, 24, 30, 36, 41, 46 and 47 and with due permission of the Court deposited rent amount as under :-