GULABBAI Vs. NALIN NARSI VOHRA

JUDGEMENT

(1.) This appeal on special leave is directed against the judgment and order passed by the High Court at Bombay in Writ Petition No. 1689 of 1987 allowing the writ petition, setting aside the judgment and decree passed by the Trial Court and affirmed by the lower appellate Court and thereby dismissing the suit filed by the plaintiff (appellant in this appeal) for eviction of the tenant -respondents.

(2.) The matrix of the case as appears from the pleadings of the parties is as follows : -

(3.) The plaintiff -appellant, Gulabbai instituted Regular Civil Suit No. 19 of 1979 in the Court of Shri S. S. Patil, III Jt. Civil Judge, J.D. Ahmednagar at Ahmednagar for vacant possession of the suit property consisting of part of Survey No. 3576 in the city of Ahmednagar and also for the arrears of rent and the costs of the suit. Originally the said property belonged to the Imarat Company Private Limited. The plaintiff purchased the said property from Imarat Company Private Limited bearing numbers on the front side on the eastern as 81 to 83 and rear part on the west 89 to 91, for a consideration of Rs. 34,000/ - on August 12, 1976. At the time of purchase of the premises the said building had ground floor and a first floor. The purchase was made by Amritlal Mutha in the name of his wife, Gulabbai, the plaintiff. The defendants were in possession of a part of the said premises bearing Nos. 81 to 83 on eastern side whereas the western part on the ground floor bearing Nos. 89 to 91 was possessed by the brother of Amritlal Mutha, i.e. Kanhyalal Mutha who has been running a provision store under the name and style of 'Mutha Provision Store' for the last 15 years. The defendant Nos. 1 and 4, i.e. Nalin Narsi Vohra and Mulji Narsi Vohra are the brothers whereas defendant Nos. 2 and 3 are the wife and son of the defendant No. 1 respectively. According to the plaintiff, the defendants are in possession of the suit shop Nos. 81 to 83 admeasuring 21 ft. x 15 ft. on the monthly rent of Rs. 21.28 Ps. plus education cess Rs. 2.55 Ps. The tenancy commences from the first day of every month according to the English calendar. Prior to the purchase of the suit premises, the defendants were tenants of Imarat Company Private Limited and the tenancy is in the name of defendant No. 1, i.e. Nalin Narsi Vohra and the rent receipts too were in the name of the defendant No. 1 only. According to the plaintiff, the original agreement of defendant with Imarat Company Pvt. Ltd. is to pay rent from month to month. After purchase of the said property, Imarat Company intimated to the tenant -defendant No. 1 about the said purchase by the plaintiff. It has been pleaded by the plaintiff that the defendant No. 1 assured the plaintiff after purchase of the suit house, that he would vacate the said premises. However, the defendants demanded 'Pagadi' amounting to Rs. 25,000/ - in order to vacate the suit premises. It was alleged by the plaintiff that the defendants were in arrears of rent since 12 -8 -1975 till 15 -12 -1977. The plaintiff, therefore, issued a notice dated 15 -12 -1977 of ejectment and thereby demanded the rent of the suit premises till 30 -11 -1977. The defendant No. 1 after receipt of the notice sent Rs. 571.92 Ps. by Money Order. But it was refused by the plaintiff as the rent was not correctly calculated. The defendants again sent Rs. 960/ - by Demand Draft which was also refused by the plaintiff as miscalculated. The defendants sent thereafter Rs. 658.55 Ps. by Money Order which was accepted by the plaintiff. According to the plaintiff the defendants are monthly tenants and so according to her, defendants are defaulter for non -paying the rent of the suit premises for more than six months.