RAJU KAKARA SHETTY Vs. RAMESHPRATAPRAOSHIROLE

JUDGEMENT

(1.) This is a tenants appeal by special leave directed against the judgment of the High Court of Maharashtra at Bombay whereby it confirmed the eviction order passed by the 6th Additional District Judge, Pune, in Civil Appeal No. 662 of 1988 in reversal of the order of dismissal of the suit passed by the learned Additional Judge of the Court of Small Causes, Pune, in Civil Suit No. 348/85 on 30th April, 1988. The brief facts giving rise to this appeal are as under :

(2.) On 5th February, 1976 the appellant executed a lease agreement in respect of a part of the ground floor of property bearing City Survey No. 1205/2/9 situate at Shivaji Nagar, Pune City, more particularly described in paragraph 1 of the said agreement. The said premises were taken on rent for the purposes of restaurant business on monthly rental basis. By Cl. 3 of the agreement the appellant undertook to pay a total rent of Rs. 1,000/- per month for the demised premises (Rs. 900/- for the hotel portion and Rs. 100/- for the garage; the said rent being payable every month in advance. Cl. 5 of the agreement prohibited subletting of the premises or parting with the possession thereof in any other manner. As the appellant committed a default in the payment of rent from June, 1983 to December, 1984 in respect of hotel portion and from November, 1979 to December, 1984 in respect of the garage, the first respondent dispatched a notice dated 31st December, 1984 terminating the appellants tenancy as required by S. 106 of the Transfer of Property Act. The appellant failed to respond to the said notice and neglected to pay the amount of arrears of rent claimed therein within one month from the date of receipt of the notice. Consequently, the first respondent filed the suit which has given rise to this appeal on 26th February, 1985, being Civil Suit No. 348 of 1985, seeking eviction on four grounds, namely, (i) the tenant was in arrears of rent for more than six months and had failed and neglected to pay the amount due within one month from the date of receipt of the eviction notice, (ii) the tenant had raised a permanent structure in the suit premises in breach of S. 13(1)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter called the Act, (iii) the tenant was guilty of causing nuisance and annoyance to the neighbours and (iv) the tenant had sub-let the premises to second respondent without his consent.

(3.) The suit was contested by the appellant-tenant by his written statement Exh. 25 and the supplementary written statements Exhs. 56 and 60 filed after the amendments in the plaint. The second respondent, the alleged subtenant, adopted the written statement of the appellant by his purshis Exh. 30. During the pendency of the suit S. 12(3) of the Act was amended by S. 25 of the Amendment Act 18 of 1987 whereby Cls. (a) and (b) of sub-sec. (3) of S. 12 were deleted and instead a new sub-sec. (3) was substituted which restricted the Courts right to pass a decree for eviction on the ground of arrears of standard rent and permitted increases, if on the first date of the hearing of the suit or on such other date as the Court may fix, the tenant paid or tendered in Court the standard rent and permitted increases then due together with simple interest on the amount of arrears at the rate of 9% per annum and thereafter continued to pay or tender in Court regularly such standard rent and permitted increases till the final decision of the suit and also paid the cost of the suit as directed by the Court. The appellant contended that the said amendment had retrospective effect and he was entitled to the benefit thereof. In the alternative he also contended that he had paid the rent to the first respondent but the latter had failed to issue rent receipts. He also questioned the validity of the notice terminating his tenancy. He denied the allegation that he had sub-let the premises or had parted with the possession thereof in favour of the second respondent or that he was guilty of causing nuisance and annoyance to the neighbours. The allegation that he had raised a structure of a permanent nature in the hotel premises without the permission of first respondent was also disputed. He, therefore, contended that the suit was liable to fail.