KHIMJI BHIMJI MAJITHIA Vs. TARABEN LALJI SONI

JUDGEMENT

(1.) This revision application under sec. 29(2) of the Bombay Rent Act ordinarily to be dealt with by a Single Judge as per the High Court Appellate Side Rules is before us as the Division Bench because the learned Single Judge A. N. Surti J. felt that the question that was raised before him was of frequent occurrance and of vital importance. The question that was referred to us was whether a notice given by the landlord precedent to the filing of the suit for possession on the ground of non-payment of rent must or must not contain a specific demand of the arrears of rent.

(2.) When the matter was called out before us Mr. Adhyaru the learned counsel appearing with Mr. Lathigara the advocate on record raised a preliminary contention that in view of the judgment of the Supreme Court in the case of Maganlal Chhotahhai Desai v. Chandrakant Motilal A.I.R. 1969 S.C. 37 this question could not be raised for the first time before the High Court and Mr. Adhyaru urged that we should deal with the question of tenability of this contention first. Mr. S. M. Shah the learned advocate appearing for the petitioner on the other hand urged that as the learned Single Judge had referred the matter to us it would not be within our competence to go behind that question whether the question was or was not properly agitable before the High Court exercising the revisional jurisdiction under sec. 29(2) of the Bombay Rent Act. As this question is also of vital importance and as it does not appear that the learned Single Judge had dealt with this question we leave this question open and proceed to decide this reference only on the pure question of law as it is referred to us and after deciding that abstract question of law we would refer this revision application back to the learned Single Judge having jurisdiction to deal with the same.

(3.) In order to have the background of the reference to this Division Bench we would refer to the notice Ex. 25 on the record of this case. The notice issued on behalf of the landlady in the first paragraph informs the tenant that he had hired the premises from her at the rate of Rs. 100 as rent that he was in arrears of rent from 1-12-73 to 30 amounting to Rs. 1900.00 that the tenant was liable to pay Rs. 253.5 by way of education cess for the period between 20-12-69 and 30 and thus the tenant owed to her in all Rs. 2153.50. The notice further proceeds to apprise the tenant of the fact that despite repeated demands he had not paid that amount of rent and as the amount of rent had become due for more than six months the landlord had become entitled to evict the tenant from the rented premises on the ground of non-payment of rent. In the second paragraph she then gives notice to the tenant that he should hand over her the possession of the rent premises on the expiry of the month of tenancy on 31-8-75 or at any time after 15 days of the receipt of the notice when the tenant considered his month of tenancy getting over. The notice is rounded up with the further warning that if the tenant failed to do so (that is to deliver possession on the expiry of the month of tenancy as aforesaid) the landlord would be constrained to file a suit against him for recovery of possession and recovery of rent as per legal advice received by her. Above is the substance of the notice which we have carefully translated with all the relevant statements contained in that notice Ex. 25.