GULAMNABI GULAM AKBAR Vs. HAJI ISMAIL ISAKJI PATEL

JUDGEMENT

(1.) This is a revision petition by the petitioner-appellant-defendanttenant.

(2.) The plaintiff-landlord had instituted Regular Civil Suit No. 387 of 1976 in the Court of the learned Civil Judge (J.D.), Ankleshwar, against the petitionertenant for obtaining a decree of eviction on the ground of the non-payment of rent for a period of six months. The case put up by the plaintiff-landlord was that the suit premises, namely, a shop and the room situated at Ankleshwar were leased to the defendant-tenant at the monthly rent of Rs. 45.00. According to the plaintifflandlord, previously also, two suits were instituted against the defendant-tenant for the recovery of possession, inter alia, on the ground of the non-payment of the rent, but both the proceedings were compounded and the defendant-tenant had continued in the premises as the tenant. According to the plaintiff-landlord, the necessary notice under Sec. 12(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as 'The Act') was duly served upon the defendant-tenant, but he has not paid or tendered the rent which was found to be due. It is on this basis that the plaintiff-landlord had prayed for a decree of eviction along with the rent which was due and mesne profit. This case of the plaintifflandlord came to be challenged by the defendant-tenant by filing W.S. at Exh. 13. The defendant-tenant has admitted that the suit premises have been taken on lease by him at the rent of Rs. 45.00 per month. According to him, he had already tendered an amount of Rs. 300.00 by Money Order, but that the said tender of the amount due was not accepted by the plaintiff-landlord and there was a refusal on his part to accept the rent. It has been further contended by the defendant-tenant that the suit premises were worn out and in dilapidated condition and that they required substantial reparation. It is broadly on these grounds that the defendant-tenant has prayed for the dismissal of the suit of the plaintiff-landlord against him. From the above said pleadings of the parties, the learned trial Judge had framed issues at Exh. 14 and upon the appreciation of the evidence on record, has reached the conclusion that the case was falling within the purview of Sec. 12(3)(a) of the Act and that the Court was bound to award a decree of eviction in favour of the plaintiff-landlord. This view has been culminated in the judgment dated May 3, 1980. The said judgment and the consequent decree were challenged before the District Court, Bharuch, of course, unsuccessfully, by filing Regular Civil Appeal No. 98 of 1980 which came to be dismissed by the learned District Judge, Bharuch vide judgment dated January 12, 1980. Thus, the decree against the petitioner-tenant for eviction under Sec. 12(3)(a) of the Act came to be upheld and confirmed. Hence, the tenant is before me in the present Civil Revision Application.

(3.) It is not in dispute that the notice under Sec. 12(2) of the Act dated was served upon the defendant-tenant on July 21, 1976. It is also not disputed that the defendant-tenant had not sent the amount demanded within a period of one month from the date of the receipt of the notice. He has, of course, sent the rent by Money Order as late as September 10, 1976. Moreover, the contention raised by the defendant-tenant in the W.S. as indicated above, admits two important aspects of the case of the plaintiff-landlord; firstly, that the rent was Rs. 45.00 per month and that the said rent was to be tendered per month according to the English Calendar. Thus, from the averments in the W.S. itself it is borne out that the tenancy was a monthly tenancy and that the rent was payable by month. As demonstrated above, the tender qua the amount asked for by the statutory notice under Sec. 12(2) of the Act was not made within the statutory period of one month. In the same way, no dispute regarding the standard rent ever came to be raised. Thus, the Courts below have proceeded on a right basis, saying that there has been a monthly tenancy and that the rent was payable by month and that the defendant-tenant was in arrears of rent for a period of more than six months and that the above said amount was not tendered within the statutory period and that there was no dispute regarding the standard rent. The conclusion of this view, of course, is that the case would be governed under Sec. 12(3)(a) of the Act.