CHAMPAKLAL DAHYABHAI NATALI Vs. SARASWATIBEN

JUDGEMENT

(1.) The decisions of two Division Benches are conflic- ting on the issue as to whether a person who purchases the leased property along with arrears of rent prior to his purchase can evict a tenant in view of the provisions of sec. 12 of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (hereinafter referred to as he Act) and that is why the said point is referred to us. The facts in all the civil revision applications are similar and we shall state briefly the facts in Civil Revision Application No. 533 of 1969 which are that the suit property is a part of Nondh No. 817 situated in the city of Surat. The leased property is used as a stable. The present owner purchased the property on August 4 1966 from its previous owner with the right to recover the rent already due at the date of transfer from the defendanttenant. The rent was due from July 1 1965 The Plaintiff-landlord therefore gave a notice to the defendant-tenant demanding the rent due from July 1 1965 to October 31 1966 and claimed possession of the suit premises on the ground of arrears of rent. The rent from July 1 1965 to July 31 1966 that is for 12 months was due at the time when the property was purchased from the previous owner. The rent due after the purchase by the plaintiff is only of 3 months. The tenant was in arrears of rent for more than 6 months if the arrears prior to the purchase ase taken into account. The defendant-tenant neither paid the rent due in preciseness of the demand notice nor replied to the said notice. The tenant also did not file any application under sec. 11 of the Act for fixing the standard rent of the suit premises. The plaintiff therefore filed a Regular Civil Suit No. 2 of 1967 in the Court of the Civil Judge Junior Division Surat for recovering the arrears of rent and possession of the suit premises and prayed a decree of eviction under sec. 12(3) of the Act. The learned trial Judge decreed the plaintiffs suit. The defendant tenant filed Regular Civil Appeal No. 58 of 1968 in the District Court Surat which was also dismissed. The defendant therefore filed Civil Revision Application No. 533 of 1969 in this Court and because of the conflicting decisions as noted above the learned Single Judge referred the following questions to this Court: Whether the rent due by a tenant to the original owner of the property retains the character of a rent if the property is sold away by the original owner i.e. the landlord to a third party with a right to recover the arrears of rent due to the vendor and enforce the default in payment thereof so as to entitle there purchaser to serve the tenant with a notice or demand for the arrears due to the vendor under sec. 12(2) of the Act and to sue the tenant on the ground of non-payment of such arrears ?.

(2.) The decision of the Court on the point in issue may first be noticed. In BAI DAHIBA AND OTHERS. V. JITENDRA KANAIYALAL PARIKH 12 G. L. R. 595 J. M. Sheth J. held that vendee of the property is a landlord as defined in sec. 5(3) of the Act. The learned Judge further held:

(3.) In PREM GOVINDRAM SAJNANI V. H. M. METHWANI 14 G. L. R. 952. T. U. Mehta J. took the view that a purchaser of a property and arrears of rent is a landlord as per the extended meaning of landlord defined in sec. 5(3) of the Act and such a purchaser cannot be considered as landlord for the purpose of sec. 12 of the Act. For this conclusion the learned Judge relied upon the decision of the Full Bench in NANALAL GIRDHARLAL AND ANOTHER V. GULAMNABI JAMALBHAI MOTORWALA AND OTHERS 13 G. L. R. 880. The learned Judge further held that the purchaser of the property and arrears of rent was not the landlord at the time when the accrued rent fell due and therefore he could not take advantage of the provisions of sec 12 of the Act on the ground that the tenant had not paid the rent in spite of the notice. The right to recover arrears of rent was an actionable claim in the hands of the purchaser of the right and lost the character of rent and observed: