GULABCHAND RAMCHAND JAIN Vs. NOORBEG UMARBEG MIRZA

JUDGEMENT

(1.) A two storied house in Amalner Town of Jalgaon District is tenanted by the petitioner in this petition and the respondent is the owner of the said house and, therefore, the landlord of the petitioner. The annual rent of the house, which will hereinafter be referred to as "the suit premises", is Rs. 500. That rent was fixed in the year 1957 when the petitioner took the suit premises on lease from the respondent, both for residence and business. It has been found by the two courts below that though the rent is calculated at Rs. 500 per annum, it is payable by the month at the rate of Rs. 41.65. The suit out of which the present proceedings have arisen its Regular Civil Suit No. 77 of 1971 filed by the respondent in the Court of the Civil Judge, Junior Division at Amalner for possession of the suit premises on the grounds that the petitioner has failed to pay the arrears of rent, which were for a period of more than six months, within one month after the notice under section 12(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act (hereinafter referred to as "the Bombay Rent Act"), was served upon him, that the petitioner had erected permanent structures on the suit premises without the consent of the respondent in writing, and that the respondent required the suit premises reasonably and bona fide for his own use and occupation. The suit was resisted by the petitioner by denying the permanent character of the structures erected upon the suit premises, by denying that there was any default on his part in the payment of rent, and further by denying the reasonable and bona fide requirement of the respondent. It was also contended on his behalf that if a decree for possession were passed it would cause greater hardship to him than the hardship that should be caused to the respondent if a decree for eviction were refused.

(2.) The learned trial Judge by his judgment and order dated 27th of September, 1976 decreed the suit on two grounds. He held that the petitioner was guilty of default in the payment of the arrears of rent and a decree was warranted under the provisions of section 12(3)(a) of the Bombay Rent Act. He further held that the petitioner was guilty of erecting permanent structures on the suit premises without the consent of the respondent in writing. On the third ground he held that though the respondent had proved his bona fide and reasonable requirement of the suit premises the petitioner would suffer greater hardship if a decree for possession were passed. In the result he passed the decree as mentioned above only on two grounds.

(3.) The petitioner preferred on appeal, being Civil Appeal No. 148 of 1976, which was heard and dismissed by the learned Extra Assistant Judge of Dhule by his judgment and order dated 21st of September, 1979. The learned Extra Assistant Judge upheld the finding of the learned trial Judge that the petitioner was guilty of default in the payment of rent, thus meriting a decree for eviction under section 12(3)(a) of the Bombay Rent Act. He, however, reversed the finding of the learned trial Judge relating to the erection of the permanent structures on the suit premises. On this aspect the learned Assistant Judge took the view that though the structures have been erected by the petitioner without the written consent of the respondent, those structures were by way of repairs and, therefore, did not warrant a decree for possession. On the question of the reasonable and bona fide requirement, the learned Assistant Judge concurred with the view of the learned trial Judge but he differed from him on what is for brevitys sake called the comparative hardship---a question arising under section 13(2) of the Bombay Rent Act. He held that greater hardship will be caused to the respondent if a decree for possession were refused. The net result was the confirmation of the decree passed by the trial Court on the ground that the petitioner was guilty of default in the payment of rent. The finding on the question of erection of permanent structures was reversed in favour of the petitioner while the finding on the question of comparative hardship was reversed in favour of the respondent. It may be stated at this stage that the respondent had not filed any appeal or cross objection relating to the finding on the question of comparative hardship. Neither an appeal nor cross objection lies against a finding, but I am mentioning this because Mr. Rane appearing for the petitioner has advanced an argument on the legality and propriety of the learned Assistant Judge reversing a finding in favour of the appellant without the respondent challenging the finding especially in cases arising under the Bombay Rent Act. The petitioner has now challenged the decree passed by the learned Assistant Judge by this petition under Article 227 of the Constitution.