BHURAMAL ISHWARLAL SINDHI Vs. YAKUB BAIG SHUKRULLA BAIG

JUDGEMENT

(1.) By this petition filed under Article 227 of the Constitution of India, the petitioner is challenging the legality of the judgment dated October 25, 1979 passed by the learned District Judge, Kulaba, ordering eviction of the petitioner from the suit premises. The suit premises consists of an open site admeasuring 10 x 8 out of city Survey No. 853 situate at Panvel in Kulaba District. The petitioner was inducted as contractual tenant under a rent note Ex. 22 of October 8, 1971 on a contractual rent of Rs. 35/- per month. The petitioner was permitted to construct a shed on the said plot and the petitioner is running a shop thereon. The rent note was executed by the petitioner in favour of respondent No. 1 Yakub Baig. The property originally belonged to one Fatamabai w/o Shukrulla and on her death came to the share of Yakub Baig the respondent and Anwar, her two sons and Kureshabibi and Noorjaha, her two daughters, each of them having interest in the property and they are the co-owners.

(2.) The petitioner committed default in payment of rent from November 1, 1971, to April 30, 1972 i.e. for a period of more than 6 months. In view of this default, the respondent No. 1 terminated the tenancy by a notice dated May 8, 1972 and called upon the tenant to pay the entire arrears within one month. The petitioner, however failed to clear the arrears and respondent No. 1 instituted a suit in the Court of Civil Judge, Junior Division, Panvel on July 2, 1972. The respondent No. 1 claimed possession under section 12(3)(a) of the Rent Act.

(3.) The suit was resisted by the petitioner inter alia contending that he had paid the entire arrears to the landlord but no receipt was issued to him. The petitioner also claimed that standard rent should be determined. It was further claimed that on June 30, 1972, the petitioner sent a money order clearing all the arrears. The tenant also claimed that the notice issued by one of the co-owner was invalid and also the suit institute by one co-owner. The trial Court found that the tenant was in arrears of rent for more than six months and the case clearly falls under section 12(3)(a) of the Rent Act. The trial Court has also held that the dispute of standard rent was not bona fide and the payment by money order after a period of one month from the service of the notice would not bring the case out of section 12(3)(a) of the Act. The trial Judge, however, dismissed the suit only on the ground that the notice served by one of the co-owners was invalid and more so when it was not established that other co-owners had given him authority. The learned trial Judge in support relied on the decision of Full Bench of the Gujarat High Court in the case of (Nanalal Girdharilal and another v. Gulamnabi Jamalbhai Motorwale and others), reported in A.I.R. 1973 Guj. 131, to come to that conclusion.