MORESHWAR NARAYAN PHADKE Vs. SHASHIKANT BALAKRISHNA MALKAR

JUDGEMENT

(1.) By this petition filed under Article 227 of the Constitution of India, the petitioner is challenging the legality of the judgment dated January 5, 1980, passed by the District Judge, Kolhapur, reversing the decree passed by the Second Joint Civil Judge, Junior Division, Kolhapur, on June 7, 1977.

(2.) The proceedings arise out of a suit for eviction filed by the respondent under the provision of section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Rent Act). The respondent is an owner of a house bearing City Survey No. 1094 at Kolhapur and three rooms on the first floor, one room on the loft and two rooms on the ground floor were let out to the petitioner for his residence at the contractual monthly rent of Rs. 70/-. The petitioner remained in arrears from August 1, 1970 and the respondent terminated the tenancy and called upon the petitioner to pay the arrears of rent as required by section 12(2) of the Rent Act by notice dated April 17, 1974. The notice was received by the petitioner on April, 27, 1974. On June 10, 1974, the petitioner filed Miscellaneous Application No. 98 of 1974 in the Court of Civil Judge, Junior Division, Kolhapur for fixation of standard rent as provided by section 11(3) of the Rent Act. Thereafter on June 12, 1974, the respondent instituted Civil Suit No. 498 of 1974 in the Court of Civil Judge, Junior Division, Kolhapur for recover of possession of leased premises on two grounds. The first was that the premises are unlawfully sublet by the petitioner, while the second ground was that the petitioner had incurred liability by not paying the arrears of rent and is liable to be evicted under section 12(3)(a) of the Rent Act.

(3.) In the Miscellaneous Application filed by the petitioner, on July 28, 1974, an application was filed by the petitioner for fixation of interim rent. It appears that no order was passed on the application by the trial Court. On August 29, 1974, the respondent/landlord filed an application in the suit instituted by him for direction to the tenant to pay the rent. In answer to this application, the petitioner filed an application at Exhibit 14 on September 16, 1974 in the suit requesting the trial Court to fix interim rent. On this application, the trial Court passed order, in the suit, on October 4, 1974 directing the petitioner to deposit the entire arrears then due before November 11, 1974 and also to deposit the costs of the suit. Accordingly, the petitioner deposited the entire arrears on October 16, 1974 along with the amount of costs. It is not in dispute that thereafter all along the petitioner tenant had regularly paid the rent in the Court.