JAINUDDIN ABDUL REHMAN SHAIKH Vs. SITARAM DAMODHAR VARVADHAR

JUDGEMENT

(1.) This application under Article 227 of the Constitution of India has been filed by the original defendant No. 1, tenant challenging the legality and correctness of the order passed by the learned Assistant Judge, Sholapur, dated August 25, 1975.

(2.) Few relevant and material facts giving rise to this Special Civil Application are as under: Respondent No. 1 Sitaram Damodhar Varadkar filed Regular Civil Suit No. 1061 of 1969 in the Court of the Civil Judge, Junior Division, Sholapur. It is alleged by the plaintiff in his suit that the plaintiff and defendant No. 2, deceased Sadashiv Krishna Varvadkar, the uncle and nephew respective are the owners of the suit premises, which is a cinema there are known as "Laxmi Talkies" at Sholapur bearing City Survey Nos. 8601 and 8603 bearing Municipal House No. 64 and defendant No. 1 is the tenant in the suit premises at a monthly rent of Rs. 360/-. It appears that defendant No. 1 separately paid the rent half each to the plaintiff and original defendant No. 2. The tenant pays Rs. 180/- to the plaintiff and Rs. 180/- to defendant No. 2. It is alleged that the suit premises are managed by the plaintiff himself and it is, therefore, he filed the suit for recovery of rent against defendant No. 1 in the year 1967 as also another suit against defendant No. 1 being Regular Civil Suit No. 326 of 1967 since defendant No. 1 had constructed some portion of the premises without the permission of the plaintiff. It is alleged that both the suits were compromised and defendant No. 1 contained as a tenant in the suit premises. It is further alleged that defendant No. 1 was in arrears of rent since June 1, 1967 to September 1969 for 28 months and accordingly the tenant has become defaulter in payment of rent. A notice, dated October 26, 1969 is said to be served on the tenant. By the said notice, the plaintiff terminated the tenancy of defendant No. 1 as on November 30, 1969. It is further alleged that defendant No. 1 tenant had removed two rows of chairs from the first floor of the theatre and had removed wooden stair case worth Rs. 200/-, some wooden rafters and marble slabs without the permission of the plaintiff and caused damage to the property to the extent of Rs. 1000/-. It is further alleged that defendant No. 1 had made alterations by constructing a well on a passage of three feet in width and closed it, and thereby be caused obstructions to the passage of the plaintiff for his own use. The plaintiff also claimed possession of the suit premises for bona fide use and occupation for himself and for his children. Besides the civil suit, the plaintiff also filed an application being Misc. Application No. 284 of 1969 for determination of the standard rent of the suit premises. The plaintiff claimed Rs. 800/- per month as standard rent for the suit premises.

(3.) The said suit and application of the plaintiff were resisted by defendant No. 1 contending inter alia that at the time when he had taken the suit premises on rent it was not in a fit condition to be used as cinema theatre for exhibiting pictures and, therefore, he was required to effect repairs and to provide furniture for which he was required to spend about Rs. 40,000/- to Rs. 45,000/-. He admitted that he pays half the rent to each of the owners the plaintiff and defendant No. 2. It is further contended by defendant No. 1 that the suit filed by the plaintiff alone was not maintainable. Defendant No. 2 was a proper and necessary party to the suit. Defendant No. 1 further contended that the notice is defective and invalid. The notice of termination ought to have been issued by both the owners and in the absence of consent of defendant No. 2, the notice of termination of tenancy is invalid. It was also further contended by defendant No. 1 that the suit filed by the plaintiff alone is not maintainable without the consent and approval of defendant No. 2, who is co-owner of the suit premises. Lastly it was contended by defendant No. 1 that the plaintiffs prayer for bona fide use and occupation of the suit premises for himself and for his children is not true and correct.