UJWALABAI ALIAS MEENA SHANTARAM APTE SINCE MARRIED NOW MRS SWATI RAHUL DATAY Vs. NAMDEO DNYANOBA SHINGARE

JUDGEMENT

(1.) THIS writ petition, under Article 227 of Constitution of India, takes except the order passed by the Additional District Judge, Sangli dated 7th February, 1989 in Regular Civil Appeal No. 101 of 1983.

(2.) THE petitioners are the landlords in respect of premises consisting of one room admeasuring 12" x 10" situated in City Survey No. 701, Gaon-Bhag, Sangli. The respondent was inducted as the tenant in the suit premises in or around 1970. According to the petitioners-landlords contractual rent was Rs. 35/- per month and the tenant was also liable to pay other charges towards permitted increases on month to month basis. The petitioner gave notice thereby calling upon the respondent-tenant to pay permitted increases at the rate of Rs. 3. 13 ps. for the period between April 1976 to December 1976 and rent along with permitted increases at the rate of Rs. 47-85 ps. from January 1977 to March 1977. This notice was issued by the petitioner on 1-3-1977 which was admittedly received by the tenant on 3-3-1977. It is common ground that respondent No. 2 failed to offer the rent as demanded by the suit notice within stipulated time of one month nor filed any standard rent application within such period. However, the standard rent application was filed by the respondent-tenant being Regular Civil Misc. Application No. 42 of 1977 only on 11-4-1977, which is after the specified period. Accordingly, the petitioners landlords instituted a suit against the respondent for possession of the suit premises on the ground of default within the meaning of section 12 of Bombay Rent Act. The said suit was filed before the 2nd Joint Civil Judge, J. D. , Sangli being Regular Civil Suit No. 212 of 1977. The respondent-tenant resisted the said suit contending that he was not a defaulter. According to the tenant the demand made in the suit notice was excessive and the said matter was already subjudice in the standard rent proceedings instituted by him. The trial Court on analysing the evidence on record by judgment and order dated 23rd February, 1982 held that demand made by the petitioners-landlords was valid and justified and that the respondents-tenants was liable to pay monthly rent inclusive of permitted increases which amount would work out to Rs. 47-85 ps. per month. Accordingly the trial Court held that the respondent tenant was a defaulter and therefore decreed the suit and ordered delivery of possession to the petitioner-landlord.

(3.) AGAINST this judgment the respondent-tenant preferred an appeal before the District Judge, Sangli being Regular Civil Appeal No. 101 of 1983. The Appellate Court, however reversed the decree and held that the respondent tenant was not a defaulter. According to the Appellate Court the tenant did not admit the fact that he was a defaulter. Besides the said reason the Appellate Court proceeded to observe that there was no evidence to the effect that prior to issuance of the suit notice the landlord had ever demanded water tax at increased rate. On the other hand the landlord had accepted the rent inclusive of water tax upto the period ending December 1976 without any protest. The Appellate Court proceeded on the assumption that this was a case falling under section 12 (3) (b) of Bombay Rent Act and therefore proceeded to hold that in the fact situation of the present case no decree could be passed.