KAMAL BABAJI SHINDE Vs. REGHUNATHRAO BHAUSAHEB PATIL

JUDGEMENT

(1.) This Writ Petition under Article 227 of the Constitution of India takes exception to the order passed by the II Additional District Judge, Sangli, dated January 4, 1988 in Regular Civil Appeal No.109 of 1983.

(2.) The petitioners are the successors of the original owner Shri Babaji Laxman Shitole. The said Babaji Laxman Shitole instituted suit in the Court of the Civil Judge, Junior Division, Sangli being Regular Civil Suit No. 373 of 1978 for possession of house bearing C.T.S.No.536 situated near Civil Hospital, Sangli against the Respondent, who was occupying the same as tenant on agreed monthly rent at the rate of Rs. 120/-, on the ground of default. Said suit was filed on August 1, 1978. Before institution of the said suit, the predecessor of the Petitioners issued demand notice, which was sent on June 17, 1978, but was returned with postal endorsement "addressee is not found". Since the said demand notice could not be served on the Respondent-tenant the predecessor of the Petitioners sent another demand notice dated July 4, 1978 claiming arrears of rent for more than six months. It has been proved in evidence that service of this notice has been refused by the addressee. In other words, the second notice sent by the landlord is deemed to have been duly served on the Respondent-tenant. In spite of service of second notice, it appears that the predecessor of the Petitioners, out of abundant precaution, gave notice to the Respondent-tenant by way of public notice in daily newspaper known as "Rashtrashakti" on July 12, 1978. The Respondent-tenant filed standard rent application on July 21, 1978 i.e., within one month from the deemed service of the notice dated July 4, 1978. In that sense, the' Respondent-tenant raised dispute regarding standard rent within the specified time of one month from the date of the receipt of the demand notice. the trial Court in the circumstances rightly proceeded on the basis that, in such a situation, the case was not covered by provisions of Section 12(3)(a) of the Bombay Rent Act, but would be covered by Section 12(3)(b) of the Act. The trial Court in its judgment dated February 26, 1982 examined the relevant facts and found that admittedly Respondent-tenant did not pay the entire arrears as demanded in the suit notice either within one month from the date of the receipt of the suit notice or even before the first date of hearing of the suit. The Court below has also taken into account the fact that the Respondent-tenant merely filed standard rent application without obtaining any order towards interim rent nor made any attempt to deposit the arrears of rent or the future rent during the pendency of the trial. Accordingly, the trial Court decreed the suit for possession on the ground of default within the meaning of section 12(3)(b) of the Act. The said decision, however, has been reversed by the appellate Court. According to the appellate Court, in view of the amended provisions of the Bombay Rent Act as amended in 1987, the petitioners were not entitled for decree of possession but instead directed the Respondent-tenant to deposit the entire arrears along with interest. In the circumstances, the appellate Court by order dated January 4, 1988 allowed the appeal and modified the decree accordingly. It is this decision which is subject matter of this Petition.

(3.) Having regard to the proved facts on record that the demand notice dated July 4, 1978 was attempted to be served on the Respondent- tenant, but the same was refused, which in law, is deemed to have been served. By the said notice the landlord demanded amount towards arrears of rent for more than six months prior to the issuance of the notice. It is also not in dispute that the Respondent filed standard rent application on July 21, 1978, In that sense, the tenant ostensibly extricated himself from the rigours of Section 12(3)(a) of the Bombay Rent Act. However, the admitted fact remains that after institution of the standard rent application the respondent-tenant neither moved for fixation of the interim rent as required by Section 11(3) of the Act nor offered the demanded amount towards arrears of rent or deposited the same in Court before the first date of hearing of the suit. Moreover, admittedly, the Respondent did not make any deposits before the trial Court during the pendency of the suit, which he was obliged to do by virture of mandate of Section 12(3)(b) of the Act. Moreover, the stand taken on behalf of the tenant that he had incurred expenses to the extent of Rs. 4,657.80 p. and was entitled to adjust the same towards the arrears has been rightly negatived by the Courts below. The Court below has rightly taken into account the relevant provisions to hold that the tenant was not entitled for adjustment of the said amount merely because he had spent towards renovation of the demised premises. The Courts below have rightly found that adjustment of the said amount would not be in accord with the purport of Section 20 of the Act. In my view the Courts below rightly held that the case was covered by Section 12(3)(b) of the Act