SITARAM MARUTI NAGPURE Vs. FAKIRCHAND PURUSHOTTAM DHASE

JUDGEMENT

(1.) THE question that arises for consideration in this petition is whether the petitioner-tenant is liable for eviction within the meaning of section 12 (3) (a) Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The Courts below have decreed the suit. Mr. Joshi for the petitioner contends that since the respondent landlord refused to accept the money order sent by the petitioner, in law he had waived the same; and, therefore, there was no cause of action for either issuance of suit notice or the institution of suit on the ground of default. He has placed reliance on the decision of this Court in the case of (Kamalabai Baburao Kabade v. Laxmibai Janardan Jagtap), reported in 2001 (1) Bom. C. R. 148 : A. I. R. 2000 Bombay 490 and an unreported judgment in (Writ Petition No. 3227 of 1987), dated June 8, 2000. Mr. Rao for the respondents on the other hand relied on the decision in the case of (Abdul Gani Dinalli Momin v. Mohamed Yusuf Mohamed Isak), reported in Vol. 80 Bom. L. R. 646. He contends that the decision in (Suka Ishram v. Ranchhoddas), 74 Bom. L. R. 220, on the basis of which the aforesaid two judgments have been decided by this Court, has been over-ruled in this judgment. Although it is true that Justice Jahagirdar in 80 Bom. L. R. 646 has overruled the view taken by Justice Bhole in 74 Bom. L. R. 220, but both the decisions being of Single Judge; coupled with the fact that decision of Justice Jahagirdar was not placed before this Court which decided the case reported in 2001 (1) Bom. C. R. 148 : A. I. R. 2000 Bombay 490 and unreported judgment in Writ Petition No. 3227 of 1987. I would think it appropriate to refer this matter to the Division Bench for an authoritative pronouncement on the issue that arises for consideration. Office to place the papers before the Honble Chief Justice for appropriate orders in usual course.