HANJABI RATANCHAND SOLANKI Vs. HANSRAJ MISHRIMAL JAIN

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India is directed against the judgment and order dated 27th September, 1991 passed by the 2nd Additional District Judge, Pune, allowing the Appeal filed by the Respondent (Landlord), thereby passing a decree for eviction against the petitioners.

(2.) It appears that the court receiver was appointed initially in respect of the suit property. The respondent appears to have purchased the property in a court auction. On 7th of December, 1997 the court receiver issued a notice to the petitioners, alleging that the petitioners are in arrears of rent amounting to Rs. 4275/upto 31st December, 1972 and further he was in arrears of rent to Rs. 4425/from 1st January, 1973 to 30th November, 1977. The notice also stated that the petitioners were in arrears of education cess amounting to Rs. 77.50 from 1.4.1968 to 30.9.1971; Rs.84/from 1.10.1971 to 31.03.1974 and education cess of spb/- 3 wp4526-1991.sxw Rs. 396/from 1.4.1974 to 30.11.1977. According to the petitioners, the arrears of rent and education cess amounting to Rs.9257.50/was due and payable by the petitioners to the court receiver. On the petitioners failure to pay the amount despite notice, the court receiver filed a suit bearing civil suit no. 1516 of 1979 against the petitioners for possession. By a judgment and order dated 30th April, 1983 the second Additional Judge, Small Causes Court, Pune dismissed the suit. Thereafter, the respondent who has purchased the property in a court auction filed an appeal (bearing civil appeal no. 162 of 1984) against the judgment and order of the small causes court, dismissing the suit for possession. By an order dated 27th September, 1991, the Appeal was allowed and the decree for possession was passed by the Appellate Court. That order is impugned in this petition.

(3.) Before the trial court a defence of the petitioners was that there was dispute regarding ownership of the property and the different persons were appointed as court receivers at different times and therefore, the present court receiver Mr. Khade, who had issued the notice, had no right to issue the notice. As the court receivers did not pay property tax, the petitioners were paying the property tax in order to prevent auction of the property for nonpayment, the petitioners were required to pay spb/- 4 wp4526-1991.sxw taxes to the Pune Municpal Corporation. Accordingly, the petitioners had paid the taxes to the Municipal Corporation, Pune. The learned counsel for the petitioners further submitted that the in the previous litigation, the petitioners had deposited some amount in the court and were entitled to get credit in the rent which was deposited in the previous litigation. He contended that since the notice of demand did not give credit for taxes paid by the petitioners as also for the rent which was deposited by the petitioners in the previous litigation, the notice was defective. The demand notice contained an excessive demand and therefore, the notice was not valid. The trial court accepted the defence and held that the petitioners had paid taxes to the Municipal Corporation and had also deposited the money in the previous litigation. If the credit was given for these amounts, the notice of the demand contained an excessive demand and was not proper and valid. Consequently, the trial court dismissed the suit.