SHAIKH SHAHBUDDIN BALABHAI Vs. SYED HASAN BABUMIYAN

JUDGEMENT

(1.) THE petitioner is the owner of the premises bearing municipal house no. 3883 bearing City Survey 3856-B situated at Ahmednagar (hereinafter referred to as the said property ). The original respondent no. 1 was a tenant in respect of the premises consisting of 2 khans situated on the ground floor of the said property (hereinafter referred to as the suit premises ). The original respondent no. 1 died during the pendency of this Writ Petition and his heirs were brought on record. Despite service of the notice, the legal representatives of the respondent no. 1 have not appeared din this Court. Respondent no. 2 is the alleged sub tenant.

(2.) THE petititioner filed a suit bearing Regular Civil Suit No. 501 /1976 against the respondents for possession of the suit premises on several grounds under the provisions of Bombay Rent and Lodging Houses Rates Control Act, 1947 (for short Bombay Rent Act) in the court of Civil Judge, Junior Division, ahmednagar. The trial Court decreed the suit on 3 grounds viz. (1) default in payment of the rent; (2) unlawful sub letting; and (3) the reasonable and bonafide requirement of the landlord. The appeal bearing Regular Civil Appeal No. 343/1982 filed by the respondents was allowed by the IV Additional District judge, Ahmednagar who reversed the judgment of the trial Court on all counts and dismissed the petitioner's suit. Being aggrieved, the petitioner has filed this petition under Article 227 of the Constitution of India.

(3.) ACCORDING to the landlord the tenant failed to pay the agreed rent within one month of the date of receipt of the notice of demand; the tenant also did not file an application for standard rent within a period of one month nor did he tender rent which according to him was due. Shri Mantri, learned counsel for the petitioner relied upon the judgment of this court in Shankar Govind v mahalaxmi in which it was held that even if the demand is excessive, it is the duty of the tenant to offer atleast the agreed rent within a period of one month from the date of receipt of the suit notice or atleast raise a dispute regarding standard rent. In the present case, the landlord had initially agreed to let out to the tenant 4 khans of premises on the ground floor of the said property on the monthly rent of Rs. 60/- and had taken Rs. 750/- as an advance which was to be adjusted against the rent. The landlord, however, actually handed over the possession of only 2 khans. The tenant had therefore, filed the suit for specific performance for possession of the remaining 2 khans. The rent of Rs. 60/- p. m. was agreed not for 2 khans but for the 4 khans of the premises. Thus no rent was agreed in respect of the suit premises which consisted of only 2 khans. Therefore, it cannot be said that rent of Rs. 60/- was agreed in respect of the suit premises consisting of 2 khans in the absence of agreed apportionment. At there was no agreement regarding the rent, the tenant cannot be held to be guilty for non payment of the rent and no decree for eviction can be passec against him under Section 12 of the Bombay Rent Act.