NATWARLAL GOKULDAS SHAH Vs. KHANDERAO BALWANT LOKHANDE

JUDGEMENT

(1.) THIS writ petition, under Article 227 of the Constitution of India, takes exception to the judgment and decree passed by the District Judge, Sangli, dated 31/03/1987 in Civil Appeal No. 118 of 1982.

(2.) THE premises in question consists of room admeasuring 40 x 10 sq. ft. in C. T. S. No. 305, Pet Bhag, Sangli. The original petitioner Natwarlal gokuldas Shah was inducted as a tenant in the suit premises some time in the year 1952. The respondent is the landlord. The respondent instituted a suit for possession against the tenant on the ground of default and bona fide requirement in the year 1970, being R. C. S. No. 19 of 1970. However, we are concerned only with the ground of default. The tenant contested the said suit. It was his case that annual rent in respect of the suit premises was only Rs. 150/- per annum and not as demanded by the landlord. The trial Court accepted that claim of the tenant. The Trial Court, however, found that the respondent landlord was entitled to rent for a period of 6 years from 1965 to 1970 at the rate of Rs. 150/- per annum, whereas the tenant was entitled to credit of Rs. 1234-59 paid by him towards the taxes with regard to the suit premises to the Sangli Municipality and for further credit of amount of Rs. 1960/- deposited by the tenant in Court from time to time. Accordingly, the Trial Court by judgment and decree dated 22. 4. 1972 was pleased to dismiss the suit with costs. Against this decree the matter was carried in appeal by the landlord, being Civil Appeal No. 103 of 1973, which was dismissed by the Appellate Court. The landlord carried the matter to this Court by way of writ petition, which was also dismissed. Thereafter the tenant filed Misc. Application No. 585 of 1973 before the Civil judge, J. D. , Sangli contending that he had paid Rs. 1234-59 to the Sangli municipality for and on behalf of landlord; had deposited amount of Rs. 1960/- in Court from time to time during the pendency of earlier proceedings between the parties; and also claimed costs of Rs. 186/- and Rs. 46-87 in suit and appeal respectively, therefore, prayed that after adjusting the amount of Rs. 1500/- payable by him towards rent from 1. 1. 1965 to 3. 12. 1974, he was entitled to recover balance amount of Rs. 1927-46 from the landlord. That application came to be dismissed on 17. 6. 1976. Against that decision the tenant carried the matter in appeal, being Misc. Appeal no. 227 of 1975. That appeal was partly allowed by the Appellate Court on 17. 6. 1976, holding that the tenant was entitled to refund of Rs. 460/- out of Rs. 1960/- deposited in the Court but was not entitled to recover other amounts from the landlord. Suffice it to mention that the issue regarding adjustment of the amounts paid by the tenant towards deposit to the municipality and in Court from time to time stood concluded by this order. The tenant on his understanding of this order, issued notice to the landlord on 15. 11. 1976 (Exh. 20) calling upon the landlord to make certain adjustments and to pay the amount as indicated in the said notice, which, according to the tenant, was due to him from the landlord. This Notice was sent by the advocate for the tenant. In response to this notice the landlord through his Advocate, sent reply on 16. 12. 1976 (Exh. 21), inter alia, denying that he was liable to pay any amount to the tenant or that the tenant was entitled for any adjustments as claimed in the notice dated 15. 11. 1976. Thereafter the landlord directly proceeded to institute suit for possession being Regular Civil Suit No. 377 of 1977, before the Civil Judge, j. D. , Sangli on 9. 8. 1977 inter alia, on the ground of default. According to the landlord, the tenant was in arrears of rent from 17. 6. 1976. Besides, the landlord claimed possession also on the ground of reasonable and bona fide requirement. However, the ground of reasonable and bona fide requirement has not been pressed by the landlord at the later stage in appeal. This suit was resisted by the tenant. According to the tenant, no demand notice has been issued nor served by the landlord and, in absence of such a notice, the suit was barred by the provisions of s. 12 (2) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the rent Act ). It was next contended that even assuming that the landlord considered the reply (Ex. 21) dated 16. 12. 1976 to be the demand notice, that was not a valid demand notice within the meaning of s. 12 (2) of Rent act read with s. 106 of the Transfer of Property Act. Even for this reason the suit which was founded on that document purported to be demand notice was not maintainable. It was next contended on behalf of the tenant that he was not in arrears as alleged by the landlord and there was no question of decreeing the suit on the ground of default within meaning of s. 12 of the Rent Act. On the basis of the rival stand, the Trial Court proceeded to frame 8 issues, which included the issue of reasonable and bona fide requirement and greater hardship. However, as mentioned earlier we are not concerned with that issue but only the ground of default. In so far the issue of default is concerned, the Trial Court accepted the stand taken by the tenant that there was no specific demand and the tenant was not aware about the period of default and the purported demand notice (Exh. 21) was not a valid demand notice. The Trial Court has adverted to other aspects of the matter and has answered the issue in favour of the tenant. Accordingly, the suit came to be dismissed by the Trial Court by judgment and decree dated 12. 3. 1982 - holding that the suit could not proceed against the tenant for want of valid demand notice and, in any case, the tenant was not defaulter within the meaning of s. 12 of Rent Act. Against this decision the matter was carried in appeal by the landlord being Civil appeal No. 118 of 1982, before the District Court at Sangli. The District court by the impugned judgment and decree dated 31/03/1987 has however, allowed the appeal confining the decree for possession on the ground of default, as can be discerned from para 5 of the impugned judgment. In fact, only ground of default was pressed into service on behalf of the landlord. The District Court has negatived the stand taken by the tenant and held that reply sent on behalf of the landlord to the tenant's advocate (Exh. 21) was in the nature of demand notice and there was substantial compliance of s. 12 (2) of Rent Act. The Appellate Court has further found as a fact that the rent was neither payable monthly nor yearly, even then proceeded to hold that the case was covered by s. 12 (3) (a) of the rent Act. The Appellate Court then proceeded to examine the case in the context of requirement of s. 12 (3) (b) of the Act and held that the tenant was defaulter within the meaning of the said provision. Accordingly, the appeal preferred by the landlord was allowed and the tenant was directed to hand over possession of the suit premises to the landlord. The present writ petition has been filed under Article 227 of the Constitution of India, against the aforesaid decree.

(3.) THE first contention raised on behalf of the tenant is that, no demand notice was issued by the landlord or served on the tenant. It is next contended that, the purported demand notice dated 16. 12. 1976 (Exh. 21)does not fulfill the requirements of a demand notice within meaning of s. 12 (2) of the Act read with s. 106 of the Transfer of Property Act and, therefore, invalid notice in the eyes of law. It is contended that since it is a gase of no notice or of invalid demand notice, in such a situation the suit on the ground of default cannot be maintained and proceeded against the tenant in view of the mandate of s. 12 (2) of the Act. It is next contended that, in any case, the Appellate Court has committed error in concluding that the case was covered by the rigours of s. 12 (3) (a) of Rent Act, in spite of having held that rent was neither payable monthly nor yearly. It is submitted that if the rent was not payable monthly, then in such a situation, the provision of s. 12 (3) (a) will have no app'ication. It is next contended that even the reasons recorded by the Appellate Court to decree the suit on the ground of default. within the meaning of s. 12{3) (b) of the Act were devoid of merits.