LACHMANDAS BANSILAL RATHOD Vs. ZUMBERLAL SURAJMAL GANDHI

JUDGEMENT

(1.) THIS is a tenant's petition under Article 227 of the Constitution of India. which was originally filed as Civil Revision Application No. 557 of 1965 and was allowed to be converted into a Special Civil Application under Article 227 of the Constitution. It is directed against the judgment of the Extra Assistant Judge dated September 17, 1964, decreeing the landlord's claim for arrears of rent to the extent of Rs. 1,933-5-4 though confirming the decree of the trial Court dismissing the plaintiff's suit for possession.

(2.) THE trial Court had dismissed the claim for the said amount on the ground that the tenant had under a registered lease deed (Exhibit 34) dated December 18, 1958 executed by the petitioner in favour of the former owner Balubai Dulichand, paid a sum of Rupees 2,500/- towards the rent of the premises at the rate of Rs. 700/- per annum for four years and had agreed to pay Rs. 300/- at the end of the said period. The trial Court held that the plaintiffs, who purchased the property under the register sale deed dated August 20, 1959 (Ex. 33), were not, therefore, entitled to recover any rent from the petitioner observing as follows : -"the rent note was passed by the Defendant in favour of Shrimati Balubai Dulichand alone. Plaintiff No. 1 Surajmal Kasturchand admits in the cross examination that the Defendant had shown the rent note to him before he had taken the sale deed. He further admits to have gone through the entire rent note. After having realised that the rent note was for a yearly tenancy, he stated that Balubai told him that it was nominal, He however, did not take any writing from Balubai to the effect that it was hollow. From the conduct of the plaintiff it is clear that he knew of the rent note and had purchased the property with full knowledge of it. He thus acquiesced in the tenancy agreement that was entered into between the defendant and Balubai. Now, it is not open for him to say that it is bad since one of the co-owners had taken it. It was also canvassed on behalf of plaintiffs that the rent note is hit by Section 18 of the Rent Act since the rent for more than 3 months was taken in advance, I fail to understand how the rent note is bad as the advance rent was taken. Section 18 states that if the premium or advance rent for more that 3 months is taken then the landlord commits an offence under than section. If the tenant so desires he may take out the necessary action under that section. However, at any rate the plaintiff cannot rely upon that provision to base his case that the lease deed is void. That contention is obviously without substance. In view of this. I hold that the tenant has paid Rs. 2,500/- towards the rent to his then landlady Balubai and he is not a defaulter and at this stage the plaintiffs are not entitled to recover any rent"

(3.) THE learned Assistant Judge set aside the said finding for the reasons stated by him as follows.