NATVARLAL D SAROTIA Vs. BHAGAWATI SHIYARAM PATEL

JUDGEMENT

(1.) Heard parties. Rule, By consent rule made returnable forthwith. This petition is by the original defendant and appellant who is aggrieved and dissatisfied with the order dated 22nd March, 2010 in Misc. Notice No. 59 of 2008. That notice was moved by the petitioner in R.A.E. & R. Suit No. 1554/2281 of 2006. It is common ground that an ex parte decree which was passed in the suit on 3rd August, 2007 has been executed on 28th January, 2008 and possession of the suit premises has also been taken by the respondents.

(2.) It is the case of the petitioner defendant that he came to know about the ex parte decree passed against him in the suit on the very date namely the date on which he was dispossessed from the suit premises. He has made an application to set aside that ex parte decree.

(3.) The ex parte decree was passed after it was stated before the trial Court that the petitioner original defendant is a monthly tenant in respect of the room Nos. 4 and 7. The monthly rent is of Rs. 60/- per month. The tenancy was terminated on 3rd January, 2006. The petitioner is stated to be in arrears of rent and permitted increased since June, 2004 to August, 2000. The notice was returned back with remark "intimation posted". However, the notice, then, was sent by Under Certificate of Posting (UPC) which was received by the petitioner defendant. He is not ready and willing to pay the rent and therefore, lost protection of law. The second ground was that the petitioner has acquired alternate and suitable residential accommodation at Dahisar and shifted there. For the last more than three years the suit premises are kept locked. The condition of the building in which the suit premises is situate, is very bad and they can collapse any time. The petitioner has carried out illegal additions and alterations to the suit premises causing nuisance and annoyance to the neighbouring occupants. Thereafter, the allegation is that he is trying to sub-let or sell the premises. On such allegations, the suit came to be filed. The Court held that the petitioner remained absent in spite of service of summons. That is how para 2 of the judgment, in which the ex parte decree has been passed reads. The suit could not have been decreed on the ground of arrears of rent on the allegation in the plaint itself because if the notice is dated 3rd January, 2006 under which the tenancy was terminated, then, the plaint should not have stated that the petitioner is in arrears of rent since June, 2004 to August, 2006. Therefore, the judgment, though proceeds that this allegation is not proved, yet, it is stated that the respondent plaintiff has proved that the petitioner defendant is in arrears of rent. The finding on Point No. 2 is in the affirmative. The suit has also been decreed on the ground of petitioner carrying on illegal additions and alterations of permanent nature with permission of the plaintiff respondent. It is also decreed on the ground that he has acquired suitable alternate accommodation.