VISHWANATH BALMUKAND GUJARATHI Vs. SHIVDAYAL DHULILAL PADIYAL

JUDGEMENT

(1.) This writ petition is filed by the petitioner-plaintiff against the order passed by the Joint Civil Judge, (Junior Division), Kopargaon dated 16th of September, 1975 and confirmed by the District Judge, Ahmednagar vide his order dated 29th November, 1977.

(2.) It is common ground that the plaintiff and his brother are partners of the joint Hindu Family firm styled as Kashinath Balmukun carrying on business at House CST No. 1791. Admittedly this house belongs to the joint Hindu Family firm. This firm was adjudged as an insolvent in an Insolvency Petition No. 7 of 1948. It is also an admitted position that some time in year 1961 the original plaintiff Vishwanath who was the partner of the said firm leased out one room in the said house to respondent on a monthly rent of Rs. 14/- per month. This rent was subsequently increased to Rs. 20/- per month. On 11th June, 1971 the plaintiff issued a notice under section 12(2) of the Bombay Rent Act calling upon the defendant-tenant to pay all arrears of rent which were for more than six months. Thereafter the present suit was filed. In the suit it was alleged by the plaintiff that the suit property was released by the Insolvency Court and the plaintiff was put in possession of the property for his personal use and, therefore, he had let out one room to the defendant. In the said suit a decree was claimed under section 13(1)(g) of the Rent Act on the ground that the plaintiff requires the suit premises reasonably and bona fide for the use of his business. The decree under Clause 12(3)(a) and 12(3)(b) was also claimed. The defendant resisted the suit claim by contending that the suit property vests in the Receiver appointed in the Insolvency proceedings and, therefore, the suit without the permission of the Insolvency Court was not maintainable. He also denied other allegations made in the plaint. Parties adduced evidence in support of their rival contentions. The trial Court held that the suit without permission of the Insolvency Court and without joining the Receiver as party, is not maintainable. The trial Court, therefore, dismissed the suit of the plaintiff with costs. Being aggrieved by this judgment and decree the plaintiff filed as appeal before the District Court. The learned District Judge also held that the suit filed by the plaintiff in his own right and without the permission of the Insolvency Court and without even joining the Receiver as party is not maintainable. The Appeal Court however held that the defendant on his own showing is in arrears of rent for more than six months and, therefore, decree for possession could have been passed under section 12(3)(a) of the Rent Act. However Appeal Court did not pass such a decree since the suit itself was not maintainable. The Appeal Court also held that the plaintiff has not proved his claim under section 13(1)(g) of the Rent Act. As already observed it is against these judgments and decrees, the present writ petition is filed.

(3.) Shri Jahagirdar, the learned Counsel appearing for the petitioner contended before me that in the plaint it was alleged by the plaintiff that he is an agriculturist and the suit property is merely a farm house. In view of this accordingly, the property was not liable for attachment under section 60(c) of the Code of Civil Procedure and, therefore, cannot vest in the Receiver even if the petitioner was declared as an insolvent. He also contended that even an insolvent can maintain an action against the third party who is not a creditor. Under the Rent Act to be a landlord it is not necessary that he should be the owner of the suit property. A person who is entitled to recover rent or to whom rent is payable is also a landlord, within the meaning of the Rent Act. In spite of the adjudication in the Insolvency proceedings the petitioner still continues to be the landlord qua the defendant-tenant and to such a suit, therefore, the provisions of the Insolvency Act are not applicable. In support of this contention Shri Jahagirdar has placed strong reliance upon the decision of this Court in 31st Bombay Law Reporter 357 (Ram Chandra Genuji Thosar v. Shripati Sukaji Gade)1. He has also placed reliance upon the decision of the Allahabad High Court in A.I.R. 1935 Allahabad 675 (Abdul Rahman defendant-Appellant v. Nihal Chand plaintiffs respondent)2 as well as the decision of Travancore and Cochin High Court in A.I.R. 1957 T.C. 241(Alleppy A.T.T. Devaswom v. Ponnu Nihar Pillao Kannu Pillai) 3. He has also placed reliance upon the decision of this Court in 72 Bombay Law Reporter 709 (Bank of Maharashtra v. V.D. Datar)4.