WAMAN DEORAM SONAWANE Vs. GANESH MANDIR DHULIA

JUDGEMENT

(1.) This is the original tenant's petition with regard to the decree made for eviction with reference to the provisions of section 12 (3) (a) and section 12 (3) (b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the Act").

(2.) Respondent No. 1 landlord initiated proceedings for possession of the tenanted premises after giving due notice dated October 12, 1971 (Ex. 54) terminating the tenancy. The decree was sought both on the grounds of reasonable and bonafide need of the plaintiff-trust as well as with regard to default in payment of rent. The trial Court made the decree holding in favour of the plaintiff-landlord with regard to the reasonable and bonafide need of the trust to have the tenanted property. It, however, refused to make a decree on the ground of default. The matter was taken up in appeal and the appeal Court affirmed the decree on the ground of default but not on the ground of reasonable and bonafide requirement of the landlord-trust. That decree so made with reference to section 12 of the Act is under challenge in this Court.

(3.) For the petitioner, Mr. Karlekar submitted that the decree is solely based on the default of payment of education cess and as such maintainable. Relying on the decision of this Court reported in the case of Babln v. Ladharam, 80 Bom LR 310, he submits that such a decree could not have been made under section 12 (3) (a) of the Act According to the learned Counsel, if the facts are taken into account, the total amount due from July 1, 1963 to January 31, 1971 was Rs. 3,185 and the tenant had paid the sum in two ways, first paying Rs. 2,860 to the municipal council towards the taxes and Rs. 325 by remission by money order, the rent being Rs. 35 per month and thus all the arrears were cleared There could be no default with regard to the payment of rent so as to attract section 12 of the Act. At the most, it can be said that the tenant was in arrears with a part of education cess, which was not paid by the landlord, and once this position is available, there could be no cause of action surviving so as to file a suit and have a decree. Further, reliance is placed on the unreported judgment of this Court in Writ Petition No. 156 of 1983 dated July 1, 1983 and in the case of Shamrao v. Chaturbai, 1982 Mah LJ 347.