CHAMPABAI MANILAL SHAH Vs. ANANDRAO RAMCHANDRA

JUDGEMENT

(1.) THIS writ petition filed under Article 227 of the Constitution of India challenges the judgment and decree passed for possession on the ground of non-payment or rent in Regular Civil Suit No. 138 of 1977 by the learned Civil Judge, Jr. Division, Islampur on 31st December, 1979, which is confirmed in Civil Appeal No. 43 of 1980, by the Extra Assistant Judge, Sangli on 5.2.1982.

(2.) FEW facts which are relevant for the purpose of this petition are : Upadhye were the owners of the property in dispute which was mortgaged to the present respondent-landlord and on 24.6.1974, the respondent-landlord purchased the property. After purchasing the property on 24.6.1974, on 8.11.1974, both Upadhye and the present respondent-landlord sent notice which was in the nature of attornment to the petitioners informing them that arrears are due from 1st May, 1971, at the rate of Rs. 30/- per month and the respondent has right to recover the same. This notice was sent as referred to above by both Upadhye and the present respondent. This notice was replied and the contention that was raised in the reply was that the agreed rent is Rs. 25/- per month and the rent is paid upto the end of June, 1974. It appears that the landlord again called upon the tenant by his letter dated 20th November, 1974, to satisfy him regarding the payment made to the previous landlord. Since he was not satisfied, on 12th December, 1974, a notice of demand as contemplated under the provisions of Bombay Rent Act was sent by the respondent-landlord and the arrears were claimed from 1st May, 1971, at the rate of Rs. 30/- per month and thereafter since the amount was not paid as per demand, the suit for possession was filed on 28th March, 1977, by the respondent-landlord on the ground of non-payment or rent from 1st May, 1971, and secondly on the ground of bonafide requirement. Both the Courts concurrently recorded that finding that the respondent-landlord failed to establish his bonafides. However, they pased decree on the ground of non-payment of rent.

(3.) SHRI Rane, learned Counsel appearing for the respondent-landlord pointed out that both the Courts below have concurrently held that the tenant was in arrears for more than six months of rent and thus his case was governed by Section 12(3)(a) and the decree was, therefore, rightly passed. Mr. Rane placed his reliance upon a Division Bench decision reported in Radhabai Bapurao Shelar since deceased by heirs Madhav Hiralal Shiar and others v. Thimbak Madhavrao Shirole and others, 1981 Mah. LJ 969. He further pointing out that this case specifically overrules Shantinath's case reported in Shantinath S. Ghongade v. Rajmal Uttamchand Gugale, 1979 Mah. LJ 229 and Nerendra Singh's case reported in 1979 Mah. LJ 851 and he further points out that brother Pratap, J. while delivering the judgment reported in 1982 Mah. LJ. 126 (supra), was not pointed out the judgment reported in 1981 Mah. LJ 969 (supra). Therefore, the judgment is per incuriam. Mr. Rane emphasised the fact that the Division Bench judgment in Radhabai's case (supra) fully supports the case of the landlord and according to him no assignment of right to recover rent is required in favour of subsequent transferee because under Section 12 it is incumbent upon the tenant to pay the arrears of rent. Mr. Rane also contended that notwithstanding the fact that right to recover rent is not assigned in favour of the transferee, still he has right to recover the possession of the leased property from the tenant on the ground of arrears of rent because to take any other view would result in giving the tenant immunity from eviction even though the rent due remains unpaid and the said default continues. He strongly relied upon some observations of the Division Bench and argued that in view of the decision of the Division Bench, the decree passed by the two Courts below should be maintained on the ground on non-payment of rent.