CHAMPABAI MANILAL SHAH Vs. ANANDRAO RAMCHANDRA PATIL

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 of 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, Upadhyes 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 the demand, the suit for possession was filed on 28th March, 1977 by the respondent-landlord on the ground of non-payment of rent from 1st May, 1971 and secondly on the ground of bona fide requirement. Both the courts concurrently recorded the finding that the respondent-landlord failed to establish his bona fides. However, they passed decree on the ground of non-payment of rent.

(3.) IT is this decree for possession which is passed on the ground of non-payment of rent which is assailed by the petitioners in this writ petition under Article 227 of the Constitution of India. Learned Counsel appearing for the petitioners pointed out that the decree ought not to have been passed on the ground of non-payment of rent because on 12th December, 1974 the tenant was not in arrears for more than six months and in any event, the rent from 1st May, 1971 could not have been recovered by the respondent-landlord because it was in the nature of actionable claim or debt and in any event it was not assigned. For this proposition reliance is placed on (Narendra Singhs) (Vinayak Mahadeo Nirgun v. Sadanand Shantaram Bandekar) It was also argued and pointed out that the right to recover rent was not transferred by virtue of the sale deed executed on 24th June, 1974 and notice dated 8-11-1974 cannot be construed as assignment of right to recover rent. Thus it was pointed out that the decree on the ground of non-payment of rent could not have been passed. In additon to this, reliance was also placed upon the rent receipt at exhibit 35/2 and it was pointed that once reliance is placed upon the rent receipt then the payment upto June, 1974 is proved and then the arrears are not more than six months and it was argued that the Courts below committed error in not relying upon exhibit 35/2.