ARVIND BABURAO DESAI Vs. DASHARATH BABURAO PALASKAR

JUDGEMENT

(1.) HEARD the learned advocates for the parties.

(2.) THE petitioner challenges the judgment and order dated 20th August, 1992 passed by the lower appellate Court in Civil appeal No. 124 of 1987. By the impugned judgment and order, the lower appellate Court has set aside the decree of eviction passed against the respondent by the trial Court on 30th January, 1987 in Regular Civil Suit no. 170 of 1981. The suit for eviction was filed on three grounds, viz (i) default in payment of rent, (ii) need of the premises for the purpose of repairs and (iii) for non user of the premises continuously for a period more than six months prior to the filing of the suit. The trial Court had decreed the suit on two grounds, viz. default in payment of rent and non user of the premises for more than six months prior to the filing of the suit, while rejecting the contention of the petitioner about the need of the premises for repairs. In the appeal preferred by the respondent against the said decree, the lower appellate Court set aside the decree mainly on two grounds that the notice issued under Section 12 (2) of the bombay Rents, Hotel and Lodging Rates control Act, 1947 (hereinafter called as "the said Act") was invalid, as there was excessive and exhorbitant demand of rent in the said notice, and secondly that there was no evidence regarding the non user of the premises for continuous period of six months prior to the date of filing of the suit.

(3.) UPON hearing the learned advocates for the parties and on perusal of the records including the decision of the division Bench, which are sought to be relied upon by the learned advocate for the petitioner, in the matter of Chhaganlal mulchand Jain Vs. Narayan Jagannath bangh, reported in AIR 1983 Bom. 212 and Dnyaneshwar (deceased by L. Rs.)and Ors. Vs. Pandharinath Damodar khadke, reported in AIR 1983 Bom. 217, it is apparent that the lower appellate Court had delivered the judgment in relation to the invalidity of the notice without considering the law in that regard laid down by the Division bench. The Division Bench in Chhaganlal's case (supra) has clearly held that "the notice is a communication between the landlord and the tenant and both the parties are presumed to know as to what is the quantum of rent and permitted increases that had remained unpaid and hence when the landlord claims the payment of such arrears by a notice, any mistake as regards the quantum of rent would not make the notice bad. " Similarly, in dnyaneshwar's case (supra), the Division bench has held that merely because the landlord claims rent in excess of the agreed rent that would not be fatal to the suit filed by the landlord on the ground of non-payment of rent and any defect in that regard in the notice would not render the notice to be invalid or illegal. Considering the said law laid down by the Division Bench, therefore, the interference by the lower appellate Court in the findings arrived at by the trial Court on the point of default in payment of rent cannot be sustained. Uridisputedly, even after-the issuance of notice under Section 12 (2) of the said Act, the respondent did not pay the rent within the stipulated period nor he had filed any application for fixation of standard rent of the suit premises. In the circumstances, the findings arrived at by the lower appellate court on the point of invalidity of the notice and on that count the suit for eviction was held to be not maintainable, cannot be sustained, and are liable to be interfered and the findings of the trial Court in that regard need to be confirmed.