GORAKH RAMBHAU CHOTHVE Vs. VILAS EKNATH KADAM

JUDGEMENT

(1.) Petitioners have filed this petition challenging the judgment and decree dtd. 31/1/1996 passed by the District Court, Nashik allowing Regular Civil Appeal No.325 of 1989 and setting aside the judgment and decree dtd. 6/3/1987 passed by the Trial Court in Regular Civil Suit No.76 of 1983. The Appellate Court has decreed Regular Civil Suit No.76 of 1983 directing the Petitioners/Defendants to deliver possession of the suit premises to the Plaintiffs with further direction to pay arrears of rent of Rs.115.50 and Rs.4.62 towards education cess together with future damages at the rate of Rs.15.60 per month from the date of suit till delivery of possession. Enquiry into damages under Order 20 Rule 20 is also directed.

(2.) A brief factual narration for deciding the issues involved in the petition would be necessary. Municipal House No.24 bearing City Survey No.529 in Ward 3 of Igatpuri, Taluka-Igatpuri, Dist. Nashik is owned by the Plaintiffs. Plaintiffs No. 1 and 2 are brothers. One room at the rear portion of the said house property are the 'suit premises'. Defendant No.1 was inducted as tenant in respect of the suit premises on monthly rent of Rs.15.00 and education cess of 60 paise (total Rs.15.60). It is Plaintiffs' case that the First Defendant did not pay rent in respect of the suit premises from 1/1/1983. That the First Defendant was not residing in the suit premises and had sublet the same to Defendant No.2. On 14/7/1983, Plaintiff terminated the tenancy w.e.f. 31/7/1983 and demanded possession together with arrears of rent. Copy of the notice was also dispatched to Defendant No.2. It is Plaintiffs' case that both the Defendants refused to accept the notice dtd. 15/7/1983 and the same was returned to them. Plaintiffs accordingly filed Regular Civil Suit No. 76 of 1983 in the Court of Civil Judge Junior Division, Igatpuri for recovery of possession of the suit premises from both the Defendants and for recovery of arrears of rent. The suit was resisted by Defendants by filing common written statement contesting Plaintiffs' claims. It was denied by them that Defendant No.1 had sublet the suit premises to Defendant No.2. Defendants contended that rent upto 1/1/1983 was paid, but Plaintiff did not issue rent receipts to Defendant No.1. That the Defendant No. 1 was willing to pay the rent and could not be termed as defaulter. Without prejudice to their rights, Defendants deposited the entire amount of rent upto October 1984 in the Court. Defendants denied receipt of demand notice and prayed for dismissal of the suit.

(3.) Both the parties led evidence in support of their respective claims. Plaintiffs examined Plaintiff No.1-Vilas Eknath Kadam as PW1. They also examined Vishwanath Chintaman More, the Clerk working in Igatpuri Municipal Council and Vasant Punjaji Salvi, Postman working at Igatpuri. Defendants examined Gorakh Rambhau Chawate (Defendant No.1), as well as Jalinder Rambhau Chawate (Defendant No.2) as witnesses. After considering the pleadings, documentary and oral evidence on record, Trial Court proceeded to dismiss the suit by judgment and decree dtd. 6/3/1987. The Trial Court rejected both the grounds of arrears of rent as well as subletting. The Trial Court held that the demand notice was not legal and proper.