VISHWASRAO SHANKARRAO MEGHE SINCE DECEASED THROUGH HIS L.RS. Vs. BACHHARAM VARUMAL BALWANI AND ANOTHER

JUDGEMENT

(1.) THIS revision application under section 115 of the Code of Civil Procedure, 1908 (for short 'CPC') was filed by Vishwasrao Shankarrao Meghe, who died during the pendency of the revision application and the present applicants have been substituted in his place as the legal heirs, taking exception to the judgment and decree passed by Second Additional District Judge, Wardha on 6 -12 -1989 in Regular Civil Appeal No. 102/88 whereby he set aside the judgment and decree passed by Civil Judge, Senior Division, Wardha on 22 -11 -1988 in Small Cause Civil Suit No. 271/87 and thus dismissed the applicant's suit for ejectment and possession.

(2.) VISHWASRAO Shankarrao Meghe (since deceased) and predecessor -in -title of the applicants (hereinafter referred to as 'Plaintiff') filed a suit for possession and mesne profits against the Non -applicant Bachharam Varumal Balwani (hereinafter referred to as 'Defendant') in the Court of Civil Judge, Senior Division, Wardha on 22 -11 -1988. The plaintiff averred that he was the owner of the house bearing Municipal No. 23 in Ward No. 13 at Wardha and the said house, the details of which were given in para 1 of the plaint, was let out to the defendant at the rate of Rs. 45/ - per month. According to the plaintiff, the tenancy month of the defendant commences on the 1st day of each English calendar month and the rent was agreed to be paid regularly each month. The defendant was not paying rent regularly and, therefore, plaintiff was constrained to move the Rent Controller seeking permission to determine the tenancy of the defendant. The Rent Controller, Wardha by his order dated 24 -6 -1975 granted permission to the plaintiff to determine the tenancy of the defendant. The order of Rent Controller granting permission to the plaintiff to determine the tenancy of the defendant was challenged by the defendant in appeal and the said appeal was dismissed. The defendant took up the matter to the High Court and filed the Writ Petition No. 207/75 challenging the order of the Rent Controller, Wardha and the appellate Court's authority granting permission to the plaintiff to determine his tenancy. The writ petition was dismissed by the High Court on 25/28 -2 -1983. The defendant filed Letters Patent Appeal No. 33/83 and that too was dismissed and thus the permission granted by the Rent Controller to the plaintiff to determine the tenancy of the defendant vide his order dated 24 -6 -1975 became final. The plaintiff averred in the plaint that thereafter he sent the notice dated 6 -3 -1985 through his counsel to the defendant determining his tenancy by the midnight of 31st March, 1985 and the said notice was returned. The plaintiff waived the said notice and sent another notice dated 2 -4 -1985 through his counsel to the defendant and determined his tenancy by the midnight of 30th April 1985. The notice dated 2 -4 -1985 was sent by Registered Post as well as under Certificate of Posting to the defendant and one copy of the notice was affixed on the house in occupation of the defendant on 2 -4 -1985 in the presence of two witnesses. According to the plaintiff, the notice sent by Certificate of Posting was received by the defendant and the notice sent by registered post was returned to the plaintiff with the endorsement that the defendant was not available. The plaintiff submitted that the rent was outstanding for a period from 1 -8 -1984 to 30 -4 -1985, and therefore, claimed arrears of rent amounting of Rs. 405/ - up to 30 -4 -1985, claimed damages from 1 -5 -1985 to 31 -74987 amounting to Rs. 1,215/ - and a sum of Rs. 100/ - towards notice charges. Thus, the plaintiff prayed that the suit for possession and eviction be decreed and defendant be directed to hand over the vacant possession of the suit premises to the plaintiff and enquiry as to mesne profit under Order 20, Rule 12 of CPC be held.

(3.) THE Civil Judge, Senior Division, Wardha observed that in view of the fact that the defendant has deposited the rent in the court till 31 -10 -1988 and in view of the statement made by both the sides evidence on the point of arrears of rent is not required to be recorded and further the defendant has already deposited the rent from the date of the presentation of the suit, the issue in respect of claim of arrears does not survive and hence the following issues :