HOTEL ROSALIA PVT LTD Vs. G B HIRANI

JUDGEMENT

(1.) The petitioner-landlord/plaintiff has invoked article 227 of the Constitution of India and, thereby, challenged the order dated 3rd August, 1990, passed by the VIIIth Additional District Judge, Pune, in appeal No. 334 of 1986, thereby, allowed the Appeal of the respondent-tenant, whereby, the judgment and order dated 9th April, 1985, passed by the Small cause Court, Pune, granting the decree in favour of the petitioner-landlord was set aside. The cross-objections filed by the petitioner-landlord was also dismissed. Therefore, present writ petition.

(2.) The petitioner-plaintiff has filed a suit for possession on the ground of arrears of rent, damages, nuisance and additions and alterations in the suit premises by the respondent-tenant, being the owner of the premises in question bearing C. T. S. No. 12/1, Cannaught Road, Pune. The respondent is in possession of two rooms on a monthly rent of Rs. 45/-, including educational cess and water charges, totalling Rs. 68.70/- p. m. The respondent defaulted in payment from 1st april, 1976, The respondent-tenant was creating nuisance in the common gallery. The respondent-tenant had erected a partition of a permanent nature. Based on all these grounds, petitioner-plaintiff issued a Notice dated 26th October, 1999 and demanded the possession of the premises which remained unreplied. However, by Written Statement, the grounds of eviction were objected by the respondent- tenant. The respondent-tenant denied the liability of the water charges @ Rs. 21/- p. m. to the petitioner. There is no dispute about monthly rent i. e. Rs. 45/-, but specific objections were raised about the inclusion of water charges in the alleged rent of Rs. 45/- p. m. The dispute was also raised that the monthly rent of Rs. 45/- was excessive and unreasonable. The respondent-tenant admittedly have not deposited the rent after receipt of the said demand notice. The tenant further defended the case on the ground that the petitioner-landlord declined to accept the rent. The advance of Rs. 2000/- paid by the respondent-tenant to the petitioner-landlord was not accepted. He denied the allegations of nuisance or alteration as alleged. The learned Judge, after considering the material placed on the record held that the respondent is a defaulter and, therefore, the petitioner is entitled for the possession of the suit premises and further directed to pay Rs. 1,842.60 p. to the petitioner. The grounds of nuisance, addition and alteration of the permanent structure in the suit premises were rejected. Petitioner-landlord has not challenged the said finding by a separate appeal. However, cross-objections were raised by the petitioner-landlord. The respondent-tenant, however, preferred an appeal No. 234 of 1986 against the grant of decree for possession. The appellate Court, after considering the said material on the record, reversed the said finding and allowed the appeal of the respondent-tenant and the order passed by the Small Causes Court was set aside by holding that the Notice dated 26th october, 1979, was not legal and that the petitioner-landlord failed to prove that the respondent-tenant had acquired a suitable accommodation and/or was not using the said premises for more than two and half years. Therefore, the present petition by the petitioner-landlord.

(3.) Heard Mr. R. S. Datar, the learned counsel appearing for petitioner, who has relied on various judgments and basically contended that the demand Notice in question cannot be said to be illegal merely because there was exorbitant rent claimed or demanded. He contended that there was no exorbitant rent claimed. The respondent-tenant has admittedly not deposited the rent within one month and has not disputed the same. Even though application under section 11 (3) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (for short "the Bombay Rent Act") , was filed, but the same was not persuaded diligently. The challenge to the rent or adjustment of water charges or such issues cannot be agitated for the first time in the Written Statement. In view of this, the appellate Court's order is bad and contrary to the settled provision of law. The judgment and order of the trial Court dated 9th April, 1985, therefore, is correct and need to be maintained. He further contended to consider the cross appeal/cross objections as raised on the other grounds of nuisance and permanent alteration. The learned counsel appearing for the respondent-tenant, however, resisted the above contentions and supported the reasoning of the impugned judgment and order dated 3rd August, 1990. She has also relied on a number of judgments in support of her contentions and prayed for dismissal of the present petition.