SARVESH Vs. SAKALNARAYAN J. SHARMA

JUDGEMENT

(1.) By this petition under Articles 226 & 227 of the Constitution of India, the Petitioner is challenging the judgment and decree dtd. 6/2/2012 passed in Appeal No.13 of 2010 by the Appellate Bench of the Small Causes Court at Bandra, Mumbai. By the impugned judgment, the appeal filed by the Petitioner is dismissed, thereby confirming decree of eviction passed against him dtd. 30/11/2009 passed by the Court Small Causes at Mumbai in R.A.E. & R. Suit No.5444 of 1985.

(2.) The petition is arising out of provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, as it existed prior to 1987 amendment ('Bombay Rent Act', for short). Present petitioners are legal heirs of original Defendant (Shri. Madhukar Bapu Gurav) and the Respondents are original Plaintiffs. The said suit was filed for recovery of possession and arrears of rent in respect of suit premises which are double room having area of 14'-3" x 10'-5" and 9' x 11'-3", along with open verandah converted into a room and constructed bathroom in Sharma Juni Chawl, Sharma Industrial Estate, Walbhat Road, Goregaon (E), Mumbai - 400 063. The suit was filed on the ground of default (arrears of rent), breach of provisions of Sec. 108(o) of the Transfer of Property Act, 1882 ('TP Act', for short) and erection of permanent structure without consent of the landlord i.e. under Sec. 12, 13(1)(a), 13(1)(b) of the Bombay Rent Act. The landlord contended inter alia that the rent of suit premises at the relevant time was @ Rs.20.00 per month and the Defendant tenant was in arrears of rent for more than 6 months. Suit notice dtd. 2/8/1985 was issued demanding arrears from 1/12/1983 to 31/7/1985, amounting to Rs.400.00. Since the Defendant failed to comply with the demand of arrears, the said suit was instituted. The landlord contended that the Defendant has encroached upon a passage in front of suit premises and converted the same into a room and has carried out alteration of permanent nature without consent of the landlord which is in contravention of provisions of Sec. 108(o) of the TP Act.

(3.) The Defendant filed written statement contending inter alia that he is not in arrears. The service of suit notice is admitted. It is contended that he has replied the suit notice by sending notice reply dtd. 20/8/1985 along with a cheque of Rs.400.00 dtd. 19/8/1985. The other allegations in the plaint are also denied.