BAI DAHI Vs. GHANASHYAM HARIDAS

JUDGEMENT

(1.) THESE two revision applications arise out of two proceedings which were originally filed in the Court of Small Causes at Baroda. Civil Revision Application No. 1564 of 1953 arises out of Small Cause Suit No. 1425 of 1950 filed by the plaintiff on 1-12-1950 for an order against the defendant Bai Dahi in ejectment on the allegations that the defendant was a tenant, that she was in arrears of rent, and that her conduct amounted to a nuisance to the neighbourhood.

(2.) SMALL Cause Suit No. 1210 of 1950 out of which Civil Revision Application No. 1565 of 1953 arises was filed by the plaintiff on 5-10-1950, for a decree for recovery of rent which had fallen in arrears. The claim of the plaintiff in suit No. 1425 of 1950 was for recovery of Rs. 2836-9-3 from the defendant. The two suits were resisted by the defendant Bai Dahi in the trial Court. The defendant contended that she was not in arrears, that in any event the plaintiff was not entitled to file a suit for possession of property against her, and that suit No. 1425 of 1950 was barred under Order IL Rule 2, Civil P. C. 2. The learned trial judge decreed suit No. 1210 of 1950 and dismissed suit No. 1425 of 1950. Appeals were preferred against the two decrees passed by the trial Court in the two suits. In appeal the learned District Judge decreed both the suits. The defendant Bai Dahi has applied to this Court in its revisional jurisdiction against the decrees passed by the District Court in the two suits.

(3.) FEW facts which give rise to this litigation may be stated. The property of which possession is claimed in suit No. 1210 of 1950 consists of 14 rooms and is situate in the town of Baroda. It is used as a boarding house by the defendant Bai Dahi. One Bai Mani was the owner of the property, and she leased out the property to Bai Dahi sometime in the year 1944. The agreed rent was Rs. 120/- per month. It appears that subsequently there was brought in force a statute in the former Baroda State under which a landlord was entitled to enhance the rent in respect of properties used for non-residential pur-pases upto 50 per cent over the contractual rent. Enhanced rent was recovered from Bai Mani accordingly. Bai Mani died sometime in 1950 having made and published a will dated 26-10-1949. Under the will the plaintiff Ghansham Haridas was constituted the sole legatee of the 14 rooms which are in dispute in the present case. Ghansham was at the date of the will and even when the suits were filed a minor, and the suits were instituted by his mother acting as his next friend. As I have stated earlier suit No. 1210 of 1950 was filed for possession on the ground of arrears of rent and on the ground that the conduct of the defendant Bai Dahi amounted to a nuisance to the neighbours. Suit No. 1425. of 1950 was filed for recovery of rent part of which had accrued due during the lifetime of Bai Mani and the balance after her death. In the trial Court the plaintiff's right to the property under the will of Bai Mani does not appear to have been denied. As the learned trial judge has pointed out it was common ground between the parties that the plaintiff Ghansham Hart-das had been constituted a sole legatee of the 14 rooms. The learned trial judge did not accept the contention of the plaintiff that the defendants' conduct amounted to a nuisance. He held that the plaintiff had become the owner of the suit premises and that the defendant was his tenant, and the defendant being in arrears the plaintiff was entitled to a decree for possession of the property. The defendant had in the two suits raised a contention that the standard rent payable by her was less than the rent demanded by the plaintiff and the trial Court on a consideration of the evidence came to the conclusion that the standard rent for the suit premises must be regarded as Rs. 180/- per month. In suit. No. 1425 of 1950 the learned trial judge held accepting the plea of the defendant that the plaintiff's suit was barred under Order 2, Rule 2, C. P. C. He held in suit No. 1210 of 1950 that the plaintiff should have claimed arrears of rent which had accrued due till 31-8-1950 and which were claimed in suit No. 1425 of 1950. The learned trial judge relying upon a judgment of this Court reported in -- Kashinath Ram-chandra v. Nathoo Keshav', AIR 1914 Bom 130 (A), held that the plaintiff's suit for recovery of arrears of rent was bound to fail when the plaintiff had previously filed a suit for possession. In the view of the learned Judge the cause of action to claim the arrears of rent and possession was complete on 5-10-1950. and-if at that date the plaintiff did not file a compromise suit for possession and recovery. of rent the subsequent suit for recovery of rent was liable to fail. As I have stated earlier, the decree passed in suit for ejectment, i. e. . suit No. 1210 of 1950 by the trial Court was confirmed by the District Court, and the learned District judge reversed the decree passed by the trial Court in suit No. 1425 of 1950. In the view of the learned District Judge the causes of action in the two suits were different. The learned Judge pointed out that in order to sustain the claim in suit No. 1210 of 1950 the plaintiff had to prove three facts (i) that the tenancy alleged by him had been terminated according to the law of the land, (ii) that the plaintiff himself had served notice under the Bombay Rents Hotel and Lodging House Rates Control Act, 57 of 1947 calling upon the defendant to pay the arrears of rent and (iii) that one month had expired from the date of service of such notice; and it is only when these three facts were proved that a cause of action would he deemed to arise in favour of the plaintiff for a suit for possession. But said the learned Judge in the other suit, i. e. suit No. 1425 of 1930, which was a suit for recovery of arrears of rent, the plaintiff was required only to prove that the rent had fallen due on a particular date, and that the rent ia arrears had not been paid. On the view taken by him the learned District Judge set aside the decree passed in suit No. 1425 of 1950, and decreed suit No. 1210 of 1950,