BANUBAI PAWAR Vs. CHANDMAL LUNAWAT

JUDGEMENT

(1.) THIS is a tenants petition against the order passed by the Extra Assistant Judge, Ahmednagar, allowing the plaintiffs appeal and decreeing the plaintiffs claim for possession. It is not necessary for the purposes of this petition to enumerate all the facts in details. It is enough to State that the husband of the petitioner was a tenant of the suit premises and that he died on 11th November, 1964. The suit premises were sold by the original landlord Newaskar on 19th August, 1965 to the respondent No. 1. The rent of the suit premises was Rs. 6/- per month. On the day of the purchase, the tenant was in arrears of rent of Rs. 151/- and the right to recover this amount was given by the original landlord to the purchaser. The respondent No. 2, who is the son of the petitioner and the original tenant, paid Rs. 72/- on 19th January, 1966 and again paid Rs. 72/- on 8th July, 1966. It is true that the second payment was made by the daughter of the petitioner and that was on behalf of the respondent No. 2. Immediately after the death of the father, the respondent No. 2 has also made a payment of the rent to the original landlord. On 15th August, 1967, the respondent No. 1 gave a notice to the respondent No. 2 terminating the tenancy. He was informed by the respondent No. 1. that he was a defaulter and was called upon to pay the arrears of rent. He was also informed that the landlord required the suit premises for his personal use. The respondent No. 2 by his reply dated 4th September, 1967 informed the landlord that he was not in the suit premises and that his mother was residing in the suit premises. He further stated that all rent was paid and that no arrears of rent were due. As the tenant did not comply with the requirements of the notice, the landlord filed a suit for possession in the Court of Civil Judge, Junior Division, Ahmednagar. The suit was resisted both the petitioner and respondent No. 2. It was the claim of the petitioner and the respondent No. 2 that it was the petitioner who was the tenant as she was residing with her husband-the original tenant at the time of his death and that her son-respondent No. 2 had already separated and she had, therefore, become the tenant of the suit premises. It was also submitted that all the arrears of rent were paid and that the purchaser was not entitled for the arrears of rent for the period prior to the date of the sale. The trial Judge framed necessary issue and he held that the landlord did not require the suit premises bona fide for his personal use. He also held that the petitioner was living with the original tenant at the time of his death and that her son was separate and, therefore, the petitioner alone was the tenant and as no notice was given to her, the plaintiff had not terminated her tenancy. He, therefore, dismissed the suit for possession. He, however, held that the plaintiff was entitled to recover the arrears of rent for the period prior to the date of the sale and he, therefore, decreed the plaintiffs claim for arrears of rent. The plaintiff thereafter filed an appeal before the District Court which was heard by the Extra Assistant Judge who after hearing the parties held that the plaintiff did not require the suit premises for his personal use. He held that the defendant No. 1-respondent No. 2 was the tenant of the suit premises and his tenancy has been validly terminated. He further held that the plaintiff was entitled to recover the arrears of rent and that at the time of the issue of the notice and the filing of the suit, the tenant was in arrears of rent for more than six months and that he had not cleared those arrears of rent within the stipulated period. He, therefore, held that the tenant was a default. He allowed the appeal and decreed the plaintiffs claim under Clause (a) of sub-section (3) of section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, (hereinafter called as the Rent Act ). It is against this judgement that the present petition has been filed. Mr. Damle, the learned Counsel for the petitioner, urged that the appellate Judge has committed an error in holding that the petitioner was not a tenant and that her separated son was a tenant. He also urged that both the courts below have committed an error in holding that the plaintiff was entitled to recover the arrears of rent for the period prior to the date of the sale. He also urged that the petitioner was not in arrears of rent. It is not possible to accept any of these contentions. It is true that both the courts below have recorded the finding that the petitioners son (respondent No. 2) was living separately at the time of the death of his father but it is observed by the appellate Court that it was the respondent No. 2 who had paid the original landlord the rent which was due immediately 2 months after the death of his father. THIS is not all, but on 19th January, 1966 Rs. 72/- were paid by the respondent No. 2 to the respondent No. 1 and on 8th July, 1966 again Rs. 72/- were paid by the daughter of the petitioner on behalf of the respondent No. 2. The receipts were also issued in the name of the respondent No. 2. It was the respondent No. 2 on whose behalf the payment was made. The learned Judge was, therefore, right in holding that the respondent No. 2 was a tenant. Sub-section (II) of section 5 of the Rent Act reads :--- tenant means any person by whom or on whose account rent is payable for any premises. The payment of the rent was made once by the respondent No. 2 and once on his behalf by his sister and, therefore, there is no manner of doubt that the respondent No. 2 was a tenant. Then again, the original tenant was a contractual tenant and the tenancy being inheritable, the respondent No. 2 was, therefore, rightly treated as a tenant by the original landlord. In my opinion, the appellate Court was right in holding that the respondent No. 2 was a tenant and the notice which was given to him terminating his tenancy was a valid notice. So far as the right to recover the arrears of rent which were due for a period prior to the sale, the original landlord had immediately given notice to the respondent No. 2 to pay that arrears of rent to the purchaser. Postal acknowledgment was duly proved and it is, therefore, not open to the respondent No. 2 to dispute that he was not asked to pay the arrears of rent. There is no dispute that there were arrears of rent at that time. The learned Judge was, therefore, right in holding that the petitioner was a defaulter and that she has not paid the arrears of rent within one month from the issue of the notice. The learned Counsel for the petitioner urged that this case was governed by Clause (b) of sub-section (3) of section 12 of the Rent Act because he has raised the dispute about the standard rent. Even if that is so, in the trial Court and in the appellate Court and even now, the petitioner has not cleared the arrears of rent. The petition is devoid of any substance and deserves to be dismissed. In the result, the petition is dismissed and the rule is discharged. Under the circumstances of the case, there will be no order as to costs.