BAI MOHINIBAI DHARAMSEY Vs. KHIMJI JHIVRAJ

JUDGEMENT

(1.) This is a tenants petition under Article 227 of the Constitution in challenging the judgment delivered by the Appellate Bench of the Small Cause Court dismissing her appeal and affirming the judgment passed by the trial judge decreeing the plaintiffs claim for possession 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").

(2.) The petitioner had taken on lease for 30 years two plots of land admeasuring 325 sq. yards on 1st November, 1948 from the respondent on an agreed rents, of Rs. 367/- per month. This lease was for the purpose of constructing a building on those plots. On expiration of the lease, the lessee was entitled to remove the structures in case the lessor was not prepared to purchase them at half the price. It is the petitioner, case that in pursuance of this agreement, the petitioner constructed a structure worth Rs. 1,00,000/-. In 1953 dispute arose between the parties and the landlord filed a suit being Suit No. 3307/16647 of 1953 for eviction on 23rd December, 1953. In that suit, a consent degree was passed on 17th April, 1957. According to the consent terms, the petitioner was to deliver a part of the premises, viz. the plot admeasuring 825 sq. yards to the landlords and to retain the plot admeasuring 1692 sq. yards. The rent was reduced to Rs. 245/- per month. The petitioner surrendered the plot admeasuring 825 sq. yards to the respondent No. 1. The terms of the tenancy in respect of the plot retained by the petitioner continued to be the same on which the lease was originally granted in 1948 except the rent. There was a well in the suit premises and it is not disputed that this well is situated on the border between these two plots. It was agreed that the petitioner should fill and cover the well. The landlord agreed to pay half of the cost for filling up the well. The petitioner and the respondent No. I were prosecuted by the Municipal authorities for not covering the well and it is the case of the petitioner that because of this prosecution and in order to abate the nuisance of mosquitoes. She undertook to fill up and cover the well in terms of the aforesaid agreement. The work of filing up the well was started in February 1960 and was completed in April 1960. The petitioner incurred an expenditure of Rs. 5,800/- for that purpose. She got that work executed by a contractor whose bill was sent by the petitioner to the respondent No. 1 along with her claim in 12th April, 1960 by a registered letter calling upon him to pay Rs. 2900/- as his share. The petitioner also sent copy of that letter by ordinary post under certificate of posting. The registered packet was returned unserved with an endorsement "unclaimed". The copy of the letter sent under certificate of posting was not returned to the petitioner. The petitioner did not pay the rent from 1st October, 1959. On 22nd July, 1960, the petitioner received a notice dated 18th July, 1960 informing her that she had not paid rent for 9 months, viz. from 1st October, 1959 to 30th June, 1960 amounting to Rs. 2,205/-. By this notice, the petitioners tenancy was terminated. She was asked to deliver possession by 31st August, 1960, and was also called upon to pay the arrears of rent. On receipt of this notice, the petitioner replied on 2nd August, 1960. In that reply she stated that she had to recover from him Rs. 2900/- as the landlords share of expenses of filling up the well. She informed the landlord that she had already demanded that amount by her registered letter dated 12th April, 1960. She enclosed a copy of that letter along with that reply. She also requested the respondent No. 1 to adjust the arrears of rent from the amount which the petitioner was entitled to recover in terms of the agreement form the respondent No. 1. The respondent No. 1 landlord did not immediately reply to this letter and it is the case of the petitioner that he deliberately postponed to reply till one month was over to enable him to take advantage of the provisions of Clause (a) of sub-section (3) of section 12 of the Rent Act. The landlord replied on 24th August, 1960 disputing the expenditure incurred by the petitioner for filling up the well. The landlord also stated that his consent was not obtained before she undertook to fill up the well. On receipt of this reply, the petitioner sent another latter on 9th September, 1960 informing him that the petitioner would satisfy the landlord about the expenditure and she also sent a cheque for Rs. 2695/- as arrears of rent upto the end of August, 1960. The plaintiff, however, filed a suit on 12th September, 1960 against the petitioner for possession of the suit premises on the ground of default of payment of rent. On 20th September, 1960, Harakhchand Khimji, the son of the plaintiff, sent a reply that his father was out of Bombay and that he was, therefore, returning the cheque.

(3.) The suit was resisted by the petitioner on various grounds, some of which were : (1) that the notice was bad and (2) that she has not neglected to pay the arrears of rent, more so, when she had incurred expenditure for filling up the well on behalf of the plaintiff and he had not paid that amount, inspite of demand. She also stated that the amount spent for filling up the well was more than the amount which she had to pay as arrears of rent. The petitioner claimed that she has not neglected to pay the arrears of rent and, therefore, the plaintiff was not entitled to get the possession.