SHANTARAM KESHAV BHIRODKAR Vs. POPATLAL BHARMAL SHAH

JUDGEMENT

(1.) The subject matter of this writ petition is an open plot of land admeasuring 277 sq.feet and designated as open Plot No. 91 forming part of a larger piece of land of about 577 sq. feet, which is situated at Ranade Road, Bombay. The respondent is the owner of the said plot of land. He had let out the suit plot to one Purshottam Atmaram Chitre as a monthly tenant. The said Chitre has assigned tenancy rights in respect of the suit plot in favour of the petitioner. After the assignment, the petitioner entered into possession and started doing his business in the suit plot.

(2.) The owner landlord filed R.A.E. Suit No. 2149 of 1962 against the tenant Chitre. The petitioner was also joined as the 2nd defendant in the said suit. Ultimately consent terms were arrived at between the plaintiff and the 2nd defendant. Under terms consent terms, the petitioner who was the 2nd defendant, was recognised by the plaintiff-landlord as a lawful assignee of the tenancy rights in respect of the suit plot with effect from 15th May, 1959. Clauses 2 and 8 of the consent terms provided for an eviction decree, but the same was to be stayed permanently if certain amount due to the landlord for Municipal Taxes were paid by the 2nd defendant. We are not concerned with these provisions Clause 4 provided that with effect from the recognised date of assignment i.e. 15th May, 1969 the standard rent plus permitted increases in respect of the suit plot would be fixed at Rs. 37.50p. It may be mentioned that at the very time when these consent terms were taken, the tenant who was the 1st defendant in the submitted to an eviction decree. It may be mentioned further that the tenant was paying contractual rent at the rate of Rs. 30/- per month and amounts at this rate had been deposited presumably upto the date of the compromise which was 16th February, 1967. This, however, means that the balance amount of Rs. 7.50 p. remained payable with effect from 15th May, 1959, which was the date of the assignment which was accepted and recognised by the landlord by these consent terms. The landlord thereafter by his Advocate letter dated 13th January, 1968 called upon the petitioner to pay the arrears from 15th May, 1959 to 31st December, 1967 amounting to Rs. 776.55 p. The defendant however, did not send any reply to the said letter nor did he comply with the requisitions thereof within a period of one month. Thereafter Ejectment Suit No. 1455 of 1968 was filed against the petitioner by the respondent-landlord on the ground that he was a defaulter and had not paid the arrears despite due notice having been served on him. The suit was tried by the Single Judge, who by his judgement dated 17th November, 1975 dismissed the suit. The plaintiff, whose suit was dismissed, carried the matter in appeal, which appeal was numbered as 138 of 1976. The appeal was allowed and the Order of the trial Court passed on 17th November, 1975 dismissing the suit was reversed and an eviction decree was passed against the petitioner.

(3.) The Appellate Bench noted the consent terms and observed that it was unable to agree with the view of Single Judge that by these consent terms the petitioner was recognised as a lawful tenant and, therefore, notice under section 106 of the Transfer of Property Act was necessary. It may be mentioned that this was the only point which had found favour in the trial Court and on which it had dismissed the suit. It is now well settled that notice which is required to be given to a defaulter is one as contemplated by section 12(3)(a) and no other notice is ordinarily required in order to secure possession from the tenant under the statute affording protection to the tenant i.e. the Bombay Rent Act. This point was not even pressed at the hearing of the petition. It may be mentioned that after giving its opinion that the suit must fail for want of such notice under the Transfer of Property Act, the trial Court had observed that on all other points its findings were in favour of the landlord. The trial Judge had expressly disbelieved the petitioner case that after receipt of the notice he had approached the landlord and tendered rent which was not accepted on a statement that the rent was not settled. This case had been rejected because it was not taken up in the tenants Point of Defence. The Appellate Court agreed with the factual conclusions of the trial Judge and since the Order of dismissal of the suit could not be sustained on the legal point, which had erroneously found favour with the trial Court, decreed the suit and passed an eviction decree reversing the Order of dismissal.