GANESH TUKARAM LONKAR Vs. VINAYAK DEORAO BHORE

JUDGEMENT

(1.) Writ Petition 1736 of 1996 is filed by landlord Shri Ganesh while Writ Petition 1933 of 1996 is filed by tenant Shri Vinayak. The parties will be referred to as landlord or tenant to avoid confusion. Landlord filed two proceedings or cases contending that tenant is in arrears of rent and habitual defaulter for two different periods. The Rent Controller functioning under C.P.& Berar Rent Control Order,1949 (hereinafter referred as Rent Control Order), granted permission only under clause 13 (3) (i) finding tenant to be in arrears of rent in both matters. The permission sought for under clause 13 (3) (ii) on the ground of habitual default was rejected in both cases. Against this common Order dated 31st March 1994 both landlord and tenant filed their respective appeals before Additional Collector, Akola which is appellate authority under clause 21 of Rent Control Order. Thus there were total four appeals before Appellate Authority and on 29/1/1996 by common Order it dismissed all these appeals. Landlord has filed his own petition (1736/ 1996) challenging rejection of permission on the ground of habitual defaults while Tenant has filed writ petition 1933 of 1996 challenging the permission granted under clause 13 (3) (i). Rule has been issued in writ Petition 1736/1996 on 26/8/1996 while Rule has been issued in other writ petition on 23/10/1996 and stay of possession has been given to tenant by ordering his writ petition to be heard with writ petition of landlord.

(2.) Premises in possession of tenant consist of two rooms with kitchen, varandah, bathroom and latrine. The landlord has described the premises in two parties 1A and 1B, and user of bathroom and latrine has been mentioned to be incidental. This is on account of fact that entire tenanted premises have been latter on purchased by two different persons after partition in the family of original landlord Himmatlal. Landlord mentioned that two rooms with kitchen, varandah with incidental user of bathroom and latrine are in occupation of tenant as monthly tenant at rate of Rs 150/ per month. It is mentioned that the premises were rented out without any electrical fittings and/or water connections. On 14/8/1990 Himmatlal is stated to have effected partition and portion above came to share of his daughter-in-law by name Kiran w/o Pramod & accordingly Himmatlal informed the same to tenant. On 24/1/1991 Smt. Kiran sold the premises to landlord Ganesh and this was communicated to tenant vide notice dated 14/2/1991. Tenant was informed that he has to pay rent from February 1991 onwards to said new landlord. The tenant however did not abide by instructions and hence on 9/10/1991 landlord called upon tenant to clear all arrears up to date but tenant did not accept that notice and hence, complaining of arrears from February 1991 till October 1991 totaling Rs. 1350/- only, landlord filed Rent Control case number 8/91 -- 92 before Rent Controller at Akot, and sought permission to terminate tenancy under clauses 13 (3) (i) and (ii) of Rent Control Order. During pendency of these proceedings, making similar allegations he filed identical proceedings vide case number 2/92 -- 93 in relation to period from November 1991 till August 1992 pointing out that arrears of Rs 1500/ only for said 10 months have not been cleared. He stated that thus on the date of filing of that application total arrears for 19 months i.e. period covered in both cases worked out to Rs 2850/- only.

(3.) Both applications were opposed by tenant Vinayak who pointed out that entire premises including bathroom and latrine were let out to him and there was no question of splitting up the same. He accepted the Rent of Rs 150/- per month but stated that it was inclusive of electric charges and water charges as also municipal taxes. Partition allegedly effected by Himmatlal was denied and it was stated that daughter-in-law Kiran could not have any share in partition and she could not have sold any portion to landlord. Notice dated 14/2/1991 was denied and tenant stated that he forwarded rent by money order to original landlord Himmatlal up to date. It was stated that even after alleged partition Himmatlal continued to receive the rent. Tenant also denied notice dated 9/10/1991. He also pleaded that Himmatlal came and collected the rent as per his convenience and because of this practice, tenant was not habitual defaulter. Arrears were also denied. It was also stated that landlord has not established his ownership over suit premises.