NAVRITTI NAMDEO THITE Vs. HEMRAJ GULABCHAND DAGA

JUDGEMENT

(1.) This writ petition under Article 227 of the constitution of India is directed against the judgment and order dated 12-9-1989 rendered by the IV Additional District Judge, Pune in Civil Appeal No. 761 of 1984 by which the appeal filed by the respondent-defendant was allowed and the judgment and decree passed by the trial Court dated 14-6-1983 in Civil Suit No. 2493 of 1977 was set aside. The suit was instituted by the petitioner for eviction on the ground of default.

(2.) The petitioner, hereinafter referred to as "the landlord", is the owner of house No. 241 situated at Ganesh Peth, Pune. He had let out a shop premises on the ground floor of the said house No. 241 together with front ota and three rolling shutters for commercial use (for short "the suit premises") to the respondent-tenant, hereinafter referred to as "tenant" in 1969. The monthly rent of the suit premises was Rs. 60/- plus education cess of Rs. 1. 20 ps. per month. It was monthly tenancy. It appears that on 17-6-1972 the landlord had issued a notice to the tenant demanding a rent at the rate of Rs. 100/ -. That notice was replied by the tenant on 6-7-1992 (Exhibit-54). The said notice was not placed on record. It appears from the reply that the landlord had demanded arrears from 1-9-1970. A standard rent application was filed by the tenant within the statutory period and those proceedings were ultimately concluded in Civil Revision application No. 3 of 1976 wherein the standard rent at the rate of Rs. 60/- per month was fixed. It is thereafter, once again on 30th July, 1977 a notice was issued by the landlord to the tenant (Exhibit-49) demanding arrears from 1-8-1970 to 31-8-1977. That notice was also replied by the tenant on 19-8-1977 (Exhibit-52). In the reply, he specifically stated that from time to time he had paid various amounts to the landlord, totally amounting to Rs. 15,771/-, and after deducting rent at the rate of Rs. 60/- plus education cess per month, the amount of Rs. 8,460/- remained in excess with the landlord and hence he was not liable to pay the rent. In the circumstances the landlord filed a suit against the tenant for eviction on the ground that he failed and neglected to make payment of the rent on 1st August, 1970. The eviction was also sought on the ground of non user, however, it was not pressed before the appeal Court and this Court as well. It is against this backdrop a decree under section 12 (3) (a) of the Bombay Rent Act was prayed for.

(3.) The trial Court decreed the suit holding that the alleged payments made from time to time were not made to the landlord but most of the payments were made to his brother and father and such payment cannot be treated as valid tender of rent to the landlord. The appeal Court, however, reversed the findings recorded by the trial Court and held that the payments made by the tenant to the landlord amount to valid tender of rent and even the payments made towards the telephone bills are also liable to be adjusted towards the rent. The learned Judge has accordingly allowed the appeal. Admittedly, there was no other transaction between the parties for which the tenant was liable to pay to the landlord.