BABLU ALIAS JAGDISHSINGH Vs. LADHARAM M. MIRCHANDANI

JUDGEMENT

(1.) THE concurrent refusal of two Courts below to decree the landlord's suit for possession is challenged by this petition under Article 227 of the Constitution. The petitioner, who is a minor, has filed this petition through his guardian and in the trial Court he was plaintiff No. 1. The suit itself had been filed by two plaintiffs of whom the present petitioner was plaintiff No. 1 and his father's sister one Pushpakaur Chatursing Shikh was the second plaintiff. Both of them together had purchased House No. 842 situated at Dastur Meher Road in Poona. This purchase was made on August 19, 1968. In the said house the respondent was residing in two rooms, hereinafter referred to as 'the suit premises', on a monthly rent of Rs. 20. By a notice dated March 24, 1970 the tenancy of the respondent was terminated by the petitioner and the other joint owner with effect from the end of April 1970. The immediate provocation for the issuance of the notice to the respondent was arrears of rent of the suit premises. It is admitted that after the suit notice was issued, the respondent paid all the arrears of rent due from him. It was the case of the plaintiffs, however, that the respondent did not pay arrears of education cess that were due from him at least from 1968.

(2.) ON June 15, 1970 a suit, being Civil Suit No. 1750 of 1970, was filed by the petitioner and the other joint owner, hereinafter referred to as 'the plaintiffs' against the respondent, hereinafter referred to as 'the defendant' for possession of the suit premises on various grounds. In this judgment, however, reference will be made to only two of the grounds viz. that the defendant was in arrears of permitted increases for more than six months and further that the plaintiffs or either of them required the suit premises reasonably and bona fide for their own use and occupation. Broadly speaking, therefore, the suit was filed on the grounds mentioned in Section 12(5)(a) and Section 13(7)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, hereinafter referred to as 'the Bombay Rent Act'. The defendant resisted the suit by denying in the first place that the plaintiffs or either of them required the suit premises reasonably or bona fide for their own use and occupation. He also contended that he was not in arrears of permitted increases because he sought credit for the amount which he had paid on behalf of the landlord to the Municipality towards water charges. If credit were given for this amount, no arrears even on account of permitted increases would be due. He also raised a dispute regarding the amount of standard rent in his written -statement which, however, it must be noted, was filed long after the expiry of one month from the issuance of the notice dated March 24, 1970. Bearing in mind the recent judgment of the Supreme Court in Harbanslal v. Prabhudas and Fascinate v. W.E. Works (1976) 78 Bom. L.R. 213., it must be said that by raising the dispute about the standard rent for the first time in the written -statement which was only long after the expiry of one month of the issuance of the notice, the case would not cease to be covered by the provisions of Section 12(5)(a) of the Bombay Rent Act. The trial Court, however, proceeded on the basis that it was covered by Section 12(5)(b) and since the deposit of the arrears of rent due from the tenant had been made in the Court as per Section 12(5)(b) of the Bombay Rent Act, decree for possession on the ground of arrears of rent was refused. In view of the recent judgment of the Supreme Court in Harbanslal's case, such deposit may not take the case out of the mischief of Section 12(5)(a) of the Bombay Rent Act. However for reasons to be indicated later in this judgment, this case is still governed by the provisions of Section 12(5)(b). On the question of bona fide and reasonable requirement, the trial Court negatived the case of the plaintiffs. With these findings, the trial Court naturally dismissed the plaintiffs' suit for possession. On the defendant's contention regarding the standard rent, the trial Court fixed the standard rent at Rs. 20 p.m. which was the agreed rent. This was done by its judgment and order dated April 25, 1973.

(3.) THE plaintiff preferred an appeal being Civil Appeal No. 403 of 1973 against the judgment of the trial Court and the appeal also came to be dismissed by the learned Extra Assistant Judge of Poona by his judgment and order dated April 26, 1974. The learned appellate Judge concurred with the findings of the trial Court on both the issues.