SURESH SADASHIV KULKARNI Vs. P.S.NAGARKAR

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 31.12.1984 passed by the Joint Judge, Pune, in Civil Appeal No.266/1983. That appeal was filed by the petitioner challenging the judgment and decree dated 30.9.1982 passed by the Additional Judge, Small Causes Court, Pune, in Civil Suit No.1094/1978. That civil suit was filed by respondent No.1 - P.S.Nagarkar - claiming therein that he is owner of House No.259, Shukrawar Peth, Pune, and that the father of the petitioner was a tenant of the room in the said house. The landlord sought a decree of eviction against the tenant on two grounds : (1) that the tenant is not ready and willing to pay the rent and (2) that the landlord needs the suit premises for his own bona fide occupation. The trial court recorded findings in favour of the landlord and decreed the suit, directing the tenant to vacate the suit premises. In the Appeal filed by the tenant, the appellate court confirmed the findings recorded by the trial court and dismissed the appeal. Therefore, in the present petition, both the orders passed by the courts below have been challenged.

(2.) IN so far as the first ground is concerned, learned counsel for the petitioner urged that a notice under sub-section (2) of section 12 of the Bombay Rent Act was issued on 28.9.1977 which was received by the tenant Sadashiv on 3.10.1977. The tenant Sadashiv died on 13.10.1977 and the suit was filed on 15.10.1978. Learned counsel urged that in terms of the provisions of section 12(2) of the Act, no suit for recovery of possession can be instituted by a landlord against a tenant on the ground of non-payment of rent until the expiry of one month next after a notice in writing of the demand of rent has been served upon the tenant. In the submission of the learned counsel, therefore, it is necessary, in order to comply with the provisions of sub-section (2) of section 12 of the Act, that the landlord must satisfy the court that the tenant against whom a suit has been filed has been served with the demand notice before institution of the suit. The suit was filed against the present petitioner and the present respondent Nos.2 to 5, who are the legal representatives of the deceased tenant. Admittedly no notice has been served on the present petitioner. Perusal of the Judgment of the appellate court shows that while dealing with this point, it has relied on a judgment of this Court in the case of Chandrakant Govindrao Shinde V. Naliammabai Narsappa Pedram, 1984 Mh.L.J. 828. It is clear from the observations of this court in that judgment that in that case, this court was dealing with a case where a tenant on whom notice under section 12(2) of the Act was served had expired after the expiry of the period of one month and therefore this court ruled that if on a tenant a notice under section 12(2) is served and the tenant does not take any steps within a period of one month from the date of receipt of the notice and thereafter even if the tenant dies, the landlord can file a suit on the basis of the same notice against the legal representatives of the tenant because after expiry of the period of one month after service of the demand notice, a right accrues to the landlord. However, in the present case the tenant has admittedly died before expiry of the period of one month from the date of receipt of the demand notice and therefore the observations made in the judgment of this court in Chandrakant's case (supra) were clearly not applicable. In my opinion, as the tenant expired within one month of the service of the demand notice, notice to the legal representatives of the tenant was necessary under section 12(2) of the Act before instituting the suit. The suit in the present case has been instituted on 15.10.1978. Therefore, in my opinion, no suit on the ground of default could have been instituted by the landlord against the petitioner without serving him with a notice under section 12(2) of the Act. Therefore, the finding recorded by both the courts below on the question of default is liable to be quashed and set aside.

(3.) IN the result, therefore, the petition succeeds and is allowed. Rule is made absolute in terms of prayer clause (c) with no order as to costs.