PANDHARINATH MAHADU WANI Vs. DWARKADAS VANICHAND SHAHA

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioners challenge the order dated 15th October, 1984 passed by the II Extra Assistant Judge, Nasik, in Civil Appeal No.275 of 1979. That Appeal was filed by the respondent challenging the order dated 31st August, 1979 passed by the Civil Judge, Junior Division, Malegaon, in Regular Civil Suit No.331 of 1975. That Civil Suit was filed by the respondent claiming therein that he is the owner of House bearing City Survey No.39 consisting of 5 rooms situated in Shukrawar Ward and that the defendant No.1 who is the petitioner No.1 in the present petition is a tenant of the suit premises. In the suit, the landlord claimed that a notice dated 2nd August, 1972 was issued under sub-section (2) of Section 12 of the Bombay Rent Act to the petitioner No.1 demanding arrears of rent from 1.11.1969. However, according to the landlord, the tenant did not pay the arrears of rent and therefore, the landlord was entitled to a decree of eviction against him under Section 12(3) of the Bombay Rent Act. The landlord also sought a decree against the tenant on the ground that the tenant had unlawfully sublet the suit premises. It was the case of the tenant that the notice under Section 12(2) of the Bombay Rent Act was invalid because, according to the tenant, the notice is dishonestly issued and excessive amount was demanded from the tenant. The tenant also denied subletting of the suit premises. The trial Court recorded the finding in favour of the tenant holding that the landlord had dishonestly demanded excessive amount under the notice and, therefore, the notice was invalid. The trial Court also found that there was no unlawful subletting of the suit premises. In the result, the trial Court dismissed the suit. In appeal filed by the landlord, the appellate Court reversed the findings recorded by the trial Court and found that, relying upon a judgment of this Court in Changanlal Mulchand Jain vs. Narayan Jagannath Bangh. AIR 1983 Bombay 212, the suit notice was valid and, therefore, the landlord was entitled to a decree against the tenant-petitioner under Section 12(3)(a) of the Bombay Rent Act. The appellate Court also found that the tenant had in the year 1969 unlawfully sublet the suit premises. In the result, the Appeal was allowed and the suit filed by the respondent for a decree against the tenant stood decreed. Therefore, this order of the appellate Court which is challenged in the present petition.

(2.) IT appears that the present petition was rejected in limine by this Court on 11th January, 1985 and that order was challenged before the Supreme Court in Civil Appeal No.607 of 1985. That Appeal was decided by the Supreme Court by a judgment dated 20th February, 1985 and the order of this Court rejecting the petition in limine was set aside and the petition was remanded back to this Court for denovo hearing. Thereafter this Court admitted the petition for final hearing by order dated 8th April, 1985.

(3.) THE learned Counsel for the respondent, on the other hand, submitted that though it is now common ground that rent was not due from 1.11.1969 but that it was due only from October 1971, the tenant ought to have given reply to the notice and asserted that rent from October 1971 was only due. In the submission of the learned Counsel, the conduct of the tenant of not sending a reply to the notice does not entitle him to allege that the demand notice is invalid. In so far as the ground of subletting is concerned, in the submission of the learned Counsel, in 1969, the petitioner No.1 Pandharinath - entered into a partnership and, therefore, in the submission of the learned Counsel, the premises were unlawfully sublet in 1969. However, that partnership was dissolved before 1st December, 1973 and, therefore, in the submission of the learned Counsel, a decree, despite amendment to Section 15(2) can be passed against the petitioner No.1 on the ground of unlawful subletting.