DENIEL MATHEW Vs. A.L. FERNANDES

JUDGEMENT

(1.) THIS is a tenant's petition filed under Article 227 of the Constitution of India, challenging the order dated 5th of August 1981 passed by the Appellate Court under the Bombay Rent Act in Appeal No. 267 of 1977, whereby the Appellate Court has allowed the Appeal filed by the Respondent. The Respondent had filed an Appeal before the Appellate Court challenging the judgment dated 5th of January 1977 passed by the Judge, Small Cause Court, Bombay in RAE Suit No: 2674 of 1972. The Respondent had filed RAE Suit No. 2674/72 for a decree of eviction against the petitioner. That suit was dismissed by the judgment dated 5.1.1997 of the Judge of Small Cause Court. The Appellate Court allowed the Appeal and decreed the suit for a decree of eviction against the petitioners.

(2.) THE original plaintiff i.e Respondent in the present petition - A.L. Fernandes had filed Civil Suit RAE No. 2674/72 before the Trial Court stating therein that the respondent -plaintiff and the petitioner were both the tenants in House No. 217 West Gaothan Vile Parle (West), Greater Bombay. The building was owned by Smt. Lalitaben B. Gandhi. The plaintiff stated that he purchased the said building by conveyance deed dated 12th October 1971. It was further urged that by letter dated 29.10.1971, the petitioner tenant was informed about the transaction. It was the case of the plaintiff in the plaintiff that the tenant has not paid the amount of rent since November 1971. Therefore, on 1.5.72 a notice was issued by the plaintiff to the respondent -tenant calling upon him to pay the amount of rent. That notice was received by the tenant on 8.5.1972. The said notice was replied to by the tenant by his reply dated 8.5.1972. He denied the title of the plaint in relation to the suit premises. The plaintiff, therefore, filed Civil Suit RAE Suit No. 2674 of 1972 for a decree of eviction against the tenant as he was not ready and willing to pay the rent. The Trial Court found that the date on which the notice of demand was issued namely, 1.5.1972, the tenant was not in arrears of rent for six months and therefore, decree under Section 12(3)(a) of the Bombay Rent Act cannot be passed against the tenant. In so far as the provisions of Section 12(3)(b) of the Bombay Rent Act are concerned, the Trial Court has held that as pursuant to the order or directions issued by the Court, the tenant has deposited an amount of Rs. 200/ - towards the arrears of rent, a decree of eviction cannot, be passed against the tenant under Section 12(3)(b) of the Act. It is to be seen that the plaintiff had denied the title of the plaintiff but that stand was given up before the Trial Court. The Appellate Court found that the Trial Court has committed an error in holding that the date on which the notice of demand was issued, namely, 1.5.1972, the tenant was not in the arrears of rent for six months. The Appellate Court also found that the deposit of Rs. 200/ - as per the directions of the Court, will not save the tenant from decree under Section 12(3)(b) and therefore, the Appellate Court allowed the Appeal and decreed the suit filed by the plaintiff, who is the respondent in this petition.

(3.) IN the result, therefore, the petition fails and is dismissed. Rule is discharged with no order as to costs.