MISHRILAL RATANCHAND ACHALLYA Vs. SUGANDHABAI SUGANCHAND

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 28.2.1984 passed by the 2nd Extra Assistant Judge, Nasik, in Civil Appeal No.238/1981. That appeal was filed by the present petitioner challenging the judgment and decree dated 15.7.1981 passed by the Civil Judge, Junior Division, Nandgaon, in Regular Civil Suit No.259/1972. The civil suit was filed by Sau.Sugandhabai, of whom the present respondents are the heirs and legal representatives, claiming therein that she is owner of the house standing on Survey No.952-C of Manmad and that the petitioner is a tenant of room No.1 on the ground floor of the building. She claimed a decree of eviction against the tenant on the ground that the tenant is not ready and willing to pay the rent. During the pendency of the suit, the landlady expired and her legal representatives - the present respondents - were brought on record. The trial court found that the decree under section 12(3)(b) of the Bombay Rent Act was liable to be passed against the tenant because the tenant was extremely irregular in making the deposits of arrears of rent as also in depositing the monthly rent. The trial court therefore passed a decree against the tenant. The judgment and decree passed by the trial court were challenged in appeal by the petitioner. However, the appellate court dismissed the appeal. It is these two judgments which are challenged in this petition.

(2.) SHRI Thorat, learned counsel appearing for the petitioner, urged before me that as a result of compromise arrived at in the earlier suit, being Regular Civil Suit No.10/1969, the original landlady accepted the petitioner as a tenant and withdrew the suit on 12.8.1971. The only submission that was made by the learned counsel for the petitioner was that considering the fact that the tenant had sent money orders representing the monthly rent of the suit shop at the agreed rate of Rs.33/- p.m. were refused by the landlady, on the date on which the demand notice was issued, the tenant was not in arrears of rent for a period of more than six months. In my opinion, however, whether the tenant was in arrears of rent for a period of more than 6 months or 5 months as contended by Shri Thorat, is not much relevant in the present case because the decree has been passed against the tenant under section 12(3)(b) of the Bombay Rent Act which requires that in case a tenant is in arrears of rent and a suit for a decree of eviction is filed by the landlord, then the tenant shall on the first date of hearing or on such further date as the court may fix deposit the arrears of rent and shall go on depositing the amount of monthly rent regularly. The appellate court in paragraph 15 of its judgment has found that the tenant-petitioner never deposited the arrears of rent. It has further found that the tenant was extremely irregular in depositing the amounts of monthly rent. It has further found that in the years 1975, 1976, 1978 and 1980 no deposits were at all made. The court has further found that whenever the deposits were made, the entire amount due was also not deposited. In the face of these findings recorded by the courts below, in my opinion, no fault can be found with the decree passed by the trial court under section 12(3)(b) of the Act against the tenant and which is confirmed by the appellate court. In the face of the concurrent findings of fact recorded by the courts below and in the absence of any manifest error of law being pointed out to me, in my opinion, I would not be justified in interfering with the orders impugned in the petitions in my jurisdiction under Article 227 of the Constitution of India.

(3.) AT this stage, the learned counsel for the petitioner requests that considering the fact that the petitioner has been carrying on his business for the last about 18 years in the suit premises, he should be given a reasonable time to vacate the suit premises. Learned counsel appearing for the respondents does not oppose the request. In view of this and considering that the petitioner has been in occupation of the premises for such a long time and that he is carrying on his business there, in my opinion, it would be reasonable to grant the petitioner one year's time to vacate the suit premises. Of course, this will be subject to the condition that the petitioner submits an undertaking to this court in the usual form within a period of three weeks from today. In this view of the matter, it is directed that the decree of eviction passed against the petitioner shall not be executed for the period ending with 31st May 1998 subject to the condition that the petitioner submits an undertaking to this court in the usual form within a period of three weeks from today. Failure of the petitioner to submit the undertaking within the aforesaid period shall however entitle the respondent-landlords to execute the decree immediately.