VIDYADHAR SHRIPAD DIWAN Vs. MADHAV KRISHNA KULKARNI

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioners challenge the order dated 27.3.1985 passed by the Additional District Judge, Sangli in Reg. Civil Appeal No.124/1984. That appeal was filed by the respondents challenging the judgment and decree dated 30.11.1983 passed by the IInd Joint Civil Judge, Jr.Dn.Sangli in Regular Civil Suit No.75 of 1980. That civil suit was filed by the petitioners claiming therein that they are owners of house No.525/A and that the respondent is a tenant of two rooms on the ground floor. The landlord sought decree of eviction against the tenant on the ground that the tenant is not ready and willing to pay the rent and also the tenant is causing nuisance to the neighbourers. The trial Court held in favour of the landlord on both the grounds and decreed the suit in favour of the landlord and directed the tenant to vacate the suit premises. In the appeal filed by the tenant, the appellate Court reversed the finding recorded by the trial court on the ground that the tenant is not ready and willing to pay the rent. In so far as the ground of nuisance is concerned, instead of passing a decree of eviction against the tenant on that ground, the appellate court issued an injunction, restraining perpetually the tenant from keeping any articles except keeping wet clothes for drying in the passage in dispute and also issued declaration that the tenant is entitled to make use of the said passage for going to latrine and bath-room. In the present petition filed by the landlord, therefore, what is principally challenged is the finding recorded by the appellate court that the landlord has not established that the tenant is not ready and willing to pay the rent.

(2.) THE learned counsel appearing for the petitioners urged before me that a notice dated 19.11.1979 was issued by the landlord under sub-section 2 of section 12 of the Bombay Rent Act, demanding from the tenant arrears of rent from June 1978. There is no dispute that this demand notice was duly received by the tenant. It is also not in dispute that the total amount of rent demanded by the landlord from June 1978 to the date of the notice was about 900/- rupees. However, the tenant sent money order of Rs.400 after receiving the demand notice, which the landlord refused to accept because the tenant did not tender the full amount demanded by the demand notice. It is also an admitted fact before me that the tenant did not file application for fixation of the standard rent under sub-section

(3.) SHRI Navare also relied on the observations of the Supreme Court in the case of Tayabali Jaffarbhai Tankiwala v/s. Messrs. Asha & Co. And another (1970(1) Supreme Court Cases 46), in support of his contention that a notice can be waived by issuance of subsequent notice or conduct of the landlord. In my opinion, though there can be no quarrel with the proposition that the landlord who issues a notice of demand, can either expressly or by necessary implication waive his first notice and then issue a second notice. Thus what falls for consideration in this case, is whether considering the contents of the two demand notices, can it be said that the landlord by issuing the second notice dated 10.1.1980 has waived the first notice. Perusal of the first notice shows that the landlord informed the tenant that he has not paid rent from June 1978 and therefore, the tenant should immediately pay the amount of rent. It is thus clear that what was demanded by the first notice, was arrears of the amount of rent, which were due from the tenant. In the second notice, the landlord had specifically referred to the first notice and stated that by that notice rent from June 1978 was demanded. That notice was served on the tenant and despite service, the tenant has not complied with that notice and therefore, certain rights have accrued to the landlord when the second notice was being issued, demanding the amount of permitted increases without prejudice to the rights that have accrued to the landlord as a consequence of issuance of the notice dated 19.11.1979 and failure of the tenant to comply with that notice within statutory period of one month. Therefore, after reading the contents of the second notice, it can never be said that by that notice the landlord has waived his first notice. The contents of the second notice on the other hand revealed that the landlord had issued second notice, demanding permitted increases, keeping the right accrued to the landlord as a result of issuance of the first notice intact. It is to be seen here that as a consequence of the issuance of the first notice dated 19.11.1978 and due to the failure of the tenant to comply with that notice in terms of the provisions of section 12(2) of the Act, a right has accrued to the tenant to institute the suit. Perusal of the second notice shows that the second notice was issued by the landlord, keeping his right to institute the suit intact. The suit has been instituted in exercise of that right which had accrued to the landlord. Shri Navare further submitted, that in the plaint it is stated that cause of action has arisen to the landlord to institute the suit as a result of the second issuance of the demand notice. In my opinion, that statement made in the plaint is absolutely wrong. However, as to what gives cause of action to the landlord to institute the suit is to be seen from the pleadings and evidence on the record and it is clear that the cause of action for institution of the suit that accrued to the landlord is traceable only to the first demand notice. So far as the other statement made by Shri Navare is concerned, it is clear from the provisions of section 12(2) of the Act that the landlord can issue a demand notice, demanding arrears of rent as also permitted increases. It is pertinent to note here that the landlord can issue a demand notice, demanding standard rent or permitted increases by using words standard rent or permitted increases. The legislation has given an option to the landlord to demand either the amount of standard rent or the amount of permitted increases or to demand both in the same notice. There may have been some substance in the contention of Shri Navare, had the legislature used 'and' between words standard rent and permitted increases. It is thus clear that two different and distinct demand notice can be issued by the landlord to the tenant, demanding standard rent and permitted increase. Therefore, issuance of 2nd notice, demanding permitted increase cannot be called supplementary demand notice as urged by Shri Navare. Thus I find that there was no justification for the appellate court to disturb the finding recorded by the trial Court on the ground of default committed by the tenant in payment of rent and therefore, the finding recorded by the appellate Court is liable to be quashed and set aside.