NARAYAN APPA GAIKWAD Vs. MOTILAL DURGANA YADAV

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the Petitioner challenges the order dated 17th November, 1984 passed by the Second extra Assistant Judge, Pune, in Civil Appeal No.691 of 1983. That appeal was filed by the petitioner challenging the judgment and decree dated 31st January, 1983 passed by the III Additional Judge, Small Causes Court, Pune in Civil Suit No.699 of 1979. That Civil Suit was filed by the respondent claiming therein that he is the owner of House No.2150 from New Modikhana, Pune and that the petitioner is the tenant of the said house. The landlord sought a decree of eviction against the tenant on the ground that the tenant is not ready and willing to pay rent. The trial Court found in favour of the landlord only on one ground that the tenant is not ready and willing to pay the rent. As a result, the suit filed by the landlord was decreed and the tenant was directed 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. It is these concurrent findings recorded by both the Courts below which are challenged in the present petition.

(2.) THE admitted position appears to be that the present landlord purchased the property by a registered sale deed dated 2nd October, 1963, that after purchasing the said house by a rent note dated 6th October, 1963, the house was leased out to Maniklal Bansiram Rathod and his wife Shakuntalabai and it is these tenants who created sub-tenancy in favour of the present petitioner. It has revealed that a notice dated 7th June, 1978 was issued by the landlord to the tenant-petitioner demanding arrears of rent from 1.3.1968. There is no dispute that the demand notice was received by the tenant on 9th June, 1978. The notice was replied to and the reply is dated 21st June, 1978. It is an admitted position that the tenant has not made payment pursuant to the demand notice nor has he made any application for fixation of standard rent. However, in the suit, it was the defence of the tenant that the landlord has initiated proceedings for securing a decree of eviction against the original tenant Shakuntalabai and that those proceedings finally terminated in favour of the landlord on 21st April, 1982. It was the case of the petitioner that he being the sub-tenant of the original tenant Shakuntalabai was under the liability to pay rent of the suit premises to his landlord is original tenant till the original tenant was evicted from the suit premises and the eviction decree against the original tenant became final. It is clear from the observations of the Courts below that the eviction proceedings initiated against the original tenant finally terminated in favour of the landlord on 21st April, 1982. The Courts below however have said that because the petitioner was aware of the pendency of the proceedings initiated by the landlord against the original tenant, he ought to have made payment of rent to the owner of the premises. In my opinion, however, this does not appear to be the correct approach. As both the Courts below have concurrently found that the sub-tenancy in favour of the petitioner was created by the original tenant Shakuntalabai. So long as she continues to be the tenant, the said sub-tenant was under no obligation to pay rent to the owner but his obligation was to pay rent to Shakuntalabai. The said Sub-tenant acquired status of tenant under the provisions of Section 14 only after tenancy of the original tenant is terminated that event in the present case has taken place in the year 1982 and, therefore, it is obvious that in 1978 the owner was not entitled to demand any rent from the petitioner. It is thus clear that there is a serious error of law in the findings recorded by both the Courts below. The mere fact that the sub-tenant was aware of the proceedings going on between the original tenant and the landlord for eviction of the original tenant does not make the sub-tenant liable to make payment of rent to the owner in place of original tenant who will be landlord in relation to the sub-tenant. In my opinion, therefore, the findings recorded by both the Courts below are vitiated because of the patent error of law and, therefore, are liable to be quashed and set aside.