KASAMSAHEB NABISAHEB Vs. RAMCHANDRA BABAN KSHIRSAGAR

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 28.8.1984 passed by the 3rd Extra Assistant Judge, Pune in Civil Appeal No.553. That appeal was filed by the present petitioner, challenging the judgment and decree passed by the Additional Small Cause Judge, Pune dated 19.3.1982 in Civil Suit No.2392/1979. That civil suit was filed by the respondents, claiming therein that they are owners of house No.930 at Bhavani Peth, Pune and that one room in the house was let out to the petitioner Kasamsaheb as a tenant. The landlord alleged in the suit that the petitioner Kasamsaheb is not ready and willing to pay the rent and that he has sublet the suit premises to the defendant No.2 Shaikh Amir. The trial court recorded finding against the landlord on the question of the default committed by the tenant in payment of rent. However, the trial court found in favour of the landlord on the question of subletting. As a result the trial court passed a decree, directing the eviction of the tenant from the suit premises. Thereafter two appeals were filed against the judgment and decree passed by the trial court, one filed by the present petitioner Kasamsaheb being Civil Appeal No.553/82 and the other being Civil Appeal No.538/82 was filed by the defendant No.2 Sheikh Amir. The appellate court maintained the finding recorded by the trial court on the question of subletting. However, the appellate court reversed the finding recorded by the trial court on the question of default committed by the tenant in payment of rent. The appellate court found that the tenant was liable for decree of eviction against him under section 12(3)(a) of the Bombay Rent Act. Thereafter, two petitions filed against the common judgment passed by the appellate court in the above referred two appeals. By my judgment in writ petition No.4537/1984, filed by the Shaikh Amir, the defendant No.2 in the Civil Suit, I have held that as the subletting in favour of the defendant No.2 Shaikh Amir took place before 1.2.1973, a decree of eviction cannot be passed against the defendant No.2 on that ground. Similarly for the same reason a decree of eviction cannot be passed against the present petitioner on the ground of subletting. That leaves only one ground for consideration, namely, whether the tenant was or was not ready and willing to pay the rent. It is pertinent to note here that this ground is found against the tenant only by the appellate Court. The trial court had held that the demand notice issued by the landlord under section 12(2) of the Bombay Rent Act was incompetent. It is an admitted position that the suit property was purchased by the present landlord on 15.4.1978. It is also an admitted position that the landlord did not issue any attornment notice to the tenant. The demand notice was issued by the landlord on 11.7.1979, which was received by the petitioner Kasamsaheb on 14.7.1979. In this notice it was stated that the present landlords have purchased the property on 15.4.1978. This notice was replied to by the tenant. By that reply the tenant called upon to the landlord to give him copy of the document by which the new landlord has purchased the premises, within 8 days from the receipt of the reply, so that he could make the payment of the arrears of the rent. Admitted position before me is that this reply is received by the landlord and the landlord had at no point of time sent to the tenant a copy of the conveyance of the property made in their favour. Shri Dalvi, the learned counsel appearing for the petitioner submitted before me that it is an admitted position that the tenanted property was purchased by the respondents and therefore, it was for them to inform the tenant that they have purchased the property and that the rent should be paid to them. He urged that it is nobodies case that any such written notice was issued by the landlord to the petitioner-tenant Kasamsaheb at any point of time before the demand notice was issued. When this information for the first time was disclosed to the tenant by the demand notice that the property is purchased by the respondent and that the tenant has to pay the arrears of rent to them, in the submission of Shri Dalvi, the tenant was within his right to ascertain from the document as to whether the person who has issued him the demand notice is entitled to receive the rent or not. In the submission of Shri Dalvi, the tenant expressed his readiness and willingness to pay the rent on being shown a copy of the conveyance. In the submission of Shri Dalvi, therefore, in these circumstances, a conclusion cannot be reached that the tenant is not ready and willing to pay the rent.

(2.) SHRI Gorwadkar, the learned counsel appearing for the respondents, on the other hand submitted before me that because the sale deed was a registered document, the tenant had constructive notice of the transaction and therefore, the tenant was not justified in demanding copy of the conveyance before making the payment of rent. He further submitted that in view of the provisions of section 12(2) of the Bombay Rent Act, the moment the tenant receives a notice of demand, the only way to comply with that notice is to make the payment. In his submission the tenant is not entitled to get himself satisfied that the person who has issued demand notice is authorised to do so or not.

(3.) IN my opinion, the appellate court was not at all justified in the facts and circumstances of this case in disturbing the findings recorded by the trial court.