BALKRISHNA R DIVATE Vs. MOHANLAL R SANCHETE

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 7.6.1984 passed by the Joint Judge, Pune, in Civil Appeal No.480/1982. That appeal was filed by the petitioner challenging the order dated 15.1.1982 passed by the Additional Small Causes Judge, Pune, in Regular Civil Suit No.518/1979. That civil suit was also filed by the petitioner claiming therein that he is owner of House No.36, Ganesh Peth, Pune. It was stated that there was an open land on this property. There was an agreement reached between the petitioner Balkrishna and respondent No.1 Mohanlal, dated 11.7.1976. As per that agreement, respondent No.1 was to erect a construction on the open land according to the sanctioned building plan by spending a maximum amount of Rs.12,000/- on the construction and the property was to be let out to the respondent No.1 at the monthly rent of Rs.250/-. The amount spent on construction, which is Rs.12,000/-, was to be deducted from the amount of monthly rent at the rate of Rs.200/- p.m. and the tenant was to pay, till the amount of Rs.12,000/- is wiped out, an amount Rs.50/- p.m. to the landlord and thereafter at the rate of Rs.250/- p.m. The landlord alleged in the suit that because the tenant did not pay rent at the rate of Rs.50/- p.m. as agreed by agreement dated 11.7.1976, from 11.12.1976, a notice dated 13.4.1978 was issued by registered post acknowledgment due, under section 12(2) of the Bombay Rent Act demanding arrears of rent from the tenant. The tenant, according to the landlord, refused to accept the notice and therefore the notice is deemed to have been served on the tenant. The landlord claimed that within one month from the date of deemed service of the notice, the tenant has neither made payment of the arrears of rent demanded by the notice nor did the tenant make an application for fixation of standard rent under sub-section (3) of section 11 of the Act and therefore the landlord became entitled to a decree of eviction under section 12(3)(a) of the Act. Thus, the landlord claimed a decree of eviction against the tenant on this ground along with other grounds. The trial court recorded findings against the landlord and dismissed the suit. The trial court held that as the amount paid in advance i.e. Rs.12,000/-, was not entirely wiped out and till that amount is entirely wiped out, the landlord is not entitled to possession of the suit premises from the tenant. In the appeal filed by the landlord, the appellate court confirmed the findings recorded by the trial court and dismissed the appeal. In this petition, therefore, these two orders passed by the subordinate courts are challenged.

(2.) THE only contention that is urged by the learned counsel for the petitioner was that by agreement dated 11.7.1976, it was agreed between the parties that the monthly rent was Rs.250/- p.m. out of which Rs.200/- were to be adjusted towards wiping out the amount paid in advance by the tenant, and rent of Rs.50/- p.m. was to be paid by the tenant to the landlord. According to the learned counsel, both the courts below have committed an error in holding that the landlord was liable to adjust the entire amount of Rs.250/- towards repayment of the advance and if the tenant has failed to pay an amount of Rs.50/ p.m. as agreed, the tenant is not a defaulter. In the submission of the learned counsel, the agreement between the parties, dated 11.7.1976, is not contrary to any of the provisions of the Bombay Rent Act. According to this agreement, till the advance of Rs.12,000/- is wiped out, the tenant was under a duty to pay rent at the rate of Rs.50/- p.m. On the tenant committing default in making payment of that amount, a right accrued to the landlord to issue demand notice under sub-section (2) of section 12 of the Act. If the landlord exercised that right and issued notice to the tenant, on failure of the tenant to comply with the demand notice or to make an application for fixation of standard rent under sub-section (3) of section 11 of the Act within one month of the deemed receipt of the notice, a further right accrued to the landlord to institute a suit against the tenant. In the submission of the learned counsel, the courts below were not justified in denying this statutory right which had accrued to the landlord.

(3.) IN the light of the rival submissions made by the parties, if the provisions of the Bombay Rent Act and the record of the case are perused, it will be revealed that in terms of the agreement dated 11.7.1976, till the advance of Rs.12,000/- was fully adjusted, so far as the suit premises are concerned, Rs.50/- were payable to the landlord towards rent. It is further to be seen here that if Rs.50/- were the amount of rent payable by the tenant to the landlord every month in terms of the agreement of 11.7.1976, on the tenant failing to pay the rent, the landlord became entitled to issue a demand notice under sub-section (2) of section 12 of the Act. Sub-section 3(a) of section 12 of the Act reads as under :