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 of Section 11 of the Act within one month from the receipt of the demand notice. Therefore, in the submission of the learned counsel for the petitioners, the landlord became entitled to a decree of eviction against the tenant, as admittedly after receipt of the demand notice neither the payment of the amount demanded by the notice was made within one month nor an application for fixation of the standard rent under section 11(3) of the Bombay Rent Act was filed by the tenant.

(3.) Shri Navare, the learned counsel appearing for the respondent, however, urged that after issuing notice dated 19.11.1979, the landlord issued another notice dated 10.1.1980, demanding from the tenant the amount of permitted increase and also terminated the tenancy of the tenant. In the submission of Shri Navare, issuance of the second demand notice dated 10.1.1980 results in waiver of the first demand notice and therefore, as admittedly within one month from the receipt of the second demand notice dated 10.1.1980, the tenant made payment not only of the rent but also permitted increases, which demanded from him. In the submission of Shri Navare, the appellate Court was right in reversing the findings recorded by the trial Court. Shri Navare also urged that according to sub-section 2 of section 12 of the Act, the landlord is entitled to demand from the tenant the amount of rent which is in arrears as also the amount of permitted increases, which is due from the tenant and as the landlord issued first demand notice in November 1979, demanding arrears of rent and thereafter, second demand notice dated 10.1.1980 was also issued, which according to the learned counsel, would be a supplementary notice and therefore, if the tenant makes the payment within one month from the receipt of the second supplementary notice, no decree of eviction under section 12(3)(a) of the Act can be passed against the tenant.