KUNJIRAM BHESORAM BHAYYA Vs. NIRMALABAI VINAYAK KELKAR

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 27.7.1984 passed by the Extra Assistant Judge, Thane, in Civil Appeal No.344/1982. That appeal was filed by the respondents Nos.1 and 2 challenging the order dated 30.6.1982 passed by the 2nd Joint Civil Judge, Kalyan, in Civil Suit No.412/1975. That Civil Suit was also filed by respondent Nos. 1 and 2 claiming therein that they are owners of House No.1A situated in Ali No.78, Tilak Chowk, Kalyan, and that the original petitioner, of whom the present petitioner is the legal representative, is tenant of one block in those premises. The landlords sought a decree of eviction against the tenant on the ground that the tenant had committed default in payment of rent and also on the ground that the tenant had erected permanent structure on the suit premises. The trial Court recorded findings against the landlords and dismissed the suit. In the appeal filed by the landlords, the appellate Court reversed the finding on the question of default committed by the tenant in payment of rent and held that the tenant is not ready and willing to pay the rent. The appellate Court, however, maintained the finding recorded by the trial Court on the question of permanent structure. As a result, the appeal was allowed and the suit for a decree of eviction against the tenant was decreed and the tenant was directed to vacate the suit premises. In this petition, it is the order of the appellate Court which is challenged by the tenant.

(2.) SOME facts necessary and relevant for decision of this writ petition are that the tenant was in arrears of rent admittedly since 1972. Therefore a notice dated 26.5.1975 was issued by the landlady Nirmalabai demanding arrears of rent from the tenant. This notice was issued under sub-section (2) of section 12 of the Bombay Rent Act. After this notice was issued, there was an agreement reached between Nirmalabai and the original petitioner-tenant. The parties agreed that the amount of arrears of rent which was agreed to be Rs.4,135/- would be paid by the tenant by instalment of Rs.50/- p.m. along with the current Rent at the rate of Rs.22.50 p.m. Thus, the tenant agreed to pay to the landlady an amount of Rs.72.50 together with interest at the rate of 6% per annum every month. The agreement further provided that in case the tenant commits default in payment of these instalments and the rent for a period of two consecutive months, the agreement shall stand cancelled and the demand notice issued by the landlady to the tenant shall revive and it will not be necessary for the landlady to issue a fresh notice demanding arrears of rent. Admitted position is that after this agreement, the tenant did not pay a single instalment as agreed. As a result, after two months of the agreement, as there was no payment from the tenant, the agreement stood cancelled and as per the term in the agreement, the demand notice issued by the landlady to the tenant under sub-section (2) of section 12 of the Act stood revived. Thereafter, the landlady Nirmalabai on the basis of the demand notice issued by her on 26.5.1975, instituted Regular Suit No.412/1975 claiming a decree of eviction against the tenant. During the pendency of this Civil Suit, Nirmalabai transferred the property to respondent No.2 Sharad who was joined as plaintiff No.2 in the civil Suit.

(3.) NOW , it is to be seen here that so far as the first contention urged by Shri Gokhale is concerned, according to him by reason of the agreement, the arrears of rent were converted into a debt. He placed reliance on the judgment of the Supreme Court in Ram Deo Umrao Singh, (1980) 1 Supreme Court Cases 59 for this proposition. In my opinion, whether in each case, as a result of an agreement between a landlord and a tenant, the arrears of rent would get converted into a debt, would depend on the terms and conditions of the agreement concerned. In so far as the agreement in the present case is concerned, it is specifically provided for payment of arrears of rent by instalments by the tenant. However, it was also provided that if the tenant committed default in payment of instalments for a period of two consecutive months, then the agreement will stand cancelled and the demand notice would revive. The agreement clearly mentions that there was clear agreement between the parties that in case the tenant commits default in payment of the instalments, the amount of arrears of rent would revive its character as such. The notice of demand will also revive and in the agreement it is specifically stated that it would not be necessary for the landlady then to issue a further notice. Now, it is clear that the provisions made in sub-section (2) of section 12 of the Act of giving one month's notice to the tenant demanding arrears of rent are for the benefit of the tenant. Therefore, it is up to the tenant to waive or give up that notice. The recital in the agreement is clear that it was agreed that if the tenant commits default in payment of the instalments, then he gives up his right to receive notice under sub-section (2) of section 12 of the act before institution of the suit. Therefore, in my opinion, the first submission of Shri Gokhale has no substance.