DATTATRAYA PANDHARINATH Vs. TUKARAM RAMJI LOHARI

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 31.12.1984 passed by the Additional District Judge, Nasik, in Civil Appeal No.313/1981. That appeal was filed by the petitioner challenging the judgment and decree dated 30.7.1981 passed by the II Joint Civil Judge, Junior Division, Nasik, in Regular Civil Suit No.1054/1976. That civil suit was filed by the respondent claiming therein that he is owner of House No.245, situate at Fawade Lane, Nasik City, and that the petitioner is a tenant of two rooms on the ground floor of the said house. The decree was sought by the landlord against the tenant mainly on the ground that the tenant is not ready and willing to pay rent. The trial court, on the basis of the evidence on record, held that the tenant is not ready and willing to pay the rent and that he has not complied with the requirements of section 12(3)(b) of the Bombay Rent Act and therefore a decree of eviction was passed against the tenant. In the appeal filed by the tenant, the appellate court confirmed the finding recorded by the trial Court and dismissed the appeal. In this petition therefore these two orders passed by the Courts below are challenged.

(2.) THE admitted position is that on 27.11.1972 a notice under sub-section (2) of section 12 of the Act was issued by the landlord to the tenant demanding arrears of rent. It is also an admitted position that within one month of the receipt of this notice, the tenant submitted an application for fixation of standard rent under sub-section (3) of section 11 of the Act. Both the Courts below have concurrently found that because the application for fixation of standard rent was filed by the tenant within one month from the date of receipt of the demand notice, a decree of eviction under section 12(3)(a) of the Act cannot be passed against the tenant. Both the courts have also found that a decree under section 12(3)(b) of the Act can be passed against the tenant.

(3.) IN the result, therefore, the petition partly succeeds and is allowed. The orders passed by the Additional District Judge, Nasik, dated 31.12.1984 in Civil Appeal No.313/1981 and the judgment and decree dated 30.7.1981 passed by the II Joint Civil Judge, Junior Division, Nasik, in Regular Civil Suit No.1056/1976 are quashed and set aside. Regular Civil Suit No.1054/1976 is remanded back to the trial court for de novo hearing and disposal in accordance with law. Rule made absolute accordingly with no order as to costs.