SHIOLING MANOHAR LONKAR Vs. BABA GANPAT GIRE

JUDGEMENT

(1.) BY means of this writ petition filed under Article 227 of the Constitution of India, the petitioners seek to impugn the judgment and decree passed by the 3rd Additional Small Cause Court Judge, Pune on 29.11.1982 and affirmed in appeal by Joint Judge, Pune on 28.6.1985 whereby the decree for eviction has been passed against the present petitioners and in favour of respondent and for recovery of arrears of rent and future mesne profits till the possession of the disputed premises are obtained by respondent.

(2.) THE respondent Baloba Ganpat Gire (original plaintiff) claims to have purchased the property comprising of two room tenement on the 2nd floor in house bearing No.793, Shrukrawar Peth, Pune by way of registered sale deed dated 13.12.73 from his previous owner Shri Ursekar. The said property at the time of the purchase was in possession of the present petitioners and, their mother Sitabai (for short "original defendants"). The original plaintiff filed the suit for eviction against the original defendants in the Court of Small Causes on the ground of willful default in payment of rent. The original plaintiff set out a case in the plaint that at the time of the purchase of the property by him the original defendants were already in arrears of rent to the tune of Rs.31.18 and the recovery of the said rent was assigned to him. Though the original defendants are occupying the premises in question on the monthly rent of Rs.10/- per month in addition to education cess, after the purchase of the property by the original plaintiff, they did not make any payment of rent. The original plaintiff therefore was constrained to issue a demand notice to the original defendants on 26.10.74 calling upon them to pay the arrears of rent and to deliver possession. The said notice was received and despite receipt of that notice, no payment of rent was made within one month thereof. Thereafter original plaintiff was constrained to file the suit.

(3.) THE learned counsel appearing for the petitioners raised two fold contention : (i) that notice u/s 12(2) was only served on one of the tenants and the co-tenant was not served with the said notice and, therefore, the decree has been erroneously passed by the Courts below; and (ii) that for period between 22/12/1973 and 21/10/1974 the entire arrears of rent was sent by money order and, therefore, it cannot be said that the tenant was defaulter.