SOBHARAM MIHALCHAND Vs. VINAY THANRAJ TALERA

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 21.4.1988 passed by the 7th Additional District Judge, Pune in Civil Appeal No.258 of 1986. That Appeal was filed by the respondent, challenging the judgment and decree passed by the Small Cause Judge, Pune dated 20.11.1985 in Civil Suit No. 1372/1982. That Civil Suit was filed by the present petitioner, claiming therein that he is owner of the House No.CTS 98-B and that two rooms on the ground floor of the said suit house have been let out to the respondent, where he has set up his dispensary. The landlord sought decree of eviction against the tenant on two grounds, that the tenant is not ready and willing to pay the rent and that the landlord needs the suit premises for starting a business for his son. The trial Court recorded a finding in favour of the landlord on the question of tenant being not ready and willing to pay the rent and decreed the suit. The trial Court also found in favour of the landlord on the question of bonafide need. However, the trial court found in favour of the tenant on the question of comparative hardship. In the appeal filed by the tenant the appellate Court reversed the finding recorded by the trial court on the question of default committed by the tenant in payment of rent. The appellate Court also held that the landlord has not established that he bonafide needs the suit premises for setting up a business for his son. Therefore, it is this judgment of the appellate Court, which is challenged by the landlord in the present petition.

(2.) PERUSAL of the judgment of the appellate Court shows that the trial court had passed a decree in favour of the landlord under section 12(3)(b) of the Bombay Rent Act. The Appellate Court, however, wrongly held that the provisions of section 12(3) of the Act, as amended in the year 1987 have got reprospective effect and therefore, they apply to the present suit which was filed in the year 1982. Both the learned counsels are agreed before me that the provisions of Section 12(3)(b) have prospective effect and therefore, they do not apply to the present suit. Therefore, considering the provisions of section 12(3)(b) of the Act, I find from the judgment of the Trial Court that the trial Court has not even mentioned what was the first date of hearing of the suit and what was the amount paid by the tenant on the first date of hearing of the suit. In the absence of the finding by the trial Court on this aspect, in my opinion, decree under section 12(3)(b) could not have been passed. So far as the questions of bonafide need of the landlord and comparative hardship are concerned, both the learned counsels are agreed that there are some developments that have taken place during the pendency of the suit on the question of bonafide need of the suit premises of the landlord. Therefore, in my opinion, taking overall view of the matter it would be in the interest of justice to set aside the judgments of both the courts below and remit the civil suit No.1372/82 back to the trial court for de novo trial, hearing and decision in accordance with law.