DAULATRAO MADHAWRAO Vs. SONABAI DINKAR

JUDGEMENT

(1.) THIS Writ Petition under Article 227 of the Constitution of India takes exception to the Judgment and Decree passed by the Additional district Judge, Kolhapur dated 27th August 1990 in Regular Civil Appeal No. 382 of 1984 thereby reversing the Judgment and Decree of possession ordered by the IIIrd Joint Civil Judge, Junior Division, Kolhapur dated 28th September, 1984 in Regular Civil Suit No. 165 of 1975. The original petitioner (predecessor of the present petitioners) being the landlord in respect of premises situated on cts No. 634 C, in 'e' Ward at Kolhapur having two rooms, one admeasuring 30' x 23' 3" and other 30' x 10', instituted Suit for possession of the said premises against the original respondent (predecessor of the present respondents)on different grounds. However, before this Court the petitioners have confined to ground of default and bona fide requirement.

(2.) THE Suit filed by the landlord was decreed by the trial Court on the ground of default, bona fide requirement as well as non-user of the tenement for the purpose for which it was let. The Appellate Court, however, reversed the decree of eviction on all the three counts. Against the said decision of the appellate Court, the landlord has filed the present Writ Petition under Article 227 of the Constitution of India and pressed for restoration of decree of possession ordered by the trial Court limited to grounds of default and bona fide requirement.

(3.) REVERTING to the first ground on which the landlords pray for possession of the suit premises, will have to be addressed keeping in mind the following admitted facts : the landlord issued demand notice dated 19th December, 1974 terminating the tenancy, amongst others, on the ground of default in payment of rent. In the said notice sent to the tenant, it was asserted that the tenant was in arrears since november, 1973, which period was more than six months anterior to the date of notice. The tenant on receipt of the said notice, remitted sum of Rs. 350/- (Rupees Three Hundred Fifty) to the landlord on 31st December, 1974, which was accepted by the landlord. There is no dispute on these facts. The controversy, however, was in relation to the mode of tenancy-whether it was monthly tenancy or yearly tenancy. According to the landlord, the tenancy was on monthly basis; whereas according to the tenant, it was on yearly basis. The Appellate Court has found as of fact that the tenancy was on monthly basis but the rent was payable yearly. Insofar as the finding of fact recorded by the Appellate Court that the tenancy was on monthly basis, is not in issue. Even the finding of fact recorded by the Appellate Court that the rent was payable on yearly basis is not assailed. On this finding, it necessarily follows that the ground of eviction under section 12 (3) (a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as 'the Act') was not available in the fact situation of the present case. The Appellate Court then proceeded to reverse the decree of possession on the ground of default, granted by the trial Court, on the reasoning that once section 12 (3) (a) is inapplicable, remedy under section 12 (3) (b) also will not be available to such tenancy. To examine the correctness of this opinion, we shall straightway refer to section 12 of the Act as it applied to the case on hand, which reads thus :