PRASAD GULABRAO SHINDE Vs. VITTHAL TUKARAM BHOSALE

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 8-10-1986 passed by the District Judge, Pune in Civil Appeal No. 438 of 1985. That appeal was filed by the respondent challenging the order dated 10-7-1984 passed by the Second Additional Judge, Small Causes Court Pune in Civil Suit No. 836 of 1981. That civil suit was filed by the petitioner claiming therein that he is owner of the house bearing C.T.S. No. 245 Budhwar Peth, Pune-2 and that the respondent Vithal is a tenant in the house. The landlord claimed that the tenant is not ready and willing to pay the rent and therefore, sought a decree of eviction against him under section 12 of the Bombay Rent Act. The trail court found in favour of the landlord and passed decree under section 12(3)(a) of the Bombay Rent Act and directed the tenant to vacate the suit premises. In the appeal filed by the tenant, the appellate court however, reversed the findings recorded by the trail court, allowed the appeal set aside the judgment and decree passed by the trial court and dismissed the suit filed by the landlord. In this petition filed by the landlord, therefore, it is the order of the appellate court which is challenged.

(2.) WHEN the petition was called for final hearing none appeared for the petitioner and none appeared for the respondent. However, I have gone through the record of the case. It appears that the landlord issued a notice under sub-section 2 of section 12 of the Bombay Rent Act to the tenant dated 5th February 1981, stating therein that the last time on which the tenant paid rent, was on 18-9-1974 and therefore, the tenant is in arrears of rent from that date. The amount of monthly rent was stated as Rs.75 per month. The landlord also granted credit to the tenant of Rs.225/- which was deposited by the tenant with the municipal corporation as arrears of tax. The landlord also claimed arrears of permitted increase, namely educational cess, employment guarantee cess etc. Admitted position appears to be that the notice was received by the tenant on 6-2-1981. It further appears that on 14-3-1981 the tenant sent a draft in the amount of Rs.6306.20 to the landlord which was received by the landlord on 20-3-1981. The trail court found that the tenant was in arrears of rent for the period of more than 6 months and that the arrears of rent were sent by the tenant by the draft on 14-3-1981 which is beyond a period of one month from the receipt of the demand notice by the tenant. Therefore, the trail court found that a decree under section 12(3)(a) of the Act is liable to be passed against the tenant because the tenant has neither paid arrears of rent within one month of the receipt of the demand notice nor has he filed an application under section 11(3) of the Bombay Rent Act for fixation of the standard rent within that period or at any time thereafter. Perusal of the judgment of the appellate court, however, shows that the appellate court also found that the tenant was in arrears of rent from 1-12-1974. The appellate court also found that the notice was received by the tenant on 6-2-1981 and that the arrears of rent were sent on 14-3-1981 i.e. beyond a period of one month from the date of the receipt of the demand notice. However, according to the appellate court the decree under section 12(3)(a) of the Act cannot be passed because by the notice dated 5-2-1981 not only the arrears of rent were demanded but the amounts of permitted increases were also demanded and as the amounts of permitted increases were not payable by the month, a decree under section 12(3)(a) of the Act cannot be passed. Thereafter, the appellate court examined the case of the tenant under section 12(3)(b) of the Act and found that by the first date of hearing the tenant had deposited arrears of rent and permitted increases and that thereafter, also the tenant has regularly deposited the amount of rent in the court and therefore, a decree under section 12(3)(b) of the act also cannot be passed against the tenant.

(3.) AS I do not find that there was any justification for the appellate court to disturb the decree passed by the trail court, in my opinion the petition deserves to be allowed.