GANESH GOVIND VAZE Vs. MURLIDHAR GANESH JOSHI

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 13.7.1983 passed by the Joint Judge, Pune in Civil Appeal No. 632/1981. That appeal was filed by the respondents challenging the judgment and decree dated 24.4.1980 passed by the 3rd Addl. Judge, Small Causes Court at Pune in Civil Suit No. 1277/80. That Civil Suit was filed by the petitioners claiming to be the owner of the house No.505, Sadashiv Peth, Pune and further claiming that the defendant No.1 Murlidhar is a tenant in those premises. The landlord sought a decree of eviction against the tenant on three grounds, namely that the tenant has changed user of the suit premises; that the tenant has unlawfully sublet the suit premises and that the tenant is not ready and willing to pay the rent. The trial court found in favour of the landlord on all the three grounds and decreed the suit in favour of the landlord and directed the tenant to vacate the suit premises. In the appeal filed by the tenant, however, the appellate court reversed the findings recorded by the trial court on all the three grounds and allowed the appeal and set aside the judgment and decree passed by the trial court and dismissed the suit. In this petition filed by the landlord therefore, it is the order of the appellate court which is challenged.

(2.) THE learned counsel appearing for the petitioner landlord submitted that a demand notice was issued dated 19.11.1979, demanding increase in rent which the landlord is permitted to make such a demand under section 10(AA) of the Bombay Rent Act. Admitted position is that this notice was not complied by the tenant. The trial court found that the landlord was entitled to demand increase of rent on account of increase in taxes under section 10(AA) of the Act and as the tenant did not comply with this notice a decree of eviction was passed against the tenant. The appellate court however, found that the landlord was not entitled to demand increase in rent under section 10(AA) of the Bombay Rent Act and therefore, the Appellate Court reversed the findings of the trial court. In the submissions of the learned counsel the reasoning adopted by the appellate court is perverse. He pointed out that when a general tax is levied under section 129 of the Bombay Provincial Municipal Corporations Act, 1949 a landlord is entitled to claim the amount of increase paid by the landlord to the Municipal Corporation by way of increase in the rate of tax and the amount if any by which the irremovable property tax is reduced after 31st March,1949 or 5% of the Standard Rent which ever is less. The landlord was claiming 5% increase in the rate of rent under Section 10(AA). The landlord in support of his demand has produced two bills relating to the years 1949 and 1951. It was the case of the landlord that these taxes have not been paid by the tenant from 1954. The reason that has been given by the appellate court that section 10(AA) does not entitle the landlord to recover the taxes only after the date on which the demand notice is issued. Perusal of the provisions of section 10(AA) ) makes it clear that the liability of the tenant accrues after the tax is levied by the corporation. A demand notice is required to be issued by the landlord in case there is failure on the part of the tenant to pay rent. Therefore, it cannot be said, as has been done by the appellate court, that the liability of the tenant would arise only from the date of the notice. I do not find anything in Section 10(AA) in support of this reason given by the appellate court. In my opinion, there was no justification absolutely for the appellate court to reverse the findings recorded by the trial court on this ground. As I find that the landlord is entitled to a decree of eviction against the tenant on the ground of non payment of rent. I do not think it necessary to go in to other grounds on which the trial court had decreed the suit in favour of the landlord.