BALU DADOBA AITAVADEKAR Vs. JAYAWANT BALAJI DAUNDE

JUDGEMENT

(1.) PETITIONER No. 1 is tenant of the portion of house bearing City Survey No. 2410/A/4 situated at Wai in Satara District. Respondent No. 1 landlord instituted suit for recovery of possession on the ground that the premises are required bonafide and reasonably for personal occupation and also that the tenant had committed default in payment of rent for the period in excess of six months and therefore liable to be evicted under Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the Rent Act"). The trial Court after recording evidence came to the conclusion that the landlord-respondent No. 1 failed to establish the requirement as well as the fact that the tenants were in arrears. On the strength of this finding the trial Judge dismissed the suit. In appeal the 2nd Additional District Judge, Satara reversed the decree and ordered eviction of the tenant on the ground that the tenant had committed default in payment of rent and the case squarely falls under Section 12(3)(a) of the Rent Act. The lower Appellate Court also held that the landlord did establish that the premises are required bonafide and reasonably for personal occupation, but did not award possession on that count on the finding that greater hardship would be caused to the tenants by passing decree than to the landlord by refusing the same. The decree passed by the lower appellate court is under challenge in this petition filed under Article 227 of the Constitution of India.

(2.) SHRI Dalvi, learned counsel appearing on behalf of the petitioner, submitted that the original owner-respondent No. 1 had transferred the property to respondent No. 2 during pendency of the petition and due to that fact the ground of requirement would not survive. The lower Appellate Court has also not passed decree on the ground of requirement and the short issue is whether decree on the ground of default can be sustained. It is not in dispute that notice that dated 4th February, 1974 under Section 12(2) of the Act was served on the tenant on 8th February, 1974. The tenant was admittedly in arrears of rent for a period in excess of six months, and the rent was not tendered within one month, nor any application under Section 11 of the Act for fixation of standard rent was filed within 30 days. In view of this undisputed position the provisions of Section 12(3)(a) of the Rent Act are squarely attracted. Shri Dalvi faintly submitted that the arrears become debt on the transfer of property and the purchaser would not be entitled to claim possession on the ground of default. The submission is devoid of any merit. It is now well settled that the arrears do not become debt on transfer of property. The question whether right of recovery is available to the purchaser need not be examined in the present case as respondent No. 1, the former owner, had not only exercised the right by instituting the suit but had obtained decree from the lower appellate court. What has been transferred to respondent No. 2 is therefore the property along with the decree for possession. In my judgment, the challenge to the decision of the lower Appellate Court is without any merit and the petition must fail.