VASUDEO GOPAL DHAMANKAR Vs. VITHAL MATHUR SHET

JUDGEMENT

(1.) THIS suit premises bearing City Survey No. 2611 are located at Mahad in Raigad District. The western half portion of this building is in occupation of the present petitioner in the capacity as the monthly tenant, the rental being Rs. 30/- per month and which was leased out for running a book shop. The first respondent-plaintiff felt that the petitioner-tenant has been in rental arrears for more than six months commencing from 1st of October, 1973. He also was of the opinion that the petitioner had committed act of waste and has not maintained the property as the prudent person would do and thus has violated the prescription under Clause (a) of Section 108 of the Transfer of Property Act. This was mainly on the ground that it was alleged that the petitioner-tenant had removed certain material such as planks, window panes, etc. The landlord also claimed that there has been non-user of the suit premises by the petitioner without any reasonable cause for the purpose for which those are leased out for a continuous period of six months. It is on account of these three items in a composite form that the first respondent issued notice to the petitioner on 26th of March, 1974 which is at Exht. 46 terminating the petitioner's tenancy as from 31st of March, 1974 and claiming possession on all these three counts. It as an admitted position that the rent that could have been claimed in that notice commenced from 1st of October, 1973 and thus on the date of the notice the petitioner was in rental arrears for five months and not for six months though presumably the landlord had claimed rent under that notice for a period of six months which would be to the tune of Rs. 180/-. It is further an admitted position that hardly within few days after the notice and certainly within the period of one month and to be precise it is on 31st of March, 1974 that the petitioner transmitted an amount of Rs. 180/- by money order in favour of the respondent-landlord which further admittedly was refused. Inspite of that the petitioner ultimately filed Regular Civil Suit No. 17 of 1975 in the Court of the Civil Judge, Junior Division at Mahad in which he claimed possession on three counts, the first under Section 12(3)(a) of the Rent Act alleging that the petitioner has been in rental arrears for more than six months which he did not pay within the stipulated period of one month nor any application for standard rent was filed within the stipulated period. The second ground was under Section 13(1)(a) of the Rent Act alleging that some acts of waste have been committed by the petitioner since certain material was removed from the building, and the third count was under Section 13(1)(k) of the Rent Act alleging the non-user of the premises for more than six months for the purpose for which those were leased out without any reasonable cause.

(2.) THE suit was resisted by the petitioner on all counts. As regards the claim for rental arrears it was strenuously contended that in fact the petitioner has not been in arrears at all alternatively even assuming otherwise he was certainly not in arrears for more than six months as contemplated by Section 12 of the Rent Act and therefore in effect the petitioner has always been ready and willing to pay rent and as such the suit under Section 12(3)(a) is not sustainable. The allegations on other two counts where possession is sought for under Sections 13(1)(a) and 13(1)(k) are also stoutly denied.

(3.) THE first respondent then preferred Civil Appeal No. 43 of 1977 in the District Court at Alibag which was ultimately disposed of by the learned Assistant Judge on 23rd of January, 1980. On the Appellate forum the ground under Section 13(1)(k) was not pressed on behalf of the landlord. The Appellate Court held on merits that the ground under Section 13(1)(a) was not established with the result that the two counts namely 13(1)(a) and 13(1)(k) were decided against the landlord which was in tune with the finding recorded by the trial court. As regards the issue under Section 12(3)(a) the lower Appellate Court endorsed all the findings as also the reasoning assigned by the trial Court and thereby holding that the tenant was not in arrears for more than six months at all and secondly even that amount was remitted within the stipulated period of one month and therefore, a finding was recorded that in reality no cause of action accrued in favour of the landlord so as to ask for possession under Section 12(3)(a). The chapter apparently would have been closed at that point of time by confirming the decree passed by the lower Appellate Court in dismissing the landlord's suit. However, the lower Court undertook further exercise under which it considered the impact of the provisions of Section 12(3)(b) of the Rent Act and on facts found that there have been irregular deposits towards the rent made by the tenant in the trial Court as also in the Appellate Court and therefore according to that Court the provisions of Section 12(3)(b) are attracted with the resultant consequence, that though the suit was dismissed under Section 12(3)(a) a decree for possession came to be passed under Section 12(3)(b) by the lower Appellate Court which however was not done by the trial Court. It is thus in the third round of litigation that the petitioner-tenant was obliged to move this Court under Article 227 of the Constitution of India.