JAIKISHAN TARACHAND Vs. KISHANCHAND VALIRAM BULCHANDANI & OTHERS

JUDGEMENT

(1.) The petitioner is tenant of one room in Block No. 0-1 situated at Camp No. 4, Ulhasnagar, District Thane. The petitioner was in occupation of these premises long prior to the year 1963 and was paying rent of Rs. 18.25 per month to the State Government, who was owner of the premises. In addition to the rent. the tenant was required to pay conservancy charges which varied from Re. 1 to Rs. 2.75.00 in accordance with the services rendered, Respondent No. I landlord is a displaced person settled at Ulhasnagar and acquired the suit premises from Settlement Department, Ministry of Rehabilitation for consideration of Rs. 5000.00 on June 12, 1963. The ownership of the suit premises was transferred to the 1st respondent subject to the tenancy rights of the petitioner. On acquisition of the premises the respondent No. 1 landlord started charging rent at Rs. 21/- inclusive of all the taxes from the tenant.

(2.) On April 3, 1964 the landlord issued notice to the tenant under Sec. 12(2) of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the Rent Act") demanding arrears from June 1, 1963 at the rate of Rs. 21/- per month. On April 24, 1984 the tenant sent reply claiming that the rent of the premises is only Rs. 18.25 and the landlord is charging excessive rent at the rate of Rs. 21/-. The tenant also forwarded a sum of Rs. 200.00 along with the reply. The arrears demanded by the landlord at the rate of Rs. 21/- amounted to Rs. 210.00. The landlord received the sum of Rs. 200.00. The landlord instituted Regular Civil Suit No. 267 of 1972 in the Court of Civil Judge, Junior Division, Ulhasnagar for recovery of possession on two grounds (a) default in payment of rent for period of more than six months and (b) bona fide personal requirement as contemplated under Sec. 13(1)(g) of the Act. The trial court after recording evidence held that the ground of bona fide personal requirement is not established by the landlord. The trial Judge found that the tenant was in arrears for duration of more than six months on the date of receipt of notice under Sec. 12(2) of the Rent Act and within 30 days of the receipt did not clear the entire arrears and was therefore liable to be evicted under Sec. 12(3)(a) of the Rent Act. The decision/recorded by the trial Judge was confirmed in appeal by the 2nd Extra Assistant Judge, Thane, by judgment dated Jan. 23, 1981 and the decisions of the two courts below are under challenge in this petition filed under Art. 227 of the Constitution of India.

(3.) Shri Walawalkar, learned counsel appearing on behalf of the petitioner, submitted that the courts below were in error in passing decree of eviction in the peculiar circumstances of this case. Shri Walawalkar did not dispute that the tenant was in arrears for duration of ten months and the rent accumulated was Rs. 210.00. Shri Walawalkar fairly submitted that the tenant had filed application being Miscellaneous Application No. 60 of 1987 for fixation of standard rent, but that application was dismissed for default on April 4, 1968. Thereafter the original tenant died and his legal representatives are in occupation of the premises. Shri Walawalkar submits that the landlord received the amount of Rs. 200.00 sent by the tenant within 30 days of the date of receipt of notice and though the amount was less by Rs. 10.00 still the landlord did not think it wise to institute suit for eight years. The suit was instituted only in the year 1972 and the main ground was bona fide personal requirement. The ground of arrears was an incidental ground because the tenant was in arrears in 1964 and had paid the rent and was not in arrears from 1964 to 1972. Shri Tilwani, learned counsel appearing on behalf of the respondent landlord, on the other hand submitted that the two courts below have found that the tenant was in arrears of rent for more than six months and was liable to be evicted under Sec. 12(3)(a) of the Rent Act and that decision should not be disturbed in exercise of writ jurisdiction. Shri Tilwani submitted that right from the decision recorded by the Supreme Court reported in Harbanslal Jagmohandas & Anr. Vs. Prabhudas Shirlal, AIR 1976 Supreme Court 2005 the courts have taken consistent view that to avoid decree of eviction the tenant must pay entire arrears within period of 30 days or file application for fixation of standard rent during that period. The tenant having failed to do either of the things decree of evidence, says Shri Tilwani, must follow. The learned counsel referred to the decision of Division Bench of this Court reported in Jaypal Bandur Adake and Anr. Vs. Basavati Gurulingappa Mhalank & Anr., 1982 Mah. LJ 512 .