HEMANAND BALKRISHNA JADHAV Vs. MALTIBAI VISHNU KARVE

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution of India is filed by original defendant No. 2 to challenge the legality of judgment dated June 18, 1982 passed by the 2nd Extra Assistant Judge, Pune, confirming the decree of eviction passed by the Small Causes Court, Pune on June 21, 1980. Few facts which led to filing of this petition, are required to be stated to appreciate the grievance of the petitioner.

(2.) THE suit premises were let out to the petitioner's father Balkrishna in the year 1950 for residential use. Balkrishna died in the year 1963 leaving behind his widow and children, who became tenants of the suit property. In the proceedings between the landlord and the tenants standard rent was determined at the rate of Rs. 75/- per month. On September 21, 1976, the landlord issued notice to the tenants claiming arrears of rent from January 1, 1976 to August 31, 1976 that is for a period of more than six months. The notice was served on widow Prabhavati on September 25, 1976 and Prabhavati died on the next day. The notice was served on defendant No. 6, one of the tenants, on October 1, 1976. Defendant No. 6 sent the entire rent in arrears and was received by the landlord on November 1, 1976, that is within a period of 30 days from the service of notice on defendant No. 6. The suit was instituted for recovery of possession on December 4, 1976.

(3.) SHRI Dalvi, learned counsel appearing on behalf of the petitioner submitted that the Courts below failed to appreciate that the provisions of Section 12(3) of the Rent Act have no application to the facts of the case, as averred by the plaintiff in the plaint. Section 12 of the Rent Act provides that the tenant would be liable to be evicted if default is committed for a period of six months in payment of rent and the default is not cleared within a period of one month from the date of service of notice by the landlord demanding the arrears. In the present case the notice was issued by the landlord on September 21, 1976 and though it was served on the some of the tenants on September 25, 1976, it was admittedly served on defendant No. 6 on October 1, 1976. The rent in arrears was forwarded by defendant No. 6 and received by the landlord on November 1, 1976. These are the specific averments made by the landlord in the plaint. Shri Dalvi is right in his submission that defendant No. 6, who was served on October 1, 1976, did tender rent which was received by the landlord within a period of 30 days and, therefore, the cause of action on the ground of default, did not survive. In my judgment, decree of eviction passed by the two Courts below under Section 12(3) of the Rent Act, therefore, cannot be sustained.