RAMCHANDRA RUKMANNA GAIKWAD Vs. CHANDRAKANT DATUSE KATAV

JUDGEMENT

(1.) By this petition filed under Article 227 of the Constitution of India, the petitioners challenge the order dated 5.12.1983 passed by the II Extra Assistant Judge, Pune, in Civil Appeal No.339/1982. That appeal was filed by the original tenant-defendant, of whom the present petitioners are the legal representatives, challenging the judgment and decree dated 19.12.1981 passed by the II Additional Small Causes Judge, Pune, in Civil Suit NO.1773/1979. That suit was filed by the present respondent claiming therein that he is the landlord of one room admeasuring 10' x 10' on the ground floor of House bearing C.T.S. No.522 in Gurwar Peth, Pune. The landlord sought a decree eviction against the tenant on two grounds, namely, (1) that he has committed default in payment of rent and (2) that the landlord needs the suit premises for his bona fide occupation. The trial Court recorded a finding that a decree under section 12(3)(b) of the Bombay Rent Act is liable to be passed against the tenant as he has committed default in payment of rent. The trial Court also recorded finding in favour of the landlord on the question of bona fide need and comparative hardship. As a result, the suit was decreed. In the appeal filed by the tenant, the appellate court confirmed the finding recorded by the trial court on the ground of default committed by the tenant in payment of rent but reversed the finding recorded by the trial court on the ground of bona fide need. Thus, in the present petition what is challenged is the finding recorded by both the courts below on the ground of default committed by the tenant in payment of rent.

(2.) Learned counsel for the petitioners urged before me that sub-section (1) of section 12 of the Bombay Rent Act lays down that a landlord shall not be entitled to recover possession of any premises so long as the tenant pays and is ready and willing to pay the amount of standard rent. He further urged that sub-section (2) of section 12 of the Act further lays down that no suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non-payment of rent until the expiration of one month next after a notice in writing of the demand of rent has been served on the tenant. In the submission of the learned counsel, therefore, for instituting a suit for recovery of possession of premises from a tenant, it is necessary to show that the tenant was not ready and willing to pay rent. He further urged that, to show that the tenant is not ready and willing to pay the rent, it must be shown that he is in arrears of rent. The learned counsel invited my attention to the observations made by the trial court in paragraph 9 of its order wherein the trial court has observed that initially the respondent's father was the owner of the suit premises and the rent was sent by the tenant by money order. Even after the death of the father of the respondent, the tenant continued to send the money orders which were returned to him on the ground that the person in whose favour the money order was sent is no more. The respondent had at no point of time informed the tenant that his father is no more and that he is the owner and therefore rent should be sent to him. Therefore, there was no attornment of tenancy. Therefore, in the submission of the learned counsel, it cannot be said that the tenant was not ready and willing to pay rent. Now, it is to be seen here that before passing a decree of eviction against a tenant under section 12 of the Act, it is necessary for the court to record a finding that the tenant is not ready and willing to pay rent. In the instant case, however, I find that the trial court has recorded the following finding :

(3.) In the result, therefore, the petition succeeds and is allowed. Rule made absolute in terms of prayer clause (d) with no order as to costs.