LAWS(BOM)-1998-9-66

BUVAJI SHAMRAO KAMBLE Vs. GIRJABAI

Decided On September 16, 1998
BUVAJI SHAMRAO KAMBLE Appellant
V/S
GIRJABAI, SHANKARRAO KADAM SINCE DECEASED BY HER HEIRS AND LRS Respondents

JUDGEMENT

(1.) NONE appears for the petitioner. Mr. Purandare appears for the respondent.

(2.) THIS writ petition relates to the year 1987 and therefore, I did not think it fit to dismiss the writ petition for default. With the assistance of the learned Counsel for the respondent No. 1 perused the judgment passed by the 2nd Additional District Judge, Sangli on 31-8-1987 affirming the judgment and decree for eviction passed by the 2nd Joint Civil Judge, Junior Division, Sangli on 31-3-1984.

(3.) THE respondent is the original plaintiff and for the sake of convenience I shall refer her as the landlady. Plaintiff is the original defendant and shall be referred to hereinafter as tenant. The landlady let out three rooms of the property bearing C. S. No. 1135 situated at Gaonbhag, Sangli to the tenant for a monthly rent of Rs. 80/ -. The tenant allegedly did not pay the rent since January, 1980 and therefore, issued a notice terminating the tenancy of the tenant, demanding vacant possession and arrears of rent. The notice was received by the tenant on 9-1-1981. The tenant replied to the notice. Since the arrears of rent and electricity charges were not paid, the landlady was constrained to file a suit for eviction against the tenant on the ground of default in payment of rent. The landlady also set out the case of reasonable and bona fide necessity on the ground that her husband is retired Government servant and he has been operated and therefore, it is difficult for him to climb the staircase. The suit for eviction filed by the landlady was contested by the tenant and in the written statement a plea was set out that the monthly rent of Rs. 80/- included water-cum-electricity and other charges. According to him he had paid the rent of the suit premises to the landlady till November, 1980, but the landlady did not pass any receipt to him. According to him the landlady started demanding excessive rent and so he made an application for fixation of standard rent which was still pending and in the said proceedings he continued to deposit the rent since December, 1980. Thus the tenant stated that he has not committed any default in payment of rent. As regards the ground of reasonable and bona fide necessity set up by the landlady, the tenant in his written statement stated that the landlady is in possession of sufficient premises for residence and that she has no need of the disputed premises. The tenant also stated that in case he is evicted from the premises in question, he would suffer greater hardship. The trial Court recorded the evidence and after hearing the learned Counsel for the parties held that the tenant had deposited rent at irregular intervals and was liable to eviction under section 12 (3) (b) of the Bombay Rent Control Act. On the question of bona fide and reasonable necessity, the trial Court decided the said issue against the landlady. The trial Court also fixed standard rent of the premises at Rs. 50/ -. Accordingly on 31-3-1984 the trial Court decreed the landladys suit on the ground of default under section 12 (3) (b ). On appeal by the tenant, the Appeal Court dismissed the appeal and maintained the finding of the trial Court. 3. There is no dispute that the landlady issued notice to the tenant on 7-1-1981 demanding arrears of rent and electricity charges. The said notice was received by the tenant on 9-1-1981 to which reply was sent by the tenant to the landlady. The landlady has filed the present suit on 2-3-1981. The Appeal Court found as fact that the rent upto month of November, 1980 was paid by the tenant to the landlady and the landlady did not pass the receipts to the tenant against the payments made by him. This is also the conclusion of the trial Court. Thus the two courts below has concurrently held that prior to the issuance of the notice dated 7-1-1981 and the filing of the suit on 2-3-1981, the rent upto month of November, 1980 had already been paid by the tenant to the landlady. On this finding it is apparent that on the date of issuance of the notice and filing of the suit, six months rent was not even outstanding. In other words the tenant was not in arrears of rent for six months on the date of issuance of the notice by the landlady and on the date of the filing of the suit. Apparently, therefore, on the date of issuance of the notice and the filing of the suit, the ground of default was not available to the landlady and therefore, the courts below were unjustified in decreeing the landladys suit for eviction under section 12 (3) (b) on the basis that during the pendency of the suit the tenant did not deposit the rent regularly and thereby committed defaults.