- (1.) BY means of this petition filed under Article 227 of the Constitution of India it is prayed that the judgment and order dated 2.3.1993 passed by the Additional District Judge, Satara in Regular Civil Appeal No.515 of 1987 confirming the judgment and order dated 24.8.1987 passed by Civil Judge, Junior Division, Patan (Karad) be quashed and set aside and Suit No.253 of 1982 for possession of the suit premises be dismissed with costs.
(2.) RAMANLA Devchand Shaha, respondent no.1 herein is original plaintiff. He admittedly is the landlord of suit premises comprising of one block facing West, admeasuring East West 21'5" and South-North 8'6". The said premises were let out to Ilahi Mujawar at the rate of Rs.18/- per month plus education cess. Respondent no.4 herein Nabilal Mahamulal Mujawar is real brother of Ilahi Mohd Mujawar. The landlord issued a notice to original defendant No.2 Ilahi Mujawar on 7.5.79 demanding arrears of rent and also terminated his tenancy by end of May 1979. Ilahi Mujawar did not make payment of arrears of rent nor vacated the premises and, therefore, the landlord filed the suit being Regular Civil Suit No.253 of 1982 in the Court of Civil Judge, Junior Division, Patan for eviction on the ground of arrears of rent and sub-letting and for recovery of arrears of rent. Nablal Mujawar was impleaded as original defendant no.1. The tenant Ilahi Mujawar was impleaded as original defendant no.2. Jitendar Kantilal Shaha, respondent no.2 herein, who is sub-lessee was impleaded as defendant no.3. The tenant Ilahi Mhamal Mujawar i.e. original defendant no.2 filed the written statement and denied landlord's claim. He denied that the rent of the suit premises was Rs.18/- per month plus education cess. He denied that he was in arrears of rent. He set up the plea that he had paid the entire rent to the landlord but he did not issue the rent receipts. He denied sub-letting and set up the case that in the year 1970-71, he fell ill and was suffering from T.B. and, therefore, he was required to close his shop and defendant no.3 was put in possession with the permission of the landlord. The original defendant no.1 i.e. brother of the tenant filed written statement stating therein that he has no concern with the suit premises and had no objection if the decree for possession was passed. The original defendant no.3 filed separate written statement and set up the case that since the defendant no.2 was suffering from T.B. and he had closed the shop, with the permission of the landlord, he (defendant no.3 ) was put in possession and that there was no question of any sub-letting. The tenant-original defendant no.2 Ilahi Mahamual Mujawar died during the pendency of the suit and the present appellants and the respondent no.3 were substituted in his place. On the basis of the pleadings of the parties, the trial Court framed issues on 14.7.1987. It may be stated here that after the suit was filed in the year 1982, the rent came to be deposited in the Court and according to the learned counsel for the petitioners, on the date of the framing of the issues, a sum of Rs. 1026/- stood deposited. The parties led evidence and the trial Court after hearing the learned counsel for the parties recorded the findings that plaintiff-landlord has been able to prove that the defendants were defaulters in payment of rent of the suit premises for more than six months and that the plaintiff has been able to prove that the defendant nos.1 and 2 sub let the suit premises to defendant no.3. Accordingly, the trial Court vide its judgment and decree dated 24.8.1987 decreed the plaintiff's suit for eviction. The present petitioners who were substituted as defendant nos. 2A, 2B, 2C and 2E preferred appeal against the judgment and decree passed by the trial Court and the learned Additional District Judge, Satara (Appeal Court) vide its judgment and decree dismissed the appeal with costs. It may be observed here that though the trial Court held that the amended provisions of section 12(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 were not applicable, in appeal the Appeal Court did not find favour with this finding and held that since during the pendency of proceedings, the amended provisions of section 12(3) came in existence, the said provisions are applicable to pending proceedings. However, on facts, the Appeal Court found that the tenant has failed to established that on the first date of hearing the entire arrears of rent along with interest at the rate of 9% per annum on due amount was deposited by the tenant on the first date of hearing and accordingly maintained the ultimate finding given by the trial Court that the plaintiff has been able to prove that the tenant was defaulter in payment of rent for more than six months. The appeal Court also sustained the finding of the trial Court on the question of sub-letting.
(3.) CHALLENGING the concurrent findings recorded by the two Courts below, Mr.Savant, the learned counsel appearing for the petitioners urged that the Courts below erred in holding the tenant or for that matter his legal representatives defaulter in respect of payment of arrears for more than six months. He submitted that the tenant deposited a sum of Rs.675/- in the Court on 25.10.1982 i.e. after filing of the suit which was filed on 16.8.82. The tenant further deposited in the Court rent at intervals and as per Exhibit-69 Rs.1366/-were deposited upto 20-8-87. The learned counsel gave the summary of deposits after the amount of Rs.675/- was deposited as follows: Sr.DateAmountReceipt No. No. 1.6.12.82Rs.120/-750 2.14.6.83Rs.150/-190 3.27.2.84Rs.200/-946 4.3.12.84Rs.100/-637 5.1.7.85Rs.100/-219 6.18.2.86Rs.108/-905 7.11.7.86Rs.108/-273 8.9.12.86Rs.140/-703 9.5.8.87Rs.140/-327 10.20.8.87Rs.200/-425 _____ TotalRs. 1,366/- ;