JUDGMENT - Dr. CHANDRACHUD D.Y., J.:---Both these petitions under Article 227 of the Constitution are directed against a judgment and order dated 6th September, 1989 of the Additional District Judge, Pune. The suit for eviction filed by the landlord came to be dismissed. The dismissal of the suit by the Additional Small Causes Judge, Pune on 28th February, 1986 was affirmed by the Additional District Judge. Writ Petition No. 4819 of 1990 is by the landlord while Writ Petition No. 553 of 1990 is filed by the original second defendant who seeks to impugn that part of the judgment of the courts below in so far as it holds that he was not entitled to the benefit of the provisions of section 5(11)(c) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947. For convenience of reference, it would be appropriate to refer to the parties as the landlord and the tenant.

2. The premises in the present case consist of a residential flat bearing Flat No. 5 of Block No. 3 situated in Krishna Niwas, Pudamjee Compound, Pune-2. The premises consist of two rooms, one Kitchen, a toilet and a balcony totally admeasuring 500 sq. ft. The premises were originally let out by the landlord to one Mrs. Mohini Tikamdas Buxani, who expired in 1979. The monthly rent of the premises was Rs. 80/- together with an amount of Rs. 23/- representing water and service charges and Rs. 4/- as the charges of the watchman. The first defendant to the suit is the daughter of the original tenant while the second defendant is stated to be a cousin. The First Defendant is married and permanently resides in Spain. The Second Defendant who is the petitioner before the Court in Writ Petition 553 of 1990 also has premises of his own being House No. 11, situated at Solapur Road, Pune. Some time prior to the death of the original tenant, her daughter, the first defendant came to look after her. Upon the death of the tenant in April 1979, the landlord sought possession of the flat. By a communication dated 29th April, 1979, which was marked in evidence as Exh. 24, the first defendant as the daughter of the original tenant informed the landlord that she had contacted a Trustee (the landlord is a charitable Trust) to allow her to continue in the flat over a further period of 12 months on the understanding that she would hand over possession after the expiry of the period. This request, it was stated, had been accepted. In view of the above facts, the first defendant requested the Managing Trustee of the trust to collect the monthly rent for the flat occupied by her from time to time.

3. The flat was not vacated upon the expiry of the period that was agreed upon and it was the case of the Trust that the first defendant left Pune and inducted the second defendant into the premises. On 9th June, 1981, an Advocates notice was addressed on behalf of the landlord calling upon the defendants to hand over possession of the premises and thereafter, Regular Civil Suit No. 2067 of 1981 was instituted in the Court of Small Causes, Pune for the recovery of possession along with the outstanding rent of Rs. 1,799.87 from 1st May, 1980 till 12th July, 1981 and for mesne profits.

4. Issues were framed in the suit and evidence came to be adduced. The first issue that was framed at the trial was whether the plaintiffs proved that after the death of the original tenant, the first defendant had agreed to surrender her rights of tenancy with effect from 30th April, 1980. This issue was answered in the affirmative. That finding of the learned trial Judge has also been affirmed in appeal by the Additional District Judge having regard to the document at Exh. 24. As already noted, the first defendants letter dated 29th April, 1979 clearly reflected a statement of the first defendant that in pursuance of the time which was granted to her to vacate the premises, she would be surrendering the tenancy with effect from 30th April, 1980. The finding of the learned trial Judge on the first issue was, th

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