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IN THE HIGH COURT OF BOMBAY AT AURANGABAD
V.M. DESHPANDE, J.
Subhash Narsopant Saundankar & Anr. – Appellants
Versus
Chandrakant Babanrao Salunke & Ors. – Respondents
Writ Petition No. 1597 of 2001
Decided On : 08-01-2015
landlord - possession - Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947 (Section 12) - Transfer of Property Act (Section 109) - The court discussed the provisions of the Bombay Rent Act and the Transfer of Property Act in relation to arrears of rent, standard rent, and the rights of lessor's transferee. The interpretation of these provisions influenced the court's decision to restore the judgment and decree passed by the trial court.
Fact of the Case:
The landlord filed a suit for recovery of vacant possession and arrears of rent. The trial court decreed in favor of the landlord, but the appellate court reversed the judgment. The landlord filed a Writ Petition challenging the reversal.
Finding of the Court:
The court found that the tenant was in arrears of rent for more than six months and was not entitled to protection under the Bombay Rent Act. The court also held that the rights of the lessor's transferee under the Transfer of Property Act did not preclude the landlord from obtaining a decree for arrears of rent.
Issues: The issues included the arrears of rent, standard rent, and the legality of the substitution of the original plaintiff with the present plaintiff.
Ratio Decidendi: The court's decision was based on the finding that the tenant was in arrears of rent and not entitled to protection under the Bombay Rent Act. Additionally, the court interpreted the rights of lessor's transferee under the Transfer of Property Act.
Final Decision: The Writ Petition was allowed, and the judgment and decree of the trial court were restored.
1. Unsuccessful landlord before the appellate court, who reversed the decree in favour of the landlord for possession is before this court.
2. A suit was filed in the court of 5th Joint Civil Judge, Junior Division, Dhule. The said suit was registered as Regular Civil Suit No. 458 of 1985. The said suit was contested by the present respondent no.1 and the predecessor-in-title of respondent nos. 2 to 5. The said suit was decreed by the learned trial court and the defendants in the suit were directed to hand over vacant possession of the suit premises and they were also directed to pay Rs.152.50 Ps. as arrears of rent, Rs.35/- towards damages and Rs.65/- by way of notice charges by judgment and decree dated 16.11.1991.
3. Appeal was carried. The said appeal was registered as Regular Civil Appeal No.2 of 1992 and was on the file of Extra Joint District Judge, Dhule. The learned lower appellate court vide judgment, dated 2.2.2000 allowed the appeal and thereby reversed the judgment and decree of the trial court granting possession. It is against this reversal of judgment, the present Writ Petition is filed by the landlord.
4. Facts giving rise to the present Writ Petition are stated hereunder.
On 16.7.1985 Shantabai w/o Narsopant Saundankar, the mother of the present petitioner filed a suit against the defendants (1) Chandrakant Babanrao Salunke and (2) Babanrao Khemaji Salunke.
The said suit was filed for recovery of vacant possession of the suit property admeasuring 30 x 8 ft. consisting of two rooms standing on sheet No. 2209/2 at Lane No.7 within the limits of municipal council, Dhule. It was stated in the plaint that Chandrakant Salunke defendant no.1 was tenant and his tenancy was a monthly tenancy commencing on each 10th day of calendar month, which expires on 9th day of next calendar moth. It was further stated that the agreed rent was Rs.15.25 Ps. Plaint discloses that the house in question was taken by the defendant no.1 for his own residence.
It was stated that defendant no.1 is a habitual defaulter in making the payment of agreed rent. He was in arrears of rent from the month of 10th July, 1984. Plaintiff was required to issue a registered notice on 15.4.1985 by which arrears of rent were demanded and also possession was claimed. The said notice was served on the defendant on 16.4.1985. Instead of complying with the said notice, the defendant only sent Rs.43.20 Ps. by money order towards educational cess. The said money order was claimed under protest. It was further stated in the plaint that since the tenant was in arrears of rent from 10.7.1984, till filing of the plaint he was not entitled to claim any protection under the Bombay Rent Act. The plaint further discloses that the tenant has damaged the tenanted premises.
Further it was stated in the plaint that defendant no.1 has constructed a house about 1� years back on Plot No.30 and is residing there. Further, he has also constructed another house at Navjeevan locality at Dhule. The said house is also in possession of the defendant. Therefore, it was pointed out that since last 1 years the tenants are not using the tenanted premises for their residence. It was further alleged that the defendant no.1 after shifting his residence to his own house without the consent of the landlord illegally sub-let it to the defendant no.2 Babanrao Salunke and he is using the same as godown. With these allegations and statements of fact, the plaintiff claimed vacant possession of the tenanted premises.
5. On being summoned, both the defendants filed their joint written statement. Same is on record at Exh.11 of the court below. Sum and substance of the written statement shows that the rent is being paid up to 9.8.1984 and receipts are given by the landlord. It was further stated in the written statement that amount of Rs.110/- was given to Narsopant Saundankar in the month of July 1985. Considering the said amount of Rs.110/-, at the most there are arrears of rent from 10.3.1985 a
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