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Dnyaneshwar and ors. Vs. Pandharinath Damodar Khadke - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpl. Civil Appln. Nos. 2439 and 2784 of 1978
Judge
Reported inAIR1983Bom217
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 12 (3)
AppellantDnyaneshwar and ors.
RespondentPandharinath Damodar Khadke
Appellant AdvocateA.V. Valsankar, Adv.
Respondent AdvocateVirag V. Tulzapurkar and;Satish A. Gandhi, Adv.
Excerpt:
.....two courts below have rightly decreed the plaintiff suit and in the present petitioner we document not find any good ground to interfere 5. in the result, the petition..........the house to the plaintiff on 30th may, 1958. there was some previous litigation viz., regular civil suit no. 224 of 1968, wherein the plaintiff purchaser claimed possession of the suit premises on the ground that the defendants dnyaneshwar alias saba tukaram karande (who died pending district court civil appeal no. 335 of 1976 and whose legal representatives have been brought on record), was in possession as the licensee. the suit was withdrawn and thereafter the plaintiff gave a notice dated 22nd february, 1972, calling upon the defendants to pay the arrears of rent at the rate of rs. 8 per month from 30th may, 1968. the notice was not complied and hence the plaintiff filed regular civil suit no. 111 of 1971 in the court of the civil judge, junior division pandharpur.the defendants.....
Judgment:

Gadgil, J.

1. This writ petitioner has also been referred to by Justice Masodkar along with other Special Civil Application No. 2439 of the 1978, which we have decided just now. A few facts about this writ petitioner are as follows:--

The defendants-tenant is in possession of a room in a house which was original owned by on Jagannath Punekar on a monthly rent of Rs. 4. This Punekar sold the house to the plaintiff on 30th May, 1958. There was some previous litigation viz., Regular Civil Suit No. 224 of 1968, wherein the plaintiff purchaser claimed possession of the suit premises on the ground that the defendants Dnyaneshwar alias Saba Tukaram Karande (who died pending District Court Civil Appeal No. 335 of 1976 and whose legal representatives have been brought on record), was in possession as the licensee. The suit was withdrawn and thereafter the plaintiff gave a notice dated 22nd February, 1972, calling upon the defendants to pay the arrears of rent at the rate of Rs. 8 per month from 30th May, 1968. The notice was not complied and hence the plaintiff filed Regular Civil Suit No. 111 of 1971 in the court of the Civil Judge, Junior Division Pandharpur.

The defendants raised a number of contentions. He pleaded that the rent that was paid to Jagannath Punekar was Rs. 4 per month and it continued the rent of the premises after the plaintiff purchased the property. He further contended that it was excessive and standard rent should be fixed at Rs. 2 per month. There are certain other averments in the written statement but they are not relevant. The trial Court passed a decree for possession on the ground that the case of the defendants was covered by Section 12(3)(a) of the Rent Act as the defendants did not file any application for fixation of standard rent within one month from the receipt of the notice. The said decision has bee confirmed by the District Court in Civil Appeal No. 335 of 1976.

2-3. As has been held by the Supreme Court in the case of Harbanslal Jagmohandas v. Prabhudas Shivalal. : [1976]3SCR628 and in the case of Jaypal Bandu Adake v. Basavali Gurulingappa Mahalank : AIR1982Bom563 there cannot be any dispute that the tenant would be under a liability to deliver possession if he would not pay the rent within one month from the receipt of the notice of would not make an application for fixation of standard rent in that period. In the present case he has neither made any such application nor has neither made any such application nor has he paid the amount. All that he has done is that in the written statement he raised a contention that the agreed rent was also excessive and that standard rent should be fixed.

4. Shri. Valsankar, learned advocate for the petitioner, contended that a notice given by the landlord- plaintiff under Section 12(2) of the Rent Act would be bad inasmuch as he has claimed rent at Rs. 8 per moth that as the per the finding of the District Court the rent was Rs. 4 per month. He contended that such a notice would not enable the plaintiff to claim possession. It is true that the plaintiff has claimed rent in excess of the agreed rent but such a claim would not always be fatal to the suit filed by the plaintiff. The finding. will depend upon the fact of each case. We have discussed the legal position in our judgment in Special Civil Application No. 2439 of 1978 : (Reported in : AIR1983Bom212 ). In the present case, the defendants did not pay after the receipt of the notice as per the agreed rent at Rs. 4 p. m. Similarly, he did not make any application for fixation of the standard rent within one month from the receipt of the notice. In this background we document not think that the defendants-tenant can successfully resist the claim of the plaintiff-landlord. The two courts below have rightly decreed the plaintiff suit and in the present petitioner we document not find any good ground to interfere

5. In the result, the petition fails. Rule is discharged with costs. The petitioner however are given two months' time to vacate.

6. Petition dismissed.


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