Gani Manulal Atar vs Smt. Mathurabia Nagarkar

Bhimrao N. Naik, J.—This is petition filed by the tenant challenging the decree for ''possession passed against him. on the ground of non-payment of rent by the Courts below.

Few facts which are relevant for the purpose of decision in this case are as follows:

Respondent-landlord field Regular Civil Suit No. 108 of 1975 in the Court of the Civil Judge, Junior Division, Pandharpur, for possession on the ground of non-payment of rent, as also on the ground of change of user. The respondent-landlord relied upon the notice of demand dated 13th January, 1975 wherein he demanded rent of Rs. 56.65 ps. The agreed rent was Rs. 125 per annum but payable by month at the rate of Rs. 10.41 ps. Though the notice was received on 14th January, 1975 no reply was sent, however, on 12th February, 1975 a sum of Rs. 300 was sent. Since the entire amount was sent the respondent-landlord treated the petitioner as a defaulter and filed Regular Suit No. 108 of 1975 on 4th April, 1975.

The learned Trial Judge held that the defendant is a monthly tenant and he failed to pay the rent within one month after the receipt of notice, and thus he is not ready and willing to pay the standard rent and passed a decree for possession. However, he negatived the contention of the respondent-landlord regarding the change of user.

Being aggrieved and dissatisfied with the aforesaid order the petitioner filed Civil Appeal No. 108 of 1980. The learned Appellate Court also recorded a finding that the tenant has failed to pay rent within a period of one month after the receipt of the notice and the case is covered by Section 12(3)(a) and thus agreeing with the finding recorded by the trial Court the appeal Court dismissed the appeal,

Being aggrieved and dissatisfied by the aforesaid order the petitioner has filed this petition under Article 227 of the Constitution of India. The learned Counsel appearing for the petitioner pointed out to me that the petitioner wanted to submit a statement before the appeal Court which statement was not taken into consideration by the appeal Court. However, when I asked the learned Counsel that on what documentary evidence he wants to rely in order to substantiate his case. He pointed out to me Exhibit 54, I.e. rent receipt dated 22nd November, 1972. This rent receipt clearly show that the rent due and payable on that date was Rs. 340. Thereafter the tenant has not paid any rent. If the balance as on 22nd November, 1972 is taken to be at Rs. 340 then the demand made in the notice of 13th January 1975 is proper and the tenant having not paid the rent as per the demand the case would be covered by Section 12(3)(a) and thus the Court will not be left with any discretion but to pass a decree u/s 12(3)(a). Thus both the Courts below were justified in passing the decree for possession on the ground of non-payment of rent. Nothing is pointed out to me as to why I should take a different view than the one taken by the authorities below. Thus there is no substance in this petition. Petition is rejected. Rule discharged with no order as to costs.

At this stage the learned Counsel appearing for the petitioner applies for time to vacate. Since the decree is passed only on the ground of nonpayment of rent I am inclined to grant time till the end of December, 1993 to vacate, on the petitioner''s filing in this Court an undertaking stating that he in occupation of the property, that he will not create any third party interest in the property, that he will clear all the arrears, if any, and pay compensation on or before 10th day of every month regularly and further that he will deliver vacant possession of the property on or before 31st December, 1993. If the petitioner files such an undertaking within 2 weeks from today then respondent is directed not to execute the decree till 31st December 1993. If however, the undertaking is not filed within 2 weeks as directed the respondent is at liberty to execute the decree after expiry of 2 weeks from today.