JUDGMENT
R.G. Deshpande, J.
1. This is a petition by an unsuccessful tenant, who has lost in the first round before the lower Appellate Court in spite of having a suit dismissed against him. The facts of the case in nut-shell are as under.
2. The present petitioner – Gopal happened to be a tenant in the property, house No. 1160/2 at village Shendurni, tq. Jamner of which Vinayak Pralhad Jamkhedkar, the respondent happened to be the landlord. Out of the suit premises, a room on the ground floor admeasuring 18 x 15 ft. was leased out to the present petitioner on the monthly rent of Rs. 7/-. Tenancy commenced some time in the year 1969 and was as per gregorian calendar. The petitioner was served with two notices i.e. on 5-7-1973 and 30-6-1974, whereby it was pointed out that he was in arrears of rent and he was, therefore, called upon to pay the arrears, as also to hand over the possession of the suit premises. As per the notice, the tenancy stood terminated at the end of 30th July, 1974 i.e. in pursuance of the second notice. Since the petitioner-tenant failed to comply with the notice, the landlord – Vinayak was required to file Regular Civil Suit No. 22/75 in the Court of Civil Judge, Junior Division, Jamner.
3. After completion of the formalities i.e. filing of written statement, the learned Judge of the Trial Court had framed the issues at Ex. 14. Issues, which were material, were as to whether the defendant did prove that the plaintiff had agreed to adjust the rent amount of Rs. 468/- towards repairs. This issue is at Sr. No. 3 at Ex. 14, and the another material issue was as to whether the plaintiff proved that the defendant did pay the rent till 31st January, 1969 and rent from 1st of April, 1969 was due against him. As to the first issue as regards adjustment of amount of rent towards repairs, the learned Judge of the Trial Court held in favour of the petitioner-tenant and as to issue No. 5 as regards arrears of rent, the learned Judge of the Trial Court held against the respondent-landlord. On the basis of defence taken in the written statement and after having answered the respective issues, the learned Judge of the Trial Court reached to the conclusion that the plaintiff totally failed to prove his case and he accordingly dismissed the suit with costs by his judgment and order dated 9-7-1980. The learned Judge further directed that the defendant should pay Rs. 223/- to the plaintiff towards the rent of the suit premises.
4. Aggrieved landlord, therefore, filed an appeal before the District Judge, Jalgaon, which was registered as Regular Civil Appeal No. 315/81. The learned Judge of the lower Appellate Court allowed the appeal of the landlord, set aside the judgment and decree passed by the learned Judge of the Trial Court by his judgment and order dated 27-7-1984 and directed the petitioner to deliver vacant possession of the suit premises to the landlord within two months from the order. The learned Judge also directed that the tenant shall pay Rs. 297/- as arrears of rent along with costs throughout to the landlord, and to bear his own. The lower Appellate Court further directed inquiry under Order 20, Rule 12(1)(c) Civil Procedure Code.
5. Dissatisfied tenant has approached this Court challenging the judgment and decree passed by the lower Appellate Court. I have heard the learned Counsel Shri V.T. Choudhary for the petitioner. The respondent, though served, is unrepresented. I have carefully gone through the record of the case, as also read the reasoning given by the learned Judge of the lower Appellate Court.
6. Initially, it was the case of the landlord that the petitioner-tenant was in arrears of rent for more than six months and further that the suit premises were in dilapidated condition which was dangerous for human habitation. The learned Trial Judge held against the landlord on the point of the nature of the structure whether it was dangerous or not by holding that the suit premises were not in dilapidated condition. At the appellate stage, it appears that this point as regards dilapidated condition of the structure in question was not raised by the landlord, as is clear from the issues which are framed at page 28 of the paper book, in the judgment of the lower Appellate Court. The only issue required to be decided was as to whether the tenancy of the respondent – Gopal did start from the 1st day of gregorian calendar and ended on the last day of the same month and as to whether the tenant-Gopal was legally entitled to get effected the repairs to the suit premises amounting to Rs. 468/-. This issue naturally was the third issue as to whether Gopal-a tenant was in arrears of rent or not. Shri V.T. Choudhary, the learned Counsel for the petitioner argued before me that there was an agreement regarding carrying out necessary repairs for which Rs. 468/- were spent by him and if this amount is adjusted against the rent, then he could not be said to be in arrears of rent and naturally he could not be labelled as defaulter. In short the question now rests on only one point as to whether did the tenant prove the contract, which he alleges between himself and landlord as regards repairs or that as to whether had he necessary permission from the landlord to carry out the repairs at his won expenses and then to adjust the said amount in rent. Shri V.T. Choudhary has fairly conceded that there was no such evidence to hold that the contract was proved, nor was there cogent evidence on record to that effect. I have gone through the judgment of the lower Appellate Court and I do find that the learned Judge was justified in holding that neither there was permission from the landlord to the tenant to carry out the repairs nor was there any notice to the landlord in advance before he spent the amount. In short, the repairs, if any, were carried out by the tenant at his own risk. If this amount of Rs. 468/- is not allowed to be adjusted, then naturally the tenant do fall within the category of defaulter as till the adjustment of that amount he was not paying the rent. Since the landlord had already served the notice and since it was not complied with within a period of one month, naturally the provisions of section 12(3)(a) of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 are attracted and the tenant is caught within the mischief of section 12(3)(a) of the Act. After due consideration to the observations made by the learned Judge, I do not find any justifiable reason to interfere with the order. The petition, therefore, stands dismissed. Rule in discharged. Interim order stands vacated. No costs.
7. After the judgment, Shri V.T. Choudhary requested that the petitioner-tenant be granted some time to vacate the premises. I find this request of Shri Choudhary as a most genuine one and bona fide and grant the petitioner-tenant three months time to vacate the premises from today.
