RAJGOR KHIMJI HARIDAS v. MUKTI CHANDA AMARSHI PATAVA
1995-07-18
J.N.BHATT
body1995
DigiLaw.ai
J. N. BHATT, J. ( 1 ) IN this revision at the instance of the unsuccessful tenant, the challenge is against the ejectment decree on the ground of non-payment of rent, by invoking provisions of Sec. 29 (2) of the Bombay Rents, Hotel and Lodging House rates Control Act, 1947 (the Rent Act for short ). The petitioner is the original tenant against whom the suit for eviction on the ground of non-payment of rent filed by the respondent-original plaintiff-landlord came to be decreed. The parties for the convenience sake are hereinafter referred to as the landlord and tenant. ( 2 ) THE landlord purchased the house bearing house No. 2/399 and 2/400 from salat Narandas Ratanshi, and Laxmibai Ratanshi the original owner, by a registered sale deed dated 30-12-1974 for Rs. 11000. 00. The demised premises are parts of the said house. The tenant is occupying a part of the said house bearing No. 2/339 at a monthly rent of Rs. 13. 50. The tenat was served with a registered notice dated 30-12-1974 by the original landlord to pay rent from 1-1-1976 to the purchaser -new landlord. He was also requested to execute a rent note to the new landlord. ( 3 ) THE case of the landlord is that the tenant was in arrears of rent from 1-1-1975 for a period of 25 months and, therefore, the tenant is liable for eviction. He, therefore, filed a suit for possession. The tenant appeared and resisted the suit inter alia contending that the suit premises belonged to one Laxmibai Ratanshi and he is not aware of the purchase by the new landlord. Therefore, he had not been able to pay the rent. However, he contended that he is not liable to pay arrears of rent as he was not informed. It was also denied that the landlord is entitled to possession on the ground of requirement for self occupation. ( 4 ) ON the facts and circumstances and on examination and analysis of the evidence, the trial Court decreed the suit for possession on the ground of nonpayment of rent under Sec. 12 (3) (a) of the Rent Act. The ground of requirement for self occupation under Sec. 13 (1) (g) was decided against the landlord by a judgment and decree dated 28-3-1979, in trial Court.
The ground of requirement for self occupation under Sec. 13 (1) (g) was decided against the landlord by a judgment and decree dated 28-3-1979, in trial Court. ( 5 ) THE unsuccessful tenant filed Regular Civil Appeal No. 108 of 1979 in the disrtrict Court, Kutch at Bhuj. The tenant lost in the appeal. The judgment and decree recorded by the trial Court came to be confirmed on the ground of nonpayment of rent under Sec. 12 (3) (a ). Therefore, this revision at the instance of the tenant under Sec. 29 (2) of the Rent Act. ( 6 ) THE Courts below have recorded the ejectment decree on the finding of fact that the tenant was served with a notice under Sec. 12 (2) and he was informed about the transfer of the suit property to the new landlord. This finding of fact recorded by the Courts below concurrently cannot be interfered with in a revision under Sec. 29 (2) of the Rent Act. The ambit and scope of the revision is very much limited. The revisional Court also cannot substitute its finding in place of the finding of fact recorded by the Court below. The Apex Court in Bhaichand v. Laxmishanker air 1981 SC 1690 , has held that under Sec. 29 (2), although the High Court has wider jurisdiction than the one under Sec. 115 of the Code of Civil Procedure, 1908 (the Code for short), its revisional power or jurisdiction can only be exercised for a limited purpose with a view to satisfying itself that the impugned decision or judgment is according to law. It may also be mentioned that the apex Court in girdharbhai v. Saiyed Mohmed Mirsaheb, AIR 1987 1872 has also held that when two view are possible, the High Court cannot subscribe the views while exercising lower under Sec. 24 (2 ). When the view taken by the Court in the impugned decision or decree is possible, then it is not permissible for the High Court to take a different view and substitute its finding. ( 7 ) IN the light of the aforesaid settled proposition of law, the contention that the petitioner-original tenant was not informed about the transfer of the demised premises to the new landlord is required to be examined. In other words, the question is whether in the facts and circumstances, there was proper attornment.
( 7 ) IN the light of the aforesaid settled proposition of law, the contention that the petitioner-original tenant was not informed about the transfer of the demised premises to the new landlord is required to be examined. In other words, the question is whether in the facts and circumstances, there was proper attornment. It is held by the Courts below that there is sufficient evidence that attornment notice had already been given to the tenant and the defence raised by the defendant-tenant is found to be false and unacceptable. The view taken by both the Courts below cannot be said to be impossible or perverse or illegal. ( 8 ) AFTER the new landlord purchased the demised premises, he also served the tenant with a notice under Sec. 12 (2) demanding arrears of rent due from 1-1-1976. The registered notice demanding rent from 1-1-1975 to 31-1-1977 for 25 months at the rate of Rs. 13. 50 was served on the tenant. A copy of the demand notice under Sec. 12 (2) is produced at Ex. 30 dated 16-6-1977. The original notice was produced by the tenant at Ex. 45, postal acknowledgement of the notice is produced at Ex. 31. The tenant had replied the notice on 17-6-1977, like that, on the next day after the notice was sent. It was specifically mentioned in the said notice that the original landlord had sold the demised premises to the new landlord and that the defendant was also informed about this fact by the original owner. ( 9 ) IT is not disputed by the tenant that rent was in arrears from 1-1-1975 to 31-5-1977. It is not disputed that notice was received demanding rent for 29 months. Reply to the notice was given on 27-7-1977 at Ex. 32. Reply was sent after the expiry of period of one month from the date of service of notice under Sec. 12 (2 ). The tenant raised a contention in the reply that he did not know about the sale in favour of the new landlord. He, therefore, raised a contention that there was no existence of relationship of landlord and tenant. According to the case of the tenant, he was ready and willing to pay rent to the original owner.
The tenant raised a contention in the reply that he did not know about the sale in favour of the new landlord. He, therefore, raised a contention that there was no existence of relationship of landlord and tenant. According to the case of the tenant, he was ready and willing to pay rent to the original owner. It may be mentioned that there is no dispute about the fact that the tenant had not sent arrears of rent to the original owner i. e. after receipt of the notice, rent was not paid or tender either to the original owner or to the new landlord. The tenant deposited the amount of rent for the first time in Court on 6-2-1978. ( 10 ) IT would also be interesting to note that the original owner had sent a notice of attornment to the tenant by registered post. The tenant has also admitted in his evidence that he had received a registered letter by virtue of which he came to know that the demised premises are sold away new plaintiff. He has not produced this registered letter for the reasons best known to him. The fact of selling of the demised premises was intimated in the letter to the tenant. It is also admitted by the tenant in the cross-examination that the said letter was received from original owners laxmibai and Naranbhai. There is no dispute about the fact that Laxmibai is the mother of Naranbhai. They were the joint owners had sold the demised premises to the plaintiff-landlord. This clear admission in para 2 of the deposition of the tenant could not be controverted and countenanced. ( 11 ) HAVING regard to the facts and circumstances and the evidence on record, it becomes explicit that the original landlord had informed the tenant by way of attornment notice. The purchaser of the demised property, the new landlord, also sent a notice to the tenant wherein rent was demanded contending that he has purchased the demised premises from the original owner and rent is due from 1-1-1975 to 31-1-1977. The landlord had purchased the demised premises from the original landlord by virtue of registered sale deed dated 30-12-1974 and thereafter demand of rent by way of notice under Sec. 12 (2) was made.
The landlord had purchased the demised premises from the original landlord by virtue of registered sale deed dated 30-12-1974 and thereafter demand of rent by way of notice under Sec. 12 (2) was made. In the circumstances, the contention raised on behalf of the petitioner tenant that there was no attornment and, therefore, the ejectment decree is illegal is not sustainable. Therefore, it is required to be rejected. ( 12 ) NO doubt, when the demised premises are sold with a sitting tenant, attornment notice is required to be sent without which the tenant would not know the change of guard in respect of ownership. Notice was served by the original owner to the tenant. Thereafter, notice was also served by the new landlord. All these facts have remained uncontroverted. Not only that, a public notice in the newspapers was also given by the new landlord. The tenant has admitted in the evidence that intimation was also sent by the original landlord. The new landlord also served the defendant with a notice under Sec. 12 (2) and the intimation about purchase of the demised premises. In the circumstances, it cannot be contended even for a moment that there was no proper intimation or attornment. Section 12 (3) (a) provides a ground for ejectment in favour of the landlord and against the tenant on the ground of non-payment of rent on fulfilment of the following conditions : (A) rent is payable by month. (b) there is no dispute about standard rent and permitted increases; (c) there are arrears of rent or permitted increases for a period of six months or more. (d) notice under Sec. 12 (2) demanding such arrears is served upon the tenant. (e) the tenat fails to pay or tender such arrears within one month from the date of receipt of notice under Sec. 12 (2 ). All the aforesaid conditions must co-exist. Once the tenant neglect to pay the arrears within the period of one month in absence of any dispute about standard rent or permitted increases, after service of notice under Sec. 12 (2), and when rent is payable by month, the Court is bound to pass a decree in favour of the landlord. ( 13 ) IN light of the facts and circumstances, it is very obvious that all the five conditions have been satisfied.
( 13 ) IN light of the facts and circumstances, it is very obvious that all the five conditions have been satisfied. Therefore, the Court has no option but to raise its hands in helplessness from accepting the contention that ejection decree cannot be passed and the tenant is required to be held liable for ejectment on the ground of non-payment of rent under Sec. 12 (3) (a ). This Court has no hesitation in finding that the judgment and decree recorded by the Courts below concurrently for eviction is fully justified. This revision is found meritless. It is, therefore, dismissed. Rule is discharged with no order as to costs. ( 14 ) AT this stage, it was submitted that the petitioner tenant may be given 8 to 9 years time for vacating the premises as he is very old and poor person. It is true that age of the tenant was 78 when the suit came to be filed. He is, therefore, at an advance stage and age of his life, if not in the December years of the life. Considering the facts and circumstances, old age and physical infirmity of the petitioner-tenant, he is given time of thirty-six months to vacate and comply with the decree for possession. In other words, the landlord shall not execute the decree for possession of the demised premises for a period of thirty six months. Tenant is directed to file an undertaking in this Court within a period of four weeks incorporating usual terms and conditions including the term that he shall not sublet, transfer or assign his interest in the demised premises till the aforesaid period. Consequently, the revision stands dismissed. .