Hamid Dawal Bargir vs Mohamedan Eduction Society

D.K. Deshmukh, J.—By this petition, the petitioner challenges the order dated 1st August, 1987, passed by the III rd Additional District

Judge, Kolhapur in Civil Appeal No. 15 of 1983. That appeal was filed by the respondent challenging the order dated 11th November, 1982,

passed in R.C.S. No. 1161 of 1977, by the 2nd Joint Civil Judge, Junior Division, Kolhapur. That civil suit was also filed by the respondent

Mohamedan Education Society claiming to be the owner of the house bearing C.T.S. No. 1035 situated in ""E"" Ward, Kolhapur, and that the

petitioner is a tenant in that house. The landlord claimed decree of eviction against the petitioner on the ground that the tenant is not ready and

willing to pay the rent. The trial Court, however, recorded finding against the landlord and dismissed the suit. In the appeal filed by the landlord,

however, the Appellate Court reversed the finding recorded by the Trial Court. The Appellate Court allowed the appeal, set aside the order

passed by the trial Court and decreed the suit filed by the landlord for a decree of eviction against the tenant and directed the tenant to vacate the

suit premises. Therefore, in this petition filed by the tenant, the order passed by the Appellate Court is challenged.

The facts necessary for deciding this petition are that a demand notice dated 24th February, 1976, was issued by the landlord to the tenant

demanding arrears of rent from March 1972 to January 1976. There is no dispute about the receipt of his notice. It is also not in dispute that within

one month of the receipt of the demand notice, the tenant has not filed an application for fixation of standard rent. It appears to be the case of the

petitioner tenant that after receiving the dammed notice, he paid an amount of Rs. 104/- on 23rd March, 1976 and according to him, on account of

the repairs carried out in the suit premises with the permission of the landlord, the tenant had spent an amount of Rs. 441.98 and therefore the

tenant was entitled to the adjustment of the amount. The tenant also claimed adjustment of Rs. 39/- towards payment of rent because this was an

amount given by him as deposit with the landlord. The tenant also claimed that he had sent an amount of Rs. 100/- by money order on 18th

March, 1976, which the landlord has refused to accept.

The learned Counsel appearing for the petitioner urged before me that the landlord was not entitled to demand arrears of rent from March

1972. In the submission of the learned Counsel, the landlord could have demanded arrears of rent for the period of three years preceding the

service of the demand notice. In the submission of the learned Counsel, therefore, if the amount of Rs. 39/- as deposit with the landlord, Rs. 100/-

paid on 18th March, 1976 and Rs. 104/- paid on 23rd March, 1976, are taken into consideration, then it has to be held that the tenant is not in

arrears of rent. 4. If in the light of the rival submissions made by the learned Counsel for the parties, the record of the case is perused it appears

that the learned Counsel for the petitioner is right in contending that the petitioner is entitled to deduction of Rs. 441.98 from rent as the amount

spent on repairs. It is an admitted position before me that the repairs were carried out in the year 1972, with the permission of the landlord and

therefore, according to the provisions of second proviso to sub-section (2) of section 23 of the Bombay Rent Act, as it stood then, the tenant was

entitled to deduct on this count the amount equivalent to 1/6 the of the rent payable in one year. Both the courts have found that Rs. 13/- was the

amount of monthly rent. Therefore, annual deduction that could have been claimed by the tenant would be Rs. 26/- per year. Therefore in 1976,

the tenant would be entitled to claim deduction only to the extent of Rs. 104/- and not Rs. 441.98 as claimed by the tenant. If the amount of Rs.

104/- is taken to be the amount which the tenant is entitled to claim deduction, then even after taking into consideration all the payments that the

tenant is claiming to have made to the landlord, the tenant, on the date of the demand notice and also after a period of one month of receipt of

demand notice would be in arrears of rent for a period of six months and more. In this view of the matter therefore, in my opinion, no exception

can be taken to the decree passed by the Appellate Court.

In the result, therefore, petition fails and is dismissed, rule discharged with no order as to costs.

At this stage, the learned Counsel for the petitioner requests that the petitioner should be given a reasonable time to vacate the suit premises. The

request is not opposed. It is therefore directed that the decree of eviction passed against the petitioner shall not be executed till 31st December,

1998, however, subject to the condition that the petitioner and all other adult members residing with the tenant in the suit premises submit an

undertaking to this Court in usual form within three weeks from today. Failure on the part of the petitioner to submit the aforesaid undertaking

within the aforesaid period shall, however, entitle the landlord to execute the decree immediately.

Petition dismissed.