1 wp-1188.95 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1188 OF 1995 Ibrahim Haji Ismail Memon, since deceased through his heirs and legal representatives : 1(A) Shri Marim B. Haji Ismail Memon and Others. .. Petitioners Vs Shri Bhairulal Ramgopal Rathi. .. Respondent -- Shri V.A. Gangal and Shri Ashok Gade for the Petitioners. Shri S.M. Gorwadkar for the Respondent. -- CORAM : A.S.OKA, J. DATE : 6TH DECEMBER, 2010 ORAL JUDGMENT : . Heard learned counsel appearing for the Petitioners and the learned counsel appearing for the Respondent. The Petitioners are the legal representatives of the original Defendant-tenant. The Respondent is the Plaintiff-landlord. 2. The suit filed by the Respondent for possession of the suit 2 wp-1188.95 premises is on the ground of arrears of rent. It is alleged that the demand notice dated 10th September, 1984 was issued calling upon the Petitioners to pay arrears of rent from 1st January, 1984. The notice was served to the original Petitioner on 11th September, 1984. As the amount was not tendered or paid, the suit for possession was filed. 3. The original Petitioner filed a Written Statement. In the Written Statement and in particular Paragraph 13, a case was made out by the Petitioner that after receipt of the notice, the Petitioner tendered a sum of Rs.509,30 ps. to the Respondent and informed that the rent for the month of August, 1984 will be paid shortly. According to the case of the Petitioner, the Respondent informed him that on payment of rent for the month of August, 1984, receipt will be issued for payment of rent from January, 1984 to July, 1984. It is contended that the Petitioner was ready and willing to pay the rent and in fact he had paid the rent till the end of July, 1984 and, therefore, the Petitioner was not a defaulter. The Trial Court decreed the suit by holding that on the date of service of notice, the Petitioner was in arrears of rent for more than six months and there was no compliance with the notice. The Trial Court passed a decree for possession. In appeal, the said decree has been confirmed. 4. Learned counsel appearing for the Petitioners pointed out that along with the list at Exhibit-30, the original Petitioner produced two alleged writings of the Respondent dated 22nd October, 1983 and 31st July, 3 wp-1188.95 1984 which show that on 31st July, 1984, the rent upto the end of July, 1984 was paid. He submitted that the Respondent was confronted with the said two documents in the cross-examination. He pointed out that during the course of examination-in-chief of the Petitioner, the Advocate for the Petitioner was denied permission to ask questions to the Petitioner on the said documents at Exhibit 30/1 and Exhibit 30/2. He submitted that though by a specific order, the said permission was denied and the said order was confirmed by this Court, the order of the Trial Court is interlocutory. This Court can always take a different view while deciding this Writ Petition. It is submitted that from the bare perusal of the documents at Exhibits 30/1 and 30/2, it is apparent that the rent upto July, 1984 was paid by the Petitioner and received by the Respondent. He submitted that by not allowing the Petitioner to adduce evidence on the said two documents, gross illegality has been committed. He submitted that thus prejudice has been caused to the Petitioner. He submitted that even if today the said documents are compared and read, it is obvious that the decree cannot be sustained. 5. I have given careful consideration to the submissions. The Respondent stepped into the witness box on 15th September, 1989. It is not in dispute that there is no specific pleading in the Written Statement as regards the execution of the two documents at Exhibits- 30/1 and 30/2 produced along with the list at Exhibit-30. The said documents were filed on 15th September, 1989 when the examination-in-chief of the Respondent 4 wp-1188.95 was recorded. When the said two documents were attempted to be shown to the Petitioner in his examination-in-chief, an objection was raised by the Respondent. The Trial Court denied permission to show the documents to the Petitioner. An application was made by the Petitioner at Exhibit – 52 praying that the said two documents along with admitted writings of the Respondent be sent to handwriting expert. The said application at Exhibit-52 was rejected by the Trial Judge on 16th September, 1989. The learned Trial Judge held that in the Written Statement, there is no pleading about existence of the said documents. Therefore, the questions based on the said documents were rightly disallowed in the examination-in-chief of the Petitioner. The said order was challenged by the Petitioner by filing Civil Revision Application No. 802 of 1989. By a detailed judgment and order dated 11th April, 1990, this Court rejected the said revision application. This Court held that documents ought to have been produced along with the Written Statement. This Court observed that the prayer for production of the documents was made at a belated stage and the Trial Court was right in rejecting the request for production of the documents, the authorship of which was denied by the Respondent-Plaintiff. Thus, the order passed below Exhibit-52 was confirmed by this Court on merits for the reasons recorded. Hence, in this Writ Petition no interference can be made with the said order of the Trial Court which was confirmed by this Court in Revision. 6. In the circumstances, the Courts below were right in keeping 5 wp-1188.95 the said two documents out of consideration and no fault can be found with the findings of the Courts below in that behalf. 7. Thus, what was established was that the notice demanding arrears of rent for a period of more than six months was admittedly served to the Petitioner. The Petitioner did not tender the amount demanded after receipt of the notice. Therefore, the decree under Section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 must follow and accordingly, the Trial Court has decreed the suit. No interference is called for with the decree of eviction in this writ petition. Hence, the Writ Petition is rejected. 8. Learned counsel appearing for the Petitioners seeks longer time to vacate the suit premises. Considering the facts and circumstances of the case, time of one year deserves to be granted to vacate the suit premises subject to the Petitioners filing usual undertaking in this Court. 9. Hence, I pass the following order. ORDER (a) The Petition is rejected with no order as to costs. Rule is discharged. 6 wp-1188.95 (b) Decree for possession shall not be executed till the end of December, 2011 subject to condition of the Petitioners filing usual undertaking to vacate the suit premises. Undertakings shall be filed within a period of six weeks from today in this Court. If undertakings are not filed within the stipulated time, the decree for possession shall forthwith become executable. (A.S.OKA, J)