IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO 934 OF 1990 WITH CIVIL APPICATION NO 352 OF 2004 Shri. Iftakuddin Shaleuddin Mulla .. Petitioner V/s. 1. Shri. Mohammed Hussain Shaikh Abdul and Ors .. Respondents Mr. Prasad S. Dani for the Petitioner None for Respondents CORAM : A.M. KHANWILKAR, J DATE : 06th February, 2009. P.C.: 1. This writ petition under Article 227 takes exception to the judgment and decree passed by the Additional Chief Judge, Small Causes Court at Bombay dated 06.12.1989 allowing the Appeal preferred by the landlord and decreeing the suit for possession on the ground that the Petitioner / tenant was wilful defaulter within the meaning of Section 12(3)(b) of the Bombay Rents Hotel, Lodging and Rates Control Act 1947 as was applicable at the relevant time. 1 2. Briefly stated, the suit for possession filed by the landlords against the Petitioner / tenant is in respect of Room in House No. 121, Plot No. 121-A, Khar Road, Khar (W), Mumbai – 400 052. The landlords had issued legal notice on 01.03.1975 asserting that the tenant was in arrears of permitted increases in respect of suit premises from 01.04.1969 amounting to Rs. 177.85 per month. The fact that said notice was duly served on the Petitioner / tenant is not in dispute. The Petitioner / tenant has replied to the said legal notice on 03.04.1975 and disputed his liability to pay any amount towards permitted increases. Instead, the case of Petitioner / tenant that the amount of Rs. 42/- per month paid by the tenant was the composite amount towards monthly rent and all permitted increases. Since,the Petitioner/tenant failed to pay the demanded amount within one month, the landlords instituted suit for possession RAE Suit No 4548 of 1975. The Trial Court dismissed the said suit after recording clear finding of fact that monthly rent of Rs. 42/- was inclusive of water charges and electrical charges which position was conceded by the landlords in their oral evidence as well. It is, on that finding, the Trial Court proceeded to hold that demand made in the notice was illegal or untenable and dismissed the suit. The landlords carried the matter in Appeal before the Appellate bench of the Small Causes Court being Appeal No 484 of 1988. The said Appeal came to be allowed on the finding recorded by the Appellate Court that the tenant had failed to pay or deposit the amount as demanded on first day of hearing of the 2 suit and future amount regularly thereby attracting provisions of Section 12(3)(b)of the Bombay Rent Act. Accordingly, the Appellate Court proceeded to decree the suit which decision is subject matter of challenge in this Writ Petition. 3. After having considered the submissions made by the Petitioner and going through the findings of fact recorded by the two Courts below, I have no hesitation to take a view that the Appellate Court has committed manifest error in allowing the Appeal preferred by the landlord. The Appellate Court has failed to even advert to the finding of fact recorded by the Trial Court which was founded on the admission that the monthly amount of Rs.42/-was inclusive of water charges. Unless the said finding of fact was to be reversed by the Appellate Court, there was no legal basis to overturn the conclusion reached by the Trial Court. In that, the Trial Court rightly found that once, it is held that the tenant was not liable to pay any amount as demanded by the landlord in the suit notice, the fact that the tenant did not offer that amount on the first date of hearing of the suit or paid it on regular basis during pendency of trial does not take the matter any further. In that, the liability to pay such amount arises only if tenant was liable to pay the said amount. However, as the landlords have conceded even in their oral evidence that the amount of Rs. 42/- was inclusive of water charges and electricity charges, it necessarily follows that the tenant was not liable to pay any amount 3 towards that head as demanded in the suit notice dt 01.03.1975. Thus understood, the Appellate Court has committed manifest error which has caused serious miscarriage of justice to the tenant. The same deserves to be set aside. 4. The Petitioner / tenant has filed application for bringing on record heirs of the deceased Respondent and for recalling the order dated 13.07.1988 dismissing the petition against Respondent Nos. 1 and 2(c) on account of conditional order. However, I am in agreement with the submissions made by the Counsel for the Petitioner that even in absence of said Respondent , the matter will survive for consideration as estate of said deceased Respondent was duly represented by other Respondents who are co-landlords. In the circumstances, in view of the order passed on the main petition, no further order is required on civil application. Same is also disposed of by this order. Accordingly, impugned judgment and order passed by the Appellate Court is set aside. Instead, the decision of Trial Court is restored for which reason the suit filed by the Respondents stand dismissed with costs. (A.M. KHANWILKAR, J) 4