1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 455 OF 2008 Pralhad Shankar Bulakhe.......Applicant. versus Punja Vitthal Godase & ors......... Respondents. Mr. Girish Godbole for the Applicant Mr. M.M. Sathaye for the Respondent Now.2A to 2C, 3 to 5 & 7. CORAM; A.P. DESHPANDE, J. DATED; 27TH AUGUST, 2008. P.C.: 1. This Revision is filed by the tenant taking an exception to a judgment and decree passed by the District Judge at Nashik in Civil Appeal No. 68/08 dismissing the appeal preferred by the applicant and in confirming the judgment and decree passed by the trial court for eviction and possession in favour of the respondent -landlord. 2. It is undisputed that the present case is governed by the unamended provision of the Bombay Rent Act contained in 2 section 12, as notice contemplated by sub section 3(a) was issued on 12th July 1982. There are two fold requirements for a landlord to succeed in a suit for eviction. (1) That the tenant ought to be in arrears of rent for a period exceeding six months and (2) the tenant's negligence to make payment thereof despite notice for a period of one month. In the present case the learned counsel for the applicant tried to contend that notice dated 12th July 1982 was served on him on 10th August 1982 whereas according to the plaintiff, the notice was served on 19th July 1982. The date of service assumes some importance in view of the fact that an application for fixation of standard rent was filed by the tenant on 31st August 1982. If it is held that the notice was served on 19th July 1982, the case would be clearly covered by section 12(3)(a). 3. The learned counsel for the applicant has submitted that on the acknowledge receipt of the notice, though the signature of the applicant tenant is seen to be in blue ink, the date underneath the same which indicate the date of receipt is in red ink. This raises a suspicion about the correctness of the date. As to when the notice was served on the applicant is a pure question of fact. Two courts below have concurred in holding in favour of the landlord that the notice was received by the applicant on 19th July 1982. The said finding of fact is 3 supported by material on record so also evidence. The First Appellate Court has taken into account the fact that the postal seal affixed on the acknolwdgement indicate the date 19th July 1982 and this factor has been construed in favour of the landlord. I do not see any reason to interfere with the concurrent finding of fact about the notice being served on the applicant on 19th July 1982. 4. The next ground that is pressed in service is that the demand is malafide, in as much as, according to the learned counsel for the applicant, the part of the amount which is demanded by serving notice has been received by the landlord. The submission is that if the notice makes a claim for rent which is not due and in arrears, the notice would be malafide. It is nowhere pleaded by the applicant in the written statement that the demand made by the landlord was malafide. The said question also does not appear to have been agitated either before the trial court or before the First Appellate Court. The same seems to have been raised for the first time in the CRA without proper pleadings. There is absolutely no substance in the contention more so in view of the finding of fact recorded by the Courts below that the applicant has been in arrears of rent from 1-1-1978 till the date of filing of the suit. I do not see any merit and hence CRA is summarily dismissed. 4 5. At this stage, the learned counsel for the applicant prays for time to vacate. The counsel for the respondent opposes the same. However, having regard to the facts and circumstances, I deem it proper to grant the applicant six months time for vacating the premises. Hence it is ordered that the respondent shall not execute the decree for eviction and possession for a period of six months from today subject to the condition that the applicant files usual undertaking in this court. The undertaking shall be filed within a period of three weeks from today. (A.P. DESHPANDE, J.)