1 cra597-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.597 OF 2010 IN APPEAL NO.148 OF 2007 Mrs.Kala Kamlakar Naik ..Applicant Vs Sriniwas Bhaskar Ullal ..Respondent WITH CIVIL REVISION APPLICATION NO.598 OF 2010 IN APPEAL NO.149 OF 2007 Mrs.Kamlakar Gajanan Naik ..Applicant Vs Sriniwas Bhaskar Ullal ..Respondent -- Mr.G.S.Godbole i/b.Mr.Sanjeev Singh, for applicant [in both petitions]. Mr.Prakash Kilpady, for respondents [in both petitions] -- CORAM : A.S.OKA, J. DATE : 22 nd NOVEMBER, 2010 P.C: The facts of both the Civil Revision applications are more or less identical. Hence, a reference is made to the facts of the Civil Revision 2 cra597-10.sxw Application No.597 of 2010. The applicant is the defendant – tenant and the respondent is the original plaintiff. A suit for eviction was filed by the respondent against the Revisional Applicant under the provisions of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the said Act). The suit was filed on the ground that the applicant was in arrears of rent from December, 1993 onwards and the applicant has carried out additions and alterations of a permanent nature. It is alleged that the said premises are required for the bona fide personal use of the respondent. Reliance was placed on Notice of Demand dated 24 th August, 1994 sent by the advocate for respondent to the applicant demanding arrears of rent from 1 st December 1993. 2] The Court of Small Causes, before settlement of the issues, passed a scrutiny order on 6 th August, 2003 directing the applicant to deposit arrears of rent of Rs.Rs.31,116/- payable upto March, 2003 within one month of the said order. A direction was also issued to deposit the monthly rent on or before 10 th day of every calender month. As the applicant did not comply with the said order, an application for striking out the defence of the applicant was made by the respondent, which was allowed by the trial Court. 3] The trial Court decreed the suit for possession. The decree was passed on the grounds of arrears of rent and bona fide need, and carrying out permanent construction, which was confirmed by the appellate court in appeal preferred by the applicant. 3 cra597-10.sxw 4] Learned counsel for the applicant submitted that even assuming that an order by which the defence of the applicant was struck out was lawfully made, learned trial Judge could not have prevented the applicant from cross-examining the respondent and his witnesses. He placed reliance on the decisions of the Apex Court in the case of Modula India Vs. Kamakshya Singh Deo (AIR 1989 SC 162). He submitted that the decree is passed on the grounds of bona fide need and carrying out permanent construction apart from arrears of rent. He submitted that the applicant could have cross-examined the respondent and his witnesses to bring falsity of the case made out by the respondent on record. He submitted that in the written statement, a specific defence was taken that the applicant had offered rent which was not accepted. He submitted that by cross-examining the respondent, the applicant could have always brought on record the fact that within the statutory period, the applicant had tendered the rent which was not accepted by the respondent. He submitted that the fact that the applicant was denied the right of cross- examination goes the root of the matter and, therefore, by setting aside the impugned judgments and decrees, an order of remand will have to be passed with a permission to the applicant to cross-examine the witnesses of the respondent. 5] I have carefully considered the submissions. The first ground on which the decree is passed is of arrears of rent. The case of the respondent was that the applicant was in arrears of rent from 1 st December, 1993 and therefore Notice of Demand dated 21 st August, 1994 was served to the applicant. From the paragraph no.3 of the written statement of the 4 cra597-10.sxw applicant, it appears that the service of Notice of Demand is not disputed. A case is made out that the rent was tendered by her to the respondent, but the respondent did not issue rent receipt. It is stated that the rent was tendered by Money Order, but the respondent refused to accept the Money Order. However, there is no specific pleading that the entire amount of arrears demanded was sent by Money Order within the statutory period from the date of receipt of Notice of demand. 6] There was a scrutiny order passed on 6 th March, 2003 by the trial Court directing the applicant to pay arrears of rent. The defence of the applicant was struck out on account of non-compliance of the said order. An application was made by the applicant for setting aside the said order of striking out the defence. A copy of the said application is placed on record. In the said application, there is no pleading that any attempt was made to comply with the Notice of Demand. 7] Had it been the specific case of the applicant that within one month from the service of notice of demand, an attempt was made either to personally tender the entire arrears of rent or to send it by money order, then there could have been some justification in the submission of the learned counsel appearing for the applicant that a deemed compliance of the notice could have been brought on record by cross-examining the respondent. As stated earlier, there is no specific case made out in the written statement that either the entire rent demanded was tendered or was sent by money order within one month from the date of service of notice. Therefore, denial of right of cross-examination has not caused any 5 cra597-10.sxw prejudice to the applicant. In any event, the applicant could have complied with the requirements of Sub-Section 3 of the Section 12 of the said Act by depositing arrears of rent with interest and costs with a view to get a relief against the forefeiture. Admittedly, the applicant has not complied with sub-Section 3 of Section 12 of the said Act. Hence, the applicant is a defaulter. The decree on the ground of arrears of rent is legal and proper and no interference is called for. As there is a justification for one ground of eviction, it is not necessary to deal with the other grounds. There is no merit in the Revision Applications. The same are, accordingly, rejected. 8] On the prayer made by learned counsel for the applicants, it is directed that the decree for possession shall not be executed for twelve weeks from today, subject to the condition that the applicants shall not create any third party rights in respect of the property in question and will not part with possession thereof. [A.S.OKA, J]