WP. 4783-95 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION No. 4783 OF 1995 Shri Mogal Vishram Garud ...Petitioner Vs. Ramlal M. Grover (since deceased, represented through the legal heirs) & Ors. ...Respondents *** Mr. Niranjan Mogare i/b S. N. Gorwadkar, for the Petitioner. None for the Respondents. *** CORAM: V. M. KANADE J. DATE : JUNE 6, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the petitioner. None appears on behalf of respondents though they are served. Petitioner is the original tenant and respondent is the original landlord. For the sake of convenience, parties shall be referred to as the ‘landlord’ and the ‘tenant’. Landlord sent a demand notice dated 10-5-1985, demanding arrears of rent. Tenant immediately on receipt of the notice, sent the said amount by money order. However, landlord refused to accept the said money order. Thereafter the landlord sent WP. 4783-95 - 2 - another notice dated 19-6-1985 and suit was filed on 12-8-1985 on the ground of arrears of rent. The tenant filed his appearance and before hearing of the suit, he deposited the entire arrears of rent. Trial Court came to the conclusion that since the rent, as demanded by the second notice dated 19-6-1985 was not deposited within one month month from receipt of said notice, the tenant was liable to be evicted. This order was confirmed by the lower appellate court in appeal. 2. The learned counsel appearing on behalf of the petitioner submits that both the courts below have committed an error of law which is apparent on the face of record. It is submitted that immediately after the first demand notice was sent by the landlord, entire amount was remitted by tenant by money order. However, said money order was refused and thereafter the second demand notice was served. It is also submitted that on second occasion, the tenant had sent money orders which are at Exhibits. 32 and 34 and had tendered arrears of rent which were due and payable on 1-8-1984. However, the said money orders were refused by the landlord. Apart from that, tenant had deposited the entire arrears of rent soon after he filed his appearance on the first date of hearing of the suit. Both the courts, in my view, have committed an error of law, which is apparent on the face of record, by holding that WP. 4783-95 - 3 - since the tenant had not deposited the amount within one month of receipt of second demand notice, he was liable to be evicted. 3. It is a settled position in law that if there is an evidence on record that the tenant had remitted the amount of arrears by money order and the said money order is refused, no cause of action would survive for the landlord to file the suit for eviction. In the present case, tenant not only had sent money order after the first demand notice was sent on 10-5-1985 but had also deposited the entire arrears immediately after the suit was filed against him. Both the courts below were, therefore, not justified in coming to the conclusion that case of the petitioner was covered by the provisions of section 12(3)(a) of the Bombay Rent Act. Both the courts below also have ignored the other evidence on record, namely that the tenant had sent two money orders which are at Exhibits 32 and 34 in respect of the rent for the year 1983-1984 and the said money order was refused by the landlord. Under these circumstances, judgment and order passed by both the courts below is liable to be set aside, and the writ petition is allowed. Rule is, therefore, made absolute in terms of prayer Clause (b). [ V. M. KANADE J.]