( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 3023 OF 1991 Babuseth Alli Shaikh Since deceased by L.Rs. Shahin wd/o Asalam Shaikh, R/o Kardilewada, Tal. Sangamner, Dist. Ahmednagar PETITIONER VERSUS Bhikchand alias Bhikaji Gopala Kardile, R/o Kardilewada, Devi Galli, Sangamner, Dist. Ahmednagar. (at present residing at Bombay) RESPONDENT ..... Mr. M.M. Nerlikar, advocate holding for Mr. S.T. Shelke, advocate for the petitioner. Mr. V.J. Dixit, Senior Counsel, instructed by Mr. L.V. Sangit, advocate for the respondent. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 5th March, 2010] ORAL JUDGEMENT : 1. By this petition, the petitioner challenges judgement rendered by learned 3rd Additional District ( 2 ) Judge, Ahmednagar, in Regular Civil Appeal No. 77/1985, confirming eviction decree rendered in civil Suit (R.C.S. No. 185/1979). 2. The dispute relates to house property bearing Municipal No. 442. The petitioner is tenant of the premises in question. The agreed rent was of Rs. 14/- p.m. The respondent is landlord. The respondent used to reside at place of his employment. 3. The case of the respondent before the trial Court was that the petitioner failed to pay rent since 1st January, 1971. He was found in arrears of Rs. 1358/- for period between 1st January, 1971 to 31st July, 1979. He asserted that he issued a demand notice dated 2nd February, 1979 which drew blank. The petitioner did not reply the notice nor paid the rent arrears within the statutory period. He further asserted that he required the suit premises for personal and bonafide use. 4. The petitioner resisted the suit by filing his written statement (Exh-30). He denied all the material ( 3 ) averments. He submitted that the rent was paid up-till December, 1978, yet, the petitioner had not issued any receipt towards payment of the rent. He further contended that false claim was put forth regarding the quantum of rent arrears. He alleged that the respondent – landlord did not require the suit premises for any bonafide and personal use as such. Hence, he urged for dismissal of the suit. 5. The parties went to trial over the issues settled below Exhibit-22. They adduced oral and documentary evidence in support of the rival contentions. The trial Court held that the respondent – landlord failed to prove personal and bonafide requirement of the suit premises. The trial Court, however, held that the petitioner (tenant) was in arrears of the rent for more than six (6) months. The trial Court held that the rent amount was not paid within period of 30 days after receipt of the demand notice dated 2nd February, 1979, nor such amount was tendered on the day of hearing of the suit and, therefore, the petitioner was liable to be evicted in ( 4 ) terms of section 12 (3) (A) and (B) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short, “the Bombay Rent Act”), as it stood at the relevant time. Hence, decree for eviction was rendered by the trial Court. The first Appellate Court confirmed the same vide the impugned judgement. 6. Mr. Nerlikar, holding for Mr. S.T. Shelke, submits that the rent receipts were never issued by the landlord and, therefore, version of the petitioner ought to have been accepted by the trial Court. He would submit that the rent was being paid to cousin of the landlord, who was locally managing the property affairs for and on behalf of the landlord and it is only after death of said cousin that the landlord carved out false ground of default by taking undue advantage of non- issuance of the receipts. He argued that the Courts below have not properly appreciated the evidence on record and the circumstances. He contended that the impugned judgement is bad in law because proper points for determination were not formulated in keeping with provisions of Order-XLI Rule-31 of the Civil Procedure ( 5 ) Code. He seeks to rely on certain observations in “Smt. Anita M. Harretto v. Abdul Wahid Sanaullah” (AIR 1985 BOMBAY 98). Per contra, Mr. Dixit V.J., learned Senior Counsel, submits that the re-appreciation of evidence is impermissible in the exercise of writ jurisdiction and that the impugned judgement does not reflect any perversity so as to cause for interference by this Court. 7. It is well settled that this Court will not reappreciate the facts in the exercise of supervisory jurisdiction available under Article 227 of the Constitution. The finding of fact regarding commission of default by the petitioner in payment of rent is rendered by the trial Court and the first Appellate Court on strength of material which was produced by the parties. It is significant to notice that the notice (Exh-37) was issued on 2nd February, 1979 and was admittedly received by the petitioner vide postal acknowledgement (Exh-38). It is un-controverted that the petitioner did not reply the said notice. He did ( 6 ) not explain as to why he did not immediately reply the said notice and made it clear that the rent arrears were already paid, but the landlord had not issued the receipts regarding such payment. His written statement (Exh-13) purports to show that his relations with the landlord were cordial. In his written statement, he never alleged that the rent was being recovered by cousin of the landlord. However, for the first time during the course of trial, it was suggested that the rent was being recovered by cousin of the landlord – respondent. He categorically pleaded that for house property bearing Municipal No. 442, the rent was accepted by the landlord up-till 19th December, 1978. Obviously, it was not his case that after December, 1978, he paid any rent amount to the landlord. What he pleaded in the written statement is that because the landlord had demanded rent for an open space from 1970 onwards, he had withheld the payment of rent from December, 1978 onwards in respect of the suit premises (Municipal No. 442). Needless to say, it is his own case that from December, 1978, he did not pay any rent amount to the landlord. It is manifestly clear, ( 7 ) therefore, that after receipt of notice dated 2nd February, 1979, which was served on him on 14th February, 1979, he failed to pay the rent arrears within period of 30 days. It is also conspicuous and requires no further evidence to prove, that he had not applied for fixation of standard rent nor had deposited the amount of rent arrears as on the date of framing of the issues. The issues were framed on 27-01-1981 vide Exh-22. As per the settled principles of law, in civil cases, the first date of hearing (trial) is the date of framing of the issues and in criminal cases, it is the framing of charge. 8. Mr. Nerlikar submits that on 19th January, 1983, the petitioner had filed an application seeking leave to deposit the rent arrears, but no order was passed thereon and, therefore, it could have been presumed that the petitioner was not willful defaulter. I do not agree. The subsequent readiness and willingness of the tenant is of no much significance. The tenant is required to show that the payment of rent was made before receipt of the demand notice or within 30 days ( 8 ) thereof or it was paid on the first day of hearing of the suit, unless he has disputed the agreed rent and has sought fixation of standard rent in accordance with section 11 of the Bombay Rent Act. It is argued that the practice of the landlord was admittedly not to issue any notice regarding payment of the rent and, therefore, version of the landlord could not be relied upon by the trial Court and the first Appellate Court. For a moment, assuming that due to such practice of the landlord, the demand for rent up-till December, 1978 was improper, then also, it does not stand to reason as to why the tenant did not pay the rent arrears for period after December, 1978 till the date of demand notice, no sooner he was served with the notice, within period of 30 days thereof in order to save himself from the eviction decree. It was his ipse dixit that such rent amount was withheld for the reason that rent was being demanded in respect of another open space, separately at rate of Rs. 13/- per month. This cannot be appreciated as justification for the defaults. 9. Section 12 (3) (a) and (b) as it stood prior to ( 9 ) the amendment, reads as follows : “12. No ejectment ordinarily to be made if tenant pays or is ready and willing to pay standard rent and permitted increases.- (1) ***** (2) ***** (3) (a) Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent of increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-section (2), the Court shall pass a decree for eviction in any such suit for recovery of possession. (b) In any other case, no decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the ( 10 ) Court.” 10. A plain reading of section 12 (3) (a) and (b) will make it manifestly clear that once it is noticed that the tenant was in arrears of rent for more than six (6) months and the same was not paid within 30 days of the demand notice, eviction decree can be passed. There is further opportunity available to the tenant to save himself from the eviction decree by depositing the amount on the very day of first hearing of the suit. Non-availment of such opportunities by the tenant goes to expose him to the satisfactory fall-out of eviction due to own defaults. The impugned judgements cannot be, therefore, faulted with in view of the legal position and the fact situation of the present case. 11. So far as objection regarding non-framing of proper points by the first Appellate Court is concerned, I find it difficult to countenance such argument. The first Appellate Court framed point No. 2 as regards the default of the petitioner. The points framed by the first Appellate Court indicated that the nature of ( 11 ) controversy was being considered in the context of section 12 (2) (a) and (b) of the Bombay Rent Act. The petitioner was not prejudiced due to omission to frame any particular point as such. Unless there is substantial prejudice caused to the petitioner, the defect by itself cannot vitiate the concurrent findings of both the Courts below. 12. In “Krishna Laxman Bhatkar (deceased) v. Vithal Ganesh Aathwale” 2003 (5) Mh.L.J. 577” it has been laid down that unless prejudice is caused due to omission to frame a particular point, the judgement cannot be said to have been vitiated. The Apex Court in “G. Amalorpavan v. R.C. Diocese of Madurai” 2006 (4) Mh.L.J. (S.C.) 187, held that where there is substantial compliance of Order XLI Rule 31 of the Civil Procedure Code, the judgement of the appellate Court cannot be interfered with. 13. For the reasons aforestated, I do not find any substance in the petition. Hence, the petition is ( 12 ) dismissed. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/wp3023-91