1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 38 OF 1993 Dattatraya Rangnath Kaulware, age: 47 years, Occ: Business, Resident of Parli Vaijnath, District Beed. Appellant Versus Rangnath Rambhau Mali, age: 65 years, Occ: Agriculture, Resident of Parli Vaijnath, District Beed. Respondent Mrs.M.A.Kulkarni, advocate for the appellant. None for Respondent. CORAM: R.M.BORDE, J. DATE : 04 th August, 2009. ORAL JUDGMENT: 1 Original defendant is raising exception to the judgment and decree dated 18 th August, 1992, passed by Additional District Judge, Ambajogai in Regular Civil Appeal No.80 of 1990, whereby the first appellate Court was pleased to reverse judgment and decree passed by the trial Court in Regular Civil Suit No.547 of 1983. 2 Respondent-original plaintiff filed a suit claiming recovery of arrears of rent to the tune of Rs.4883/- from the defendant. It is the 2 contention of plaintiff that the suit shop was let out to the defendant for a period of twelve months on agreed yearly rent of Rs.1611/-. There was an express condition settled between the parties that rent of Rs.134.25 is payable on monthly basis. After expiry of period of tenancy, defendant was called upon to vacate the suit premises, however, defendant failed to do so. As the defendant was in arrears of payment of rent for the period from 1 st November 1978 to July 1981, plaintiff instituted suit claiming recovery of arrears of rent. Before instituting suit, plaintiff had issued notice by Registered Post Acknowledgment Due on 15 th July 1981 asking the defendant to make payment of arrears of rent and to vacate suit premises. However, as the defendant failed to abide by notice, plaintiff was constrained to file suit. 3 The defence of defendant is of denial. Defendant denied tenancy agreement dated 1 st November 1978. He contends that he was inducted as tenant in relation to the suit premises from Diwali 1976. As per the tenancy agreement reached between the parties, agreed rent was settled at Rs.600/- per year. According to the defendant, he paid the rent from Diwali 1976 till Diwali 1981. He contends that for the period 1981-82 and 1982-83, he sent the amount by Money Order, however, plaintiff refused to accept same. The defendant has contended that the plaintiff has never executed any rent receipt though payment was made by the defendant to that effect. In these premises, defendant prayed for dismissal of the suit. 4 The trial Court, after recording evidence of the parties, came to the conclusion that the plaintiff has failed to establish his case. 3 As such, by judgment and decree dated 27 th September, 1990, suit presented by plaintiff came to be dismissed. 5 Plaintiff, being aggrieved by the judgment and decree passed by the trial Court, approached the first appellate Court by filing Regular Civil Appeal No.80 of 1990, which came to be heard and disposed of by Additional District Judge, Ambajogai, who was pleased to allow same by judgment and decree dated 18 th August, 1992. 6 At the stage of admission of appeal, this Court found Grounds No.5, 6, 8 and 9, set out in the memorandum of appeal, involve substantial questions of law. Those are: (5) It ought to have been held that the Respondent inducted the appellant in the suit premises in the year 1976 on payment of Rs. 50/- per month. (6) The learned Judge ignored the notice at Exhibit-32 dated 1 st October 1978, from which it is clear that the appellant was inducted prior to 1978. (8) It ought to have been held that the Respondent failed to prove that Respondent is defaulter and in arrears of rent of Rs.4833/- for the period till 1980 to 30 th October 1983. (9) While deciding Point No.3, the learned Judge failed to consider the notice at Exhibit-32 and at Exhibit-29, in which there is no mention that the appellant is in arrears of rent. 7 I have perused the judgment and decree passed by the first 4 appellate Court. That, so far as contention raised by the plaintiff as regards settlement of agreed rent at Rs.1611/- per year is concerned, there is oral evidence led by the plaintiff himself. The plaintiff has also placed on record copy of notice issued by him calling upon the defendant to pay arrears of rent at Exhibit-39. So far as evidence of defendant is concerned, except bare testimony of the defendant that agreed rent was settled at Rs.600/- per year, there is no evidence in respect of tendering of rent by him to the plaintiff. Although the defendant has contended that he has paid arrears of rent, however, there is nothing on record to establish said contention. Exhibit-42, the coupon of Money Order, also is not sufficient to hold that rent for the month of July 1981 was transmitted to the plaintiff. The trial Court, while recording reasons in support of order of dismissal of suit, has relied upon the notice at Exhibit-38 whereby plaintiff called upon the defendant to vacate the suit premises. The trial Court did not take into account the notice issued by plaintiff at Exhibit-39 whereby plaintiff called upon the defendant to pay arrears of rent at Rs.1611/- per year i. e. Rs.134.25 per month. The notice at Exhibit-39 was issued by the plaintiff on 23 rd July 1981, whereas earlier notice calling upon the defendant to vacate the suit premises, was issued on 22 nd September, 1979. The first appellate Court, considering oral evidence of the plaintiff and documentary evidence in the shape of notices issued by the plaintiff, came to the conclusion that the defendant is in arrears of payment of rent for the period from 1 st November 1981 to 30 th October 1983. The first appellate Court, as such, passed decree in favour of plaintiff for recovery of amount of Rs.4833/- as well as notice charges of Rs.50/-. 5 8 It is also to be taken note of that although the defendant has raised a defence that he paid amount of rent payable to the plaintiff, however, there is absolutely no evidence placed on record to support said contention. Defendant runs business in the suit premises. Therefore, defendant could have placed on record Account books showing entries in respect of payment made towards rent in favour of the plaintiff. However, such evidence is also not placed on record. Exhibit-42, coupon of Money Order, also does not spell out that rent tendered is for the month of July 1981. In these premises, the first appellate Court was justified in granting decree in respect of recovery of arrears of rent. I do not find any infirmity in the reasons recorded by the first appellate Court. There is no substance in the appeal. 9 Appeal, therefore, stands dismissed. However, in the facts and circumstances of this, there shall be no order as to costs. (R.M.BORDE) JUDGE ******* adb/sa3893