1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR Letters Patent Appeal No.309 of 2007 In Writ Petition No.1019 of 1996 (The Achalpur Industrial Weaving Co-operative Society v. Rajkumar Rukhabas Chaware and another) -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-- Office Notes, Memoranda of Coram, appearances, Court's orders or directions : Court's or Judge's orders and Registrar's orders. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Shri R.K. Deshpande, Advocate for Appellants. Shri R.L. Khapre, Advocate for R- 1. Shri T.R. Kankale, AGP for R- 2. CORAM : K.J. Rohee & R.C. Chavan, JJ. Date of Reserving the Order : 25-1-2008 Date of Pronouncing the order : 29-1-2008 Order (Per R.C. Chavan, J.) : 1. Having failed before the Rent Controller, the Additional Collector and even before the learned Single Judge of this Court, the appellant-Society has filed the present appeal to save itself from ejectment from the premises taken on rent by it. 2. The landlord-respondent No.1 had sought permission to issue notice terminating tenancy under clauses 13(3)(i) and (ii) of C.P. & Berar Letting of Houses and Rent Control Order, 1949 on the ground that the 2 appellant-Society had not paid rent for more than six months and was also habitual defaulter in paying the arrears of rent. The Rent Controller allowed the landlord's application. On appeal, the Additional Collector modified the permission for serving notice terminating tenancy under clause 13(3)(i) of the Rent Control Order, directing the appellant-Society to pay arrears of rent amount to Rs.2,375/- within a period of two months; failing which, the landlord would be permitted to issue notice terminating tenancy. This order dated 10-1-1996 was complied with by the appellant- Society by paying the said amount of Rs.2,375/- to the respondent- landlord by demand draft. Therefore, cause to issue notice terminating tenancy under clause 13(3)(i) of the Rent Control Order now does not survive. The Additional Collector had also confirmed the Rent Controller's order granting permission to issue notice terminating tenancy under clause 13(3)(ii) of the Rent Control Order. The tenant's petition, bearing Writ Petition No.1019 of 1996, was dismissed by the learned Single Judge of this Court propelling the tenant to file the present appeal. 3. We have heard the learned Advocate for the appellant-tenant as well as the respondent-landlord. 4. The learned Advocate for the appellant-tenant submitted that 3 the appellant could not be said to be habitual defaulter in arrears of rent, since it was not shown that the rent was paid regularly in the past, and, since the landlord had been accepting the rent paid irregularly, without first issuing a notice to insist upon regular payment, the landlord could not assail the payments made by the tenant to brand him as a habitual defaulter. For this purpose, the learned Advocate for the appellant placed for our perusal the judgments of the Supreme Court in Rashik Lal v. Shah Gokuldas, reported at AIR 1989 SC 920, and Girijanandan Singh Parashram v. New Cotton Ginning & Pressing Co., reported at AIR 1999 SC 1565, and a judgment of the learned Single Judge of this Court in Vinodkumar v. Resident Dy. Collector, reported at 1998(1) Mh.L.J. 632. There can be no doubt that if the landlord has been receiving rent irregularly without demur, it would not be open to the landlord to take advantage of the lull in which the tenant was allowed to rest, and take advantage of such irregular payments to seek ejectment. However, in this case, it is not shown that the landlord had been habitually and without demur accepting rent at irregular intervals. The reliance on schedule of payments annexed to the application before the Rent Controller by the learned Advocate for the appellant is of no avail, since this schedule does not depict any such irregular payments. It may be seen that the tenant coughed up arrears of rent on 8-11-1987 after a suit 4 was filed. In this suit, the landlord had not claimed arrears for a period from 1-1-1980 to 31-7-1981 amounting to Rs.2,315/-, because the claim was barred by limitation. If the tenant was keen to pay the rent, rather than banking upon the plea that the claim of arrears of rent was barred by limitation, he would have immediately paid the same. His not paying the said rent till the appellate order was passed by the Additional Collector, would itself show that he was in the habit of not paying the rent till he was compelled to pay it. In view of this, no fault can be found with the judgment of the learned Single Judge dismissing the petition. 5. The appeal is, therefore, dismissed. JUDGE JUDGE pdl