/ 1 / IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4713 OF 1989 1. Khurbhur Ramsundar Dhobi since deceased his legal heirs 1(a) Ramkishor Khurbur Kanojia & Ors. ...Petitioners V/s. Kooverji Tejshi Shah ...Respondent Shri.Sandesh Patil i/b. Shri. D.R. Shah for Petitioners. None for Respondent. CORAM : V.M. KANADE, J. DATED : 18th JANUARY, 2008. P.C:- 1 Heard learned counsel for the Petitioners. None appears for the Respondent though served. 2. Petitioners/original tenants are challenging the judgment and order passed by the Trial Court whereby order of eviction was passed against them for not payment of arrears of rent from 01/01/1967 to 29/02/1968. This order was confirmed by the lower Appellate Court in the appeal which was preferred by the Petitioners. 3. Brief facts, in nutshell, are as under:- / 2 / Respondent/Landlord served a notice on the Petitioners that they were in arrears of rent from 01/01/1967 to 29/02/1968. Petitioners filed an application for fixing of standard rent and in the said application, interim standard rent was fixed at Rs.30 p.m. and Petitioners were ordered to pay arrears of rent for the aforesaid period of six months by order dated 24/07/1968 and thereafter, to pay Rs.30 p.m. Thereafter some amount was paid by the tenants in the Court and the Plaintiff withdrew this amount. Said application was, however, dismissed for default. Plaintiff filed a suit thereafter. The Trial Court held that the Petitioners did not pay arrears of rent within stipulated period of one month and therefore, decree of eviction was passed which was confirmed by the lower Appellate Court. 4. Learned counsel for the Petitioners submitted that both the Courts below committed error of law which was apparent on the face of record. He submitted that both the Courts below had not taken into consideration fact that the Petitioners had raised a dispute regarding rent by filing an application for fixing standard rent. He submitted that though Plaintiff himself had admitted this fact in his plaint, this fact was not taken into consideration by both the Courts below. He submitted that therefore, / 3 / case of the Petitioner would fall U/s.13(1)(b) and not U/s.13(1)(a). 5. Perusal of the plaint clearly discloses that Plaintiff himself had stated in his plaint that Petitioners had raised a dispute regarding standard rent which was payable to the landlord. He further admitted that arrears of rent from 01/01/1967 to 29/02/1968 was deposited by the tenants and thereafter, interim rent as fixed by the Rent Court was withdrawn by the Plaintiff. Both the Courts below, in my view, erred in not taking into consideration this admitted position. Rent demanded by the statutory notice by the Plaintiff having been paid, Plaintiff did not have cause of action for filing suit after dismissal of said application. In any event case of the Petitioners would fall U/s.13(1)(b), they having raised dispute regarding rent which was payable to the landlord by filing standard rent application within one month from the date of notice. Finding of both the Courts below, therefore, are liable to be set aside. Judgment and order passed by the Trial Court and which is confirmed by the Appellate Court is quashed and set aside. Rule is made absolute in terms of prayer clause(b). There shall be no order as to costs. V.M. KANADE, J. / 4 /