1 wp-4112.95 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4112 OF 1995 Imamoddin Chitasaheb Khairadi, since deceased through :- 1(a) Chandubi Immamuddin Khairadi & Ors. .. Petitioners Vs Muslim Pachha Peth & Others. .. Respondents -- Shri Kishor R. Jagdale for the Petitioners. Shri T.D. Deshmukh for Respondent Nos.1 and 3 to 8. -- CORAM : A.S.OKA, J. DATE :11TH OCTOBER, 2010 ORAL JUDGMENT : . By this Writ Petition under Article 227 of the Constitution of India, the Petitioners have challenged the decree for possession under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ( hereinafter referred to as “the said Act” ). The Petitioners are the legal representatives of the original Defendant-tenant. The 1st Respondent-Trust is the owner and landlord in respect of the suit premises and rest of the Respondents are the trustees of the 1st Respondent. 2. The suit premises comprises of a room admeasuring 10’ x 10’ more particularly described in the first paragraph of the plaint which was let out to the predecessor of the Petitioners who was the original 2 wp-4112.95 Defendant-tenant. The monthly rent was Rs.25/-. It was alleged in the plaint that the original Defendant-tenant was in arrears of rent for a period of more than six months and therefore, a notice of demand was issued by the Respondents on 9th February, 1988 through their Advocate. It was contended in the suit that the 1st Respondent was running Arabic Maderssa/School in which about 200 children were taking education. It was contended that on account of paucity of accommodation, the classes were required to be conducted in four shifts. It was alleged that on the Northern Side of the suit premises, the original Defendant-tenant has made encroachment on the property of the 1st Respondent to the extent of 6’ x 10’. The suit was filed on the ground of arrears of rent, bona fide need and nuisance and annoyance caused by the acts of encroachment. 2. The suit was contested by the predecessor of the Petitioners by filing Written Statement. It was contended that the trustees of the 1st Respondent tried to demolish the suit premises and therefore, a police complaint was required to be lodged. It was contended that the rent sent by the original Defendant- tenant by money order was refused by the Respondents. It was contended that in December, 1987, the original Defendant-tenant had sent money order to the Chief Trustee who refused to accept it. It was submitted that there was no case of default. It was denied that the suit premises was required for the purposes of education. It was denied in the Written Statement that 200 children were taking education. The allegations of encroachment were also denied. The Trial 3 wp-4112.95 Court decreed the suit on the ground of arrears of rent, bonafide requirement and causing nuisance and annoyance due to acts of encroachment. In the appeal preferred by the predecessor of the Petitioners, the decree has been confirmed on all the grounds and therefore, the present Petition is filed under Article 227 of the Constitution of India. 3. The learned counsel appearing for the Petitioners contended that none of the grounds of eviction were established by the Respondents. The original Defendant/tenant was always ready and willing to pay the standard rent. He pointed out that on 24th December, 1987, a money order was sent in the sum of Rs.920/- representing arrears from 1st March, 1984 to 30th November, 1987. He submitted that the money order was not accepted by the trustee of the 1st Respondent. He stated that the very act of sending money order shows readiness and willingness to pay the standard rent. He submitted that instead of accepting the rent, a demand notice was issued by the 1st Respondent on 9th February, 1988. He submitted that under Section 12(2) of the said Act, no decree for possession could be passed if a tenant shows that he was always ready and willing to pay the rent and permitted increases. 4. As far as ground of bona fide need is concerned, he submitted that there is absolutely no evidence to show that there were 200 students taking education in Arabic Maderssa school. He submitted that the ground of bona fide need has not been established. He submitted that the ground of eviction under Section 13(i)(b) of the said Act was never pleaded. He 4 wp-4112.95 submitted that the rear room allegedly constructed by the original tenant/defendant was in existence from the year 1967 and therefore, the suit was barred by law of limitation. 5. I have given careful consideration to the submissions. There does not seem to be any dispute regarding the service of demand notice dated 9th February, 1988. It is alleged that the predecessor of the Petitioner was in arrears of rent from 1st March, 1984. The money order sent by the predecessor of the Petitioner on 24th December, 1987 in the sum of Rs.920/- was representing rent for 37 months. Even assuming that the said money order was wrongly refused and there is a deemed payment of the amount covered by money order, the arrears demanded were upto the end of the year 1987. The rent tendered was only of 37 months which covered the period upto 31st March, 1987. Therefore, even assuming that there was a deemed payment made in the month of December, 1987, admittedly on the date on which the suit notice was served, the arrears were for a period more than six months. Even the arrears from the period commencing from 1st December, 1987 were not tendered or deposited after the service of the notice of demand. Apart from the fact that this admitted conduct does not show readiness and willingness on the part of the original defendant/tenant to pay rent, in any case, the original defendant/tenant failed to comply with the demand notice within a period of one month from the date of service thereof and also failed to apply for fixation of standard rent. Therefore, the decree for eviction under Section 12(3)(a) of the said Act 5 wp-4112.95 must follow. Therefore, there is no error in the decree passed by the Courts below on the said ground. 6. As far as the ground of bona fide need is concerned, the 1st Respondent examined one of its trustees. The evidence was adduced to show that the 1st Respondent is a public trust duly registered under the Bombay Public Trusts Act, 1950. In the evidence, the trustee stated that the 1st Respondent was running Arabic Maderssa School where about 200 students were taking education. The said Trustee was cross-examined by the Advocate for the original Defendant/tenant. 7. In the evidence of the original Defendant/Tenant, it is contended that there were only 8 to 10 students taking education in the school run by the 1st Respondent. He denied that there were 200 students taking education. In the examination-in-chief, the original Defendant/tenant stated that his son used to reside at Karnik Nagar premises. In the cross-examination, he stated that there were three rooms on the ground floor and one room on the 1st floor in the premises at Karnik Nagar. His contention was that the premises was of his son. The requirement pleaded is of a public charitable trust. It is not the case of the Petitioner that the Arabic Maderssa School is being run for getting any profit. Bona fide need of the 1st Respondent/Trust has been accepted by both the Courts below. Admittedly, there is a premises consisting of four rooms in Karnik Nagar where the son of the original Defendant used to 6 wp-4112.95 reside. There is a concurrent finding of fact on the issue of bona fide requirement. The Appellate court has recorded a finding of fact on the issue of comparative hardship against the Petitioners. 8. Thus, it is difficult to find fault with the decree passed on the ground of arrears of rent inasmuch as there is a clear default on the part of the predecessor of the Petitioner who was admittedly in the arrears of rent for a period of more than six months on the date of demand notice and there was no compliance with the said demand notice. As stated earlier, it is difficult to find fault with the findings on the issue of bona fide requirement of the public trust. 9. As the decree passed on the two grounds is justified, it is not necessary to deal with the submissions made as regards the third ground. 10. There is no merit in the Writ Petition and the same is rejected. Rule is discharged with no orders as to costs. ( A.S. OKA, J )