dgm gm gm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.3504 OF 1997 PETITION NO.3504 OF 1997 PETITION NO.3504 OF 1997 Shri Ashok Ganpat Ranadive, aged Adult, residing at Shrivardhan Taluka Shrivardhan District Raigad. ...Petitioner Vs. Smt.Vedavati Vasudev Pandit, Aged Adult, residing at Shrivardhan, Taluka Shrivardhan District Raigad. ...Respondent. Smt.S.A.Mudbidri for the Petitioner. Mr.A..Toraskar for the Respondent. CORAM CORAM CORAM : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. DATED DATED DATED : 10th November, 2008. : 10th November, 2008. : 10th November, 2008. JUDGMENT: JUDGMENT: JUDGMENT: The petitioner/landlord has challenged the impugned order dated 30.09.1996 passed by the IIIrd Additional District Judge, Raigad-Alibag whereby dismissed the suit of possession filed by the petitioner/plaintiff, though given clear finding that the respondent/tenant is in arrears of rent from 1.12.1981 to 28.02.1989, by relying on the provisions of Section 12(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short "Bombay Rent Act") but maintained the judgment and decree for arrears of rent. ( 2 ) 2. The petitioner is the owner of the suit premises bearing Municipal House No.2248 situate at Shriwardhan District Raigad. 3. In 1981, father of the petitioner inducted the respondent as a licensee in the suit premises for period of 11 months with effect from 1.1.1981 to 30.11.1981 to conduct hotel business in the suit premises for a monthly compensation of Rs.150/- plus education cess. 4. On 13.10.1981, after the death of father of the petitioner, issued notice terminating licence of the respondent and demanded possession from the respondent. 5. On 22.11.1983, an another notice issued to the respondent making similar demand as above. 6. In 1984 Civil Suit No.6 of 1984 filed by the petitioner against the respondent in Court of the Civil Judge, Junior Division, Shriwardhan, for recovery of possession of the suit premises on the ground of arrears of rent. ( 3 ) 7. The respondent filed written statement and raised dispute as to the amount of rent. The respondent denied the rent to be Rs.150/- per month but alleged that it was only Rs.50/- per month. 8. On 27.09.1988 the learned trial Judge held that the rent was Rs.150/- per month and that the respondent was in arrears of rent. Hence granted a decree for recovery of arrears of rent of Rs.3900/-. However, the suit for recovery of possession was dismissed by the trial Court. The said decree was not challenged by the respondent and has become final and conclusive. 9. The respondent paid the decretal amount however, once again fell in arrears of rent from December 1981 onwards to February, 1989. 10. On 14.03.1989 notice issued to respondent demanding arrears of rent and recovery of possession from the respondent. 11. The respondent falsely replied to the said notice and denied claim of the petitioner. ( 4 ) 12. In 1989 Regular Civil Suit No.18 of 1989 filed by the petitioner in the Court of the Civil Judge, Junior Division, Shreewardhan, for recovery of possession on the ground of arrears of rent and bonafide personal requirement of the petitioner. 13. On 15.06.1992 the learned trial Judge after considering all the evidence on record, came to the conclusion that the respondent is in arrears of rent and decreed the suit for eviction. However, the suit filed on the ground of bonafide and personal requirement was dismissed. 14. On 28.07.1992, the respondent filed Civil Appeal No.93 of 1992 in the Court of the Additional District Judge Raigad. 15. On 30.09.1996, the Appeal is partly allowed and the decree for arrears of rent is confirmed. However, the decree for recovery of possession on ground of arrears of rent is dismissed. Hence the present writ petition. 16. Having once held concurrently by the Courts below that the respondent/tenant not paid the rent though ( 5 ) fixed, directed and ordered, based upon the material available on record, including the judgment and decree as referred above, in my view, the decree of possession on this ground, the respondent being habitual defaulter, ought to have been granted as ordered by the court by the judgement and decree dated 15.06.1992. The issue about personal bonafide requirement as observed remained unchallenged by the petitioner/landlord. 17. Section 12(3) of the Bombay Rent Act though provides protection to tenant on account of his failure to pay arrears of rent it is only on the foundation that on and before the day as the Court may fix such tenant to pay in the Court the standard rent with simple interest at the rate of 9% and thereafter continued to pay or tender in the court regularly till the suit is finally decided. Admittedly, there is sufficient material on record to justify that the respondent/defendant was in arrears of rent and failed to pay the amount of rent though fixed. In the present case, as recorded there was already decree passed against the defendant to pay the rent, but in vein. The present suit was filed for eviction and possession on the ground of arrears of rent and ( 6 ) bonafide need. However, the aspect of bonafide need went against the landlord and became final. The facet of arrears of rent since 1981 is also on the basis of earlier Suit No.6/1984. Therefore, rights so accrued in favour of the petitioner/plaintiff based upon the said decree just cannot be overlooked. The present suit was filed after 1.10.1987 i.e. Amended Section 13(3) by Maharashtra Act 18 of 1987 to the Bombay Rent Act. The case of arrears of rent as contemplated on the basis of old Section 12(3)(a) and 12(3)(b) of the Bombay Rent Act ought to have been taken note of so far as the possession is concerned. The defendants, in view of this amended provision, has admittedly failed to comply with the earlier orders and decree. There is no question of separate order to be passed by the court directing the respondent/tenant to pay the arrears. Taking shelter of his own inaction the respondent/tenant is benefitted for his own wrong. In the present facts and circumstances of the case, therefore, I am inclined to consider the case of landlord in view of admitted position on record with regard to the arrears of rent as not paid inspite of the earlier decree and even after filing of the present suit for possession on the ground of arrears of rent The respondent/tenant has failed to utilise ( 7 ) and use amended provision by not depositing the rent or tendering the rent inspite of second Suit as contemplated under the amended provision of the Maharashtra Rent Act, I see such tenant is not entitled for any benefit specially in the present facts and circumstances of the case. 18. The decision in Piroja M. Mehta v. Dr.Hambai Piroja M. Mehta v. Dr.Hambai Piroja M. Mehta v. Dr.Hambai Jamshedji Jamshedji Jamshedji Cama & ors., 1988 (3) Bom.C.R. 1, Cama & ors., 1988 (3) Bom.C.R. 1, Cama & ors., 1988 (3) Bom.C.R. 1, therefore, is of no assistance. 19. Taking all this into account, in my view, the impugned judgment and order dated 30.09.1996 is modified. The judgment and order passed by the trial court dated 15.06.1992 with regard to the possession of the premises is restored. 20. In the result, the writ petition is allowed accordingly. There shall be no order as to costs. ( ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.)