spb/- 1 wp5909-98.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 5909 OF 1998 Jalal Lala Bagwan (since deceased) through his| ... Petitioner/ legal heirs : | Appellant. 1(a) Rashid Jalal Bagwan,Adult, | (Org.Defendant) Occ.Business, r/at 4196, Ghode Galli, | Barsi, Dist. Solapur | 1(b) Sharif Jalal Bagwan, Adult, Occ.Business | r/at Santacruz Rd., Azad Nagar Colony, | Kurla, Mumbai ­70. | 1(c) Mrs. Nazma Sattar Bagwan, Adult | Occ. Household work, r/at Khurdu Wadi, | Tal. Madha, Dist. Solapur. | 1(d) Hajumabi D/o. Jalal Bagwan, Adult, | Occ.Household work, r/at 4196, Ghode | Galli, Barsi, Dist. Solapur. | 1(e) Ruksanabi Mohammed Bagwan, Adult, | Occ.Household work, r/at Khaja Nagar, | Osmanabad, Dist, Osmanabad. | V/s. Bhagwan Ramling Godane, ... Respondent. Age 43 years, Occ. Service, r/at 4196, (Org.Plaintiff) Somwar Peth, Barsi, Dist. Solapur. ­­­ Mr. S.G.Kudle for the Petitioners. Mr. R.S. Kate for the Respondent. ­­­ CORAM : D. G. KARNIK, J. DATE : 06th JANUARY, 2011. ORAL JUDGMENT : 1 By this petition filed under Article 227 of the Constitution of India, the petitioner (tenant) challenges the judgment and order dated 27th spb/- 2 wp5909-98.sxw August, 1998 passed by the District Judge, Solapur in Civil Appeal No. 356/ 1994, confirming the decree for eviction passed by the Civil Judge, J.D., at Barshi against the petitioners in Reg. Civil Suit No. 358/1986. 2 Respondent is a landlord and the petitioner is a tenant. On 22nd May, 1986, the respondent issued a notice, claiming that the petitioner was in arrears of rent to the extent of Rs. 2848/­. The notice called upon the petitioner to pay the arrears of rent of Rs. 2848/­ within one month. According to the respondent, the petitioner sent money order of Rs. 1748/­ only which was less than the amount demanded under the notice and the petitioner was a defaulter. The respondent, therefore, filed the suit, bearing civil suit no. 358 of 1986, against the petitioner for eviction on the ground of default and nuisance. The trial court held that the ground of nuisance was not proved. However, it came to the conclusion that the petitioner was in default in payment of rent and, therefore, passed a decree for possession in favour of the respondent. On appeal, the appellate court confirmed the decree for possession. Being aggrieved by the said decision, the petitioner has filed this petition. 3 This is a third round of litigation between the parties. There were two earlier suits. In the second suit, the petitioner had deposited a sum spb/- 3 wp5909-98.sxw of Rs. 1100/­ in the trial court towards the rent and the respondent had received the same. The learned counsel for the petitioner submitted that if the said sum of Rs.1100/­ are deducted from the amount claimed in the demand notice then actual arrears of rent would be only Rs. 1748/­ and that amount of Rs. 1748/­ was sent by the petitioner to the respondent by money order within one month from the receipt of the notice. Thus the petitioner had paid to the respondent entire arrears of rent within one month of the notice and therefore, there was no cause for filing of the suit on the ground of default. 4 Before me it is not disputed by the learned counsel for the respondent that in all a sum of Rs. 1100/­ was deposited by the petitioner in the court in the earlier litigation. In the demand notice, the respondent has admitted Rs. 700/­ were deposited by the petitioner in the court in earlier suit. The lower appellate court has however recorded in paragraph 14 of its decision that the petitioner had deposited Rs. 1100/­ in the earlier suit though the respondent had claimed that the amount deposited was Rs. 700/­only. Now if Rs. 1100 are deducted from the amount of arrears claimed in the notice, then the amount due would be only Rs. 1748/­. Admittedly, the petitioner had tendered Rs. 1748/­ by money order within one month. Therefore no cause of action arose spb/- 4 wp5909-98.sxw for filing of the suit on the ground of default. 5 The appellate court has made certain calculations in paragraph 14 and 15 of its order for coming to the conclusion that the petitioner’s tender of Rs. 1478/­ was not adequate as it did not cover all the arrears. The complex calculations made in paragraphs 14 and 15 by the appellate court, to my mind, are not accurate. Even if the notice of demand is taken at its face value, it says that Rs. 2848/­ was in arrears and seeks to give credit of Rs. 700/­ only instead of giving credit of Rs. 1100/­. Obviously, this was incorrect as the petitioner had deposited Rs. 1100/­ in the previous litigation. For these reasons, the courts below committed a clear error in coming to the conclusion that the amount of Rs. 1748/­ tendered by the petitioner did not cover the entire arrears of rent. For these reasons, the impugned judgment and order of the appellate court is required to be set aside. 6 In the result, the writ petition is allowed and the impugned judgments and orders of both the courts below are set aside. The suit of the respondent­plaintiff is dismissed. In the facts and circumstances of the case, there shall be no orders as to costs. Rule is made absolute accordingly. [D.G. KARNIK, J.]