1 wp 78.92 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 78 OF 1992 Mohamed Yusuf Mohmed Phana, Deceased through his L.R.s 1-a Rashida Khatun Mohamed Yusuf, Age : 65 Years, 1-b Mohamed Kamil Mohamed Yusuf, Age : 30 Years, 1-c Mohamed Wasid Mohamed Yusuf, Age : 26 Years, 1-d Mohamed Akil Mohamed Yusuf, Age : 27 Years, 1-e Mohamed Shami Mohamed Yusuf, Age : 21 Years, 1-f Zeenat Bano Mohamed Yusuf, Age : 19 Years, All R/o House No. 2461, Near Old Civil Hospital, Ahmednagar. .. Petitioners Versus Abduj Ajij Ibrahimkhan, Deceased through his L.Rs. 2 wp 78.92 1-a Abdul Rehman Ajij, Age : 55 Years, Occu. : Business, 1-b Abdul Razzak Abdul Ajij, Age : 40 Years, Occu. : Business, 1-c Mehrunissa Sayyed Ahmed, Age : 50 Years, Occu. : Household, All Above R/o Gurunanak Market, Ahmednagar, Dist. Ahmednagar. .. Respondents Shri S. S. Kulkarni, Advocate for the Petitioner. Shri S. P. Shah, Advocate for the Respondent. CORAM : S. V. GANGAPURWALA, J. DATE : 11TH JULY, 2011. ORAL JUDGMENT : . The present respondent/landlord had filed a suit for eviction against the petitioner/tenant on the ground of personal bonafide requirement and default. The Trial Court allowed the said suit for eviction on both the grounds. The tenant preferred an appeal. The appellate Court dismissed the appeal confirming the eviction on the ground of default and as far as ground of bonafide requirement is concerned it held that hardship would be caused more to the tenant. Aggrieved by the confirmation of the order of eviction of the Appellate Court, the tenant has 3 wp 78.92 filed the present writ petition. 2. During the pendency of this writ petition the respondent/landlord has filed an affidavit stating that during the pendency of the appeal also the tenant has not deposited the rent regularly, so also during the pendency of present writ petition. It is further contended in the affidavit that the tenant is not residing in the suit premises and has his other property. Shri Kulkarni, had sought time to file reply to the said affidavit. The matter was adjourned on 27.06.2011 for the said purpose. Shri Kulkarni, the learned counsel for the petitioner submits that he had intimated the petitioner, but the petitioner is not responding. 3. Both the Courts have concurrently come to the conclusion that the petitioner has committed default. It is also seen that during the pendency of appeal the petitioner has failed to deposit the rent regularly in appeal. Even during the pendency of this writ petition after 2002 no amount has been deposited by the petitioner towards the rent. Shri Shah, the learned counsel for the respondent submits that the suit is of the year 1979. Section 12(3) of the Bombay Rent Act was amended in the year 1987. Prior to the year 1987 if the tenant did not deposit the rent for one month after the service of notice upon him, then he would be 4 wp 78.92 dubbed as defaulter and the tenant cannot be granted any protection nor the Court has any discretion. For the said purpose the learned counsel relies on the judgment of the Apex Court in a case of Arjun Makhijani Vs. Jamunadas Tuliani reported in (1989) 4 SCC 612 and in a case of Mrunalini B. Shah Vs. Bapalal Shah reported in (1980) 4 SCC 251. 4. The District Court has observed in para 10 of the judgment that the appellant had not paid the arrears of rent on the first date of hearing and has also not paid thereafter in the following months. Even it is seen that during the pendency of the appeal the amount of rent has not been deposited regularly and in the present writ petition the rent amount has not been deposited after the year 2002. Moreover, the fact remains that after the service of notice no amount is paid within one month. In view of the above facts, the judgment of the Courts below passing decree for eviction against the petitioner on the ground of default cannot be faulted with. In the result the writ petition is dismissed. Rule is discharged, however, with no order as to costs. Sd/- [ S. V. GANGAPURWALA, J. ] bsb/July 11