1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.153 OF 1994 Sou.Hirabai Raghunath Yamagarnikar ...Petitioner vs. Dattatraya Shankarrao Vadanagekar since deceased by Legal Heirs 1A Sou Sunanda Dattatraya Vadanagekar 1B Suhas Dattatraya Vadangekar 1C Rohini Dattatraya Vadangekar 1D Rupali Dattatraya Vadangekar ...Respondents Mr.P.D.Dalvi for the petitioner Mr.Pratap Patil for respondent Nos.1A to 1D CORAM :A.S.OKA,J. DATE : FEBRUARY 2, 2010 JUDGMENT: 1 Heard the learned counsel for the petitioner and the learned counsel for the respondent no.1. The petitioner is the original defendant-tenant and the respondents are the plaintiffs. A suit for eviction was filed by the respondents against the petitioner on various grounds such as arrears of rent, bonafide requirement etc. The trial Court dismissed the suit. An Appeal was preferred by the respondents. The District Court has passed a decree against the petitioner under section 12(3) (a) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the said Act). 2 The case of the respondents was that by a demand notice dated 1 st January 1986, the Advocate for the respondents demanded arrears of rent for the period between 1 st January 1985 to 31 st December 1985. the said notice was replied by the petitioner s Advocate by reply dated 3 rd January 1986. In the reply, it was contended 2 that the respondents were receiving the rent in cash from the petitioner but they were not issuing the rent receipts. It is contended that from time to time the rent has been dispatched by money order. A written statement was filed by the petitioner in which a contention was raised that the petitioner and the respondents are closely related and therefore whenever rent was paid, the respondents have not issued any rent receipt. 3 The learned Appellate Court passed a decree on the ground that on the date on which notice was issued the petitioner was in arrears of rent for more than six months and the arrears were not paid or deposited within a period of one month from the service of notice. It is an admitted position that the petitioner has not filed any civil miscellaneous application for fixing the standard rent. 4 The learned counsel for the petitioner invited my attention to the evidence on record and in particular money order receipts. He submitted that the specific case of the petitioner was that the rent was paid from time to time to the respondents but on account of close relationship, the respondents had not issued the rent receipts. He invited my attention to the evidence of the Postman as well as money order coupons on record. He submitted that there was a due compliance with the notice of demand in as much as there were no arrears and the entire rent was paid for which no receipts were issued. He invited my attention to the fact that the respondents examined their Constituted Attorney. He submitted that in the face of the case made out by the petitioner that though the rent was paid, the rent receipts were not issued, the 1 st respondent (1 st plaintiff) ought to have 3 stepped into witness box. 5 I have carefully considered the submissions. There is no dispute between the parties that a notice of demand dated 1 st January 1986 demanding arrears of rent for the period from 1 st January 1985 to 31 st December 1985 was served to the petitioner and a reply was sent to that notice. It is also an admitted position that within a period of one month from the date of receipt of notice of demand, the petitioner has not deposited or tendered amount demanded and had not made any application for fixation of standard rent. 6 A decree is sought under section 12(3) (a) of the said Act. If it is proved that on the date of service of notice of demand, a tenant was in arrears of rent for more than 6 months and if the tenant fails to pay or tender the arrears within a period of one month or fails to apply for fixation of standard rent within the said period, the Court has no discretion but to pass a decree of possession. 7 In the reply to the notice a very vague stand has been taken by the petitioner that though rent was paid in cash,on account of close relationship between the respondents and the petitioner, receipts were not issued. There is a very vague statement made that from time to time that she paid rent by money orders. In the reply to the notice it is not specifically stated that rent up to 31 st December 1985 was already paid for which receipts were not received. Even the stand taken in the written statement is very vague. In the deposition, the petitioner has not come out with a specific case that the date on which notice of demand was served, in fact the entire arrears of rent demanded were already paid to the 4 respondents and there were no arrears. There is a vague statement in paragraph 2 of the examination-in-chief that she used to pay monthly rent to the landlord for which rent receipts were not issued. No particulars of amount paid on account of rent have been set out by the petitioner. She has vaguely stated that earlier the rent was paid by money orders and thereafter, the amount of rent was deposited in the court. The deposit of the amount of rent in the Court is admittedly after filing of the suit. Reliance is placed on the money order coupons from Exh.50 to Exh.60 as well as Exh.63 and 64. As far as money order coupons at Exh.50 to 60 are concerned, there is no endorsement as regards the date on which the money orders were sent. There are no postal stamps on any of the money orders. The dates of refusal of the money orders mentioned thereon are from 11 th February 1985 onwards i.e. After the expiry of period of one month from the date of service of notice of demand. So in any case, the payments allegedly made by the money orders will not help the petitioner as the same appear to have been send one month after the receipt of notice of demand. Reliance is placed on the money orders at Exh.63 and 64. The 1 st money order is at Exh.63 is for tendering the rent for the period from March 1985 to June 1985 which was refused. In the 2 nd money order, the petitioner has deducted the commission payable on the money order from the rent payable. Again there is no specific evidence of any witness as regards the date on which the money orders were dispatched and the date on which money orders were refused. In any event, it is not a case of the petitioner that as on 1 st January 1986, the arrears up to 31 st December 1985 were already paid or tendered. By money order at Exh.64 the rent for the period from March 1985 to 31 st August 1985 was sent which was not accepted by the respondents because the money 5 order charges were deducted from the amount of arrears due. Thus, as far as payment by money order is concerned, none of the money orders will help the cause of the petitioner. 8 The only other defence of the petitioner is that rent was paid from time to time to the respondents for which rent receipts were not allegedly issued. As stated earlier, neither in the pleadings nor in the examination- in-chief the petitioner has given any particulars about the amounts paid in cash. There is no specific case made out that before the date on which the notice of demand was served, entire arrears up to December 1985 were actually paid by the petitioner to the respondent. As stated earlier, there is no attempt made to tender or pay rent within the stipulated period of one month from the date of service of notice of demand. The demand was for more than six months. In the circumstances, there was no option for the Appellate Court but to pass a decree for possession which has been rightly passed. No case is made made out for interference in writ jurisdiction. Writ Petition is rejected. Rule is discharged. JUDGE