1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO. 1214 OF 1990 Bibi Amir Shaikh ) residing at House No.2578, ) Helbewadi Nasik. ) ...... Petitioner (Original Defendant) V/s 1. Kadir Yasin Khot, ) since deceased by his heir ) and legal representatives:- ) 2. Shamsuddin Kadir Khot ) 3. Chiraguddin Kadir Khot, ) both residing at 2578, ) ....... Respondents Helbewadi, Nasik. ) (Original Plaintiffs) ------- Ms. A.R.S. Baxi for the Petitioner. Mr. P.J. Thorat i/b Mr. R.A. Thorat for Respondent Nos. 2 and 3. ------- CORAM: V.M. KANADE, J. DATE : 6th May, 2008 (In Chamber at 2.35 P.M.) 2 ORAL JUDGMENT: 1. By this Petition filed under Article 227 of the Constitution of India, the Petitioner who is the original tenant is challenging the judgment and decree passed by the Joint Civil Judge, Junior Division, Nasik dated 21/08/1982 in Regular Civil Suit No. 312 of 1980 and also the order passed by the Additional District Judge, Nasik in Regular Civil Appeal No.406 of 1982 whereby the order passed by the Trial Court was confirmed in appeal. 2. Brief facts in a nutshell are as under:- 3. The respondent - original Plaintiff filed Regular Civil Suit No.312 of 1980 seeking possession of the suit premises on the ground that the Petitioner - original defendant was a defaulter within the meaning of section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (For short "the Rent Act"). For the sake of convenience, the parties shall be referred to as "plaintiff" 3 and "defendant". Defendant filed her Written Statement and took a specific plea that the plaintiff avoided to issue the rent receipt. It was also alleged that the rent from 01/03/1979 to 31/12/1980 was sent by money order on 10/01/1980. However, the landlord refused to accept the rent which was sent by the money order. Again, in October, 1979 the rent for the period from 01/03/1979 to 31/12/1979 was sent by money order but the plaintiff refused to accept the money order and, thereafter, the defendant met the plaintiff and paid the rent. However, the rent receipt was not issued. It was also the case of the defendant that she had deposited entire rent in Court and, therefore, she was not a defaulter within the meaning of section 12 of the Rent Act. The suit was filed on the basis of statutory notice which was sent on 31/01/1980, claiming arrears of rent from 01/03/1979 to 31/12/1979 i.e. for a period of 10 months. Both the Courts below have given a finding that after receipt of the statutory notice by the defendant, rent was not paid to the landlord within one month of the said notice and, therefore she was a defaulter within the meaning of section 12 of the Rent Act. 4 4. The learned Counsel appearing on behalf of the Petitioner submitted that both the Courts below have erred in recording the finding that the defendant was a defaulter particularly when it was proved by her in the trial court by leading evidence that she had sent the rent for the period from 01/03/1979 to 31/12/1979 by money order and that the landlord had refused to accept the money order and, therefore, the cause of action to file a suit for eviction on the ground of arrears of rent did not arise and, on that ground, the suit itself was liable to be dismissed. It was also submitted that the tenant had deposited rent in the trial court on the first date of hearing and, therefore, her case was squarely covered under section 12(3)(b) of the Rent Act and, in the present case, it is an admitted position that the money order was sent by the defendant- tenant and the said money order was not accepted. This finding has been recorded by the lower appellate Court. The District Court in para 12 of its judgment has held as under:- "12. At this moment, I must mention it here that it is not in dispute that the 5 plaintiff refused the money order of Rs 70/- (M.O. Coupon Exh.27) which was sent by the defendant on 10.1.1980 for the period 1.3.1979 to 31.12.1980 which was the rent claimed in the suit notice (exh.21) dated 31.1.1980." Since the tenant sent the said amount by money order and it was refused, the cause of action for filing the suit did not accrue in favour of the plaintiff. Both the Courts below have ignored this crucial aspect and have proceeded to consider the evidence whether the landlord had received the rent twice as alternatively alleged by the defendant. 5. A Division Bench of this Court (Coram: Dr. S. Radhakrishnan & Smt. R.S. Dalvi, JJ) in its judgment dated 24th October, 2007 in Sitaram Maruti Nagpure Vs. Fakirchand Purushottam Dhase in Writ Petition No.935 of 1994 with Writ Petition No.2682 of 1991 has now held that if a money order is sent by the defendant for the period for which arrears of rent are claimed and the same is not accepted by the landlord, cause of action to file the suit for eviction on the ground of default would not accrue in favour 6 of the landlord. The ratio of the said judgment squarely applies to the facts of the present case. 6. The judgment and order passed by both the Courts below is, therefore, set aside and quashed. The suit filed by the plaintiff is dismissed. Rule is made absolute accordingly in terms of prayer clause (b). Under the circumstances, there shall be no order as to costs. V.M. KANADE, J.