1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5328 OF 1990 Vilasini Shreepad Nadkarni (since deceased) through her legal representatives Mr.Mangesh Shreepad Nadkarni .. Petitioner versus Shantadevi Jogindersingh Gandhi (since deceased) through her legal representatives Gurucharansing Jogindersing Gandhi & Anr. .. Respondents Mr.Subramanium i/by Mr.S.V.Pitre for the petitioner. Mr.Kunal Damle i/by Mr.K.S.Dewal for respondent No.1. CORAM : A.S.OKA, J. DATE : 23rd March 2010. JUDGMENT: . The submissions of the learned counsel appearing for the parties were heard earlier. The petitioners who are the legal representatives of the original defendant by filing this writ petition under Article 227 of the Constitution of India have challenged the decree of possession passed against them under the provisions of section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the said Act). For the sake of convenience, the parties are hereinafter referred to with reference to their description before the trial Court. The suit premises 2 is a room let out by the plaintiffs to the defendant for residential purposes. According to the plaintiffs, the monthly rent was Rs.11.66/- inclusive of education cess. Notice dated 1st June 1983 was issued by the plaintiffs to the defendant terminating tenancy of the defendants. By the said notice it was alleged that the defendant was in arrears of rent from 1st December 1981. Notice was served to the defendant on 3rd June 1983. It is stated that after expiry of notice period, on 19th July 1983 arrears of rent along with notice charges were sent by the defendant by money order. Therefore, suit for eviction was filed. 2. The written statement was filed by the defendant. It was contended that on 16th June 1983 the entire arrears were remitted by the defendant by money order to the plaintiffs and the amount was accepted by the plaintiffs. 3. The trial Court came to the conclusion that the defendant had shown readiness and willingness to pay the rent within one month from the date of service of notice of demand. The trial Court held that demand notice was duly served to the defendant on 14th June 1985 and the defendant claimed that she had remitted the entire arrears by money order on 16th June 1983. The money order coupon was produced by the plaintiffs to show that the money order was received 3 on 17th July 1983. The trial Court observed that the plaintiff No.1 did not enter witness box to show that the money order was received by her on 19th July 1983. The trial Court noted that the defendant had lost money order receipt dated 16th June 1983. The trial Court referred to communication issued by the Post Office at Exhibit 41 which records that the record relating to said money order has been destroyed. 4. The Appellate Court interfered and passed a decree for possession on the ground that the burden was on the defendant to prove that money order was sent within a period of one month from the date of receipt of the notice. 5. The learned counsel appearing for the petitioners submitted that the money order was remitted on 16th June 1983 of the amount representing the entire arrears demanded and that itself was sufficient to prove compliance. He invited the attention of the Court to the application made by the original defendant before the trial Court for production of the record of the post office. He submitted that as record has been destroyed, the same could not be produced. He submitted that inference drawn by the trial Court that money order was remitted within one month from the date of service of notice was 4 correct. He submitted that in fact there was no cause of action for filing suit in view of decision of this Court in the case of Sau.Ayodhyabai Shri Vallabh Laboti Vs. Sumanchand Rupchand Phulpagar (Shah) deceased by heirs (1983 Bombay Rent Cases 351). The learned counsel appearing for the respondent 1st appellant supported the impugned judgment and decree. 6. At this stage, it must be noted that the 2nd respondent is dead and by order dated 6th October 2006 passed by this Court on application made by the petitioners , the requirement of bringing on record heirs of respondent No.2 has been dispensed with. Thereafter, the advocate for respondent No.1a has supplied names and addresses of the heirs of respondent No.2 to the advocate for the petitioners. 7. I have considered the submissions. Even judgment of the trial Court notes that money order receipt dated 16th June 1983 has not been placed on record by the defendant to prove the dispatch of money order. The money order coupon produced by the plaintiff on record showed that same was received by the plaintiffs on 17th July 1983. The notice of demand was served to the defendant on 14th June 1983. 5 8. It is pertinent to note that though the case of the defendant was that entire arrears were remitted by money order on 16th June 1983, no reply has been issued to the demand notice raising the said contention. The Appellate Court has noted the admission of the original defendant in her cross-examination that she did not remember after how many days after receiving the notice, the rent was remitted by money order. The Appellate Court has noted that in the evidence the defendant has not come out with a case that money order receipt dated 16th June 1983 has been lost. Moreover, no such case was made out in written statement. Reliance was placed on letter at Exhibit 41 issued by the postal department that the concerned record was not available. Firstly, the defendant did not reply to the demand notice by contending that the rent was remitted by money order. Secondly, at no stage either in the pleadings or in evidence defendant came out with a case that money order receipt dated 16th June 1983 has been misplaced or lost. The husband of the 1st plaintiff entered the box and stated that the money order was received on 17th July 1983. Thus, the finding of fact recorded by the Appellate Court is that there was no evidence adduced by the defendant to show that rent was tendered by money order which was remitted within one month from the date on which demand notice was 6 served to defendant. 9. As there was no compliance made with the notice of demand within one month from the date of receipt thereof and as arrears of rent were admittedly for a period of more than six months, the Courts below had no option but to pass a decree for possession under section 12(3)(a) of the said Act. Hence, no interference is called for with the impugned judgment and order. 10. The petition is rejected. Rule is discharged with no orders as to costs. (A.S.OKA,J)