1 wp431-4378.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.431 OF 1992 1 Shri Jamnaprasad Manilal Gupta since deceased through his L.Rs. 1 Ramlal Jamnaprasad Gupta Since deceased through his L.Rs. 1a Bindubai Ramlal Gupta 1b Anil Ramlal Gupta 1c Rajesh Ramlal Gupta 1d Anita Ramlal Gupta 2 Shamlal Jamnaprasad Gupta 3 Shivlal Jamnaprasad Gupta 4 Brijlal Jamnaprasad Gupta 5 Ratilal Jamnaprasad Gupta ...Petitioners vs. Yusufbhai Gulam Husan Talib since deceased through L.Rs. 1 Saifuddin Gulab Husain Talib 2 Daudbhai Gulab Husain Talib 3 Talebhai Gulam Husain Talib 4 Moyizbhai Gulam Husain Talib 5 Zhebeb Yusuf Talib 6 Yasmin Yusuf Talib 7 Mohezbin Yusuf Talib 8 Kuresh Yusuf Talib 9 Mariya Yusuf Talib 10 Rashida Yusuf Talib 11 Tasmim Yusuf Talib ...Respondents WITH WRIT PETITION NO.4378 OF 1993 Yusufbhai Gulam Husan Talib since deceased through L.Rs. 1 Saifuddin Gulab Husain Talib 2 Daudbhai Gulab Husain Talib 3 Talebhai Gulam Husain Talib 4 Moyizbhai Gulam Husain Talib 5 Zhebeb Yusuf Talib 6 Yasmin Yusuf Talib 7 Mohezbin Yusuf Talib 8 Kuresh Yusuf Talib 9 Mariya Yusuf Talib 10 Rashida Yusuf Talib 2 wp431-4378.sxw 11 Tasmim Yusuf Talib ...Petitioners vs. 1 Shri Jamnaprasad Manilal Gupta since deceased through his L.Rs. 1 Ramlal Jamnaprasad Gupta Since deceased through his L.Rs. 1a Bindubai Ramlal Gupta 1b Anil Ramlal Gupta 1c Rajesh Ramlal Gupta 1d Anita Ramlal Gupta 2 Shamlal Jamnaprasad Gupta 3 Shivlal Jamnaprasad Gupta 4 Brijlal Jamnaprasad Gupta 5 Ratilal Jamnaprasad Gupta ...Respondents Mr.R.M.Haridas i/b Mr.P.N.Joshi for the petitioners Mr.V.A.Thorat for the respondent nos.1,3,4,7,9 and 10 CORAM :A.S.OKA,J. DATE : OCTOBER 26, 2010 ORAL JUDGMENT : 1 Perused the earlier Judgment and order of this Court passed on 16 th October 2009. Paragraphs 2 and 3 read as under : 2 The plaintiffs are the landlords and the defendants are the tenants. A suit was filed by the plaintiffs for eviction against the defendants under the provisions of Bombay Rents, Hotel and Lodging Houses Rates Control Act,1947 (hereinafter referred to as the said Act ). Decree was claimed on the ground of arrears of rent and bona fide requirement. According to the case of the plaintiffs, the defendant was a monthly tenant paying rent @ Rs.8.33 plus eduction cess @ Rs.10/-. According 3 wp431-4378.sxw to the plaintiffs the defendant was paying paying the rent of the suit premises of Rs. 99.96 and Rs.10/- towards education cess per annum as per his conveyance though the tenancy was a monthly tenancy. It is alleged that the defendant did not pay the rent of the suit premises from Kartik Sudha first of Samvat year 2025. As the defendant was in arrears of rent for more than six months, the plaintiffs issued a notice of demand by R.P.A.D on 28th July 1975. As the amount was not paid within the time stipulated by law, the suit for eviction was filed. The plaintiffs also claimed possession of the suit premises on the ground of bona fide requirement by contending that they require the suit premises for their personal use and the defendant was having other premises on ownership basis. 3 The defendant contested the suit by filing a written statement. According to the defendant, the tenancy was a yearly tenancy which was as per the Samvat year. It was contended that earlier notice was issued by the plaintiffs on 25 th May 1970 which was replied to on 29th May 1970. It was contended that the defendant had to incur expenditure on repairs. The ground of bona fide requirement was denied by the defendant. The Trial Court decreed the suit on the ground of arrears of rent as well as on the ground of bona fide requirement. An Appeal was preferred by the defendant-tenant. The Appellate Court came to the conclusion that the ground of eviction under section 12(3) (a) of the said Act was proved, however, the ground 4 wp431-4378.sxw of bona fide requirement was not proved. Thus, the decree for possession was confirmed only on the ground of arrears of rent. Writ Petition no.431 of 1992 has been filed by the heirs of the tenant and cross petition being Writ Petition no.4378 of 1993 is filed by the plaintiffs for challenging the Judgment and decree of the Appellate Court to the extent to which the ground of bona fide requirement is negatived. 2 By the said Judgment and order, this Court concluded the issues under section 12 (3) (a) and 13 (1)(g) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the said Act) by holding that the landlord was not entitled to decree on the said grounds. Paragraph 14 of the said order reads thus : 14 Now, the only question which remain to be decided is whether benefit can be granted to the Defendant-tenant of clause (b) of sub section (3) of section 12 of the said Act. For that purpose, a finding will have to be invited from the Appellate Court. It must be stated here that the issue regarding entitlement of the plaintiffs to a decree under section 12(3) (a) and section 13(1)(g) of the said Act stands concluded against the plaintiffs by this Judgment, and the only aspect which remains to be decided is whether the tenant can be granted protection under section 12(3)(b) of the said Act. If compliance is not shown to have been made by the defendant-tenant, obviously a decree for possession will have to follow... 5 wp431-4378.sxw 3 This Court directed the parties to appear before the District Court and the District Court was directed to record a finding on the question whether the defendant was entitled to protection under clause (b) of sub section 3 of section 12 of the said Act. 4 Accordingly, the learned District Judge has recorded a finding by Judgment and Order dated 14th July 2010. The said finding is assailed by the learned counsel for the original defendants-tenants contending that there was a regular deposit made by the defendants. 5 Perusal of the finding recorded by the learned District Judge shows that the first date of hearing i.e the date on which the issues were framed was 4 th July 1977, The arrears of rent were deposited by the defendant-tenant on 6 th November 1978. Thereafter, deposits were made on 20 th November 1981 of Rs.100/-, on 7 th February 1984 of Rs.200/-, on 8 th February 1988 of Rs.200/-, on 2nd April 1991 of Rs.200 and on 11 th March 1992 of Rs.200/-. There is a gross irregularity in deposit of amount of rent on the part of the defendants. In fact, the arrears of rent were deposited one year after the first date of hearing. Even thereafter, there has been a delay in making deposits. In the circumstances, the defendant-tenant was not entitled to protection of section 12(3) (b) of the said Act. 6 In the circumstances, both the petitions will have to be disposed of by confirming the decree for possession on the ground of arrears of rent. 7 Hence, I pass the following order : 6 wp431-4378.sxw i) Decree passed on the ground under section 12(3) (a) of the said Act is set aside and it is held that the defendant-tenant had no protection under section 12(3)(b) of the said Act and therefore, decree for possession stands confirmed. ii)Petitions are accordingly disposed of with no order as to costs. Rule is made absolute accordingly. . At this stage, on the prayer made by the learned counsel for the petitioners in Writ Petition no.431 of 1992, it is directed that decree for possession shall not be executed for a period of three months from today subject to condition that the petitioners will not create any third party interests in respect of the suit premises and will not part with possession thereof. JUDGE