WP. 8229, 8223-10 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION No. 8229 OF 2010 AND CIVIL WRIT PETITION No. 8223 OF 2010 Mohan Laxman Singh ...Petitioner Vs. Jagdeo Tiwari (since deceased, represented through the legal heirs) ...Respondents *** Mr. Deepak J. Lulia, for the Petitioner. Mr. Jay Narayan Tiwari, C. A. & son of the Respondent. *** CORAM: V. M. KANADE J. DATE : JULY 4, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the petitioner and C.A. & son of the respondent. Petitioner is the original defendant/tenant and respondent is the original plaintiff/landlord. A suit was filed by the landlord for eviction of the defendant on the various grounds. An order was passed by the trial Court, directing the tenant to deposit Rs.4,200/- in the court. This order was challenged by the defendant by filing the petition in this Court being Writ Petition No. 87 WP. 8229, 8223-10 - 2 - of 2008 and the said writ petition was allowed and the impugned order passed by the trial Court was set aside by the judgment and order dated 19th March, 2008. This Court, however, permitted the landlord to file a fresh application and till that time the tenant was directed to pay Rs. 200 and 500 per month. 2. After the said order was passed on 19-3-2008, the defendant along with letter dated 2-7-2008 sent a cheque for an amount of Rs.29,400/- dated 13-6-2008 being the arrears of rent from 1st January, 2005 to 30th January 2008, the said cheque, however, was refused by the landlord by stating that no such order, as mentioned in the notice was passed by this Court. Thereafter again on 12-9-2008 another notice was sent by the petitioner’s advocate and further a cheque of Rs.30,800/- was sent towards the arrears of rent from 1st January 2004 to 31st August, 2008 at the rate fixed by this Court. The cheque was also not accepted by the landlord. Landlord thereafter filed an application for striking of the derfence for non-compliance of the order passed by this Court. The petitioner again filed an application in the trial Court for depositing the said amount and for condonation of delay caused in paying the said amount by way of abundant precaution. The trial court, however, allowed the application of the landlord and the defence was struck off. WP. 8229, 8223-10 - 3 - Appeal filed against the said order was dismissed. 3. In my view, both the courts below have clearly committed an error of law which is apparent on the face of record by striking out the defence of the petitioner/defendant. It is an admitted position that after the order was passed on 19th March, 2008 the petitioner herein has sent a cheque towards arrears from 1st January 2005 to 30th June, 2008 at the rate fixed by this Court. However, this cheque was not accepted by the landlord. Subsequent cheque which sent by the petitioner, was also not accepted. The trial court has not taken into consideration this fact and has merely rejected contentions of the defendant on the ground that no application for depositing the amount was filed in the court. 4. In my view both the courts below have misconstrued the directions given by this court in Writ Petition No. 87 of 2008. It has to be noted that no time limit was prescribed by this court while directing the petitioner/tenant to pay the said amount and the petitioner had remitted the amount by letter dated 2nd July, 2008 within three months from the date of order passed by the High Court. Petition, therefore, will have to be allowed and the impugned order passed by both the courts below, therefore, will have to be set aside. Civil Writ Petition is, accordingly, allowed in terms of prayer Clause (a). The petitioner shall deposit rent in WP. 8229, 8223-10 - 4 - the trial court within four weeks from today. 5. The C.A. of respondent appearing in person, however submits that by the order dated 29-4-3008, this Court directed the petitioner not to create third party rights or alienate the suit premises. It is submitted that there is a clear violation of the said order by the petitioner herein, since he has created third party rights and therefore, on that ground also the defence is liable to be struck off. This is seriously disputed by the learned counsel for the petitioner. Since the trial court has not taken into consideration this aspect as no averments were made by the landlord in his application on this aspect, liberty is granted to the landlord to file an application on this ground before the trial court. If such an application is filed, the same shall be disposed of within a period of six weeks thereafter. Civil Writ Petition No. 8229 of 2010 is accordingly disposed of in the aforesaid terms. 6. Civil Writ Petition No. 8223 of 2010 was filed, challenging the order passed by the trial Court rejecting the petitioner’s application for condonation of delay in depositing the arrears in the trial court. Since Civil Writ Petition No. 8229 of 2010 is allowed, Civil Writ Petition No. 8223 of 2010 does not survive and is accordingly disposed of. [ V. M. KANADE J.]