IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2326 OF 2005 Mahadeo Govind Ranade (deceased) Shobha Mahadeo Ranade & Ors. ..... ..... ...Petitioners V/s M/s.Sangle Brothers & Ors. ..... ..... .Respondents. Mr.R.S.Apte, Sr. Adv. With Mr.Rahul Kulkarni, Adv. for the petitioners. Mr.T.S.Ingale, Adv. for the Respondent No.1 CORAM: A.P.DESHPANDE, J. 15th December, 2009. PC: By consent of both the parties matter is taken up for final hearing. The petitioners are legal representatives of the original defendant Mahadeo. Whereas the respondent is the owner and landlord of the property. The respondent instituted a suit for ejectment and possession against original defendant Mahadeo on various grounds such as bonafide requirement for personal occupation, default of payment of rent for a period of more than six months etc. The trial court decreed the suit on the ground that the defendant has become defaulter due to non payment of rent in regard to the suit property for more than six months whereas the court dismissed the suit on other grounds. The defendant carried an appeal and the appellate court maintained the decree passed by the trial court on the ground that the defendant is defaulter on account of non payment of rent for a period of more than six months. Hence this writ petition. 2. The respondent served a notice dated 2.11.85 which was received by the original defendant Mahadeo on 6.11.85 and therein claimed arrears of rent for a period commencing from 1.9.1976 to 30.9.1985 1 the same being in the sum of Rs.9,650/18 at the rate of Rs.87.50 per month. Despite service of notice the original defendant did not pay rent as demanded in the notice and nor did he deposit amount of rent in the court. On appreciation of evidence on record both the courts below have held that the petitioners have defaulted in payment of rent from 1.9.1976 to 30.9.1985 and thus decreed the suit. 3. This concurrent finding of fact is being challenged by filing the present writ petition. According to learned counsel for the petitioner defendant­Mahadeo had obtained lease of the suit premises as proprietor of Nav Bharat Traders in the year 1963. However from the year 1966 the wife of defendant­Mahadeo by name Shobha is managing the said business as proprietor of Nav Bharat Traders and hence the wife of the defendant is a tenant. At the time of grant of lease a rent note was executed between the plaintiff and the defendant­ Mahadeo which clearly shows the name of the tenant to be Mahadeo Govind Ranade. The lease was created in favour of Mahadeo Govind Ranade who then happened to be the proprietor of Nav Bharat Traders. A proprietary concern is not a legal entity. Hence there is no substance in the submission that as at later point of time wife of defendant was looking after business she would become a tenant. The lease was granted in favour of original defendant­Mahadeo. He would continue to be the tenant irrespective of the fact as to who is looking after the business of the proprietary concern. Both the courts below having regard to the terms of lease deed (rent note) have concluded that the original defendant­Mahadeo is the tenant in the suit premises. It is next contended that the rent note is not proved in as much as the attesting witness did not depose that the original defendant signed the said rent note. Perusal of the evidence of the plaintiff itself would 2 reveal that the rent note was reduced into writing by the plaintiff and he has deposed that the defendant has signed the same. On proof of the said document it came to be exhibited by the trial court and read in evidence. I have no iota of doubt that the rent note and the contents thereof have been proved by the plaintiff. The evidence of attesting witness does not demolish the case of the plaintiff. So far as the evidence of defendant is concerned the legal representatives of the defendant did not either examine wife of the defendant in whom the tenancy was claimed nor examined one of the sons of defendant who was acquainted with the facts of the case. One of the sons of defendant examined on behalf of the defendant has candidly stated that he was not aware about terms and conditions of lease and also showed is ignorance in identifying the signature of the defendant on rent note. On perusal of the evidence of both the parties the evidence led by the plaintiff is found to be more cogent and convincing vis­a­vis evidence led by the defendant and hence finding of fact has been recorded in favour of the plaintiff about the defendant being the tenant. Learned counsel for the petitioner has hardly dispute the correctness of finding recorded by both the courts below that the defendant was in arrears of rent over a long period of nine years. According to the petitioner some payment was made in the year 1979 to 82. However the courts have not given credit to the defendant in respect of said payments. The Courts below have placed reliance on counter foils of rent receipts issued by the plaintiff in favour of the respondents which are at Exs.107 and 108. On the counter foils of rent receipts the defendant has acknowledged the amount of arrears of rent and relying on those acknowledgments both the courts below have held that the petitioners were in arrears of rent in the sum of Rs.8,708/18. However first 3 appellate court has modified the decree passed by the trial Court by passing money decree for arrears of rent for a period of three years on the ground that the arrears for a period of more than three years would be barred by limitation. Thus the money decree has been reduced to Rs.3,100/­. It is obvious that for the purpose of finding of default in payment of rent the entire period for which the rent is not paid has to be taken into account and while passing a decree a decree for a period of three years of arrears of rent could only be passed. Perused the impugned judgment. The concurrent finding of fact recorded by courts below in regard to defendant being in arrears of payment of rent and being defaulter from 1.9.76 to 30.9.85 is based on evidence on record and the said finding has been correctly recorded which does not call for any interference whatsoever moreso, in exercise of jurisdiction under article 227 of the Constitution of India. For the reasons recorded here in above writ petition stands dismissed. At this stage learned counsel for the petitioner submits that his possession is protected during pendency of this writ petition and the said order be continued for a period of eight weeks so as to enable the petitioner to approach the Apex Court. Said prayers is opposed by learned counsel for the respondent. However in my view, the prayer is just and reasonable. Hence interim stay of execution of decree for possession shall continue for a further period of eight weeks from today. 15.12.2009. 4