1 W.P.No.636_1996 jsn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.636 OF 1996 Baban P. Kirad -- PETITIONER V/s. Smt. Sunderabai L. Kavde & other -- RESPONDENTS Ms. Snehal Ratnakar i/b. Mrs. Suihasini Mutalik, Advocate for Petitioner. CORAM : A.S.OKA, J. DATE : 24th November, 2011. O R A L J U D G M E N T 1. Heard learned counsel appearing for the Petitioner. The Petitioner is the first defendant (original tenant) in a suit filed by first respondent (landlord). The suit premises is one room ad-measuring 10X10 more particularly described in the plaint. The suit was filed for eviction on various grounds such as arrears of rent, acquisition of suitable residence, bonafide requirement and nuisance. As the impugned decree has been passed only on the ground incorporated in Sec.12(3) (a) of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the said Act), it is not necessary to 2 W.P.No.636_1996 make a reference to the facts constituting other grounds of eviction. 2. The first respondent issued a notice of demand through her advocate on 12th April, 1985 alleging that the petitioner was liable to pay rent at the rate of Rs.20/- p.m. and that the petitioner was in arrears of rent from 1st February,1974. The notice was duly served to the petitioner. The Petitioner replied vide reply dated 17th April, 1985. The Petitioner contended that the rent in respect of suit premises was Rs.10/- p.m. It was contended that some of the co-owners of the first respondent informed the Petitioner that the rent should not be paid to the first respondent. It was contended that the Petitioner has paid rent up to 31st December, 1981 to the first Respondent and that he was not liable to pay balance amount as he has paid large amount to the municipal corporation by way of taxes. 3. The suit was contested by the petitioner by filing written statement. In the W.S., it was contended that, the first respondent alone was not the owner of the suit premises. It was stated that the Petitioner has paid rent to the first respondent till 30th November, 1981. It was alleged that the Petitioner has paid rent to one Dnyaneshwar Kawle till 31st March,1986. It was contended that the Petitioner has paid a sum of 3 W.P.No.636_1996 Rs.5,000/- to the first respondent for construction of wall on the western side of the suit premises, which had collapsed. It was contended that along with other tenants, the Petitioner has paid substantial amounts to the municipal corporation by way of property taxes. 4. The trial Court dismissed suit and an appeal was preferred by first respondent. The District Court has interfered in Appeal and has passed a decree for eviction on the ground of arrears of rent. 5. The learned counsel appearing for the Petitioner has invited the attention of the Court to the pleadings and evidence on record and submitted the Petitioner was not in arrears of rent. Learned counsel pointed out the finding of the trial Court that the first respondent failed to produce counter foils of the rent receipts for establishing that the Petitioner was in arrears of rent from 1st November, 1974. Learned counsel pointed out that the first respondent admitted that the counter foils and the receipt book was with one Mr. Kshirsagar, who is a tenant of the first respondent. It was submitted that the first respondent made no attempt to get the rent receipt book produced from the said Mr. Kshirsagar. She pointed out that the trial court has recorded a finding that the first respondent admitted that the said Dnyaneshwar (the 4 W.P.No.636_1996 Second Respondent) has recovered the rent from the tenants. 6. The learned counsel appearing from the Petitioner invited attention of the Court to the evidence of the petitioner and documents on record to show that apart from the payment of rent made by the Petitioner to the first respondent, substantial amounts were paid to Shri Maruti Kawle and Shri Dnyaneshwar Kawle. Learned counsel pointed out that receipts are produced on record. Her submission is that as the counter foils of the rent receipts have not produced, this is fit case to draw an adverse inference against the first respondent. The learned counsel, therefore, submitted that impugned judgment and decree be quashed and set aside. 7. I have carefully considered submissions and perused the record. As pointed out earlier, by notice dated 12th April, 1985, the demand for arrears of rent was made for the period commencing from 1st February, 1974. The notice was admittedly served to the petitioner. The petitioner did not apply for fixation of standard rent. The Petitioner replied to the notice dated 17th April, 1985. The Petitioner came out with the specific case that he had paid rent up to 31st December, 1981 to the first respondent. However, in the reply to the notice, the Petitioner 5 W.P.No.636_1996 has not at all stated that rent was paid by him to the said Maruti and Dnyneshwar. The case that the petitioner had paid a sum of Rs.5,000/- to the first respondent was also not made out in the reply. Only a vague assertion was made that large amount has been paid to the municipal corporation towards the municipal taxes. Thus, in the reply the stand is that the rent was paid only up to 31st December, 1981 to the first respondent, though the arrears claimed were up to 31st March, 1985. In the Written Statement, a case was made out that the Petitioner had paid rent up to 30th November, 1981 to the first respondent. A case was also pleaded that the Petitioner has paid rent up to 31st March, 1985 to said Dnyanshwer. 8. On this aspect, it will be necessary to make reference to the cross examination of the first respondent by the advocate for the Petitioner. It is must be stated here that first respondent denied correctness of the suggestion that, the said Dnyanshwer recovered the rent. She pleaded ignorance as to whether Dnyanshwer has recovered rent from the Petitioner till 31st March, 1985. The Petitioner produced five receipts in the evidence allegedly issued by Dnyaneshwar for showing that the rent was paid up to 31st March, 1985. Though the rent receipts were not exhibited as the author of the rent receipts was not 6 W.P.No.636_1996 examined, the rent receipts covered the rent for the period from 1st October, 1983 to 31st March, 1985. Even assuming that the rent receipts were read in evidence, going by the case of the Petitioner in reply to the suit notice, the Petitioner did not pay rent from 1st January, 1982 to 30th September, 1983. As far as the payment of sum of Rs.5,000/- is concerned, there is absolutely no evidence. 9. The question of drawing adverse inference for non production of counter foils did not arise as it was not case of the Petitioner that the entire arrears were paid to the first respondent but case of the Petitioner was that the arrears only up to 31st December, 1981 were paid to the first respondent. According to him subsequent payment was made to the Dnyaneshwar. However, the Petitioner could not prove the rent receipts which in any event were for the period from 1st October, 1983 to 31st March, 1985. The payment of sum of Rs. 5,000/- was not established by producing any evidence. The payment of specific amount towards Municipal taxes was not proved. 10. Thus what emerges from the record is that on the date of notice of demand, the Petitioner was in arrears of rent for a period of more than 6 months. The amount demanded was not paid within a 7 W.P.No.636_1996 period one month from date of service of notice. There was no application made for fixing the standard rent. Therefore, it is not possible to find fault with the decree passed by the Appellate Court by invoking 12(3) (a) of the said Act. No case for interference is made out. Petition is rejected Rule is discharged. There will be no order as to costs. 11. On prayer made by the learned counsel for the Petitioner, interim relief granted earlier is extended by period of 3 months from today. [ A.S.OKA, J ]