1 W.P. No. 5142.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 5142 OF 2011 1. Sau. Kamalbai W/o Manga Nikumbh, Since deceased through L.Rs. 1A Vasant Manga Nikumbh, since deceased through L.Rs. 1Aa Sagar S/o Vasant Nikumbh, Age 24 years, Occu. Business, 1Ab Alka Ganesh Sonwane, Age 38 years, Occu. Household, 1Ac Surekha Rajendra Sonwane, Age 35 years, Occu. Household, 1Ad Subhangi Yogesh Sonwane, Age 33 years, Occu. Household 1Ae Sapna Sunil Pawar, Age 30 years, Occu. Household, 1Af Poonam Amol Raut, Age 30 years, Occu. Household, 1-B. Ratan Manga Nikumbh, Age 40 years, Occu. Business, 1-C Rajendra Manga Nikumbh, Age 38 years, Occu. Business, 1-D Yuvraj Manga Nikumbh, Age 30 years, Occu. Business, Resp. No. 2A to 2D resident of 2 W.P. No. 5142.2011 21, Ring Road, Khandesh Mill Colony, Jalgaon. 1-E Sau. Sindhubai W/o Bhaskar Bhadane, Age 45 years, Occu. Household, R/o Pimprala, Tq. & Dist. Jalgaon. 1-F Sau. Indubai W/o Parshuram Jadhav, Age 41 years, Occu. Household, R/o Khajamiya Road, Ganesh Colony, Jalgaon. 1-G Sau. Laxmibai W/o Sadashiv Raut, Age 37 years, Occu. Household, R/o Sainath Nagar, Kadappa Road, Nasik (amendment made on 5-2-99 vide order on Exh. 55) 1-H Sau. Shankuntala W/o Madhavrao Raut, Age 31 years, Occu. Household, Both R/o Sainath Nagar, Kadappa Road, Nasik. 2. Manga Shrawan Nikumbh, Age 56 years, Occu. Business, No. 2 and 3 R/o Bhawani Peth, Jalgaon city (Legal heirs as 1a to 1h) ..PETITIONERS. VERSUS 1. Baburao Bhikanna Naidu, since deceased through L.Rs. 1a Kum. Sharmila Baburao Naidu, Age 43 years, Occu. Household, 3 W.P. No. 5142.2011 1b Kum. Hemlata Baburao Naidu, Age 41 years, Occu. Household, Both R/o 118, Jilla Peth, Jalgaon. (Amendment as per order on Exh. 25 dated 01-08-1990) 2. Ambadas Fakira Sapke, Since deceased through L.Rs. 2A Smt. Sulbhabai W/o Ambadas Sapake, since deceased 2B Vikas S/o Ambadas Sapake, Age 40 years, Occu. Business, 2C. Anil S/o Ambadas Sapake, Age 38 years, Occu. Business, 2D Sau. Rekha W/o Sunil Rokade, Age 35 years, Occu. Household, All R/o Gaurav Galli, Amalner, Tq. Amalner, Dist. Jalgaon. 2E Sau. Sadhana W/o Suresh Bhagwat, Age 30 years, Occu. Household. R/o C/o Smt. Sulbhabai W/o Ambadas Sapake, Resident of Bhandarkar Lane, Amalner, Tq. Amalner, Dist Jalgaon ..RESPONDENTS ... Shri A.R. Borulkar , Advocate for petitioners. Shri Girish Rane, Advocate for respondent Nos. 1-A & 1-B. 4 W.P. No. 5142.2011 CORAM :- S.V. GANGAPURWALA JJ. DATE:- 22nd July, 2011. ORAL JUDGMENT: The present petitioners are the original defendants. The present respondents are the land-lord who had filed a suit for eviction on various grounds. The Trial Court dismissed the suit, aggrieved thereby the present respondents filed appeal. The Appellate Court allowed the appeal, and passed a decree of eviction on the ground of default, as the other grounds were not pressed. Aggrieved thereby, the original defendants filed present Writ Petition. 2. Shri Borulkar, learned counsel for the petitioners, submits that the Trial Court has come to the conclusion that the notice, which was issued for claiming recovery of arrears of rent, itself was not legal and valid. The Trial Court discussed in details, the reasons for the notice being not legal and valid, as the notice did not disclose that the defendants are the tenants of the suit premises 5 W.P. No. 5142.2011 and the notice in that regard is vague. The learned counsel further contends that the rent was being sent by the tenants to the land-lord, by Money Order on every occasion, but the said Money Orders were being constantly refused by the land-lord. Up to the year 1968, the Money Orders were sent and the same were refused. In the light of that, it cannot be said that the tenants are defaulters. The learned counsel further contends that after the notice was received in December 1974, the tenants deposited the rent with the Municipal Council amounting to Rs. 1,104/- on 24-08-1976. This aspect has not been properly considered by the Court below. 3. The learned counsel further contends that, even during the pendency of the proceedings, rent was regularly deposited. As such, the petitioners are not defaulters and eviction decree could not have been passed on this count. Shri Borulkar, learned counsel relied on the Judgment in the case of Chimanlal V. 6 W.P. No. 5142.2011 Mishrilal reported in (1985) 1 SCC, 14, and contends that the notice being illegal and invalid, no decree for eviction could have been passed. 4. Shri Rane, learned counsel for the land-lord, submits that the provisions, prior to the amendment in Section 12 of the Bombay Rent Act, would be applicable, and the amended provision would not be applicable to this case, as the suit is filed prior to amendment. According to the learned counsel, as per Section 12(3) (a), If within the period of one month after the receipt of notice, the tenant does not deposit the amount, then he would be liable for eviction. The learned counsel further contends that the notice was legal and valid. The notice stated that the defendants, on the death of original tenant, cannot claim that they are the tenants and if at all they claim that they are the tenants, then arrears of rent claimed shall be paid by them. In such circumstances, notice cannot be said to be invalid. 7 W.P. No. 5142.2011 5. With the assistance of learned counsel, I have gone through the Judgments. The Trial Court had only declared the notice to be illegal on the count that it does not say that the defendants are the tenants. Apart from that ground, no other ground is stated by the Trial Court, while giving the finding on the legality on the said notice. The fact of service of notice is not disputed. The fact that the amount of rent was not paid, is not disputed. Even according to the defendants, the amount was paid in the office of Municipal Council towards rent of the tenanted premises on 24-08-1976 i.e. after more than one and half year. This fact goes to show that no rent was deposited within one month, after receipt of the notice. As per provisions of Section 12(3)(a), as it stood at the relevant time, if the rent has not been paid within one month from the receipt of notice, the land-lord would be entitled for decree of eviction on the count of default. Notice cannot be said to be invalid. The notice stated that the defendants cannot claim themselves to be the tenants, in view of the death of the original tenant, and if at all they 8 W.P. No. 5142.2011 are the tenants they claimed recovery of arrears of rent. As such, the notice was legal and valid. The Judgment of the Apex Court in the case of Chimanlal V. Mishrilal referred supra was on different premise, as in that case the description of property was not properly given. In view of the above conspectus I do not see any illegality in the impugned Judgment passed by the Appellate Court. In the result, the Writ Petition is dismissed. However, there shall be no order as to costs. 6. At this stage Shri Borulkar, learned counsel for the petitioners, states that the suit premise is a commercial premise, and the petitioners are running their business therein, and therefore, reasonable time be given to vacate the same. Shri Rane, learned counsel for the land-lord opposes the said request. 7. Taking into consideration the fact that the petitioners are running their businesses, at the suit premises, I grant six months time to the petitioners to 9 W.P. No. 5142.2011 vacate the said premises, subject to the condition that each of the petitioners submits an undertaking to this Court that they would vacate the suit premises by 28-02-2012 and that they shall not create third party interest or encumbrance over the suit premises, and shall pay the rent regularly. The undertaking shall be filed within two weeks from today. [S.V. GANGAPURWALA, J ] SDM* July-11