1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1284 OF 1993 Sau.Latoo Ahmedkhan Pathan & Ors. .. Petitioners versus Ramchandra Bapu Jondhale & Ors. .. Respondents Mr.Vivek Salunkhe i/by Mr.Prafulla Shah for the petitioners. Mr.Rahul R.Singh i/by Mr.R.P.Behere for respondent Nos.2 and 4. CORAM : A.S.OKA, J. DATE : 4th February 2010. JUDGMENT: . I have heard the submissions of the learned counsel appearing for the petitioners and learned counsel appearing for the 2nd and 4th respondents. The challenge in this writ petition under Article 227 of the Constitution of India is to the decree for possession passed in favour of the respondents under the provisions of the section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947. 2. With a view to appreciate the submissions made by the learned counsel appearing for the petitioners, it will be necessary to refer to the facts of the case in brief. For the sake of convenience, the parties are hereinafter referred to with reference to their status in the trial Court. The petitioners are the legal representatives of the original defendant-tenant and the respondents are the original plaintiffs- landlords. The case of the plaintiffs is that the defendant was a tenant in respect of residential premises admeasuring 10ft X 10ft more particularly described in a plaint. 2 The case made out in the plaint is that one Kisnabai Laxman Jondhale and Kousabhai Karbhari Bhalerao were the owners of the suit premises. It is contended that 1st to 4th plaintiffs are the legal representatives of Kisnabai and 5th and 6th plaintiffs are the legal representatives of Kousabai. The agreed monthly rent was Rs.25/-. Notice of demand dated 5th March 1981 was issued calling upon the defendant to pay arrears of rent from 1st November 1975 onwards till the end of February 1981. The case made out in the plaint is that notice was duly served to the defendant on 7th March 1981 but the defendant neither complied with the notice nor any reply was sent by him. 3. The written statement was filed by the defendant. It was contended that one Pundalik Gaikwad was the owner and landlord of the suit premises. The said Pundalik died five to six years back and his widow Laxmibai became the owner and landlord. The defendant started paying rent to said Laxmibai who used to issue receipts to the defendant. It is alleged that the defendant paid rent to Laxmibai till 31st May 1978. It is stated that from June 1978 the 1st plaintiff started demanding the rent but the defendant declined to pay the rent on the ground that Laxmibai was the landlady. It is contended that as there was dispute between 1st plaintiff and Laxmibai the defendant did not pay the rent to anyone. There was no dispute raised by the defendant as regards service of notice of demand. 4. The trial Court dismissed the suit to the extent of prayer for possession and passed a decree for arrears of rent. The trial Court noted that the case of the plaintiffs was that deceased Kisnabai and Kousabai were claiming to be the owners of the property on the basis of the Gift Deed executed by Pundalik. However, the said Kisnabai and Kousabai never disclosed to the defendant in writing that they have 3 stepped into shoes of original landlord Pundalik. The trial Court relied upon admission of the plaintiffs that rent was paid by the defendant to said Laxmibai upto 1978. The trial Court came to conclusion that the plaintiffs have failed to establish that they are landlords of the defendant. In appeal preferred by the District Court has interfered and has held that the plaintiffs were entitled to file suit as they are the landlords of the defendant and the defendant has not complied with the notice of demand. 5. The learned counsel appearing for the legal representatives of the defendant has made detailed submissions. He pointed out that there is no letter on attornment served by the original landlord Pundalik and his widow Laxmibai. He submitted that even the demand notice does not disclose as to how the plaintiffs are claiming to be the landlords. He pointed out that the 1st plaintiff who stepped into witness box admitted that rent receipts were being issued by Laxmibai to the defendant till March 1978. He pointed out that in view of this admitted position, a demand could not have been made by the plaintiffs from November 1975 onwards. He submitted that in view of this admission it was not necessary for the defendant to examine the said Laxmibai and Appellate Court could not have found fault with the defendant for not examining Laxmibai. He pointed out that infact it was the case of the plaintiffs that they had received the rent from the defendant but the finding of the Appellate Court is that the said case could not be substantiated by the plaintiffs. He submitted that there is no landlord-tenant relationship established by the plaintiffs. He placed reliance on a decision of this Court in the case of Chokhaji Zamraji Urkude Vs. Shamrao Sitaram Nagolkar (1997 (1) LJ 200). He also placed reliance on a decision of this Court dated 3rd July 1997 in Writ Petition No.4538 of 1984 in the case of Kasamsaheb Nabisaheb Vs. Ramchandra Baban Kshirsagar & Ors. He submitted that as notice of attornment 4 was not issued by the original landlord and as the plaintiffs had not stated in the notice as to how they became landlords, the defendant was not expected to pay rent to the Plaintiffs especially when there was a dispute between plaintiffs and Laxmibai. He submitted that the plaintiffs had never made known to the defendant that they have become landlords. He, therefore, submitted that it cannot be held that the defendant was not ready and willing to pay the rent in as much as he had admittedly paid rent to Laxmibai till May 1978. He submitted that decree on the ground of default cannot be passed unless it is established that the tenant is not ready and willing to pay the rent. 6. I have given careful consideration to the submissions. It is not disputed by the defendant that Pundalik was the landlord. The case made out by the plaintiffs is that under a registered Gift Deed which was produced and proved before the trial Court the said Pundalik gifted the property to Kisnabai and Kousabai. The plaintiffs are legal representatives of the said two ladies who acquired the property on the basis of gift. The defendants have not disputed the gift. The case of the defendant is that till May 1978 Laxmibai was accepting the rent and thereafter there was a dispute between plaintiffs and Laxmibai about their respective rights. In view of the dispute he stopped paying rent. 7. It is pertinent to note that the notice of demand was admittedly served to the defendant on 7th March 1981. There was no reply given by the defendant to the notice of demand. The defendant did not dispute the title of the plaintiffs by sending any reply . The defendant did not call upon the plaintiffs to disclose as to how they were claiming to be the landlords. The defendant remained silent till the suit was filed. By the notice of demand, the defendant was made aware that the plaintiffs were claiming 5 to be landlords and they had demanded rent from November 1975 till the end of February 1981. Even according to the case of the defendant from June 1978 he had not paid the rent. He did not make any attempt to deposit the rent. 8. The learned counsel appearing for the legal representatives of the defendant has relied upon decision of this Court in the case of Chokhaji Urkude (supra). It must be noted here that this Court was not dealing with a suit for eviction under the said Act of 1947. This Court was called upon to consider whether a tenant was a habitual defaulter. In paragraph 8 of the said decision, this Court noted that the landlord must be able to prove that the tenant has failed to pay the rent without any justifiable reason meaning thereby that he had defaulted to pay the rent and further tenant has formed habit of committing such defaults. This Court observed that unless all these ingredients were proved, a finding of habitual defaulter could not be recorded. In this context this Court has observed that once it is an admitted position that no notice of attornement was sent, a heavy burden lies on the landlord to prove that he had given an idea that he had become owner. This observation is made in the context of the provision under the relevant statute that in application for possession , the landlord is required to prove that tenant is a habitual defaulter. 9. In the present case this Court is dealing with prayer for eviction under section 12(3) of the said Act .If arrears of monthly rent are for a period of more than six months and if after service of notice of demand if the tenant fails to pay amount within one month or fails to apply for fixation of standard rent, the Court has no discretion but to pass a decree for eviction. 6 10. In the second decision relied upon by the learned counsel appearing for the petitioners in the case of Kasamsaheb Nabisaheb (supra) a demand notice was issued by a person claiming to be the landlord. In response to the demand notice , the tenant demanded a copy of the Sale Deed on which landlord was relying upon. While dealing with this aspect this Court in paragraph No.3 observed thus: “..... In my opinion, the tenant was within his right to ask for a copy of the sale deed so as to satisfy himself that the person who was demanding rent from him and to whom he was to make the payment of rent had authority to do so. In my opinion, the tenant did not act unreasonably in demanding a copy of the sale deed. There is no explanation coming forth from the landlord as to why the landlord even after receiving copy of the reply did not even bother either to send copy of the document or to inform the tenant that the sale deed is registered in the office of the registrar on a particular date and that the tenant can get himself satisfied by verifying the records of the registrar. It is pertinent to note here that in the notice of demand the landlord does not even claim that conveyance by which he has become owner of the property is registered on a particular date. In my opinion readiness and willingess to pay the rent is a condition of mind and unwillingness to pay rent cannot be attributed to a tenant who wants to be satisfied before actually making a payment that the person, who has demanded the rent from him is authorised to do so or not. Therefore, in my opinion, the appellate court has fallen in a vital error in not appreciating the conduct of the tenant was reasonable and it was on the other hand the landlord, who was unreasonably withholding the information about the transfer of property from the tenant. In my opinion, bare statement in the notice that the person who has issued the notice is the owner of the premises is not enough if the tenant has not paid rent previously to the same person and if the landlord has not already issued an attornment notice to the tenant. In my opinion, the tenant was justified in satisfying himself about the authority of the person who had issued the demand notice to him.” 11. In the context of the fact that immediately on receipt of notice of demand the tenant demanded a copy of the document of title from the alleged landlord, this Court observed that the tenant did not act unreasonably in demanding the copy of the Sale Deed and notwithstanding the said demand, a copy of the Sale Deed was not made available to the tenant. Even particulars of the Sale Deed were not given to the tenant. 7 12. It is in this context that this Court held that it cannot be said that the tenant was not ready and willing to pay rent. In fact this Court has held that readiness and willingness to pay rent is a condition of mind. In the present case after receiving the demand notice the petitioner made no attempt to call upon the plaintiffs to furnish documents of title. Even according to the case of the defendant , he had not paid rent from June 1978. As stated earlier, the notice was served to him in March 1981. As laid down by this Court in the case of Kasamsaheb Nabisaheb (supra) readiness and willingness to pay rent is a condition of mind and the said conduct of the tenant shows that he was not ready and willing to pay rent. In fact, in the cross-examination of the 1st plaintiff there is no attempt made by the defendant to challenge the version of the 1st plaintiff that his wife and his wife’s sister became owners of the property of deceased Pundalik. It is true that the 1st plaintiff admitted that Laxmi had received the rent till the end of May 1978. The Gift Deed executed by Pundalik has been duly proved the by attesting witnesses. The defendant came out with a case that a reply to the notice was not sent as according to him the plaintiffs were not having legal status of the landlords. He admitted that there was no written notice served to him by Laxmibai for demand of rent after May 1978 till the date of deposition. It is not the case of the petitioner that after receipt of the demand notice he attemped to tender rent in any manner either to the plaintiffs or even to the said Laxmibai. Admittedly, on the date of receipt of the notice , the arrears were more than for a period of six months. Admittedly, there is no standard rent application filed by the petitioner. The petitioner failed to comply with the demand notice within the time provided by law. Hence, the Courts below had no discretion but to pass a decree which was done by the Appellate Court. Hence, no case for interference is made out in the writ jurisdiction considering the fact that the defendant has not shown readiness and willingness to 8 pay the arrears of rent. 13. Hence, I pass the following order: : O R D E R : (a) The writ petition is rejected. (b) Rule is discharged with no orders as to costs. . The learned counsel appearing for the petitioners prays for continuation of interim relief. Interim relief granted on 31st March 1993 will continue to operate for a period of four months from today subject to condition that the petitioners will not create any third party interests and will not part with possession of the suit premises. (A.S.OKA,J.)