1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.3528 OF 1994 Dattaram Balaram Vartak ...Petitioner vs. Rajlaxmi Ramkishor Shukla ...Respondent Mr.Vijay Bolingkar i/b Mr.K.K.Malpathak for the petitioner None for the respondent CORAM :A.S.OKA,J. DATE : APRIL 5, 2010 JUDGMENT : 1 The petitioner-tenant has taken an exception to the decree of eviction passed under section 12(3) (b) of the Bombay Rents,Hotel and Lodging House Rates Control) Act, 1947 (hereinafter referred to as the said Act). 2 The suit premises is a residential premises. According to the case of the respondent-landlady, the petitioner was in arrears of rent for more than six months and therefore, notice of demand was issued on 25th July 1977 claiming arrears at the rate of Rs.25/- per month. Notice was sent by Registered Post Acknowledgment Due and a copy thereof was forwarded under certificate of posting. Notice packet sent by Registered Post Acknowledgment Due came back with remark not claimed . An application for fixation of standard rent being Miscellaneous Application no.160 of 1977 was filed by the petitioner. In the suit filed by the respondent, a decree was claimed on the ground of arrears of rent and non user for a period of six months. The suit was contested by the petitioner by filing a written statement. The 2 petitioner denied that he was in arrears of rent. The petitioner claimed that the standard rent was Rs. 20/- per month. 2 The trial Court recorded a finding that on the date on which notice was issued, the petitioner was in arrears of rent for a period of more than six months. The trial court therefore proceeded to pass a decree under section 12(3) (a) of the said Act. The ground of non-user was held as not established. The present petitioner preferred an appeal for challenging the decree. The Appellate Court modified the decree by holding that the petitioner is not entitled to protection of section 12 (3)(b) of the said Act in as much as though the petitioner filed an application for fixation of standard rent, the amount of interim rent fixed by the Court was not deposited regularly and punctually. Relying upon the chart filed by the petitioner, the learned District Judge came to the conclusion that there were no regular deposits made by the petitioner and therefore, the petitioner was disentitled to protection. Accordingly, the decree for possession was confirmed. 3 The learned counsel for the petitioner submitted that the notice dated 25th July 1977 was based on earlier statutory notice dated 6th June 1977. He stated that the suit is based on notice dated 25th July 1977. The statutory Notice itself is illegal as application for fixation of standard rent was very much pending on the date on which statutory notice was issued by the landlady. He submitted that as the notice itself was illegal, the suit was not maintainable and therefore, there was no occasion for the courts below to pass a decree for possession. Inviting my attention to the chart which is a part of the Judgment of the Appellate 3 Court, he submitted that the amounts have been deposited with reasonable punctuality and a substantial compliance has been made by the petitioner by depositing the amounts. 4 I have considered the submissions. There are concurrent findings recorded by the Courts below that the date on which the demand notice was issued, the petitioner was in arrears of rent which fact is established by the orders passed on the application for fixation of standard rent filed by the petitioner himself. 5 The burden was on the petitioner to prove that when the notice of demand on the basis of which the suit was filed was issued, the application for fixation of standard rent was pending. That burden was not admittedly discharged by the petitioner. Even assuming that the application for fixation of standard rent was filed by the petitioner within one month from the date on which notice of demand was served, the petitioner will be entitled to relief against forfeiture provided he gets the interim rent fixed by the Court and thereafter pays or tenders the amount of rent specified in the order made by the Court. Thus, assuming that the application for standard rent was filed within one month from the date of service of notice, the case of the petitioner ought to have been considered under clause (b) of sub section 3 of section 12 of the said Act. Explanation I provides that in any case where there is a dispute as to the amount of standard rent or permitted increases recoverable, the tenant shall be deemed to ready and willing to pay such amount if before the expiry of period of one month after notice referred to in sub section 2, of section 12, he makes an application to the Court under section 11 (3) of 4 the said Act and thereafter, pays or tenders amount of rent or permitted increases specified in the order made by the Court. 6 It is not in dispute that the order was made by the Court fixing interim rent at the rate of Rs.15/- per month and the petitioner was directed to deposit the arrears at the said rate on or before 5th August 1977 and to keep on depositing the interim rent on or before 10th day of every month. On that day, the petitioner deposited arrears of rent only up to the period ending with 31st December 1976. On 24th February 1978, arrears of rent for the period of January 1977 till June 1977 was deposited. On 26th June 1979, arrears of interim rent upto December 1978 was deposited. On 13th March 1980, a sum of Rs.2670/- being arrears of rent up to end of December 1979 was deposited. On 4th September 1980 though the rent up to the end of August 1980 was payable, the petitioner deposited arrears up to end of June 1980. The amount of arrears from July 1980 to September 1980 was deposited on 9th October 1980 and thereafter, there were further defaults in the amounts payable from the periods of July 1981 to September 1981, February 1982 to May 1982, July 1982 to August 1982 and March 1983 to July 1984. Thus, this is not a case where only few defaults were committed by the petitioner. This is a case where there were persistent defaults committed by the petitioner in deposit of interim rent. In the circumstances, as held by the Courts below it cannot be said that the petitioner was ready and willing to pay the rent. Therefore, the Appellate Court rightly held that the petitioner will not be entitled to protection under clause (b) sub section 3 of section 12 read with Explanation I thereof. In view of the defaults, the decree for possession has been confirmed by the Appellate 5 Court. No case for interference in writ jurisdiction under 227 of Constitution of India is made out. The Petition is rejected. Rule is discharged. No order as to costs. JUDGE