1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. Writ Petition No.5021/2007 Shri Ramkrishna Motiram Deshmukh, aged about 68 years, Occupation Agriculturist, R/o Narsoowada, Rajkarnal Chowk, Amrvati P.A.holder Shri R.R. Deshmukh (deleted) Legal Heirs of Petitioner 1] Smt. Sushila wd/o Ramkrushna Deshmukh, Aged about 65 years, 2] Sau. Lata w/o Ramchandra Deshmukh, Aged about 50 years, 3] Sau. Usha w/o Lakshmikant Sawadedkar, Aged about 47 years, 4] Shri Ravindra S/o Ramkrushna Deshmukh, Aged about 43 years, 5] Sau. Sandhya Sharadrao Deshmukh, Aged about 37 years, 6] Pankaj S/o Ramkrushna Deshmukh, Aged about 34 years, 7] Sanjay s/o Ramkrushna Deshmukh, Aged about 38 years, All 1 to 7 R/o. Narsoowada, Rajkamal Chowk, Amravati, District Amravati. PETITIONER VERSUS 2 Shri Ganpat Rambhau Narsoo, Aged about 70 years, Occupation : Business, R/o Pannalal Bagicha, Amravati. RESPONDENT .... Smt. Neeta Jog, Advocate for the petitioner. Mr. R.K. Deshpande, Advocate for the respondent. ...... CORAM : A.P. LAVANDE, J. DATE OF RESERVING THE ORDER :9/6/2008. DATE OF PRONOUNCING THE ORDER :13/06/2008. JUDGMENT : 1] Heard Smt. Jog, learned counsel for the petitioner and Mr. Deshpande, learned counsel for the respondent. 2] By this petition, the petitioner-tenant challenges the order dated 10.4.2006 passed by the Rent Controller as well as order dated 7/6/2007 passed by the Appellate Authority under the provisions of C.P. Berar Letting of Houses and Rent Control Order, 1949 (hereinafter referred to as “the Order”). 3] The respondent-landlord filed case before the Rent Controller against the petitioner seeking permission to issue quit notice under Clauses 13(3(i) (ii) (v) and (vi) of the Order. 3 After hearing both the sides the Rent Controller by order dated 10.4.2006 granted permission under Clause 13(3)(ii) (v) and (vi) of the Order. Against the said order, the petitioner preferred appeal before the Additional Collector, Amravati. The Appellate Authority, confirmed the order dated 7.6.2007 passed by the Rent Controller under Clause 13 (3))(ii) and in respect of 13(3) (v) and (vi) of the Order, remanded the matter to Rent Controller with a direction he should take the evidence and grant opportunity to file the documents to both sides and decide the matter within four months. The review preferred against the said order was also dismissed by order dated 14.9.2007. 4] Smt. Jog, learned counsel for the petitioner submitted that the Appellate authority could not have confirmed the order passed by the Rent Controller granting permission to issue quit notice under Clause 13(3)(ii) of the Order inasmuch as the petitioner could not be termed as habitual defaulter since there was a practice by which the petitioner was permitted to pay monthly rent after a period of three or four months for which the respondent had not 4 objected. She further submitted that since the respondent had accepted rent from 1993 till filing of the case in the year 1998 the respondent could not have filed application seeking permission to issue quit notice without giving prior notice to the petitioner. The learned counsel further submitted that just one month before filing the application before the Rent Controller, the respondent had filed application for fixation of fair rent and therefore, the respondent is not entitled to any relief. She further submitted that the respondent having accepted the rent offered by the petitioner after the period of four or six months could not seek permission to issue notice under Clause 13(3)(ii) of the Order. In support of her submissions, Smt.. Jog, relied upon the following judgments:- (i)Rashik Lal and others vs. Shah Gokuldas Waghajibhai : 1989 Mh.L.J. 207 and (ii)]Vinodkumar Atmaramji Choudhary Vs. Resident Deputy Collector, Amravati : 1998 (1) Mh.L.J. 633. 5] Per contra, Mr. Deshpande, learned counsel for the respondent submitted that both the lower Authorities have granted permission under Clause 13(3)(ii) of the Order to issue 5 quit notice to the petitioner after appreciating the materials on record and, therefore, no interference is called for by this Court in exercise of the writ jurisdiction. He invited my attention to compromise terms dated 23.7.1993 filed in earlier proceedings bearing Revision Case No. 56/71(2)/88-89 by which the petitioner had agreed to increase rent from Rs. 60/- to Rs. 150/- per month and had agreed to pay rent regularly in advance on or before 5th of every month. He, therefore, submitted that merely because the respondent had accepted rent which was paid after four or six months that did not debar the respondent from seeking permission to issue quit notice under Clause 13(3)(ii) of the Order. In support of his submissions, Mr. Deshpande relied upon the judgment of this Court in Sushilabai w/o Narayan Raut and Ors. Vs. Navnit S/o Bhojraj Lakhotiya : (2005(1) All M R 193. 6] I have carefully considered the submissions made by learned counsel for the parties and perused the record. 7] In Rashik Lal's case (supra) the Apex Court has held that the landlord would continue to receive rent at interval of several months without any objection and without letting the 6 tenant know his thought process cannot be allowed to spring a surprise by suddenly starting a proceeding under Clause 13(3)(ii) of the Order. 8] In Vinodkumar Atmaraji Chaoudhary's case (supra) the learned Single Judge of this Court after placing reliance upon the judgment of the Apex Court in Rasik Lal's case (supra) held that in case the landlord receives the rent for a period of three months to fifteen months without any protest, tenant cannot be said to be habitually in arrears of rent. 9] In Sushilabai w/o Narayan Raut's case, the learned Single Judge of this Court after placing reliance upon in Rasik Lal's case held that where a tenant is put on notice that he should pay the rent monthly, the tenant cannot be heard to take a defence of settled practice of demanding and paying the rent in lumpsum. 10] In the present case, no doubt even after 1993 the respondent had accepted rent after a period of two months and on one occasion for a period of 14 months as is clear from the Chart annexed to the petition disclosing Schedule of the payment made by the petitioner, which has been admitted 7 by both the sides. However, the fact remains that in compromise terms dated 23rd July, 1993 filed in Revenue Case No. 56/71 (2) 88-89 filed by the respondent, the petitioner had agreed to pay rent regularly in advance on 5th of every month. The petitioner in proceeding initiated by the respondent having agreed to pay regularly monthly rent on or before 5th of every month cannot now contend that there was settled practice between him and the respondent by which the respondent accepted the rent after a period of two months or 14 months and, therefore, the respondent is not entitled to permission under Clause 13(3) (ii) of the Order. The ratio laid down by the Apex Court and the learned Judge of this Court in the judgments relied upon by the petitioner is not applicable in the present case. In my considered opinion, the ratio in Sushilabai Narayan Raut's case (supra) is squarely applicable in the present case. The petitioner having agreed to pay the monthly rent on or before 5th of every month and having defaulted in the payment of monthly rent as agreed and having paid the rent after the period of two months or fourteen months cannot be heard to say that the respondent cannot 8 seek permission under Clause 13(3) (ii) of the order. I, therefore, find no merit in the submissions made by learned counsel for the petitioner. 11] In so far as filing of application for fixation of fair rent by the respondent just one month before filing the application before the Rent controller is concerned, the same cannot come in the way of the respondent from seeking permission under Clause 13(3) (ii) of the Order. 12] For the reasons aforesaid, I find no merit in the present petition. Therefore, the petition is rejected. JUDGE Ambulkar.