-: 1 :- SPB IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2869 OF 1992 WRIT PETITION NO. 2869 OF 1992 WRIT PETITION NO. 2869 OF 1992 Smt.Shantabai Maruti Chavan & Ors. .. Petitioners. V/s. 1. Shri Shrikant Panditrao Shinde, since deceased, through LRs. : a. Smt Shanta Shrikant Shinde & Ors. .. Respondents. --- Mr.B.P.Apte with Anjali N.Helekar for the Petitioners. None for the Respondents. --- CORAM : ANOOP V. MOHTA, J. CORAM : ANOOP V. MOHTA, J. CORAM : ANOOP V. MOHTA, J. DATED : 04TH DECEMBER,2008. DATED : 04TH DECEMBER,2008. DATED : 04TH DECEMBER,2008. P.C.: P.C.: P.C.: 1. The petitioner tenant has filed present writ petition and challenged the impugned order dated 21st April, 1992 whereby the 5th Additional District Judge, Kolhapur, allowed the appeal and set aside the judgment and decree passed by the learned Joint Civil Judge, Junior Division in a regular civil suit no. 661/1979 on 31.12.1986. The petitioner -tenant thereby was directed to hand over possession of the suit premises and further to pay arrears of rent from 1st December, 1977 till the date of the suit. An enquiry regarding mesne profits as -: 2 :- contemplated under Order 20 Rule 12 of the C.P.C. was also ordered. 2. None appeared for the respondent landlord though served. 3. The challenge is restricted only to the arrears of rent as the landlord did not press the point of bonafide need. 4. There is ample material on record to show that the petitioner tenant paid rent upto November, 1977. The original landlord expired in January, 1978. The petitioner thereafter for want of any intimation, not paid the rent as was unaware of the legal heirs of the original landlord. In the year 1979 when the respondent claim to be the legal heirs, issued notice dated 16.04.1979 and demanded the rent as well as possession of the property on the ground of default and arrears of rent. The petitioner replied the same and insisted for a material document to show the ownership of the premises in question. Admittedly, before that there was no intimation to the petitioner tenant. The intimation whatsoever given was lacking for want of evidence of the legal heir after the death of original landlord. Therefore, in view of this it is difficult to accept the -: 3 :- case that there was wilful or intentional default on the part of the petitioner tenant in not making payment regularly to the landlord. The requirement under the Act is to the effect that the tenant must be habitual defaulter and not ready and willing to make payment. In the present case as noted above till November, 1977 the rent was paid regularly. After the death of the original landlord for want of intimation, the rent was not paid. This according to me, in the circumstances of the case, cannot be said there is default on the part of the petitioner -tenant in non-payment of rent or that the petitioner was unwilling to pay rent. Both the courts below in fact have considered this aspect. So far as non-payment of rent after November, 1977 needs no further discussion as in view of the circumstances referred to above, there was no intentional default on the part of the petitioner - tenant to make the payment as contemplated under the said Act. Another aspect the trial court has considered is the notice dated 16.04.1979, which lacked the evidence about legal heirs of original landlord. In the absence of intimation about the legal heirs of the landlord, to whom the rent was to be paid by the petitioner-tenant. Notice did not indicate the period of which the rent was remained to be paid. The trial court, therefore, held that the notice was illegal and invalid. The suit based upon such notice -: 4 :- was rightly dismissed by the trial court but the appellate court gave no sufficient reasons to disturb the findings of the trial court in appeal. I see there is no case made out for dispossession of the tenant in the facts and circumstances of the case. 5. The order dated 21st April, 1992 is quashed and set aside and the judgment and decree passed by the learned Joint Civil Judge, Junior Division, Kolhapur is maintained. The Petition is allowed accordingly. No order as to costs. Rule is made absolute. (Anoop V.Mohta,J) .....