(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 1977 OF 1992 Balwantrao Amrutrao Ichhapurkar, Age : 52 years, Occupation : Business, R/o. Plot No. 20-A, Ring Road, .. Petitioner Jalgaon. (Original defendant) versus Rajendra Chandulal Rana, Age : 32 years, Occupation : Trader, R/o. Plot No. 20-A, Ring Road, .. Respondent Jalgaon. (Original plaintiff) ....................... Mr. V.Y. Patil, Advocate, for the petitioner. Mr. A.P. Bhandari, Advocate, for the respondent. ........................ CORAM : B.P. DHARMADHIKARI, J. DATE : 31ST MARCH 2011 (2) ORAL JUDGMENT : 1. Matter was called out earlier, it was required to be passed over as nobody was present for the petitioner. Matter was called out again and then Adv. Mr. V.Y. Patil stated that the petitioner is engaging Senior Advocate and hence matter should be adjourned. In view of the earlier orders passed by this court, in Civil Application No. 10526/2008, dated 29th January 2010, and on 14th January 2011, I have rejected that request. 2. Accordingly, I have proceeded to hear Adv. Mr. A.P. Bhandari, who appears for the respondent / landlord, in the presence of Adv. Mr. V.Y. Patil, for the petitioner. 3. Adv. Mr. Bhandari has contended that the petitioner before this court is tenant who is challenging concurrent findings reached by courts below. The respondent / landlord sought his eviction on the ground of non-payment of rent under Section 12 and also on account of causing nuisance as per provisions of Section 13(1)(c) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (For short, "1947 Act"). After inviting attention to relevant pleadings in this respect, Adv. Mr. Bhandari has pointed out that though there is some dispute about payment of rent, a notice dated 3-8-1981 was issued and after its reply on (3) 13-8-1981, the suit came to be filed as rent was not paid within one month. After filing of suit, the petitioner / defendant was served and appeared on 18-1-1982 before trial court but then, on that day, did not deposit all arrears then outstanding. The amount of arrears of Rs. 500/- has been deposited by him on 15-3-1982 and petitioner / tenant has claimed that it is on account of arrears of 41 months. Adv. Mr. Bhandari contends that these arrears are established and violations of Section 12(3) has also come on record. The decree of eviction passed on that ground concurrently, therefore, needs to be maintained. 4. As the room, in question, was let out only for residential purpose, he argues that its use for any other purpose is contrary to law. The petitioner accepted that he is using the compound open to sky not let out to him for doing his business of cleaning / washing medicine bottles. This user by tenant has caused nuisance to the persons residing in the neighbourhood and because of these acts of nuisance or annoyance, permission as granted also need to be maintained. 5. Perusal of pleadings show that monthly rent in respect of the tenanted room is admittedly Rs. 20/-. The respondent / landlord claimed non-payment from 1-11-1979. The petitioner urged that he did forward it by Money Orders but those Money (4) Orders were refused. Receipt of notice under Section 12(2) by the petitioner / tenant is not in dispute. He also gave reply thereto. Thereafter suit came to be filed and 18-1-1982 was the first date of appearance before the trial court. On that day, the amount in arrears till then was not deposited. The petitioner / tenant has deposited amount of Rs. 500/- on 15-3-1982 stating that same was for a period of 41 months. If it is to be for a period of 41 months, the amount has to be 41 X 20 i.e. Rs. 820/-. The payment, therefore, is short. From 1-11-1979 till 28-2-1982, the period will be of 28 months. Therefore, when amount came to be deposited in the month of March 1982, amount deposited ought to have been 28 X 20 = Rs. 560/-. Again payment is short. The payment, therefore, is not in accordance with provisions of Section 12(3) of 1947 Act. 6. There is dispute between parties about the permitted increases. In his written statement, tenant has stated that he was required to pay the municipal tax of Rs. 240/- per year. In view of finding above, I have not gone into that aspect. 7. Even if it is presumed that the landlord had refused Money Orders, after filing of suit and after receipt of a notice demanding arrears, the tenant could have shown his bona fides by depositing arrears with landlord within one month of service (5) of notice or then with trial court as contemplated by Section 12(3) of 1947 Act. Admittedly, that has not been done in the present matter. The courts below have not accepted the alleged forwarding of Money Orders and its refusal by respondent / landlord after noticing that respondent / landlord has refused tendering of any such Money Order by postman to him. This stand necessitated examination of postman as witness and petitioner / tenant did not examine any postman. This application of mind by courts below cannot be labelled as erroneous or perverse. The finding that petitioner is in arrears, therefore, cannot be said to be vitiated on any account. 8. The fact that suit room was let out for residential purposes is not in dispute. The petitioner / tenant has claimed that he is doing business in open courtyard of respondent / landlord. The size of that courtyard has also come on record. Nature of his business appears to be washing and cleaning of medicine bottles. The tenant himself has accepted that in the process, some bottles get broken. This washing is done in open courtyard which is not let out to the tenant. It is no doubt true that landlord is not residing in the very same premises but then has examined one neighbour Shri Sonwane. He has spoken about nuisance and annoyance by such user. The courts below have appreciated this evidence to hold that nuisance is also (6) established. The said neighbour Shri Sonwane has complained of bad smell and also of noise. He has also stated that because of this, complaint has been made to Municipal Council. The petitioner has accepted that he has obtained license of Municipal Council for doing that business. Thus, nuisance and annoyance from the business of tenant to neighbours has also come on record. 9. The relevant evidence is considered and hence the finding concurrently reached cannot be labelled as erroneous or perverse. 10. As I do not see any jurisdictional error or perversity, no case is made out warranting interference under Article 227 of the Constitution of India. 11. In the result, the petition is dismissed. Rule is discharged. Needless to mention, that the interim relief stands vacated. No costs. ( B.P. DHARMADHIKARI ) JUDGE bgp/1977wp