spb/- 1 wp3269-94.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 3269 OF 1994 Shri Abdullasha Ibrahim Momin, ... Petitioner. Age 35 yrs, Occ. Tailoring (Org.Paintiff- Landlord) R/at Yeola, Dist. Nasik., V/s. Shankarsa Dhonduse Kshatriya, since deceased .... Respondent. through his heirs and legal representatives : (Org.Defendant-Tenant) 1 a. Parvatabai Shankar, wife. 1 b. Shantaram Shankar, son, 1 c. Ramesh Shankar, son, 1 d. Rekha Shankar, daughter, 1 e. Pintya Shankarsa Kshatria All R/o. Bundelpura, Lalekar’s Wada, house No1298, at & Post. Yeola, Dist. Nasik. --- Mr. R.M.Haridas i/by Pramod N. Joshi for the Petitioner. Mr. Prasad S. Dani for the Respondents. ----- CORAM : D. G. KARNIK, J. DATE : 11th JANUARY, 2011. ORAL JUDGMENT : 1 This writ petition filed under Article 227 of the Constitution of India is directed against the judgment and order dated 20th September, 1993 passed by the Vth Addl. District Judge, Nasik, allowing the appeal filed by the respondent (original tenant) and thereby dismissing the suit for eviction filed by the petitioner. spb/- 2 wp3269-94.sxw 2 The petitioner is the landlord and owner of the suit property bearing CTS No. 722,situated at Yeola, Dist. Nasik. The respondent is a tenant, occupying a portion of the petitioner’s property (hereinafter referred to as “the suit property”) on the monthly rent of Rs. 15/-. According to the petitioner the respondent was in arrears of rent from 1st November, 1975. The petitioner issued a notice on 27th of July, 1978, demanding arrears of rent from the respondent, who failed to make payment. The petitioner issued another notice dated 8th July, 1980, demanding arrears of rent from 1st November, 1975. As the respondent failed to comply with the notices, the petitioner filed the suit (R.C.S.No. 110 of 1981) in the court of Civil Judge, Junior Division, Nasik for eviction on the ground of arrears of rent. After considering the oral and documentary evidence adduced by the parties, the trial court came to be conclusion that the respondent had not paid the rent from 1st November, 1975. It also held that the receipt of the notice was duly proved. The trial court, therefore, passed a decree for possession in favour of the petitioner-landlord. 3 On appeal, the appellate court held that the petitioner did not proved that the respondent was in arrears of rent from 1.11.1975 and therefore, reversed the decree for possession. Aggrieved petitioner is before this court. spb/- 3 wp3269-94.sxw 4 The appellate court held that the burden of proving that the rent was not paid by the respondent-tenant to the petitioner-landlord was on the petitioner and the petitioner landlord had not discharged that burden. It is true that when a landlord asserts that the rent has not been paid by the tenant and the tenant denies the same, it would be obligatory on the part of the landlord to enter in the witness box and state that the tenant has not paid rent to him. Once, the landlord makes a statement that the tenant has not paid the rent, the onus shifts to the tenant to prove the the payment of rent. Once the petitioner entered in the witness box and stated that the respondent had not paid rent, the appellate court ought to have held that the onus of proving the payment of the rent shifted on the tenant. In my view, the tenant has not discharged onus of proof that he had paid rent. It is not disputed that the tenant had received the notice of demand from the landlord. If the tenant had really paid the rent before the receipt of the notice, normally he would have immediately replied that the contents of the notice were not true and that the rent had been paid. He did not send any reply. This is contrary to the normal human conduct. In the written statement, he vaguely stated that he was not in arrears of rent and then contended that though he had paid the rent, the petitioner-landlord had not issued the rent receipts. In paragraph 12 of the written statement, he has stated that he had paid rent spb/- 4 wp3269-94.sxw to the petitioner till 30th July, 1981 and thereafter, deposited the rent in the court. In the deposition, he stated that he had paid rent of the suit premises till 25th June, 1980 and after June, 1980 he had deposited the rent in the court. Thus, there is variance in the pleadings and the evidence. While in the pleading, the respondent contended that he had paid rent to the petitioner upto 30th July, 1981 and in the deposition he stated that he had paid rent upto 25th of June, 1980. This variance appears to be an attempt of improvement by the respondent inasmuch as he could not have paid rent upto July, 1981 when the notice was issued much earlier in July, 1980. Realizing that the notice was issued in July, 1980 and therefore, he would not be able to establish the payment of rent upto July, 1981, he sought to improve the case by saying that he had paid rent till 25th of July, 1980. He did not produce any rent receipt. The learned District Judge has reversed the finding on the completely erroneous ground that the petitioner had not produced counter- foils of the rent receipts. The petitioner has stated that he used to pass receipts on a plain paper. No counter foils were maintained. Even if the statement is not accepted and it is assumed that the landlord was required to maintain the counter-foils, the original rent receipts issued by the landlord to the tenant would be the primary evidence and and the counter -foil thereof would be the secondary evidence. If the primary spb/- 5 wp3269-94.sxw evidence was not produced, there was no question of drawing an adverse inference against the petitioner for non-production of the secondary evidence of counter-foils. In my view, the lower appellate court has completely misdirected itself and erred in reversing the judgment and decree passed by the trial court. 5 For these reasons, the writ petition is allowed and the impugned judgment and order is set aside and the judgment and decree passed by the trial court is restored. 6 Petition is accordingly allowed. Rule is made absolute to the extent indicated above. The respondent shall pay costs of the petition to the petitioner. 7 After this order was pronounced in the open court, the learned counsel for the respondent prays that some time may be granted to the respondent to vacate the premises. The respondent is granted six months time to vacate the suit premises and it is directed that the decree of eviction shall not be executed for a period of six months subject to the condition that the respondent deposits all arrears of rent upto date in the trial court within four weeks and files an undertaking in this court in the usual terms within four weeks from today. [D.G. KARNIK, J.]