1 (WP2894.95) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2894 OF 1995 1. Mrs. Shankri B. Ajimal ) 2. Harbhajan Singh B. Ajimal ) 13, Pushpa Park, 1st Road, ) Malad (East), Bombay-400097 )...Petitioners. (Orig.Plaintiffs) V/s Narendra Mohan Tailor ) Residing at Room No.5, ) Ajimal Chawl No.1 Kurar ) Village, Daftary Road, ) Malad (East), Bombay-400097 )...Respondents. (Orig.Defendant) --- Mr. Harbhajan Singh, Petitioner No.2 in person. Ms. Jayashree D. Awhad for the Respondent. --- CORAM: V. M. KANADE, J. DATE : 4th July, 2011 ORAL JUDGMENT: 1. Heard the Petitioner No.2 who is appearing in person and the learned Counsel for the Respondent. 2. Petitioner is the original landlord and Respondent is the original tenant. For the sake of convenience, parties shall be 2 (WP2894.95) referred to as “landlord” and “tenant”. 3. Landlord filed a suit inter alia on the ground of arrears of rent against the tenant. Trial Court decreed the suit and passed an order of eviction. Against this order, tenant preferred an appeal. The lower Appellate Court, however, held that the demand notice which was sent by the landlord was premature and, on that ground, set aside the judgment and decree of the Trial Court. 4. Brief facts are that a demand notice was sent by the landlord dated 1/4/1976 to the tenant and upon non- payment of the amount of arrears which was demanded for a period from 1/10/1975 to 31/3/1976, he filed a suit in June, 1976. The lower Appellate Court relied on an unreported judgment of this Court in A. Moorthy vs. Suraj Prasad 1 delivered by Shri Justice Chitale. Relying on the said observations made in the said judgment which were reproduced by the lower Appellate Court, it held that when the demand notice was issued, it could not be said that rent for six months had become due and since it had not become due, no notice could have been served. It further held that the said judgment laid down as to how the word “due” had to be construed and in the absence of an agreement to pay the rent in advance, the landlord had to wait for one more month and, thereafter, only he could have issued the demand notice. 1 Civil Revision Application No.1426 of 1962 decided on 5.10.1964 3 (WP2894.95) 5. Petitioner No.2 who is appearing in person submitted that the lower Appellate Court had committed an error of law which is apparent on the face of record. He submitted that it is an admitted position that the rent was payable by month and at the close of the month the said amount became payable and, accordingly, the notice was issued on 1/4/1976 for the period from 1/10/1975 to 31/3/1976. He submitted that the lower Appellate Court had misconstrued the observations made by the learned single Judge of this Court in A. Moorthy (supra). 6. On the other hand, the learned Counsel appearing on behalf of the tenant submitted that the notice itself was not served and, therefore, the suit was liable to be dismissed on that ground. She further submitted that the date on which the notice was sent, the tenant was not in arrears for the month of March, 1976 since he could have still paid that amount in the month of April, 1976. 7. In my view, there is some substance in the submissions made by the Petitioner No.2 who is appearing in person. It is a settled position in law that for the purpose of filing a suit for eviction on the ground of arrears of rent, the landlord has to issue a demand notice as per the provisions of section 12(2) of the said Act and upon service of the notice, the tenant has to either pay that amount within one month from the date of service of notice to the landlord or pay the 4 (WP2894.95) amount on the date of first hearing of the suit. In the present case, it is an admitted position that tenant did not pay that amount within one month from the date of service of notice or on the first date of the hearing of the suit. On the contrary, he made an application at the fag end of the trial when the hearing had begun. This being the position, the tenant was not entitled to get the benefit under section 12(3)(b) and his case was squarely covered by the provisions of section 12(3)(a). The lower Appellate Court relied on the following paragraph of the unreported judgment of this Court in the case of A. Moorthy (supra):- “Mr. Narayanish, who appears for the petitioner-defendant – contends that then the opponent-plaintiff issued the notice dated 21st September 1961, the petitioner- defendant cannot be said to be in arrears for six months or more. Mr. Narayanish submits that the petitioner-defendant was entitled to pay the rent due any time before the end of September 1961, hence the notice is premature. This contention seems to be wel-founded, Until the expiry of September, 1961, it could not be said that the petitioner-defendant was in arrears for six months or more. Mr. Bhatt for the opponent-plaintiff relies on the fact 5 (WP2894.95) that even after the receipt of the aforesaid notice, the petitioner-defendant never tendered the rent, until he deposited the same in Court very late, hence it cannot be said that the petitioner-defendant was willing to pay the rent. The Ld. Trail Judge was not, in my opinion, justified in taking into account the circumstances that formerly two suits were filed against the petitioner-defendant particularly in view of the fact that ultimately those suits were settled. In the present case, it is clear that the opponent-plaintiff was not justified in refusing the money order sent to him. As stated above, the notice terminating the tenancy is, in my opinion, premature. In the written statement the petitioner defendant expressed his willingness to pay the rent, though I must say that he did not translate it into action immediately. Admittedly, when the suit was filed, the application, for fixation of standard rent was pending, although it was subsequently dismissed. Taking into account all these facts, I am not able to hold that the tenancy was duly terminated-rejected notice and that the petitioner-defendant was not willing to pay rent.” 6 (WP2894.95) 8. Perusal of the said observations made by the learned Single Judge of this Court clearly reveals that, in that case, the Plaintiff had refused the money order which was sent to him and an application for fixation of standard rent was pending when the suit was filed. Under these circumstances, the learned Single Judge has observed as under:- “Taking into account all these facts, I am not able to hold that the tenancy was duly terminated-rejected notice and that the petitioner-defendant was not willing to pay tent.” The learned Single Judge has not taken into consideration the relevant provisions of section 12(2) or 12(3)(a) and 12(3) (b). The said observations, therefore, have been made taking into consideration the totality of the case and not only on the fact that a premature notice had been sent. The lower Appellate Court, therefore, clearly erred in relying upon the said judgment for the purpose of holding that the suit was filed prematurely. 9. The judgment and order passed by the lower Appellate Court is, therefore, set aside and the Judgment and order 7 (WP2894.95) passed by the Trial Court is confirmed. Writ Petition is accordingly allowed in terms of prayer clause (a). However, six months’ time is given to the respondent/tenant to handover quite, peaceful and vacant possession of the premises, provided the respondent/tenant files an undertaking on usual terms and conditions within two weeks from today. 10. Writ Petition is disposed of. (V.M. KANADE, J.)