1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1617 OF 1993 Smt. Jaya G. Nayak. ..Petitioner. V/s. Smt.Shila Malhar Patil & Ors. ..Respondents. Mr.S.D.Patil for petitioner. Mr.Sachin Dhakephalkar for Respondents. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : AUGUST 29, 2008. DATE : AUGUST 29, 2008. DATE : AUGUST 29, 2008. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. This Writ Petition under Article 227 of the Constitution of India takes exception to the Judgment and Decree passed by the Second Additional District Judge, Thane dated 5th April, 1993 in Civil Appeal No.266 of 1992 which in turn has confirmed the Judgment and Decree passed by the trial Court dated 30th April, 1992 in Regular Civil Suit No.912 of 1985 directing delivery of peaceful possession of the suit premises to the Respondent/Plaintiff(landlord) and further directing enquiry under Order 20 Rule 12(1)(c) of C.P.Code to determine mesne profit from the date of the order till recovery of possession. 2 3. The Respondent landlord filed suit for recovery of possession of premises on the first floor of the building know as Pitruchaya, situated at Gokhale Road, Naupada, Thane. The admitted facts are that the Petitioner was monthly tenant in the said suit premises. It was agreed between the parties that the Petitioner/tenant shall pay the rent and permitted increases on monthly basis. It is also common ground that the said premises are admeasuring about 750 for which the Petitioner was paying rent of Rs.93.75 plus Rs.13.12 per month as education cess and other cess. In other words, both the standard rent as well as permitted increases was payable on monthly basis. The Petitioner however, remained in arrears with effect from 1st July, 1983 to 31st July, 1985. As a result of which the Respondent/landlord issued demand notice on 16th August, 1985(Exh.20). It is not in dispute that the said demand notice was served on the Petitioner on 17th August, 1985. There is no controversy raised in the present Petition about the validity of the notice. The Petitioner sent his reply to the demand notice raising certain issues. That communication was sent on 17th August, 1985(Exh.23). Soon thereafter, the Petitioner sent another communication to the Respondent/landlord on 3 23/9/1985(Exh.35). Admittedly, the Petitioner did not remit the amount as demanded in the demand notice towards arrears of rent within the statutory period nor did the Petitioner file any proceeding raising disputed regarding standard rent in respect of the suit premises within the statutory period. In fact, no dispute has been filed by the Petitioner regarding standard rent in respect of the suit premises. It is common ground that the Petitioner paid the entire arrears of rent demanded in the suit notice and as also future rent which was forwarded alongwith communication Exh.44 dated 9th October, 1985. 4. In other words, after the receipt of the demand notice on 17th August, 1985, the Petitioner/tenant neither offered demanded amount of rent within the statutory period nor raised any dispute regarding standard rent within such time. The fact that the Petitioner has sent communication raising certain issues therein and had assured the landlord that he would pay the outstanding arrears of rent and in fact paid that amount subsequently does not extricate the tenant from the rigours of section 12(3)(a) of the Act. On these admitted facts, both the Courts below have applied the provisions of Section 12(3)(a) of the Act and held that the 4 Petitioner failed and neglected to pay the amount, therefore, was a defaulter within the meaning of the said provision. That finding is unexceptionable. No other view on this fact is possible once section 12(3)(a) is attracted. The Court had no discretion but was obliged to pass decree of eviction against the tenant in the fact situation of this case. 5. The landlord had raised other ground for eviction of the tenant. However, it is not necessary for this Court to burden the Judgment with the said ground since the decree of eviction is confirmed on the ground of default by this decision. 6. Accordingly, this Petition fails. The same is dismissed with no order as to costs. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)