1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2020 OF 1993 Ramanlal Sunderlal Patni & Ors. .. Petitioners versus Attarchand R. Bhusari .. Respondent Mr.Kiran Bhagalia for the petitioners. Mr.P.N.Joshi for the respondent. CORAM : A.S.OKA, J. DATE : 23rd February 2010. JUDGMENT: . The petitioners are the original landlords-plaintiffs and the respondent is the original tenant. The suit premises is more particularly described in paragraph 2 of the plaint. The suit premises is a house property which was let out by the petitioners to the respondents for residential use at the monthly rent of Rs.20/-. The case made out by the petitioners is that the respondent was in arrears of rent from 1st July 1982. A notice of demand dated 7th January 1983 was issued calling upon the respondent to pay arrears of rent of Rs.140/-. The notice was served to the respondent on 10th January 1983. As notice was not complied with, the suit was filed. Apart from ground of arrears of rent under section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the said Act) it is alleged in the suit that the respondent has acquired a plot of land at village Savargaon from his own funds in the name of his wife and the same has been constructed upon. It is alleged that the 2 respondent is residing in the house constructed thereon and is running a grocery shop. Thus, the second ground was acquisition of suitable residence under section 13(1)(l) of the said Act. 2. The suit was contested by the respondent by filing the written statement. It was contended that the respondent was regularly paying the rent but rent receipts were not issued regularly by the petitioners. It is contended that though the respondent was not in arrears, with a view to take the undue advantage of the fact that rent receipts were not issued, the suit notice was sent by the petitioners. It is alleged that on receipt of the notice, the respondent attempted to tender the entire arrears to the petitioners but the petitioners declined to accept the same. It was contended that entire arrears of Rs.140/- was sent by the money order which was not accepted. The respondent contended that he was never in arrears of rent and in any case money order has been sent. The respondent denied allegation regarding acquisition of suitable residence. It is contended that respondent continues to reside in the same premises. It is contended that on the land at Savargaon, the respondent’s son is running grocery shop and entire family continues to stay in the suit premises. 3. Parties adduced evidence. The trial Court passed a decree for possession in favour of the petitioners on the ground of arrears of rent and acquisition of suitable residence. The Appellate Court has interfered and has dismissed the suit. 3 4. The learned counsel appearing for the petitioners submitted that on the date on which demand notice was served, the respondent was in arrears of rent of more than six months and there is no evidence on record to show that compliance was made with the notice. She submitted that the Appellate Court could not have gone into conduct of the respondent as the same was not relevant. Her submission is that as there was no compliance to the demand notice demanding arrears of rent of more than six months, decree for possession must follow. The learned counsel further submitted that acquisition of plot of land at village Savargaon and construction of a structure thereon was admitted by the respondent and therefore it was for the respondent to show that the said property was not suitable. She submitted that even the voters’ list shows that name of the respondent have been added in the list of voters of village Savargaon. She submitted that the finding recorded by the Appellate Court on the issue of acquisition of suitable residence is perverse. Today, the learned counsel appearing for the petitioner has tendered an affidavit stating that during the pendency of the petition the respondent has not paid any rent. 5. The learned counsel appearing for the respondent pointed out that even in the reply to the suit notice which was issued within one month, there is a specific assertion that a money order in the sum of Rs.140/- was send by the respondent. He pointed out that a very fact that in reply dated 17th January 1983 there is a reference to the money order in the sum of Rs.140/-, the said money order which was refused by the petitioners must have been dispatched within one month from 4 the date of receipt of the notice. He submitted that the conduct of sending money order in the sum of Rs.20/- on 4th February 1982 and money order of Rs.140/- on 24th February 1983 shows that the respondent was ready and willing to pay the rent. He pointed out that a money order in the sum of Rs.600/- was sent by the respondent to the petitioners much prior to the date of service of demand notice and there is no explanation by the petitioners as to how amount of Rs.600/- has been adjusted. He invited my attention to the findings of the Appellate Court. He submitted that the Appellate Court has considered the conduct of the respondent and has held that he was always ready and willing to pay the rent and therefore no decree for eviction on the ground of arrears of rent can be passed against the respondent. He pointed out that the specific case of the respondent right from the inception is that in fact the entire amount was already paid for which no receipts were issued by the petitioners. He submitted that if a sum of Rs.600/- admittedly sent by the money order by the respondent is taken into consideration, on the date on which demand notice was issued there were no arrears. He submitted that considering the findings of the Appellate Court which is based on the conduct of the parties, no interference can be made in the writ jurisdiction. As far as acquisition of suitable residence is concerned, he submitted that the appellate Court has recorded a finding that the plot of land at village Savargaon stands in the name of the wife of the respondent and only a shed has been constructed thereon in which the son of the respondent is running a grocery shop. He submitted that it is not established by the petitioners that alleged accommodation acquired by the respondent is suitable. 5 6. I have given careful consideration to the submissions. As far as acquisition of suitable residence is concerned the allegation of the petitioners is that the respondent has acquired a plot of land at village Savargaon in the name of his wife and the same has been constructed upon in which the respondent is residing. As far as the trial Court is concerned, the only finding recorded on this aspect is in paragraph 9 which reads thus: “It is admitted that the defendant had purchased the open land at Savargaon and he was constructed a room for running the kirana shop. His son was running the kirana shop in the said room. Defendant took the electric meter in the said house. Plaintiff has produced the voter list for showing that defendant no.1 was residing at Savargaon. Defendant has not given any reason why he has sold his own house and he willing to reside in rented house. His sons were taking the education at Savargaon. Defendant has not produced any document for showing that his son were taking the education at Yeola. From the above evidence, plaintiff proved that defendant has built a suitable residential house at Savargaon. Hence, my finding as to Issue No.9 is in affirmative”. 7. As far as Appellate Court is concerned, the finding is that the respondent has constructed a shop at Savargaon. The Appellate Court observed that the assessment register of Village Panchayat at Exhibit 53 shows that there was a tin shed in the name of wife of the respondent. There is no evidence adduced on record to show that what is the nature and extent of the construction carried out on the said plot at Savaragaon. The Appellate Court has observed that extract of Village Panchayat shows that there is a tin shed on the said plot of land in the name of wife of the respondent. The burden was on the petitioners to prove that the respondent has acquired alternate accommodation and the said 6 accommodation is suitable. The material on record shows that the plot acquired is in another village and there is only a shed erected on the said plot. Therefore, the Appellate Court has rightly held that the acquisition of the suitable residence has not been proved. 8. Now turning to the ground of arrears of rent, it is not in dispute that notice dated 7th January 1982 was served to the respondent on 10th January 1982. The arrears demanded were of period of six months. It is true that in the reply sent to the suit notice on 17th January 1982 it is stated that a sum of RS.140/- was sent by a money order. The date of dispatch of the money order is not mentioned in the reply to the notice. The money order receipt on record at Exhibit 73 shows that the same was refused on 23rd February 1983. Therefore, it is necessary to see whether there is material on record to show that money order was sent within a period of one month from the date of service of notice of demand. Perusal of the cross-examination of the 1st petitioner shows that there is no suggestion given that the money order was dispatched within one month from 10th January 1982. Even in the examination-in-chief of the respondent he has not stated that money order was sent on or before 10th February 1983. Apart from a statement in reply to the notice, even in the written statement it is not the case of the respondent that the money order was dispatched within one month from the date on which notice of demand was served. Even in the evidence the respondent has not come with the said case. If the date of dispatch of money order was not visible on the money order coupan, the respondent could have always examined 7 appropriate witness or could have produced the record of post office to establish the date of dispatch of the money order. Thus, neither in the written statement nor in the evidence a case was made out by the respondent that money order in the sum of Rs.140/- was sent within one month from the date of service of notice of demand. 9. Reliance is placed on money orders of Rs.20/- and Rs.140/- sent on 4th February 1983 and 24th February 1983. The said money orders would have become relevant provided there was evidence to show that arrears demanded were sent by the money order within one month from the date of service of notice. 10. Reliance is placed on a money order in the sum of Rs.600/- sent by the respondent much prior to the date on which demand notice was served. Perusal of the evidence of the 1st petitioner shows that not even a suggestion has been given that money order in the sum of Rs.600/- was sent which covers the rent up to a particular period. Even in the written statement of the petitioner there is no reference to the fact that money order to in the sum of Rs.600/- was sent. No attempt is made by the respondent even in his evidence to make out a case that money order of Rs.600/- sent earlier covers the period of notice. Now in the writ jurisdiction the said finding cannot be recorded as there is no foundation for that in the pleadings as well as in the evidence. There is no evidence on record to show that when the demand notice was served, rent was paid up to the end of 8 December 1982. There is no compliance with the notice of demand within the stipulated time. The burden was on the respondent to prove that money order in the sum of Rs.140/- was dispatched within one month from the date of service of notice. In fact, no such case was made out by the respondent in the written statement as well as in the deposition. Thus, the only conclusion which is possible is that on the date on which demand notice was served, the respondent was in the arrears of rent of six months and more. There is no compliance with the notice of demand within the stipulated period. There is no application filed for fixation of standard rent. 11. Therefore, the Court had no choice but to pass a decree for eviction. The Appellate court has committed an error by going to the question of conduct of the parties without considering the effect of failure of the respondent to show that rent due was tendered within a period of one month from the date of service of demand. In the circumstances, the finding of the Appellate court on the applicability of section 12(3)(a) is completely erroneous. As stated earlier, going by the evidence and material produced by the respondent, the decree for possession under section 12(3)(a) must follow. Therefore, the petitioner must succeed. The decree of the trial Court will have to be restored. However, it is made clear that decree is restored only under section 12(3)(a) of the said Act. As far as affidavit tendered today by the petitioners is concerned, the same cannot be taken in to consideration as there is no opportunity to the respondent to meet the case made out therein. 9 12. Hence, I pass the following order: : O R D E R : (a) Rule is made absolute in terms of prayer clause (a). A decree for possession passed by the trial Court is restored. It is made clear that decree is passed only on the ground of default under section 12(3)(a) of the said Act. (b) There will be no orders as to costs. . On the prayer made by the learned counsel appearing for the petitioners, it is directed that decree for possession shall not be executed for a period of three months from today subject to condition that the respondents will not create any third party interests in respect of the suit premises or part with possession thereof. (A.S.OKA,J)