1 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.301 OF 2009 RAMESH SILK MILLS A partnership firm having its office at Block No.8 Hyfa bldg No.2, Near ..Applicant Safed Pool, Kurla Andheri Road, Andheri (East), Mumbai. V/s. 1. SMT SHEETAL D. KAMDAR of Mumbai, Indian Inhabitant having her address at 301, Omshyam Apartment, 90 Road, Ghatkopar (East), Mumbai  400 077. ..Respondents 2. THE COURT RECEIVER, HIGH COURT Bombay, Receiver in BHC Suit No.1799/98 M.G.Road, Fort, Mumbai. Mr.V.Y.Sanglikar, Advocate, for the Applicant Mr.P.K.Dhakephalkar, Senior Advocate with Mr.Amol P. Mhatre, for the Respondents CORAM : R.C.CHAVAN, J. JUDGMENT RESERVED ON : 30TH JUNE, 2010 JUDGMENT PRONOUNCED ON : 19TH JULY, 2010 2 JUDGMENT . This Civil Revision Application is directed against the concurrent findings by the learned Judge of the Small Causes and Appellate Bench of the said Court holding the Applicant-tenant liable for ejectment under Section 12(3) of the Bombay Rent Act for failure to pay rent of 6 months in arrears within a month of demand. By consent of parties it is being taken up for final hearing at admission stage. 2. Facts which are material for deciding this Application are as under :- Applicant was a tenant in respect of suit premises originally owned by Zaveris on rent of Rs.1,746.58/-, which was raised to Rs. 2000/- per month with effect from 1st January, 1979 in a previous round of litigation. Zaveris sent a notice on 7th March, 1979 terminating tenancy due to failure to pay rent 3 in arrears, which was replied on 19th March, 1979 promising to pay rent due from December, 1978 before 7th April, 1979. However, payment was not made. Instead, on 13th June, 1979, Applicant sent only Rs.1,746.58/- by a draft which was returned by landlord Zaveris by letter dated 25th June, 1979, again calling upon the Applicant-tenant to pay rent in arrears since 1st December, 1978, warning the Applicant that a suit for ejectment would be filed. 3. Since nothing was done by the tenant, Zaveris, the then landlords filed suit for ejectment in September, 1979. In paragraph 7 of the plaint, the landlords specifically referred to tenant's letter dated 13th June, 1979 and their reply/demand dated 25th June, 1979. The suit was decreed ex-parte, and the decree was set aside in Appeal and the suit was restored which restoration was maintained in Writ Petition No.360 of 1984. 4 4. It may be useful to mention here that in paragraph 9 of Written Statement, where tenant responded to pleas in paragraph 7 of plaint, there is no whisper that notice dated 25th June, 1979 was not received. Rather in paragraph 10 of the Written Statement, this notice dated 25th June, 1979 is specifically referred to without saying that it was not received. All that the Defendant-tenant claimed was that tenant did not admit landlord s version of the correspondence and would rely on original correspondence for its true interpretation and effect. 5. In Writ Petition No.360 of 1984 filed by landlords challenging Appellate Judgment setting aside ex-parte decree the tenant was directed to pay the amount in arrears in count, which the tenant claimed to have done. It is, therefore, tenants' defence that the ground for ejectment on account of tenants default in paying arrears thus comes to an 5 end. 6. On 29th March, 1990 i. e. during the pendency of the suit, Zaveris, the landlords, transferred the property to Smt. Sheetal D. Kamdar, who replaced the Plaintiffs in cause title of suit. Tenant filed an additional Written Statement. The suit was dismissed by Judgment dated 22nd April, 2002 which was set aside by Appellate Bench on 15th September, 2005. Tenant questioned the Appellate Judgment by filing Writ Petition No.546 of 2006. This Court by Judgment dated 28th June, 2006 held that the suit was maintainable and that the point of maintainability stood concluded but ordered the Trial Judge to rehear the parties and decide other issues afresh. 7. Before the Trial Court, on behalf of new landlady, her son who held Power of Attorney was examined as witness. On behalf 6 of Defendant, there was virtually no evidence as Defendant did not even complete his examination-in-chief. 8. Accordingly after fresh hearing the learned Trial Judge, by his Judgment dated 21st June, 2007 held that tenant was liable to be evicted, which finding was confirmed by the Appellate Bench by its impugned Judgment. Aggrieved thereby the tenant has preferred this Civil Revision Application. 9. I have heard the learned Counsel for the parties. 10. The learned Counsel for the Applicant contended that first, there was no evidence to decree the suit, because Affidavit of holder of Power of Attorney for Plaintiff, who was transferee, could not have been read. Secondly, contents of notice of demand dated 25th June, 1979 were not proved. Thirdly, at 7 that time, rent for only 5 months was in arrears. And therefore, the suit could not have been decreed. In support of these contentions he relied on a number of Judgments his learned adversary opposed on all points. 11. First, I will deal with the question whether there was evidence or not. Reliance was placed on a Judgment in the matter of Bank of Baroda Versus Moti Industries & ors., reported in 2008(6) Bom. C. R. 659, the learned Counsel for tenant submitted that this Court had held that even if there is no Written Statement, the documents on the basis of which suit is filed must be proved or else the suit must fail. I am afraid that such is not the ratio of the Judgment. Paragraph 45 of the Judgment on which the learned Counsel relies reads as under :- 45. While recording the above findings, I am conscious of the fact that the defendants have not appeared. But that does not absolve the bank from establishing its claim in accordance with law once they are 8 called upon to prove their claim. This Court, merely on the basis of the documents, which are not proved; merely on the basis of some figures disclosed in the plaint, which are not established; and merely on the basis of oral statements, which cannot take place of proof of documentary evidence, cannot grant decree in favour of the plaintiff- Bank. (emphasis supplied) 12. It must be remembered that ordinarily when a Defendant does not appear or does not file a Written Statement, the implication would be that Defendant does not contest the averments in the plaint. But the Code of Civil Procedure specifically enables the Judge while dealing with cases under Order VIII, Rule 5 or Order VIII, Rule 10 of the Code of Civil Procedure, 1908 to call upon the Plaintiff to prove his case. This is a cautionary rule to ensure satisfaction of the Court that a decree may be passed. Therefore, once Court calls upon a party to prove its case, it would have no other option. This is so because the other side is not before the 9 Court. When both sides are before the Court they are capable of defending their causes and Court need not take upon itself the responsibility of reminding parties of the burden they carry. 13. In the case at hand, as has been already recounted, the Plaintiffs had specifically referred to notice dated 25th June, 1979. There is no denial by the Defendant-tenant in any of the two Written Statements he filed that he had received this notice. All that he wanted to harp upon was interpretation of the correspondence. Therefore, evidence by the transferee Plaintiff's Attorney was a superfluous redundancy not required in the situation. The Applicant forgets that he did not have the courage to take witness stand and complete his examination on oath. Therefore, all the objections to evidence of Plaintiff's son about notice dated 25th June, 1979 have to be 10 rejected. Consequently, it is not necessary to refer to Judgments in the matter of S.R.SRINIVASA AND OTHERS Versus S. PADMAVATHAMMA, reported in (2010) 5 Supreme Court Cases 274, Mr.D. and Mr.S., Advocates, reported in 68 BLR 228, Om Prakash Berlia and another v. Unit Trust of India and others, reported in AIR 1983 BOMBAY 1. 14. The learned Counsel for the Applicant- tenant next submitted that the Applicant was not at all in arrears of rent of more than 6 months on the date. The notice was given on 7th March, 1979. That notice is not the foundation of the suit. The notice dated 25th June, 1979 is the foundation of the suit. When this notice was given the tenant was in arrears of rent from December, 1978 as could be seen from tenant's own letter which had been written in reply to the notice dated 7th March, 1979. This letter dated 19th March, 1979 acknowledges that the tenant was in 11 arrears since December, 1978. The learned Counsel for the Applicant submitted that by letter dated 13th June, 1979 rent of Rs. 1,746.58/- towards the month of December, 1978 had been forwarded, which had not been received by the landlord. Since rent for December, 1978 was tendered & was not received, the tenant could not be held to be in arrears of the rent for the month of December, 1978, and if so calculated, the tenant could not be held to have been in arrears of rent for 6 months when the notice was issued on 25th June, 1979. 15. The learned Counsel for the Respondents-landlords submitted that there is string of the decisions of this Court holding that the tenant is obliged to tender the entire amount of rent in arrears demanded and a part payment of the arrears would not be sufficient compliance with the notice. For this purpose on behalf of the Respondents- 12 landlords reliance was placed on Judgments in HIRACHAND SONU BHAVSAR vs. MAHADEO WAMAN UPASANI, reported in 63 BLR 858, NANDLAL TOPANDAS v. R.K.JOSHI, reported in 76 BLR 703, KARTARSING HUKUMSING CHOG v. SMT. MUKTABAI PARASHRAM PANSARE, reported in 76 BLR 706, M.S.Shastri Versus Mrs. Hilla M. Batliwalla and others, reported in 1989 Mah.R.C.J.-78 and Ramesh Narayan Mahajani Vs. Hari Ganesh Pandit, since deceased by his heirs and others, reported in 1990 Bom.R.C.1972. In all these cases it had been held that when tenant was served with the notice under Section 12(2) of the Rent Act demanding arrears of rent, the tenant was obliged to tender the entire amount due, and, if the tenant sent a lesser amount, the landlord was not obliged to accept it, or could not be held to be unjustified in refusing to receive it. 16. It has to be noted that rent of one month amounting to Rs.1,746.58/- was sent on 13 13th June, 1979 and was refused by the landlord by letter dated 25th June, 1979, which letter itself is to be construed as notice demanding rent in arrears for more than 6 months. Therefore, it is clear that tenant had sent a sum of Rs.1,746.58/- before the notice demanding rent in arrears for more than 6 months under Section 12(3)(a) of the Bombay Rent Act & not in response to such notice. The amount had been tendered before such notice was issued. The question is whether the landlord was justified in refusing to receive the rent sent on 13th June, 1979 before a notice of demand had been sent. At the cost of repeatation it has to be pointed that on 19th March, 1979 the tenant was not in arrears of rent for more than 6 months and therefore, that letter could not be construed as a notice under Section 12(3)(a) of the Bombay Rent Act which was required to be complied by payment of the entire amount demanded. Thus, on 13th June, 1979 when tenant sent rent for one month 14 there should have been no difficulty for the landlord to receive the amount and adjust it towards the rent for month of December, 1978 which was due. Refusing to receive the rent by letter dated 25th June, 1979 would thus be unjustified and it would have to be held that the tenant had tendered rent for the month of December, 1978 by Bank warrant for Rs. 1,746.58/-. Thus, rent for the month of December, 1978 could not be held as due. In that view of the matter, when the notice dated 25th June, 1979 was issued, the tenant could not have been held to be in arrears for a period of 6 months. Therefore, though, both the Courts below have concurrently held that the tenant was in arrears of rent for more than 6 months on the date of demand notice dated 25th June, 1979, that finding is obviously erroneous and cannot be sustained. 17. The Courts below have then proceeded to hold that the Applicant was liable to be 15 evicted as he had lost protection of Section 12(3)(b) as he had not paid the rent regularly during the pendency of the suit. In this context it would be useful to recount that in paragraph 16 of his Judgment the learned Trial Judge has observed that the tenant had deposited Rs.30,764.30/- pursuant to orders passed in Writ Petition No.360 of 1984, prior to the first day of hearing. The learned Judge further observes that the tenant had not deposited rent at Rs.2000/- per month regularly in Court thereafter, though the order recounts that pursuant to Orders in Writ Petition No.546 of 2006 the tenant had deposited a sum of Rs.one lac within 2 months of the said Order, in addition to a sum of Rs.one lac deposited during the pendency of the Writ Petition. Thus, a sum of Rs. 2,30,764.30/- in all seems to have been deposited by the tenant. There is nothing to show that any further sums were paid. 16 18. The dues from January, 1979 till the suit was finally disposed of by the Trial Court on 21st June, 2007, i. e. for over 28 years and five months or 341 months would come to Rs.6,82,000/-. Even after deducting Rs. 2.30 lacs paid, still a big gap of Rs.4.50 lacs would be left. In fact the learned Trial Judge had granted a money decree for the arrears of rent which Appellate Bench set aside for want of prayers. There is absolutely not even an attempt to pay these arrears or to explain them. Hence, the Trial Court as well as the Appellate Bench cannot be faulted for holding Applicant liable to be evicted under Section 12(3)(b) of the Bombay Rent Act. 19. In view of this, Civil Revision Application is dismissed. (R.C.CHAVAN, J.) 17 20. At this stage, the learned Counsel for the Applicant prays for keeping the order in abeyance for a period of 8 weeks. The order be kept in abeyance for a period of 8 weeks provided the Applicant giving usual undertaking signed by all the partners of the firm. (R.C.CHAVAN, J.)