KBP 44-02.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 44 OF 2002 Laxmi Prabhakar Pawar and ors. ..Petitioners Vs. Shaikh Bhikan Shaikh Hamid and ors. ..Respondents ...... Mr.Mandar Limaye i/b.Mrs. M.V.Bhate, for petitioners. Mr.S.R.Page, for respondent nos.1A to 1C and 1E and 1F. Mr.Lagu i/b.Mr.A.A.Garge, for respondent nos.2 to 8. ....... CORAM : A.S.OKA, J. DATE : 18 th SEPTEMBER, 2009. P.C. : 1] Heard learned counsel for the petitioners who are original defendants and learned counsel for the first respondent (original plaintiff). The original first respondent filed a suit for eviction under the provisions of the Bombay Rents, Hotel and Lodging House Rents Control Act, 1947 (hereinafter referred to as the said Act) against the defendants on the ground of arrears of rent and bona fide requirement. The case made out by the first respondent is that the demand notice dated 30 th May, 1997 was issued to the defendants calling upon them to pay arrears of rent for the period of 41 months from 10 th December, 1993 to 30 th April, 1997. It is alleged that the notice was served on 2 nd June, 1997 and there was no compliance made. KBP 44-02.sxw 2 The suit was contested by the original defendant nos.1 and 3 by filing written statement. The trial Court dismissed the suit in so far as the prayer for possession is concerned. The appellate court has interfered and has passed a decree on the ground of arrears of rent. The finding recorded by the appellate court is that there was no compliance with the demand notice and admittedly, an application for fixation of standard rent has not been filed by the original defendants. 2] The learned counsel for the petitioner tendered across the bar three original receipts showing that the petitioners and/or their predecessors had deposited entire arrears with the trial court. He submitted that the appellate court proceeded on erroneous assumption that no rent was deposited by the original defendants. He pointed out that on 9 th April, 1998 the defendants deposited the rent for the period from 10 th December, 1993 to March, 1998. He pointed out that on 24 th September, 1998 rent for the period of April, 1998 to September, 1998 was deposited. The third receipt shows that rent from October, 1999 to December, 1999 has been deposited on 7 th December, 1999. He submitted that the findings of the appellate court are vitiated on the ground that the deposit made by the defendants in the court has not been considered. He, therefore, submitted that there was no justification for passing a decree on the ground of default. 3] I have carefully considered the submissions. There does not seem to KBP 44-02.sxw 3 be any dispute regarding the service of demand notice for arrears of rent for 41 months. The appellate court relied upon written statement in which it was stated that said respondents were to deposit the rent in the Court from 21 st November, 1997. It is not in dispute that an the application for fixation of standard rent was not filed by the defendants. Therefore, the suit will be governed by sub-section 3 of Section 12 of the said Act. Apart from the fact that in this petition no case has been made out regarding compliance with sub-section 3 of Section 12, perusal of the receipts tendered across the bar by the learned counsel for the petitioners show that the first deposit was belatedly made on 9 th April, 1998 of rent for the period from May, 1993 to April, 1998. Other two receipts do not show that interest as contemplated by sub section 3 of section 12 was deposited which is a condition precedent for obtaining a relief against forfeiture. The receipts tendered across the bar show that after the first deposit, the rent was not deposited regularly in as much the rent from April, 1998 to September, 1998 was deposited on 24 th September, 1998 and the rent from the months of October to December, 1999 was deposited in the month of December, 1999. Therefore, there is no compliance with sub-section 3 of section 12 of the said Act. The observations made by the appellate court that the rent was not deposited may not be factually correct. But the said deposit will not help the petitioners. Hence, the petitioners were not entitled to protection as interest on arrears KBP 44-02.sxw 4 was admittedly not deposited and there was no regular deposit of Rent. Admittedly, the demand notice was not complied with by the petitioners. 4] Hence, no case is made out for interference under Article 227 of the Constitution of India. Writ petition is rejected. ( A.S.OKA, J. )