( 1 ) cra135.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 135 OF 2009 Dr. Shesherao s/o. Kundlikrao Dhakne .. Applicant Versus Sau. Asha Sudhakar Jadhav .. Respondent Shri P.S. Paranjape, Advocate for the applicant. Shri S.H. Joshi, Advocate for the respondent. CORAM : R.M. BORDE, J. DATED : 25.03.2011 P.C. :- 1. The petitioner/tenant is assailing concurrent orders passed by the Courts below directing his eviction from the suit premises. The petitioner is a medical practitioner, who occupied the suit premises for running a pathological lab. The landlady has sought eviction on three grounds. Firstly, on account of willful default in payment of rent; secondly, the premises are needed for bonafide requirement and occupation of the landlady and thirdly on account of ( 2 ) cra135.09 nuisance at the hands of the tenant. Both the Courts below have upheld claim of the landlady on the ground of willful default in payment of rent and bonafide requirement exhibited by the landlady for occupation of the suit premises for her personal bonafide use. 2. I have perused the judgment of the Trial Court as well as the District Court, Aurangabad. According to the landlady, tenant agreed for tender of rent at Rs. 1350/-. Initially, the monthly rent prescribed was Rs. 1850/-, which has been reduced to Rs 1350/- on account of acquisition of some part of the premises for road widening. It is alleged by the landlady that the tenant is not regular in payment of rent so also he was tendering rent at Rs. 1000/- per month although the agreed rent was Rs. 1350/-. On account of non- payment of regular rent as well as payment of lesser amount towards monthly rent the landlady had to approach the Civil Court seeking recovery of amount towards monthly rent. The suit presented by the landlady claiming arrears of the rent was decreed by the Trial Court and the decree passed by the Civil Court has attained finality. ( 3 ) cra135.09 3. It is contention of the tenant that the agreed rent was Rs. 1000/- and not Rs. 1350/- as contended by the landlady. It is also contended by the tenant that as the landlady refused to accept the rent, it was sent to her by money order from time to time. It is also contended that some amount is deposited in the bank account of the landlady. In the nutshell, it is contention of the tenant that he is not a willful defaulter. The landlady has refused to accept the rent and her conduct of refusal to accept the rent will have to be considered while drawing adverse inference against tenant. The conduct of landlady in her refusal to accept rent in itself leads to conclusion that tenant’s default, if any, is not wilful. 4. The Trial Court as well as the First Appellate Court on appreciation of evidence placed on record has recorded finding that the landlady has proved that the tenant is a willful defaulter in payment of rent. It is not disputed that the landlady had to approach the Civil Court seeking recovery of the rent amount and the Civil Court has ( 4 ) cra135.09 passed the decree for recovery of an amount of Rs. 11950/- on 28.04.1992. The First Appellate Court has also recorded finding that between February, 1991 to August, 1991, for a period of seven months, there is no record to indicate that the tenant has ever tendered rent to the landlady. The First Appellate Court on appreciation of evidence confirmed the finding that rent was payable on monthly basis. Rent receipts placed on record by tenant himself support the case of landlady that rent was payable at expiration of each month. There is no evidence in respect of tender of rent for a period of seven months between February, 1991 to August, 1991. Thus, firstly on account of failure of tenant to pay the agreed rent and for recovery of arrears of rent, the landlady had to approach the Civil Court and secure decree for recovery of rent. Secondly, there is also finding recorded by the Court based on appreciation of evidence that the tenant is a defaulter in payment of monthly rent from February, 1991 to August, 1991. 5. A reference can be made to a judgment in the matter of M/s. Nanded Wine Mart V/s. Suresh Shankarlal Dhoot, 2000 ( 5 ) cra135.09 (2) Bom.C.R. 784. It is held by this Court that the provisions of Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954, contemplates that if there is an agreement to pay and/or tender the rent, there is obligation cast on tenant to pay rent within 15 days of time fixed in agreement of tenancy. In the absence of such an agreement the tenant shall pay the rent by the last day of the month next following that for which the rent is payable and if the rent is not paid by the last day of the month next following that for which the rent is payable, then the tenant becomes a defaulter. There is obligation cast on the tenant to prove that he has tendered rent as contemplated under Section 15 of the Act and on his failure to prove relevant fact, it has to be inferred that the tenant has committed default. The proviso to sub-section (2) of Section 15 becomes operative only in the event the Rent Controller comes to the conclusion that the tenant’s default to pay or tender rent is not wilful. The relevant observations are found in paras 9 and 10 of the judgment, which read thus :- “9. It will be also evident that the provisions are pari materia and/or substantially ( 6 ) cra135.09 akin to the Andhra Pradesh Act which is reproduced above. On a proper appreciation of this provision, it will be seen that the obligation to pay and/or tender the rent due is on tenant. This contemplates that if there is an agreement to pay and/or tender the rent due on a fixed time, that the rent due shall be paid within fifteen days from the time specified in the agreement or contract and on such a failure the tenant will be defaulter. If there is no time specified in the agreement for the payment of the rent due, then in that eventuality the tenant shall pay the rent by the last day of the month next following that for which the rent is payable and if the rent is not paid by the last day of the month next following that for which the rent is payable, then the tenant becomes a defaulter. Thus, in the first contingency tenant becomes a defaulter on completion of fifteen days from the time specified for the payment of the rent due in the agreement and in the absence of such agreement a tenant becomes a defaulter on completion of 30 days of the next following month of the due rent of the earlier month. 10. The Act contemplates that if such a default is committed, the Controller shall make an order directing the tenant to put the landlord in possession. However, if the Controller is not satisfied in respect of such default, he shall reject the application. The proviso states that in any case falling under Clause (i) if the Controller is satisfied that the tenant's default to pay or tender rent was not wilful he may, before making an order as aforesaid give the tenant a reasonable time, not exceeding 15 days to pay or tender the rent to the landlord up to the date of such payment or tender. Thus the proviso comes into play in following circumstances:- (a) that the landlord has proved the default as provided under Clause (i); (b) that the Controller is satisfied that the tenant's default to pay or tender the rent was not ( 7 ) cra135.09 wilful. Thus, if the simpliciter first circumstance is proved but if there is no second circumstance proved, the proviso does not come into play and the Controller has to pass an order of evicting the tenant and/or directing the tenant to put the landlord in possession. Thus, before tenant could ask for benefit of the proviso, the tenant must claim and prove to the satisfaction of the Controller that the tenant's default to pay or tender rent was not wilful and, therefore, in a case of a default the tenant has to come forward with an explanation and prove the said explanation so that the Controller can be said to be satisfied that the tenant's default to pay or tender the rent was not wilful. In the absence of such a plea and the explanation and proof of the same, the Controller has to pass an order directing the tenant to put the landlord in possession of the premises and, therefore, on a proper analysis of the provision in respect of the default and wilful default, it will be evident that the proviso in the present case qualifies main enactment and it is so embodied in the Act itself to become an integral part of the enactment and thus acquire a tenor and colour of substantive enactment. The ultimate analysis, therefore, is that whenever the Rent Controller finds that the default as provided under Clause (i) of sub-section 15(2) is established, the Rent Controller shall find out as to whether the tenant has offered any explanation and/or has pointed out any facts which may point out that the tenant's default to pay or tender the rent was not wilful and whether the said explanation or the facts have been proved and established by the tenant and thereafter the Controller will have to consider whether such explanation and the established fact is sufficient to satisfy the Controller that the tenant's default to pay or tender the rent was not wilful. Therefore, the burden to prove that the tenant's default to pay or tender the rent was not wilful is on the tenant, ( 8 ) cra135.09 because the circumstances and/or the facts as a result of which the tenant failed to pay rent and/or tender it are within the knowledge of the tenant which tenant can only allege and prove. Therefore, even though prima facie it appears to be negative burden, factually and in reality it is a positive burden on the tenant. This Court in the matter of (Sashikant v. Mohd. Naeemuddin and another)2, reported in 1985(1) Bom.C.R. 403 has observed after re-producing the relevant part of the proviso, as under: "In the instant case there is clear proof that the tenant committed default in the payment of rent and hence, it was the duty of the Rent Controller to get himself satisfied that the tenant's default was not wilful. The wording of the proviso clearly goes to show that the burden lies upon the tenant to show that his default is not wilful" All the above discussion thus will find out that in order to get an order of eviction of a tenant and/or a direction to the tenant to put the landlord in possession: firstly, the landlord shall prove that the tenant has committed default as stated in Clause (i) and has not pleaded and/or offered any explanation to the satisfaction of the Controller that is default to pay or tender the rent was not wilful; secondly, the landlord has proved the default as per Clause (i) but the tenant having satisfied the Controller that his default to pay and/or tender the rent was not wilful, failed to tender and pay the rent to the landlord within reasonable time not exceeding 15 days as offered by the Controller and. thirdly, having proved the default as per Clause (i) and the tenant having pleaded the grounds that the default to pay or tender the rent was not wilful, failed to establish the said grounds and/or failed to satisfy the Controller. ” 6. Considering the facts and circumstances of the ( 9 ) cra135.09 instant case, I am of the view that the landlady has established her case in respect of tenant having committed wilful default in payment of rent. Although the decree is asked for on three grounds, one ground is good enough to sustain the decree. The Courts below have also passed decree of eviction against the tenant and in favour of landlady on account of bonafide requirement exhibited by the landlady for use and occupation of the premises. Considering the reasons recorded by the Trial Court as well as the First Appellate Court, I am convinced that the landlady has also established her bonafide need in respect of the tenanted premises. The concurrent findings recorded by the Courts below directing eviction of the tenant need not be interferred with. The Civil Revision Application is devoid of substance and hence stands rejected. 7. Shri Paranjape, learned Counsel appearing for the petitioner requests for grant of sufficient time to vacate the suit premises. The Counsel appearing for the respondent vehemently opposes the prayer made by the learned Counsel for the petitioner for grant of time for vacating the suit ( 10 ) cra135.09 premises. Considering the fact that the tenant is in occupation of the premises since last many years and that he has to make alternate arrangement for shifting the pathology lab, I deem it appropriate to grant six months time for vacating the suit premises. The tenant shall tender an undertaking in this Court to the effect that he will continue to pay the rent during the period of his occupation of the tenanted premises and that he will keep the premises in habitable condition and will vacate the same at the end of expiry of six months. The tenant shall also undertake to the Court that he will not induct any third person in the suit premises. The undertaking be submitted to this Court within two weeks from today. [R.M. BORDE, J.] snk/2011/MAR11/cra135.09