1 FH wp.1099.95 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1099 OF 1995 Annapa Sharma and anr. ... Petitioners Vs. Mahadu Nanaji Gopale and ors. ... Respondents -------- Mr. S.M.Gorwadkar for the Petitioners. Mr. V.Z.Kankaria for Respondents. -------- CORAM : A.S.OKA, J. DATE : 07 th December, 2010. JUDGMENT: 1 The Petitioners are the original defendants and the Respondents are the legal representatives of the original plaintiff. 2 The plaintiff filed a suit for possession of the suit premises more particularly described in paragraph No.1 of the plaint. The case made out in the plaint is that 1 st defendant is the tenant in respect of the suit premises and the suit premises has been unauthorisedly transferred by the 1 st defendant to the 2 nd defendant. It is alleged that 1 st defendant did not pay rent and permitted increases from 1 st January, 1976. It is stated that the plaintiffs issued notice dated 2 nd August, 1976 to the 1 st defendant calling upon 1 st defendant to pay arrears of rent. A copy of the said notice was also sent to the 2 nd defendant. It is contended that 1 st 2 FH wp.1099.95 defendant received notice on 7 th August, 1976 and 2 nd defendant received notice on 3 rd August, 1976. As defendant did not comply with the said notice, suit for possession was instituted by the plaintiffs on the 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”). Decree was also sought on the ground that 1 st defendant has unauthorizedly sublet the suit premises to the 2 nd defendant. The trial Court dismissed the suit by holding that the 1 st defendant had paid the rent for a period of five months commencing from 1 st January, 1976 to one Baburao Gopale. The trial Court held that rent was sent by the 1 st defendant by money orders at Exhibit – 80 and Exhibit – 135 and therefore, there was no default on the part of the 1 st defendant in payment of rent. The trial Court held that the plaintiff himself did not enter the witness box to prove that the defendants were in arrears of rent with effect from 1 st January, 1976. The trial Court also held that there was a demand made by plaintiffs for rent as well as permitted increases being education cess which was not payable by month. The trial Court observed that as per order dated 9 th December, 1976, arrears of rent and permitted increases were deposited by the 1 st defendant. The trial Court proceeded to dismiss the suit. 3 An appeal was preferred by the plaintiff before the District Court. The appeal was allowed and decree a for possession was passed on the ground of arrears rent under Section 12 (3) (a) of the said Act. 3 FH wp.1099.95 4 The learned counsel appearing for the Petitioners submitted that a money order in the sum of Rs.240/- was issued on 3 rd September, 1975, which was admittedly received by the plaintiff. He submitted that a specific case was made out by the 1 st defendant that the said amount constituted advance rent for a period from 1 st October, 1975 to 31 st March, 1976. He submitted that apart from the said amount, the trial Court accepted the case made out by the 1 st defendant that rent for the period of five months from 1 st January, 1976 was paid to one Baburao, who did not issue rent receipts. He pointed out that on 30 th September, 1976, the 1 st defendant had sent money order in a sum of Rs.387.56, which was accepted by the plaintiffs. He therefore, submitted that taking into consideration the amount paid by money order dated 3 rd September, 1975, on the date on which the notice of demand was issued, the 1 st defendant was not in arrears for more than six months. He submitted that in any case, Section 12 (3) (a) will have no application as a part of the amount demanded was not payable by month. He submitted that on the date of institution of the suit, there was no cause of action for filing the suit inasmuch as before institution of the suit, the entire rent was paid. He submitted that in the circumstances, there was no occasion to even invoke Section 12(3) (a) of the said Act. 5 I have given careful consideration to the submissions. I have perused the impugned judgment and order. At the outset, it must be 4 FH wp.1099.95 noted that in the written statement filed by the 1 st defendant he has not relied upon payment of Rs.240/- by money order dated 3 rd September, 1975. It is not the case made out that by the said money order, rent was tendered for the period from 1 st October, 1975 to 31 st March, 1076. Only during the cross-examination of witness Baburao and witness Uttam examined by the plaintiffs, a suggestion on the basis of money order dated 3 rd September, 1975 was given. Correctness of the suggestion was denied by both the witnesses. It must be noted that in the written statement of the 1 st defendant, it was contended that the said Baburao was collecting rent from the 1 st defendant. In paragraph No.8 of the written statement, without specifying the date, it is contended by the 1 st defendant that rent from the period 1 st January, 1976 to 31 st May, 1976 was paid by the 1 st defendant to the said Baburao. The case made out by the 1 st defendant during the cross-examination of the witnesses examined by the plaintiff was that by money order dated 3 rd September, 1975, rent for the period ending 31 st March, 1976 was sent by the 1 st defendant. This case is made out by the 1 st defendant for the first time during the cross-examination of the witnesses examined by the plaintiff which is not the case made out in the written statement. The money order at Exhibit – 80, which is on record does not record that the amount was sent towards rent for a particular period. Even in the examination-in- chief, in paragraph No.3, the 1 st defendant came out with a specific case that he had paid rent for the period between 1 st January, 1976 to 31 st May, 1976 to the said Baburao. In paragraph No.4 of the examination-in-chief, 5 FH wp.1099.95 the 1 st defendant stated that he had sent money order in the sum of Rs. 240/- on 3 rd September, 1975. The 1 st defendant has not at all stated in the examination-in-chief that the said amount was towards the rent for a particular period. Moreover, the case made out by the 1 st defendant regarding sending advance rent by money order dated 3 rd September, 1975 is without any foundation in the pleading. A case is made out in the written statement as regards the payment to Baburao. That is why the Appellate Court has recorded a finding in paragraph No.7 of the judgment that the said money order is of no relevance. As regards the money order dated 30 th September, 1976, the Appellate Court has rightly observed that even according to the case of the 1 st defendant, the said money order was sent after expiry of one month from the date of service of notice of demand. Thus, what remains to be considered is the case made out regarding the alleged payment of rent to Baburao. As pointed out earlier, in the written statement, the stand taken is that rent from 1 st January, 1976 to 31 st May, 1976 was paid by the 1 st defendant to the said Baburao in June, 1976, but rent receipt was not issued by him. It was contended that the said amount was paid in presence of the 2 nd defendant. However, when the said Baburao stepped into the witness box, the suggestion in the cross-examination is that on 8 th June, 1976, he visited the house of the 1 st defendant for collecting rent. Though there is no pleading, in the cross-examination, a suggestion was given that at that time, two witnesses namely Narayan Kakade and Laxman Thakur were present. The said case was not made out in the written statement. In the 6 FH wp.1099.95 examination-in-chief, the 1 st defendant stated that he was unable to remember the date on which he has paid rent to the said Baburao. It was stated that rent was paid when the said Baburao visited his hotel. In the cross-examination, the 1 st defendant admitted that he was unable to tell the exact dates on which the said Baburao had issued rent receipts and for what period the rent receipts were issued. It is pertinent note that though notice of demand was admittedly served on the 1 st defendant, there was no reply sent to the notice. 6 Though one Ravindra and Laxman were examined by the 1 st respondent for proving that the amount was paid to the said Baburao, there is no pleading regarding their presence. In the circumstances, the Appellate Court observed that there is not dispute that the said constituted attorney of the plaintiff had issued rent receipts to the 1 st defendant whenever rent was paid to him. In the circumstances, a finding was recorded that on the date on which demand notice was issued and served, the 1 st defendant was in arrears of rents for more than six months.Admittedly, the amount demanded by the notice was not tendered within one month from the date of service of notice. The suit has been filed prior to 1 st October, 1987. There is no application made be the 1 st Defendant for fixing standard rent within the stipulated time. 8 In the written statement filed by the 1 st defendant, no case was made out that education cess being a part of the rent demanded by 7 FH wp.1099.95 the notice was not payable by month. If such contention would have to be raised, it was always possible to the plaintiff to produce evidence to show that there was an agreement between the parties to pay education cess along with monthly rent. An argument was advanced at the time of final hearing of the suit that a part of the rent was not payable by month. It is not the case made out in the written statement that education cess was not to be paid by month. The case is that the 1 st defendant is not liable to pay education cess. Thus, the 1 st defendant disputed the correctness of the demand made in the demand notice of arrears of rent and permitted increases for a period of more than six months. The settled law is that the dispute could have been raised only by filing application for fixing standard rent. 8. Thus, this is the case where Section 12 (3) (b) of the said Act will not apply. In fact there was no choice for Courts below, but to pass a decree under Section 12 (3) (a) of the said Act. 9. Hence, no case for interference in writ jurisdiction is made out. Writ petition is rejected. Rule is discharged with no order as to costs. [ A.S.OKA, J ]