1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1774 OF 1988 Audumber Shivling Gadhave ) Age 50, Occ.Service ) Residing at 246, Juni Peth, ) Pandharpur, Dist.Solapur. )..Petitioner. V/s. Ramchandra Shivling Khatavkar since deceased through his Legal heirs and representatives: 1-a) Shankar Ramchandra Khatavkar, Age 50, R/o. 246, Juni Peth, ) Pandharpur, Dist.Solapur ) ) 1-b) Hari Ramchandra Khatavkar ) Age 35, R/o Juni Peth, Rambaug Road) Pandharpur, Dist. Solapur. ) ) 1-c) Sou.Manda Madhukar Hundekari, ) Age 38, R/o Govindpura, ) Pandharpur, Dist.Solapur. ) ) 1-d) Sou.Kunda Todkar, Age 36 ) R/o Dahiwadi, Taluka Man, ) Dist.Satara. ) ) 1-e) Sou. Manda Bahirat, Age 33, ) R/o Vijaynagar, Ganesh Mangal ) Karyalaya, Kalbhor, Pune-33. ) ) 1-f) Sou.Chanda Kore, Agee 30, ) R/o Gondpura, Pandharpur, ) Dist.Solapur. )..Respondent. Mr.Sanjay D. Thokade for petitioner. Mr.Pratap Patil for Respondent Nos. 1(a) to 1(d) & (f). CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J 2 DATE : FEBRUARY 4, 2009. DATE : FEBRUARY 4, 2009. DATE : FEBRUARY 4, 2009. JUDGMENT : JUDGMENT : JUDGMENT : 1. Heard Counsel for the parties. 2. This Writ Petition under Article 227 of the Constitution of India takes exception to the Judgment and Decree passed by the Second Additional District Judge, Solapur dated 8th October, 1987 in Civil Appeal No.270 of 1984. By the said decision, the Appellate Court has allowed the Appeal filed by the tenant against the decree of eviction in respect of suit property. The Petitioner landlord filed suit for possession of the suit property consisting of six khans in the suit property situated at City Survey No.246 in Pandharpur on three different grounds i.e. bonafide and reasonable requirement, change of user and default. In my opinion, the Petitioner/landlord is bound to succeed on the ground of default. For which reason, I am not burdening this Judgment with the discussion on other two grounds. Correctness of the view taken by the Appellate Court in respect of those two grounds is kept open. 3. Insofar as ground of default is concerned, the case of the Petitioner is that the agreed rent in 3 respect of the suit premises being shop situated in House property at CTS No.246 at Pandharpur town was 4 Rs.6/- p.m. It was monthly tenancy and the month commenced from first day of English calender month and ends with last day of the month. It is the case of the landlord that the tenant remained in arrears since 1st February, 1972 to 30th April, 1977 at the rate of Rs.6/- per month towards monthly compensation and further amount towards permitted increase of Municipal Taxes Rs.72/- and education cess Rs.18/- for the relevant period. It is on that basis, the Petitioner sent legal notice to the Respondent tenant on 9th May, 1977. By the said demand notice, the Respondent was called upon to pay arrears of rent within specified time. It is not in dispute that the said notice was duly served on the tenant on 20th May, 1977. On receipt of the said notice, the Respondent/tenant neither offered the amount as demanded in the suit notice nor filed any application for fixation of standard rent within one month from the receipt thereof. These facts are not in dispute. On these admitted facts, decree on the ground of default under section 12(3)(a) of the Bombay Rent Act, as it applied at the relevant time was inevitable. 4. The defence of the Respondent/tenant however, was that he had remitted the amount by money order 5 from time to time, which was refused by the landlord. This defence however, has been rightly rejected by the Trial Court on recording following opinion: "He demanded permitted increase to the defendant but the deft. did not give it to him. Much reliance is placed on behalf of the defendant on Exh.28 to 31 and 33 to 43 rent receipts and Money Order coupons by which the defendant sent rent amount to the plaintiff-landlord. It is vehemently argued on behalf of the defendant that on perusing these documents it is seen that the defendant sent Money order for rent amount time to time to the plaintiff but the plaintiff refused it and this fact goes to show that the defendant is not defaulter. But I do not agree with this contention of the defendant because part or partial payment can not be said to be a good payment or proper and legal payment. Under such circumstances, landlord has right to refuse such payment. On perusing Exh.38 Money Order receipt, it is seen that this receipt is for the period 1-7-1975 to 1-6-1976 11 months. The defendant ought to have sent an amount of Rs.66/- rent for the period of 11 months at the admitted rate of Rs.6/- per month. However, this receipt is only for an amount of Rs.60/-. Thus, an amount of Rs.6/- is short on perusing Exh.39, rent for the period 1-7-1976 to 1-4-1977 Rs.60/- sent to the landlord plaintiffs. It is to be noted that there is no iota of an oral or documentary evidence on record with the defendant as to how he has made payment for the month of June 1976 to the plaintiff-landlord. On perusing document Exh.41 it is seen that Money Orders coupons, there is specific mention that house rent for the period from 1977 to 1978 i.e. up to end of 1-3-78 Rs.66/- sent. The description is given for the period for one year i.e. 1-3-7 to 1-3-78 the rent comes to Rs.72/-. This fact also go to show that the defendant has sent Money Order with insufficient amount." 6 5. From the above discussion, two things are amply clear. Firstly, that the Respondent had sent money order for amount which was not commensurate with the total rent and permitted increases payable by the tenant to the landlord for the relevant period but was insufficient and/or deficient. It is on that count the landlord refused to accept the money order. The fact remains that upon receipt of demand notice/suit notice Exh.19, no money order was sent for the amount as claimed in the said notice within one month. The fact that money orders have been sent for the earlier period to the notice or for that matter refused at a later point of time, does not take the matter any further. Having failed to file application for fixation of standard rent, it is not open to the tenant to dispute the correctness of the claim regarding amount towards standard rent and permitted increases. In any case, the Courts below have found that the agreed rent of the suit premises was Rs.6/- p.m. Essentially on this basis the Trial Court proceeded to decree the suit for possession in favour of the Petitioner/landlord on the ground that the tenant was a willful defaulter within the meaning of section 12(3)(a) of the Act. 6. In addition, the Trial Court also decreed the 7 suit on the ground of bonafide and reasonable requirement and also change of user of the suit premises. In so far as ground of default is concerned, the Appellate Court has proceeded to reverse the opinion of the Trial Court by adopting curious approach. It went on to observe that the tenant was absolved from ground of default. The Appellate Court has not even adverted to the relevant aspect discussed by the Trial Court that the money orders which were refused by the landlord were for amount much less than the one payable by the tenant towards outstanding monthly rent and permitted increases in respect of suit premises. In any case, the Appellate Court has not noticed the crucial aspect that there was nothing on record to suggest that the tenant after receipt of suit notice on 20th May, 1977 immediately offered the amount equal to the one claimed in the suit notice within one month or filed application for fixation of standard rent within that time. Having failed to establish that position, the tenant exposed himself to ground of default and became liable to be evicted from the suit premises on that count within the meaning of section 12(3)(a) of the Act. Even if it were to be a case of Section 12(3)(b), the tenant was liable to pay the entire arrears atleast on the first date of hearing 8 of the suit and then proceed to pay regularly on month to month basis the amount towards rent and permitted increases. There is nothing on record to indicate that the tenant paid entire arrears on the first day of hearing of the suit, which obviously would be the date on which the issues were framed. Indeed, no such argument was canvassed before the Lower Court on behalf of the tenant. Suffice it to observe that the conclusion reached by the Trial Court that the tenant was willful defaulter and was liable to evicted within the meaning of section 12(3)(a) is unexceptionable and that is the inevitable conclusion to be reached on the established facts referred to above. Accordingly, the Petitioner/landlord should succeed in getting the decree of eviction against the tenant on the ground of 12(3)(a) of the Act. 7. Counsel for the Petitioner has invited my attention to the decision of our High Court in the case of Ramesh Narayan Mahajani V/s. Hari Ganesh Ramesh Narayan Mahajani V/s. Hari Ganesh Ramesh Narayan Mahajani V/s. Hari Ganesh Pandit, since deceased by his heirs & ors.(1989 Pandit, since deceased by his heirs & ors.(1989 Pandit, since deceased by his heirs & ors.(1989 Mah.R.C.J.509 Mah.R.C.J.509 Mah.R.C.J.509). I have no hesitation in applying the legal position stated in the said decision to the facts situation of the present case. 9 8. As aforesaid I am not examining the other two grounds on which the Petitioner/landlord had succeeded to get the decree of eviction against the Respondent/tenant before the Trial Court. For, insofar as ground of willful default is concerned, the landlord is certain to get the decree of eviction against the tenant in respect of suit premises. Hence, all questions in respect of other two grounds are left open. 9. The Petition succeeds on the above terms. In the circumstances, the impugned Judgment and Decree is set aside and instead the decree of eviction passed by the trial Court is restored with costs. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)