SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5263 OF 1989 Smt.Sundarabai w/o Balu Gotad, Age 50 years, Occupation Labour, resident of Vishrambag, ...Petitioner R.S.No.355/1A, Sangli. (Ori.Deft.) Versus Badruddin Dadasaheb Mursal, since deceased by his legal heirs: 1.Mahiboob Badruddin Mursal, age 43 years. 2.Jabbar Badruddin Mursal, age 40 years. 3.Sattar Badurddin Mursal, age 38 years. 4.Mushtaq Badruddin Mursal, age 36 years. ...Respondents (Heirs of Ori. All r/o. Khanbhag, Sangli. Respondents) ...... Mr.V.S.Tadake i/b Mr.M.L.Patil for Petitioner. Mr.A.M.Savagave i/b Mr.S.S.Patwardhan for Respondents. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. SEPTEMBER 10, 2008. SEPTEMBER 10, 2008. SEPTEMBER 10, 2008. JUDGMENT : JUDGMENT : JUDGMENT : 1. This Writ Petition under Article 227 of : 2 : the Constitution of India takes exception to the Judgment and Decree passed by the IIIrd Additional District Judge, Sangli dated 14th September 1989 in Regular Civil Appeal No.69 of 1985. By the said decision, the Appellate Court dismissed the Appeal preferred by the Petitioner/tenant and was pleased to uphold the decree for possession passed in favour of the Respondent/landlord by the Joint Civil Judge, Junior Division, Sangli in Regular Civil Suit No.424 of 1982 vide Judgment and Decree dated 30th November 1984 on the ground that the Petitioner was a wilful defaulter within the meaning of Section 12(3)(a) of The Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as ‘the Act’). 2. It is common ground that the Petitioner was inducted as tenant in the suit premises being a room admeasuring 10’ x 10’ out of house property bearing City Survey No.355/1A + 2A in Vishrambag, District Sangli on monthly rent of Rs.20/- (Rupees Twenty Only) payable monthly. 3. The Respondent/landlord sent notice : 3 : Exhibit 22 dated 19th May 1982 asserting that the Petitioner has failed to pay rent from August 1989 onwards till the issuance of notice. The fact that the said notice was duly served on the Petitioner is not in dispute. The acknowledgement Exhibit 23 establishes that position. The Petitioner was duly served with the demand notice on 21st May 1982. It is admitted position that the Petitioner neither sent reply within thirty days of receipt of notice nor forwarded the amount as demanded in the suit notice or filed any dispute regarding standard rent in respect of the suit premises within one month from the service of notice. Indeed, the Petitioner sent money orders on 19th May 1982 and 20th May 1982. However, the Petitioner did not send the entire amount as claimed in the demand notice dated 19th May 1982 but the money orders are of Rs.20/- (Rupees Twenty Only) and some are of Rs.40/- (Rupees Forty Only). It is for that reason, the landlord refused to accept the money orders. As the Petitioner failed to pay the demanded amount towards arrears of rent within the statutory period, the Respondent instituted Suit for possession of the suit premises on the ground of : 4 : wilful default within the meaning of Section 12 of the Act in Regular Civil Suit No.424 of 1982. In the said Suit, the defence taken by the Petitioner is that the Petitioner was regularly paying the rent to the Respondent, but at no point of time, the Respondent issued rent receipts therefor. This plea of the Petitioner has been considered by the Trial Court and categorically rejected on the finding that the Petitioner did not produce any evidence to substantiate that plea. On the other hand, the Trial Court accepted the stand of the Respondent/landlord that the landlord was making note about the receipt of payment in the notebook maintained by the Defendant/tenant. This plea of the landlord was disputed by the Defendant/tenant, however, on taking overall view of the matter, the Trial Court preferred to accept the stand of the landlord. The Trial Court has also adverted to the crucial fact that the Petitioner sent reply to the said notice only on 25th October 1982 (Exhibit 56), in which he asserted that the outstanding amount towards rent be adjusted against the construction undertaken by the tenant in respect of the suit premises. Implicit in that defence is that the : 5 : Defendant/tenant concedes the position that she was in arrears of rent during the relevant period. 4. Be that as it may, the fact which emerges from the circumstances on record is that after issuance of suit notice, the Defendant/tenant neither sent reply nor offered the outstanding amount of rent in respect of the suit premises as demanded in the suit notice or for that matter, raised any dispute regarding standard rent within the statutory period. If it is so, the rigours of Section 12(3)(a) would be squarely attracted to the fact situation of this case. In such a situation, the Court would have no option but to decree the suit in favour of the landlord directing eviction of the tenant on that count. The view taken by the Trial Court has been upheld by the Appellate Court on reappreciating the evidence on record. The Appellate Court has concurred with the view taken by the Trial Court in respect of ground of wilful default committed by the Petitioner/tenant. This concurrent view taken by the two Courts below, is subject matter of challenge in the present Petition : 6 : under Article 227 of the Constitution of India. 5. Before this Court, the principal argument of the Petitioner/tenant is that since the landlord had not issued receipt from time to time inspite of payment of rent by the tenant from time to time which the landlord was obliged in view of Section 26 of the Act, the issue should be answered in favour of the tenant. It is not possible to countenance this argument keeping in mind the finding of fact recorded by the Trial Court that the tenant has failed to produce any evidence to show that she had in fact offered rent to the landlord in the past for which no receipt has been issued. Reliance has been placed by the tenant only on money orders to justify that the tenant was ready and willing to pay the amount. That, however, clearly overlooks the finding recorded by the two Courts below that the money orders were for the amount which were far less than the amount demanded in the suit notice towards arrears of rent. According to the landlord, the tenant was in default from August 1981 and the suit notice therefore called upon the Petitioner/tenant to pay : 7 : the outstanding dues since then till the date of issuance of the suit notice. The fact remains that the tenant did not pay the amount as demanded by the landlord in the suit notice nor raised any dispute regarding the standard rent within the statutory period after receipt of the suit notice. The inevitable conclusion is that the decree under Section 12(3)(a) of the Act would follow. 6. In the circumstances, I find no basis to interfere with the concurrent view taken by the Courts below in passing order of eviction against the Petitioner/tenant in exercise of writ jurisdiction under Article 227 of the Constitution of India. Hence, dismissed. A.M.KHANWILKAR, J.