1 wp1723.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.1723 OF 1998 1 Laxmibai Raghunath Vaje 2 Bapu Raghunath Vaje 3 Arun Raghunath Vaje ...Petitioners vs. 1 Shashikant Kantilal Shah 2 Motilal Bhagchand Shah ...Respondents Mr.R.S.Alange i/b Mr.V.B.Naik for the petitioners None for the respondents CORAM :A.S.OKA,J. DATE : OCTOBER 12, 2010 ORAL JUDGMENT : 1 Heard the learned counsel for the petitioners. None appears for the respondents. The petitioners are the original defendants-tenants. The respondents are the plaintiffs-landlords. According to the case of the respondents, the petitioners were tenants in respect of the premises consisting of one room at monthly rent of Rs.10/-. The predecessor of the petitioners by the name Raghunath was inducted in the suit premises as the tenant. The case of the respondents is that the petitioners were defaulters and therefore, notice of demand was issued on 13th November 1987 demanding arrears of rent from 1st May 1987. As compliance was not made with the notice, suit for possession was filed by the respondents. The suit was filed on the ground of bona fide requirement and default. The trial court dismissed the suit. An appeal was preferred by the respondents. At the time of hearing the appeal, additional points on 2 wp1723.sxw the issue of disclaimer of title, default, bona fide requirement, greater hardship, causing nuisance and annoyance and committing acts of encroachment were framed for determination. The Appellate Court held that the ground of disclaimer and arrears of rent in favour of the respondents-landlords and passed a decree for possession. Other grounds were negatived by the Appellate Court. 2 The learned counsel for the petitioners submitted that though the Appellate Court has recorded in the judgment that additional point for determination on disclaimer of title was framed by the consent of the parties, before the trial court no issue was framed on the basis of alleged disclaimer and therefore, the petitioner had no opportunity to adduce the evidence on the said issue. He submitted that for the first time in appeal, the said issue could not have been framed. He submitted that even otherwise also there is no case of denial of title. He invited the attention of the court to the finding recorded by the Appellate Court and in particular finding on the issue of arrears. He submitted that the findings recorded in paragraphs 40 and 41 of the judgment show that the petitioners had deposited entire arrears on or before the first date of hearing of the suit and hence, the petitioners were protected. He submitted that the Appellate Court was not justified in passing the decree on the ground of arrears. He, therefore, submitted that the decree for possession deserves to be set aside. None appears for the respondents. 3 I have given careful consideration to the submissions. According to the case of the respondents, monthly rent was Rs.10/-. By notice dated 13th November 1987, the respondents demanded arrears of rent from 1st 3 wp1723.sxw May 1987. There is no dispute that the notice was served. It is not the case of the petitioners that they were not in arrears. Thus, on the date of notice dated 13th November 1987, the petitioners were in arrears of rent of at least six months from May 1987 to October 1987. A sum of Rs.100/- was sent by money order on 22nd December 1987 which was not claimed. It is not established that the money order was sent within a period of one month from the date of receipt of notice. Thereafter, reliance is placed on another money order in the sum of Rs.90/- which is dated 26th December 1987 which was not claimed. Thus, there is nothing on record to show that within a period of one month from the date of service of notice of demand, entire amount was tendered by the petitioners. 4 On 19th February 1994, the petitioners deposited a sum of Rs.810/- with the trial court which represented rent from 1st May 1987 for a period of 81 months. Apart from this payment there is only one payment made on 22nd April 1994 in the sum of Rs.20/- during the pendency of the suit. A sum of Rs.500/- was deposited by the petitioners in appeal on 17th July 1997. 5 The suit was governed by section 12(3) as amended by Maharashtra Act no.18 of 1987. Only way in which the tenant could have claimed relief against forfeiture was by depositing or tendering arrears due along with 9% p.a interest thereon together with the costs of the suit on or before first date of hearing of the suit. There is nothing on record to show that the interest at the rate of 9% p.a was deposited by the petitioners. The finding of the Appellate Court is that the amount of costs was also not deposited. Only amount representing arrears of rent was deposited on 19th February 1994 during the 4 wp1723.sxw pendency of the suit. Thus, there was no compliance made by the petitioners with requirement of sub section 3 of section 12 of the Bombay Rents, Hotel and Lodging House Rates (Control) Act,1947. Therefore, the Appellate Court was justified in passing the decree for possession on the ground of arrears of rent. 6 As the decree passed on the ground of arrears of rent is required to be confirmed, it is not necessary to deal with other grounds of eviction. 7 Hence, the petition must fail and the same is rejected. Rule is discharged with no order as to costs. JUDGE