: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2470 OF 1995 Shri Lalchand Hukumsingh Sindhi, Aged 36 years, Occupation Business, Resident of Manmad, Datt Mandir Road, ...Petitioner Manmad, Nasik. (Ori.Defendant) Versus Smt.Kalabai w/o Waman Bhave, deceased through her heirs & legal representatives: 1A.Shri Yashwant Waman Bhave, Aged 40 years, Occupation Business, Resident of Savita Bhavan, Datt Mandir Road, Manmad, Nasik. 1B.Shri Anil Waman Bhave, Aged 35 years, Occupation Service, Resident of 1640/41, Balaji Bol, Gayadhani Wada, Nasik, District Nasik. 1C.Shri Charudatt Waman Bhave, Aged 32 years, Occupation Business, Resident of Savita Bhavan, Datt Mandir Road, ...Respondents Manmad, Nasik. (Ori.Plaintiffs) ...... Mr.R.A.Thorat with Mr.P.J.Thorat i/b Mr.V.A.Thorat for Petitioner. Mr.P.N.Joshi for Respondents 1A & 1B. ...... : 2 : CORAM : A.M.KHANWILKAR, J. DATED : OCTOBER 5, 2009. JUDGMENT : 1. This Writ Petition under Article 227 of the Constitution of India takes exception to the Judgment and Decree passed by the Additional District and Sessions Judge, Malegaon dated 16th December 1994 in Regular Civil Appeal No.495 of 1989, thereby confirming the Judgment and Decree passed by the Civil Judge, Junior Division, Malegaon dated 23rd October 1989 in Regular Civil Suit No.293 of 1984. The Courts below have concurrently decreed the Suit filed by the Respondent/landlord ordering eviction of the Petitioner/tenant on the ground of arrears of rent within the meaning of Section 12(3)(a) of the Bombay Rent Act (hereinafter referred to as `the Act’). The said Suit was instituted by the Respondent/landlord after issuing demand notice dated 25th August 1981. The notice clearly specifies that the Petitioner/tenant was in arrears since 1st March 1979 till 30th August 1980, having failed to pay the monthly rent of Rs.23 + Rs.4 towards education cess, aggregate amount of Rs.27/- per month. There is no dispute that the said notice was duly served on the Petitioner. The total amount demanded as per the said notice payable by the Petitioner towards arrears was amount of Rs.837/- (Rupees Eight Hundred Thirty-seven). : 3 : There is no dispute that the said notice was duly served on the Petitioner. The Petitioner did not send any reply to the said notice nor filed an application for fixation of standard rent or disputed amount of rent demanded as per the said notice within one month from the receipt of the said notice. The Petitioner, however, offered only a sum of Rs.486.18 (Rupees Four Hundred Eighty-six & Paise Eighteen Only) to the Respondent/landlord on 28th September 1981 which was part payment of the amount demanded under the suit notice and that too, after one month from the receipt of the suit notice. It is on this basis, the Trial Court as well as the Appellate Court proceeded to hold that decree under Section 12(3)(a) of the Act was inevitable in the fact situation of the present case. The defence of the Petitioner that he had already paid the amount for the relevant period has been considered by both the Courts below. Both the Courts below have concurrently found that as and when amount was paid by the Petitioner, the landlord used to issue receipt in that behalf. This fact has been admitted by the Petitioner. The Petitioner produced only two rent receipts Exhibits 77 and 78. The rent receipt Exhibit 77 indicates that the rent offered by the Petitioner was for period 1st January 1978 to 19th February, 1979. The only other rent receipt produced on record is Exhibit 78 dated 28th September 1981 which reveals that the Petitioner paid amount : 4 : of Rs.486.18 (Rupees Four Hundred Eighty-six & Paise Eighteen Only) which was part payment towards arrears demanded under the suit notice for the period 1st March 1979 to August 1980. This being concurrent finding of fact and supported by evidence on record, no interference is called for. 2. The only argument canvassed before this Court is that no decree under Section 12(3)(a) of the Act could be passed as the amount demanded by the landlord included education cess, which would be payable on yearly basis and not on month-to-month basis. In such a case, at best, action only under Section 12(3)(b) of the Act can be proceeded and Section 12(3)(a) of the Act will have no application. This defence has been raised for the first time before this Court. It is not open for this Court to countenance this argument which would involve mixed question of fact and law. No such plea was taken in the written statement. The fact that the amount towards education cess was payable only on year-to-year basis or month-to-month basis is a question of fact to be pleaded and proved. The Courts below on the other hand, have clearly proceeded on the finding of fact that the rent payable by the Petitioner was Rs.27/- per month, which was inclusive of education cess. That presupposes that the Agreement between the parties was to pay education cess on month-to-month basis. If that amount was : 5 : payable on month-to-month basis and failure to pay the same within time would entail action under Section 12(3)(a) of the Act. 3. Taking any view of the matter, therefore, I find no infirmity in the concurrent opinion recorded by the two Courts below and decreeing the Suit in favour of the landlord. Accordingly, this Petition fails. The same is dismissed. No order as to costs. 4. At this stage, Counsel for the Petitioner submits that the Petitioner be given some time to explore the possibility of going in appeal against this decision. In the fact situation of the present case, no such indulgence is required. Even so, in the interest of justice, it is observed that the decree of eviction shall not be given effect to for a period of six weeks from today, subject to filing of usual undertaking within two weeks from today. A.M.KHANWILKAR, J.