1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 36 OF 1993 1 Kalpana Emporium, through its Proprietor Kailash Baburao Goud, age: 25 years, Occ: Business and service, Little Flower School, Parli, taluka Ambajogai. 2 Kailash Baburao Goud, age: 25 years, occ: Business and service, Little Flower School, Parli, taluka Ambajogai. Appellants Versus Rangnath Rambhau Mali, age: 65 years, Occ: Agriculture, Resident of Parli, taluka Ambajogai. Respondent Mrs.M.A.Kulkarni, advocate for the appellant. None for the Respondent. CORAM: R.M.BORDE, J. DATE : 04 th August, 2009. ORAL JUDGMENT: 1 Original defendants are raising exception to the judgment and decree dated 18 th August, 1992, passed by Additional District Judge, Ambajogai in Regular Civil Appeal No.79 of 1990, whereby the first appellate Court was pleased to reverse judgment and decree passed by the trial Court in Regular Civil Suit No.548 of 1983. 2 2 Respondent-original plaintiff filed a suit claiming recovery of amount of Rs.6350/- from the defendants towards arrears of rent and damages for use and occupation of shop premises. Plaintiff is the landlord whereas defendants – appellants herein were tenants in respect of suit shop premises. According to the plaintiff, agreed yearly rent was payable at the rate of Rs.175/- per month. Defendants were put in possession of shop premises on 01.11.1978. It is contended that defendants started business under the name and style as `Kalpana Emporium’ since 1 st November 1978. Defendants failed to pay agreed rent right from the date of their induction as tenants till filing of the suit i. e. 9 th November 1983. Plaintiffs, therefore, served notice on defendants on 15 th July 1981 and thereafter filed suit on 9 th November 1983 for recovery of amount of Rs.6300/- towards arrears of rent from 01.11.1980 till 30.11.1983 at the rate of Rs.175/- per month and in addition, notice charges of Rs.50/-. Thus, total claim raised in the suit was Rs.6350/-. 3 Defendants filed written statement and controverted contentions raised by plaintiff. Defendants denied commencement of agreement of tenancy from 01.11.1978. According to them, on 21 st July 1977, tenancy agreement was reached between plaintiff and defendants and agreed rent was Rs.600/- per year. According to defendants, they have paid rent from June to Diwali 1977 on 21 st April 1977. It is also their contention that they have paid rent at the rate of Rs.600/- from Diwali 1977 till Diwali 1978. It is further contention of defendants that plaintiff enhanced rent at the rate of Rs.960/- per year, which was also paid up to Diwali 1978. Plaintiff never issued rent receipts in respect of payment of rent. Defendants sent money order in respect of yearly rent amount for the years 1981-82 and 1982-83. Defendants claimed that they are not defaulters in making payment of rent and are regular in payment of rent at the rate of Rs.960/- per year. Defendants, as 3 such, prayed for dismissal of the suit. 4 The trial Court, after recording evidence of the parties, came to the conclusion that the agreed rent is Rs.960/- per year and arrears of rent payable by defendants, comes to Rs.920/- for the period between July 1981 to October 1983 and as such, passed decree accordingly. 5 Being aggrieved by the judgment and decree passed by the trial Court, original plaintiff preferred an appeal being Regular Civil Appeal No.79/1990, which came to be heard and disposed of by Additional District Judge, Aurangabad, who was pleased to allow same on 18 th August 1992. The first appellate Court came to the conclusion that agreed rent payable by defendants is at the rate of Rs.175/- per month and further that defendants are defaulters in payment of rent for the period between 1 st November 1980 to 30 th October 1983. The first appellate Court, as such, passed decree in respect of recovery of rent amounting to Rs.6350/-. 6 Being aggrieved by the judgment and decree passed by the first appellate Court, original defendants have approached this Court by filing instant appeal. 7 At the stage of admission of appeal, this Court found that Grounds No.5, 6, 10 and 11, set out in memorandum of appeal, involve substantial questions of law. However, while arguing the appeal, learned Counsel for the appellants has contended that finding recorded by the first appellate Court in respect of agreement reached between the parties for paying the amount of Rs.175/- towards monthly rent is erroneous. According to the appellants, the first appellate Court has wrongly shifted burden on the 4 defendants to prove the agreement in respect of rent reached between the parties. 8 I have perused the judgment recorded by the Courts below and heard arguments advanced by learned Counsel for respective parties. 9 The case put up by plaintiff in respect of agreement reached between the parties for payment of monthly rent at the rate of Rs.175/- per month is substantiated by him by leading oral evidence. The defendants have controverted the contentions raised by plaintiff in respect of settlement of rent and has come out with a positive case that the agreed rent was Rs. 960/- per year, which was in accordance with the agreement reached between the parties for charging enhanced yearly rent. Thus, when defendants come with a positive case that the plaintiff has enhanced amount of rent payable by defendants, burden is shifted on the defendants to prove their contention. The first appellate Court has appreciated the evidence led by defendants in that behalf. It has been observed that the witness for defendants Kailash has admitted in his evidence that there was an agreement in respect of payment of monthly rent as per convenience. Defendants have failed to substantiate their case in respect of agreement reached between the parties for paying the rent on yearly basis and at the rate of Rs.960/- per year. Although, defendants have contended that plaintiff has failed to issue receipts, it was for them to establish the payment of rent to the plaintiff by placing on record evidence in that regard. Defendants carry on business under the name and style as `Kalpana Emporium’. It is also admitted by defendants that they keep account in respect of their regular transaction. Defendants, therefore, could have placed on record entries recorded by them in their account books in respect of payment of rent to the 5 plaintiff. However, defendants have failed to place on record evidence, which was easily available in the form of account books maintained by them in regular course of business. In these circumstances, the first appellate Court was justified in recording a finding that defendants have failed to discharge their burden as regards payment of rent to the plaintiff at the rate, as contended by him. The first appellate Court, therefore, has accepted the case put up by plaintiff and passed decree in respect of amount of Rs.6350/-, as claimed by the plaintiff. I do not find that the first appellate Court has committed any error in directing modification of decree passed by the trial Court. 10 In this view of the matter, there is no merit in the appeal and same deserves to be dismissed. Appeal, therefore, stands dismissed. However, in the facts and circumstances of this case, there shall be no order as to costs. In view of this, pending Civil Applications do not survive and stand disposed of accordingly. (R.M.BORDE) JUDGE ******* adb/sa3693