Audumbar S. Gadhave Vs Ramchandra S. Khalavkar

 IN THE HIGH COURT OF JUDICATURE OF BOMBAY

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 CIVIL APPELLATE JURISDICTION

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 WRIT PETITION NO.1774 OF 1988

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 Audumber Shivling Gadhave )
 Age 50, Occ.Service )
 Residing at 246, Juni Peth, )
 Pandharpur, Dist.Solapur. )..Petitioner.
 V/s.

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 Ramchandra Shivling Khatavkar since
 deceased through his Legal heirs and
 representatives:

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 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.

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 Mr.Sanjay D. Thokade for petitioner.

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 Mr.Pratap Patil for Respondent Nos. 1(a) to 1(d) &
 (f).

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 CORAM: A.M.KHANWILKAR,J

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 DATE : FEBRUARY 4, 2009.

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JUDGMENT :

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 1. Heard Counsel for the parties.

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 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.

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 3. Insofar as ground of default is concerned,
 the case of the Petitioner is that the agreed rent in

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 respect of the suit premises being shop situated in
 House property at CTS No.246 at Pandharpur town was

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 Rs.6/- p.m. It was monthly tenancy and the month

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 commenced from first day of English calender month

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 and ends with last day of the month. It is the case
 of the landlord that the tenant remained in arrears

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 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

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 Municipal Taxes Rs.72/- and education cess Rs.18/-

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 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

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 Respondent/tenant neither offered the amount as

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 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.

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 4. The defence of the Respondent/tenant however,
 was that he had remitted the amount by money order

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 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:

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 "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."

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 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.

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 6. In addition, the Trial Court also decreed the

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 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

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 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

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 of the suit and then proceed to pay regularly on

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 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

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 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.

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 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
Pandit, since deceased by his heirs & ors.(1989
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.

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 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.

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 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

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 passed by the trial Court is restored with costs.

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(A.M.KHANWILKAR,J)

Audumbar S. Gadhave v. Ramchandra S. Khalavkar

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Audumbar S. Gadhave v. Ramchandra S. Khalavkar

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