HABIBBHAI MAHMADBHAI M Vs. ABDULKUDDUS HAJI ISMAILBHAI MEMON

JUDGEMENT

(1.) to xxx xxx xxx.

(2.) At the time of hearing of this revision application Mr. V. C. Desai the learned Advocate for the petitioners has pointed out that looking to the evidence on record it is clear the defendants-tenants were always ready and willing to pay the rent and therefore, he was protected under Section 12(1) of the Bombay Rent Act. It was submitted that in response to the suit notice the deceased tenant had sent the entire amount of rent by MO and in that view of the matter if the payment is made within one month from the date of the receipt of the suit notice the suit itself would not be maintainable and there was no cause of action available to the landlord to file the suit. It is true that if the tenant has paid the rent due on receipt of receipt of demand notice, it cannot be said that he has neglected the payment of rent and therefore, in that eventuality there was no question for the landlord to file the suit on the ground of arrears of rent. However, the question which is required to be determined is whether the tenant had tendered the entire rent due by way of MO in response to the suit notice and that too within a period of one month. No doubt the Trial Court has found that the tenant was vigilant and he had sent the MO. However the learned Appellate Judge was of the opinion that there is no documentary evidence on record to show that the tenant had sent any MO to the landlord. In this connection, it would be necessary to refer to the evidence of the landlord. The landlord has stated in his evidence at Exh. 48 that after the suit notice the defendant had sent MO but since it was not covering the entire rent he had not accepted the same. Therefore, the fact about sending the rent by MO is not in dispute. The question, therefore, which is required to be considered is whether the entire rent was sent by the tenant or not. If the full amount of rent was not sent within one month from the date of receipt of the deemed notice then naturally it cannot be said that the tenant has paid the entire amount of rent and if the entire amount was paid within one month of the receipt of the demand notice, then naturally there was no cause of action available to the plaintiff for filing the suit. In this background, it is pertinent to refer to the written statement filed by the deceased tenant at Exh. 15. In his written statement the deceased tenant has already stated that he had sent the MO of full amount to the original owner and that he was ready and willing to pay the amount of rent. Mr. Desai learned Advocate for the petitioner has submitted that after filing of the written statement since the original tenant died, his heirs and legal representatives were brought on record. The heirs are the widow, sons and daughters of the deceased tenant. The learned Appellate Judge has found in para 25 of his judgment that the defendant himself has not taken this contention in his written statement that he had remitted the amount by MO. However, looking to the written statement it seems that the aforesaid fact stated by the learned Appellate Judge is not correct because the original tenant had definitely stated in his written statement that he had sent the amount of rent to the original owner but the same was refused. Not only that even the landlord has also not denied the said fact in his evidence. The landlord has not stated anything in his evidence as to the amount sent by way of MO which was sent by the tenant. It was the duty of the landlord therefore to state the actual amount of the MO which was sent by the tenant. Simply by saying that the MO was not covering the entire period is not enough unless and until the landlord points out as to what actual amount of MO was received by him. Therefore, there is nothing on record to show the actual amount for which the MO was sent by the tenant. As stated earlier if it covers the entire rent then he is protected under Section 12(1) of the Bombay Rent Act and if there is a shortfall of the amount of rent due, then naturally the tenant cannot get the benefit of proving that he was ready and willing to pay the rent. But since the evidence on record as stated above is not sufficient, I deem it fit and proper to remand the matter back to the learned Appellate Judge, especially when it has been argued by Mr. Desai that as a matter of fact the entire amount of rent was sent by the deceased tenant to the landlord. But since the heirs of the deceased tenant at that time were not having particular knowledge about the quantum they could not lead proper evidence at that stage.

(3.) xxx xxx xxx.