VASANT KRISHNAJI VAZE Vs. KANTABAI RAJGOPAL RATHI

JUDGEMENT

(1.) THIS Writ Petition under Article 227 of the Constitution of India is directed against the judgment of the Additional District Judge, Solapur dated 18th April, 1987 in Civil Appeal No. 247 of 1984.

(2.) THE Petitioner is the tenant in respect of the suit premises bearing Municipal House No. 563 C.T.S. No. 2039 situated in South Sadar Bazar, Solapur. The Respondent landlord gave demand notice to the Petitioner on 1.8. 1979, demanding arrears of rent for the period from 1.4.1977 to 30.8.1979 and towards permitted increases. The Petitioner denied that he was in arrears of the amount demanded in the suit notice. The Petitioner neither offered the demanded amount within one month nor raised any dispute for fixation of standard rent as required under the Act. Under the circumstances the Respondent instituted a suit for possession of the suit premises being RCS No. 890 of 1979 on the ground of default and for recovery of arrears on 7.9.1979. The Petitioner filed written statement in the said suit on 27.10.1980 and resisted the claim set up by the Respondent. Issues were framed in the said suit on 17.8.1982. Till framing of the issues the Petitioner had deposited only Rs. 375/ - and not the demanded amount.

(3.) AGAINST the aforesaid concurrent findings recorded by the Courts below the present writ petition has filed by the Petitioner. The main contention of the Petitioner is that the Petitioner has asserted that although rent was paid to the Respondent landlord, however, no receipts were issued by the Respondent any point of time. This assertion has been made by the Petitioner in the pleadings as well as in evidence. It is contended that though the Respondent was called upon to produce the counter foils of the receipts he failed to do so for which an adverse inference should be drawn against him that payment was made but no receipts were issued. I am afraid, this contention clearly over -looks the fact that the initial burden to prove that the amount was paid is primary on the defendant because it is he who asserts that payment has been made to the landlord. To establish the factum of payment having been made it was essential for the defendant to bring on record some contemporaneous evidence including by examining any other tenant of the same landlord who would have supported this assertion. Besides his oral statement, there is nothing on record that the landlord had the habit of or followed the practice of not issuing rent receipts to the tenant. It is, therefore, not possible to accept this contention and the same is therefore rejected.