KAMALABAI BABURAO KABADE Vs. LAXMIBAI JANARDAN JAGTAP

JUDGEMENT

(1.) THIS petition, under Article 227 of the Constitution of India, is by the tenant in respect of the premises which are part of a building bearing C. T. S. No. 5-E, Godoli, Satara No. 2, Hari Kripa Building, Anandwadi, Dattamandir, Satara. The premises were originally owned by late Shri Janardan Jagtap, who is survived by the respondents. It is common ground that the premises were let out to the petitioner during the lifetime of the said Shri Janardan Jagtap. The monthly rent of the suit premises is stated to be Rs. 15/ -. The said Shri Janardan Jagtap died sometime in October 1975. The respondents, who are the heirs of the said Shri Janardan Jagtap, caused to send notice to the petitioner demanding arrears from 1-1-1973 to 29-2-1976. The notice is dated March 1, 1976. There is no dispute that the said notice was received by the petitioner, and in response thereto a reply was sent on March 31, 1976. The petitioner denied that she was in arrears of rent. The specific case made out by the petitioner-tenant is that he had paid the entire rent till September 1975 to the landlord, but as per the practice the landlord has not issued receipts inspite of the payment. The petitioner further asserted that the petitioner had offered rent to the landlord for the period October and November 1975 by money orders, but the landlord refused to accept the money orders with an oblique motive so as to create an evidence against the petitioner for filling a suit on the ground of default. It is an admitted position that after the receipt of the notice, the petitioner did not tender the rent as demanded by the respondents within one month. Nor did she raise any dispute for fixation of standard rent.

(2.) IN the circumstances, the respondents instituted suit before the Court of the Civil Judge, Junior Division, Satara, praying for eviction of the petitioner from the suit premises on the ground of default as well as bona fide requirement. The trial Court, after considering the rival contentions by its judgment and order dated April 3, 1984 was pleased to negative both the grounds and thus dismissed the respondents suit. The trial Court accepted the plea of the petitioner that the petitioner had paid the rent regularly to the respondents husband, but no receipts were issued. For reaching this conclusion, the trial Court relied upon the evidence led by the petitioner-defendant by examining herself as well as by examining D. W. 2 Anandrao Shripati Jagtap, who is the former tenant of the landlord and who has supported the defence taken by the petitioner-defendant, that the practice has been that the landlord never issued rent receipts for the payments which were made by the tenant from time to time. The trial Court further relied upon the circumstance that when the plaintiff was confronted with this evidence, he offered to produce the counterfoils of the rent receipts which were never produced. In the circumstance, the trial Court drew adverse inference against the plaintiff for having failed to produce the counterfoils of the receipts before the Court. Taking totality of the evidence on record, the trial Court concluded that the petitioner was not a willful defaulter and was not liable to be evicted as she was always ready and willing to pay the rent which was evident from the fact that the petitioner had tendered the rent for the period October and November 1975 by money order (Exhibit 96) dated December 8, 1975, which money order was refused by the landlord.

(3.) THE respondents preferred an appeal before the District Court, Satara. The District Court was pleased to reverse the order passed by the trial Court dismissing the suit and preferred to decree the suit in favour of the plaintiff on the ground of default as can be seen from paragraphs (13) to (16) of that judgment. The District Judge, on re-examining the rival contentions and the materials on record was pleased to upset the finding recorded by the trial Court and held that, admittedly, the tenant had failed to tender the rent as demanded by the landlord within one month of the receipt of the notice, nor had he raised a dispute for fixation of standard rent and as such the provisions of section 12 (3) (a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the Bombay Rent Act") were clearly attracted. The Appellate Court, however, confirmed the finding of the trial Court in so far as the ground of bona fide requirement. Consequently, the Appellate Court was pleased to decree the suit only on the ground of default under section 12 (3) (a) of the Bombay Rent Act.