PRAMOD R MHASKE Vs. D OLIVER

JUDGEMENT

(1.) THIS writ petition under Article 227 of the Constitution of India takes exception of the order passed by 10th Additional District Judge, Pune dated September 15, 1989 in Civil Appeal No. 93 of 1986.

(2.) THE present petition is directed against the concurrent finding of facts recorded by two courts below both on the issue of default and petitioner-tenant having constructed permanent structure.

(3.) IN so far as the ground of default is concerned, the relevant facts are that the petitioner-tenant was stated to be in arrears towards monthly rent with effect from 1st June, 1979 till the date of notice and also towards the education cess with effect from 1st October, 1962 till the date of notice. In the circumstances, the respondent-landlord issued demand notice on March 24, 1980. It is the petitioners case that after receipt of the said demand notice, the petitioner remitted the requisite demanded amount by money order on the known address of the respondent-landlord at Bombay, which money order could not be delivered due to non-availability of the respondent and the same was returned back. Immediately thereafter, the petitioner-tenant claims to have remitted the demanded amount by another money order which was, however, accepted by the respondent-landlord in April, 1980. In this backdrop it is contended that since the petitioner was ready and willing to pay the amount demanded towards arrears of rent and permitted increases coupled with the fact that the amount was actually tendered and eventually accepted by the landlord, there was no cause of action for instituting the suit within the meaning of section 12 (3) (a) of Bombay Rent Act. In this context, it is submitted that since there was no cause of action to maintain the suit under section 12 (3) (a), the Court could not have decreed the suit on the ground of non-compliance of section 12 (3) (b) as has been done in the present case. It is, therefore, submitted that the decree of eviction passed against the petitioner on the ground of default is contrary to the settled legal position.