SUDHIR KUMAR SENGUPTA Vs. KUSUM PANDURANG KENI

JUDGEMENT

(1.) This Petition is filed challenging judgment and order dtd. 18/6/1999 passed by the Appellate Bench of the Small Causes Court, by which the Appeal preferred by original Plaintiff Respondent has been allowed setting aside the decree dtd. 7/6/1995 passed by the learned Judge of the Small Causes Court, by which R.A.E. and R. Suit No.313 1024 of 1983 was dismissed. The Appellate Bench of the Small Causes Court has thus, reversed the finding of the Trial Court on the issue of default in payment of rent and has decreed the Suit directing Defendant to handover possession of the suit premises to the Plaintiff-landlord.

(2.) Briefly stated, facts of the case are that Plaintiff is the owner and landlady of the building known as 'Dr. Keni's House', situated at Plot No.176, Sion Road, Sion (West), Mumbai-400 022. The original Defendant Mr. Sudhir Kumar Sengupta was inducted as monthly tenant in respect of Flat No.8 (suit premises) in the said building 'Dr. Keni's House' at monthly rent of Rs.43.76 exclusive of permitted increases. According to Plaintiff, Defendant was irregular in payment of rent and he also not paid water pump and pump-man charges @ Rs.10.00 per month. That Defendant also did not pay permitted increases comprising repair cess and education tax amounting to Rs.20.24 per month. That this is how the Defendant remained in arrears of rent, permitted increases and water pump charges from October 1972. Plaintiff sent Advocate's letter dtd. 22/3/1982 calling upon Defendant to pay the arrears of rent, permitted increases and water pump charges. Defendant was served with the notice on 8/4/1982. According to Plaintiff, Defendant failed to pay the demanded rent, permitted increases and water pump charges nor replied to the notice. Plaintiff therefore filed R.A.E. and R. Suit No.3131024 of 1983 against Defendant for recovery of possession of the suit premises and for recovery of amount of Rs.2,664.00 towards arrears of rent, permitted increases and water pump charges. The Suit was resisted by Defendant by filing written statement denying that he was in arrears of rent, permitted increases or water pump charges. Defendant contended that he was always ready and willing to pay standard rent and permitted increases in respect of the suit premises. Defendant denied receipt of notice dtd. 22/3/1982. That he was also willing to pay arrears of standard rent, permitted increases alongwith interest and cost of the Suit as provided under Sec. 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bombay Rent Act). By order dtd. 29/10/1984 the learned Judge of the Small Causes Court directed Defendant to deposit arrears of standard rent and continue to deposit the same regularly. It appears that in pursuance of the said order, the Defendant deposited the arrears of rent and continued depositing the same during pendency of the Suit.

(3.) Both the sides led evidence in support of their respective claims. Plaintiff took out Notice No. 5595 of 1994 for comparison of signature of Defendant on postal acknowledgment with his signature on vakalatnama, written statement, etc. for proving receipt of Notice. The Court directed that said Notice No. 5595 of 1994 would be decided alongwith the Suit. After considering the pleadings, documentary and oral evidence, the learned Judge of the Small Causes Court made Notice No. 5595 of 1994 absolute by undertaking the exercise of comparison of signatures. The learned Judge held that the notice dtd. 22/3/1982 was received by the Defendant. The learned Judge however, held that Defendant was ready and willing to pay the amount of standard rent and permitted increases. Accordingly, the learned Judge proceeded to dismiss the Suit by judgment and decree dtd. 7/6/1995. Aggrieved by the decree of the Trial Court dtd. 7/6/1995, the PlaintiffRespondent filed Appeal No.359 of 1995 before the Appellate Bench of the Small Causes Court. By judgment and decree dtd. 18/6/1999, the appeal has been allowed and the Appellate Bench has set aside the Trial Court's decree dtd. 7/6/1995. The Appellate Bench has accepted the ground of default in payment of rent on the part of the Defendant -tenant. The Appellate Bench has accordingly decreed the Suit by directing Defendant to vacate the suit premises by 30/9/1999. PetitionerDefendant has filed this Petition challenging the decree passed by the Appellate Bench. By order dtd. 27/9/1999, the Petition has been admitted and interim order is granted staying the decree of the Appellate Bench on usual terms. During pendency of the Petition, the Petitioneroriginal Defendant passed away and accordingly Smt. Ronen K. Sengupta was brought on record as his legal heir. However, said Ronen Sengupta has also passed away and accordingly Smt. Supriya Ronen Sengupta is prosecuting the present Petition. It appears that Petitioner has been depositing rent before the Small Causes Court during pendency of the Petition. The Petition came to be dismissed for non-prosecution by order dtd. 2/12/2019. The Petition came to be restored by order dtd. 15/9/2022. It appears that the Small Causes Court did not accept rent in respect of the suit premises on account of dismissal of the Petition in default. Therefore, Petitioner has filed Interim Application No.10193 of 2024 seeking direction for acceptance of rent. Said Interim Application is also decided alongwith the main Writ Petition.