MOHAMMAD SHAFI KHALIFA Vs. KURBAN ALLI KASAM ALLI

JUDGEMENT

(1.) THE tenants/defendants against whom decree for possession has been passed by the trial Court in Regular Civil Suit No. 488 of 1976 in the Court of learned Civil Judge, Sr. Dn. , Ahmednagar and whose appeal bearing Regular Civil Appeal No. 448 of 1980 was dismissed in the Court of the Extra Assistant Judge, Ahmednagar, has filed this writ petition, praying that the decrees passed by both the courts below be quashed and set aside.

(2.) THE petitioners were tenants in the residential premises admeasuring about 8 Khans in House No. 6214 and 6215 of Ahmednagar. The rent was payable monthly and the tenancy month commenced from 1st of every month. In a previous proceeding between the parties bearing Regular Civil Suit No. 510 of 1969 and in the appeal bearing Regular Civil Appeal No. 164 of 1971 arising out of that, the standard rent of the suit premises was determined to be Rs. 17/- per month. The respondent/plaintiff gave a notice dated 27-4-1976 (Exh. 18 in the suit) to the petitioners contending, inter alia, that the petitioners were in arrears of rent for the period from 1-4-1973 to 31-3-1976. This notice was received by the petitioners on 28-4-1976 vide Exh. 19. The tenancy stood terminated by the end of 31-5-1976. The petitioners replied the notice under their reply dated 20-5-1976 in which, it was contended that in the previous proceeding an excess amount of Rs. 52/- was paid on or about 14-6-1973 and if that amount was considered for the purposes of the present proceeding, the arrears due from the petitioners were not to the extent claimed by the plaintiff. According to the plaintiff/respondent, the defendant No. 1 - petitioner had sub-let the premises. The name of that sub-tenant was mentioned in the notice dated 27-4-1976. Later on, it was found that there was some mistake in naming the sub-tenant and, therefore, a second notice dated 9-6-1976 (Exh. 18-A in the suit) came to be given only for the purposes of giving the correct name of the tenant and it had confirmed the averments made in the earlier notice dated 27-4-1976. Thereafter, Regular Civil Suit No. 488/76 came to be filed in the Court of Civil Judge, Sr. Dn. , Ahmednagar on 17-6-1976. The Court negatived all grounds other than the ground of default, but decreed the suit for possession on the ground of default invoking the provisions of section 12 (3) (a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (in brief, referred to as the Bombay Rent Act ). The matter was carried in appeal by the tenants, but the same came to be dismissed and the decree for possession on the ground of default came to be confirmed. Under such circumstances, the tenants have preferred this writ petition, praying that the decrees passed by the courts below should be quashed and set aside.

(3.) IT was not in dispute that the standard rent of the suit premises was determined at Rs. 17/- per month in the previous proceeding. The arrears of rent claimed by the plaintiff as per the notice to quit were for the period from 1-4-1973 to 31-3-1976. True it is that, in the reply dated 20-5-1976 the tenant had contended that certain amount deposited in the Court in previous proceeding had to be adjusted towards the rent for the period from 1-4-1973 and that, therefore, he was not in arrears for the period as indicated in the notice to quit by the landlord. Neither the petitioners/tenants indicated in their depositions, at the trial, the date on which the amount was paid or the period for which the rent was deposited in the Court, nor was any question asked to the plaintiff/respondent in the cross-examination. The trial Court, therefore, came to the conclusion that it was not proved that any amount deposited in the previous proceeding could be towards the arrears of rent for the period from 1-4-1973 to 31-3-1976. It appears from the record of the appeal that after the arguments were heard and the matter was posted for judgment, the Advocate for the appellant/tenants tendered on record (Exh. 20 in the appeal), a certified copy of the C and D registers showing that Rs. 68/- were deposited in Regular Appeal No. 164/71 on 14-6-1973 and they were paid by the Nazarat on 5-8-1975. The amount is shown in the register to be the amount of rent payable to the respondent, but Columns 11 to 22 of the register do not indicate to whom the payment was made. Moreover, the original application under which the amount was tendered in the Court or a certified copy thereof, were never brought on record to indicate that at the time of depositing the amount, the petitioners/tenants had indicated that the amount was being paid towards the arrears of rent for any specific period. The learned Appellate Judge did not allow the production of this document because, it was produced at a late stage and because the respondent/plaintiff could have no opportunity thereafter to reply on the factual aspect of the matter. Even if we consider the document, at this stage, the document is hardly of much assistance to the present petitioners/tenants, in as much as, it does not indicate to whom the amount was, in fact, paid and against which claim the amount was paid. In the absence of oral as well as documentary evidence on the point, it is not possible for us to conclude that the amount of Rs. 68/- deposited under the aforesaid entry covered any portion of the period from 1-4-1973 to 31-3-1976 i. e. the period, now, in dispute.