MANORAMA S.MASUREKAR Vs. DHANLAXMI G. SHAH

JUDGEMENT

(1.) This is a defendant's application. Her husband was a tenant of a block in the building belonging to respondent No. 1. The latter served a notice on him dated Dec. 22, 1956, demanding rent which was in arrears for more than six months and terminating the tenancy. He died on Jan. 11, 1957. Her allegation that rent was tendered on Jan. 22, 1957 has not been accepted. She then sent the amount by money order on Feb. 4, 1957, which was refused by respondent No. 1. She on her part instituted a suit for eviction of the petitioner on the ground of six month's arrears not having been paid. The plaint appears to be lodged on Feb. 5, 1957, with the Clerk who received the same, though endorsement for postal service has been obtained from the Registrar of the Small Causes Court on Feb. 4, 1957. The trial Court passed a decree of eviction against the petitioner, and the Appellate Bench has confirmed it.

(2.) Mr. Nariman contends that respondent No. 1 has sold the building to respondent No. 2 and as she is willing to have the petitioner as a tenant, the decree should be vacated. She has filed the affidavit of respondent No. 2 to this effect. Respondent No. 2 was a party before the Appellate Bench but no such willingness was shown by her to continue the petitioner as a tenant. If the contention were raised before the Bench, it could have been investigated by that Court. Apart from this, respondent No. 1 has produced the agreement between her and respondent No. 2 which shows that she was entitled to keep this flat as a tenant on its being vacated by the petitioner for her personal use. It is not possible, therefore, to vacate the decree on this ground.

(3.) It is accepted on behalf of the petitioner that there was no dispute regarding the standard rent and the permitted increases. It is however contended that the petitioner had sent the arrears of rent by money order on Feb. 2, 1957, before the suit was filed, and therefore, though the amount was not paid within one month of the notice, the suit must fail. As I have said, the plaint is presented on Feb. 5, 1957, though it purports to have been signed on Feb. 4, 1957, and the endorsement of the Registrar for postal service is of the same date. This is borne out by the initials of the clerk who received the plaint on Feb. 5, 1957. It must, therefore, be taken that the rent was tendered on Feb. 4, 1957, before the suit was filed, but one month after the notice. The legal contention now falls to be examined.