VALLISAHEB IMAMSAHEB DECEASED THROUGH HIS HEIRS SMT. NABUMATI VALLISAHEB SHAIKH AND OTHERS Vs. DHARMAWABAI

JUDGEMENT

(1.) By an order of this Court dated 31st March, 1986 the name of respondent No. 2 has been deleted. The Petitioners and respondent No. 1 hereafter will be referred to as "the plaintiff and defendant No. 1". The plaintiff and defendant No. 2 had purchased three rooms each from the Municipal House No. 7/2 corresponding to City Survey No. 8445 in Murarji Peth, Sholapur. The three rooms each from the said house were purchased by the plaintiff and defendant No. 2 on 26th June, 1973. The plaintiff let out to the deceased defendant No. 1 one middle room and the verandah from out of his six rooms on a monthly rent of Rs. 5.31 ps. The tenancy months were to be commenced from 1st of every calendar month. The deceased defendant No. 1, whose heirs have been brought on record as the petitioners, have been living in the said premises for the last 25 years. The plaintiff filed a Regular Civil Suit No. 199 of 1974 in the Court of the Joint Civil Judge, Junior Division, Sholapur, against the deceased defendant No. I for possession of the suit premises on the ground of the plaintiff requiring the suit premises-reasonably and bona fide for her own use and occupation and also for the default in the payment of rent. The trial Court dismissed the suit of the plaintiff holding that the plaintiff does not require the suit premises reasonably and bona fide for her own use and occupation and that there has been no default on the part of the deceased defendant No. 1 in making payment of rent. Being aggrieved by the judgment and decree of the trial Court dated 14th June, 1979, the plaintiff filed Civil Appeal No. 535 of 1979 in the Court of the IIIrd Extra Assistant Judge, Sholapur, who recorded the finding in favour of the deceased defendant No. 1 and against the plaintiff on the question of reasonable and bona fide requirement by the plaintiff of the suit premises. The lower appellate Court however recorded a finding against the deceased defendant No. 1 and passed a decree in favour of the plaintiff under section 12 (3) (b) of the Bombay Rent Act, holding that the deceased defendant No. 1 was not ready and willing to pay the rent. Being aggrieved by the said judgment and decree dated 19th Nov., 1980 passed by the IIIrd Extra Assistant Judge, Sholapur, the deceased defendant No. 1 has filed the present writ petition. During the pendency of this petition the petitioner, namely, original defendant No. 1 died and his heirs and legal representatives have been brought on record as the petitioners.

(2.) Mr. Katikar, learned Advocate for the petitioners, namely, the heirs of the deceased defendant No. 1 has contended before me that the lower appellate Court has committed an error in passing a decree for eviction in favour of the plaintiff under section 12 (3)(b) of the Bombay Rent Act holding that it has not been established that the defendant is ready and willing to pay the rent. It is an admitted position that the agreed rent of the suit premises is Rs. 5.31 ps. There is no dispute raised by the deceased defendant No. 1 regarding the standard rent. The learned Advocate for the petitioners contends that the record and proceedings would clearly and unmistakably show that the tenant was fairly regular in depositing the amount of rent [in the Court from time to time and that, therefore, there was an error on the part of the lower appellate Court in drawing an inference against the deceased defendant No. 1 that his conduct does not indicate readiness and willingness to pay the rent. Under these circumstances, it was contended that the judgment and decree of the lower appellate Court should be set aside and that this petition should be allowed. This contention is not well founded and has to be rejected for the following reasons. In order that the tenant should get the benefit of section 12 (3)(b) the tenant should pay or tender and continue to pay or tender in Court regularly the rent till the suit is finally decided. The expression "regularly" to be found in section 12 (3) (b) and the expression "readiness and willingness" to be found in section 12 (1) of the Bombay Rent Act has been the subject-matter of various decisions. In Ganpat Ladha Vs. Shashikant Vishnu Shinde, AIR 1978 Supreme Court 955 it 'was found that the tenant had not made regular deposits. The Supreme Court in the said case held :

(3.) In Anant Purushottam Athavale Vs. Damodar Daddatraya Redekar, 1980 M.L.J, 737 , the facts were that the plaintiff had claimed arrears of rent for the period from 1st May, 1964 to 22nd Sept., 1968. It was held by this Supreme Court in that case:-