BALDEO MATAPRASAD MOURYA Vs. BHALESHWAR BENGAI PRAJAPATI

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dtd.31/1/85 passed by the VII Extra Assistant Judge, Thane, in Civil Appeal No.312/83. That appeal was filed by the Respondent challenging the order dtd.4/3/83 passed by the Jt.Civil Judge, Junior Division, Thane in Regular Civil Suit No.867/80. That Civil Suit was filed by the Respondent claiming therein that he is owner of chawl known as Prajapati Chawl, situated at Raghunath Nagar, Wagle Estate, Thane, and that, the petitioner is a tenant of one room with one Varandha. The landlord sought decree of eviction against the tenant on the ground that tenant is not ready and willing to pay rent. The Trial Court recorded the findings against the landlord and dismissed the suit. In the appeal filed by the landlord the Appellate Court reversed the findings recorded by the Trial Court and decreed the suit filed by the landlord and directed the tenant to vacate the suit premises. It is this order of the Appellate court which is challenged in the present petition.

(2.) WHEN the petition was called for final hearing, none appeared for the Petitioner and none appeared for the Respondents. I have gone through the record of the case. I find from the record that admitted facts are that the agreed rent of the suit premises was Rs.34.30 per month and the notice dtd.29/7/80 was issued by the landlord demanding arrears of rent from December, 1979 to July, 1980, claiming arrears of rent at the rate of Rs.40.80 per month.

(3.) PERUSAL of the Judgment of the Appellate Court shows that even according to the Appellate Court, the agreed rate of rent is Rs.30/- per month. The landlord claimed rent at the rate of Rs.40.80 per month, and there was no consent from the tenant about this increase. Therefore, Appellate Court has also held that the landlord was not entitle to claim rent at the rate of Rs.40.80/- per month. However, according to the Appellate Court, within one month of the receipt of the demand notice, the tenant did not make payment of the rent, which according to him, he was liable to pay, the tenant became liable for decree of eviction and while recording these findings, the Appellate Court has held that because the postman was not examined the tenant failed to establish that he sent money orders. Now perusal of the record shows that the tenant has filed money orders coupons which are at Exh.17, 18, 26, 27, 29, 30 and 31, and they show that six money orders are returned back with the endorsement "not claimed by the addressee". In my opinion, in view of the endorsement on the money order coupons that they are sent back as not claimed by the addressee, it is clearly proved that the tenant had sent the rent by money order. It is further to be seen that in paragraph-8 of the Judgment , the Appellate court itself has observed that: