SAVITRIDEVI VIRENDRASINGH BHAADORIA Vs. SHASHIKANT TILAKDHARI JHA

JUDGEMENT

(1.) The respondents, who are original plaintiffs, had filed R.A.E. Suit No. 96/326 of 1982 against the defendant who is the applicant before this Court, for eviction from the suit premises on several grounds. It was contended that the suit shop No. 2 situated at Municipal R Ward No. 4648 (I)-79 Sharada Estate, L.T. Road, Borivali (West) Mumbai-92 belonged to the plaintiffs. The defendant was inducted as a tenant in the suit premises. She was irregular in payment of rent and has fallen in arrears of rent since 1st March, 1978. The agreed rent was Rs. 35/-. On 6th September, 1980 a notice was issued by the plaintiffs to the defendant through their advocate terminating the tenancy and also calling upon the defendant to pay the amount of Rs. 1045.22 towards arrears of rent with permitted increases. The said notice was served but, the defendant failed to comply with the same and to make the payment of arrears of rent and the permitted increases. On 25th January, 1982 the plaintiffs filed the suit for eviction. An ex parte decree was passed against the defendant on 8th December, 1982. However, the defendant had taken out Misc. Notice No. 22 of 1983 on 22nd December, 1982 to set aside the ex parte decree passed against her. That decree was set aside on 5th December, 1987 and the suit was restored to file with a direction to the defendant to pay arrears of rent and to pay costs. The defendant filed the written statement on 23rd February, 1988 and contested the suit. She admitted that she was a tenant but, denied that she was irregular in payment of rent and that she was in arrears of rent since 1st March, 1978. She also admitted to have received notice dated 6th September, 1980 but, denied that she was not ready and willing to pay arrears of rent. According to her, the termination of her tenancy was illegal and the plaintiffs were not entitled to get a decree for eviction. According to her, the plaintiffs were accepting rent and thus she was entitled to protection under Section 12(3) of the Bombay Rent Act as amended in 1987. After hearing the parties, the trial Court rejected the contention of the defendant and claim and held that the defendant had failed to pay arrears of rent in spite of service of notice and had failed to pay the arrears within the stipulated period. Accordingly, the decree for eviction came to be passed. The defendant preferred an Appeal bearing No. 130 of 2002. The appeal also came to be dismissed. Hence, this Revision Application.

(2.) Heard learned Counsel for the parties.

(3.) There is no dispute that the defendant had not paid rent from 1st March, 1978 and was in arrears when notice was issued to her on 6th September, 1980. The notice was served and in spite of that she had not paid the arrears of rent and the permitted increases. An ex parte decree was passed in the suit filed by the plaintiffs. However, that decree was set aside and the matter was restored to file. The defendant had taken out Misc. Notice No. 22 of 1983 on 22nd December, 1982 for setting aside the ex parte decree and at that time, the defendant had deposited the arrears of rent till then. Misc. Notice No. 22 of 1983 taken out by the defendant was made absolute and the ex parte decree was set aside by an order dated 5th December, 1987 with the condition that she should pay all the arrears with costs of Rs. 75/-. Admittedly, the defendant had not made any payment from December, 1982 to December, 1987 and she was again in arrears for about 5 years. Though the arrears were deposited after order dated 5th December, 1987, after that payment again, the, defendant did not make any payment of rent or the permitted increases and she deposited the arrears from January, 1988 in 2002 when the decree for eviction was finally passed by the trial Court.