NAZAR MOHAMED USUF Vs. SIDDIKABAI A KHILJI

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 17th December, 1986 passed by the Division Bench of the Small Causes Court at Bombay in appeal No.735 of 1986. That appeal was filed by the petitioner challenging the order dated 28th August 1986 passed by the Single Judge of the Small Causes Court at Bombay in R.A.E Suit No.5360 of 1974. That suit was filed by the respondent claiming therein that she is owner of shop No.21, situated at 56-58, Babula Tank Road, Opp. Neer Baug, Bombay and that the petitioner is a tenant. The landlady claimed the decree of eviction on the ground that the tenant was not ready and willing to pay the rent. The Trial Court found in favour of the landlady and decreed the suit in her favour and directed the tenant to vacate the suit premises. In the appeal filed by the tenant, the Appellate Court confirmed the finding recorded by the Trial Court and dismissed the appeal. Therefore this petition is filed by the landlady challenging concurrent findings recorded by both the Courts below.

(2.) PERUSAL of the record shown that it is undisputed position that the landlady issued notice dated 17th March 1984 demanding arrears of rent from 1st April 1970 to 28th August 1974. The notice was admittedly received by the tenant on 14th March, 1974. It is also an admitted position that after receipt of this demand notice, the tenant has not filed application under section 11(3) of the Bombay Rent Act. He has also not paid rent to the landlady. It was the case of the tenant in written statement that when he tendered rent to the landlady after receipt of demand notice, she refused to accept the same. However, in his deposition, he improved the case by saying that after receiving the demand notice, he went to the residence of the landlady twice or thrice, but she was not present. However, thereafter, he met the landlady and tendered the rent, but she refused to accept it. Therefore, he paid that amount to his Advocate and instructed him to pay the same to the landlady alongwith the reply to the demand notice. Both the Courts below have held that the tenant has totally failed to establish that any reply was sent to the notice by Advocate or that he sent arrears of rent through his lawyer. Thus, a concurrent finding of fact has been recorded by both the Courts below that the tenant, after receiving demand notice, has not paid any rent within one month to the landlady and therefore a decree under section 12(3) of the act has been passed. It further appears that there was some dispute between the parties about the fact whether the plaintiff is the landlady of the suit premises and whether the petitioner is a tenant. However, perusal of the order of the Appellate Court shows that the learned counsel appearing for the tenant has admitted that the petitioner is a tenant of the respondent. As I find that the concurrent findings of fact are recorded by both the Courts below, in my opinion, this Court would not be justified in interfering in its writ jurisdiction under Article 227 of the Constitution of India.