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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2682 of 1991
Dudhasingh Bala Chavan
Age-Adult, Occ.-Service,
R/o.427 A/1, Somwar Peth,
Pune-11. ...Petitioner
(original Defendant)
v/s.
1. Shri Murlidhar Gyanba Kudale
(since deceased through his
legal heirs).
1A. Smt. Kamal @ Prema Murlidhar
Kudale.
Occ. Housewife, R/o.427 B,
Somwar Peth, Pune-11.
1B. Mr. Milind M.Kudale.
Age: 35, Occupation Landlord,
Address-do-.
1C. Mr. Mukund M. Kudale,
Age: 32, Occ. Landlord,
R/o. 427 B, Somwar Peth,
Pune-11. ...Respondents
(original plaintiffs)
Mr. P.S.Dani, Advocate for the Petitioner.
None for the Respondents.
CORAM : A.M.KHANWILKAR,J.
DATED : MARCH 02, 2009
JUDGMENT
. This Writ Petition under Article 227 of the
Constitution of India takes exception to the Judgment
and decree passed by the VI Additional District Judge,
Pune dated 8th February, 1991 in Civil Appeal No.
1048/1988 confirming the Judgment and decree passed by
the 7th Additional Judge, Small Causes Court, Pune dated
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2
17th September, 1986 in Rent Act Suit No. 1756/1985
whereby the Respondent-landlord’s suit for possession of
the suit premises and for recovery of rent of Rs. 170/-
for the period from 1-12-1982 to 30-9-1985 is allowed.
Although the suit for possession was filed by the
Respondent-landlord on different grounds, however, the
decree confirmed by the two Courts below is on the
ground of arrears of rent within the meaning of Section
12(3)(a) of the Bombay Rents, Hotel and Lodging House
Rates Control Act, 1947 (hereinafter referred to as “the
Act”) only.
2. The brief facts for considering the controversy in
the present petition are that: the suit property is
situated in CTS No. 427/A/1 at Somwar Peth, Pune-11 on
the Ground Floor consisting of one room of two khans
admeasuring 10 feet X 10 feet. The plaintiff-respondent
Murlidhar Kudale is the owner of the suit premises. The
Petitioner-tenant was in possession of the said premises
on monthly rent of Rs. 5/- plus education cess and
other municipal taxes etc. The tenancy starts on first
day of each month and ends at the end of same month as
per British calender. It is the case of the landlord
that the tenant was in arrears from 1-12-1982 for which
reason the landlord issued Demand Notice on 23-8-1985
calling upon the tenant to pay arrears of rent for the
period from 1-12-1982 to 30-9-1985, total amount of Rs.
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3
170/- at the rate of Rs. 5/- per month. Since the
tenant failed to offer the said amount as demanded in
the suit notice or to file standard rent application
disputing the amount mentioned in the suit notice within
one month from service of the said notice, the landlord
instituted suit for possession against the tenant on
different grounds including arrears of rent. The
plaintiff as well as defendants produced oral evidence
as well as documentary evidence. The plaintiff produced
the office copy of the notice dated 23-8-1985 which was
sent
Plaintiff
by
also
the plaintiff
produced
to
postal
the defendant
acknowledgment
(Exhibit 26).
evidencing
service of the said notice (Exhibit 27); counter foils
of the rent receipts issued by the plaintiff to
defendant-tenant and other tenants (Exhibit 23).
Defendant produced ration card (Exhibit 45) and coupons
of money order sent by him from time to time (Exhibit 30
to Exhibit 40). Defendant also produced copy of the
letter dated 8-7-1984 (exhibit 42) which was sent by one
Mahadu Babu Kadam; rent receipt for the month of August
1963 (Exhibit 43) and Receipt No. 33 dated 11-7-1982
for Rs. 10/- (Exhibit 44).
3. According to plaintiff, he received rent in respect
of suit house only upto 30-11-1982 and whenever rent was
offered, receipts were duly issued to the tenant. As
aforesaid, on service of Demand Notice on the tenant as
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4
the outstanding rent was not offered within one month,
landlord instituted suit for possession. The defence of
the tenant was that since landlord did not issue
receipts inspite of payment made towards rent paid by
him, he started sending the rent of the suit premises by
money order from time to time. The first of such money
order was sent on 13-12-1983 (Exhibit 30) for a sum of
Rs. 10/- and the last is dated 31-12-1985 (Exhibit 31)
for Rs. 120/-. The tenant has produced money order
coupons (Exhibit 30 to 40) to buttress his stand that he
was always
ready
rent. The said coupons produced by the tenant were as
and willing to pay the amount towards
follows:
—————————————————-
Date Rent period Exhibit No. Amount
mentioned in
the MO.
—————————————————-
13-12-83 December 1983 30 10/-
22-12-83 __ 32 10/-
17-1-84 December 1983 40 20/-
to January 1984
21-1-84 __ 33 20/-
16-2-84 December 1983
to February 1984 39 30/-
23-2-84 __ 35 30/-
23-4-84 December 1983
to April 1984 36 50/-
18-7-84 __ 34 80/-
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5
—————————————————-
Date Rent period Exhibit No. Amount
mentioned in
the MO.
—————————————————-
17-7-84 December 1983
to July 1984 37 70/-
27-12-84 December 1983
to December 1985 38 120/-
31-12-84 -- 31 120/-
—————————————————–
4. Relying on the above said money orders, the tenant
asserts that he was always ready and willing to pay the
rent
cause
in
of
respect
action had
of suit
arisen
premises
so as
for
to
which
invoke
reason
ground
no
of
arrears of rent. Besides, tenant has asserted that he
had not received copy of the Demand Notice Exhibit 26,
whereas he received blank envelope (Exhibit 40) (which
did not mention the name of the sender) and that the
said envelope instead contained a letter dated 8-7-1984
sent by one Mahadu Babu Kadam (Exhibit 42) for which
reason also the suit cannot proceed against the tenant.
5. The trial Court as well as the Appellate Court
addressed the plea taken by both sides with regard to
ground of arrears of rent and after elaborately
analysing the relevant documentary and oral evidence
have concurrently found that the plaintiff-landlord has
established the fact that no rent was offered by the
tenant in respect of the suit premises for the period
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6
from “1-12-1982” and that the suit notice was duly
served on the tenant inspite of which the tenant failed
and neglected to pay the amount as demanded in the suit
notice within one month nor raised any dispute regarding
standard rent. As a consequence of that finding decree
under Section 12(3)(a) of the Act was inevitable.
6. In so far as the defence of the tenant is
concerned, both the Courts below have rejected the same
as not substantiated. The Courts below have
concurrently
demand notice
found
on
ig the
that
tenant
presumption
sent by
of
the
service
landlord
of
has
the
not
been rebutted by the tenant. The Courts below have
found as of fact that envelope containing demand notice
was duly received by the tenant, was indisputable. The
Courts below have found that the tenant has raised
frivolous contention that the envelope did not contain
the Demand Notice but some other letter without
substantiating the said fact. The Courts below have
discarded the said stand of the tenant regarding the
non-service of demand notice and have held that even if
the envelope did not mention the name and address of the
sender, even then the acknowledgment which has been duly
signed by the tenant by way of acceptance of the
envelope would indicate the name of the sender, for
which it can be inferred that the tenant had knowledge
about the name of the sender. Inspite of that the
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7
tenant did not bother to make any enquiry with the
landlord nor made any complaint to the landlord about
the purported letter dated 8-7-1984 received in the said
envelope. The Courts below have also noted that the
tenant made no enquiries with the said Mahadu Babu
Kadam, whose address was available in the stated letter
to clarify the doubt, if any. The Courts below have
also found that the landlord had good cause for refusing
to accept the amount sent by money orders. Besides, it
has been found that money orders pertained to different
periods
from
but
“1-12-1982
ig did
till
not
December
cover the
1983”
entire
at
arrearsthe agreed
of rentrent
of Rs.5/- per month towards monthly rent excluding
permitted increases.
7. Taking over all view of the matter both the Courts
below have concluded that in the fact situation of the
present case, decree for possession on the ground of
arrears of rent within the meaning of Section 12(3)(a)
of the Act was inevitable. In so far as finding of fact
recorded by the two Courts below on the factual matrix
is concerned, the same is unexceptionable. The said
finding of fact cannot be said to be manifestly wrong or
perverse. It is not open for this Court in exercise of
writ jurisdiction to take a different view even if it
was possible to hold that another view on the basis of
same evidence could be taken. That is not the scope to
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8
exercise writ jurisdiction.
8. To get over this position, the argument of the
Petitioner, is that, the landlord having refused to
accept the money orders sent from time to time was
precluded from invoking the ground of default and
arrears of rent against the tenant who was continually
remitting the amount towards rent by money orders from
time to time. It was argued that refusal to accept
money orders sent by the tenant from time to time will
have
landlord
to be
and
treated as
considering
due
the
acceptance
aggregate
of that
amount
rent by the
remitted
by the tenant on different dates, the same is almost Rs.
560/- which far exceeds the amount demanded by the
landlord towards outstanding rent in the suit notice
which is only Rs. 170/-. If it is so, there was no
cause of action to proceed against the tenant on the
ground of arrears of rent under Section 12(3)(a) of the
Act. It was also argued that even if the Court may find
that the amount towards monthly rent was payable by the
tenant even then no decree for possession can be passed
in the fact situation of the present case as the
landlord has refused to accept the money orders sent by
the tenant. For, the fact of remitting amount by money
order from time to time evidences factum of readiness
and willingness of the tenant and, therefore, in such a
case, the question of proceeding under Section 12(3)(a)
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9
of the Act would not arise.
9. To buttress the above argument, Counsel for the
Petitioner has relied on the latest decision of the
Division Bench reported in 2008 (I) Bombay Cases
Reporter 687 in the case of Sitaram Maruti Nagpure &
anr. Vs. Fakirchand Purushottam Dhase & ors. which is
the opinion recorded by the Division Bench on the
reference in the present petition which was heard
alongwith Writ Petition No. 935/1994. Significantly,
the
withdrawn.
said
Be
Writ
that
Petition
as it
No.
may,
935/1994
in the
has
said
lateron
Writ
been
Petition
No. 935/1994, this Court had referred the matter to a
larger Bench in view of the conflict of decisions in the
case of Suka Ishram Chaudhari V/s. Ranchhoddas
Manakchand Shet Gujarathi 74 B.L.R. 220 (also reported
in AIR 1972 Bombay 273) and 80 Bombay Law Reporter 646
in the case of the Abdul Gani Dinalli Momin v/s.
Mohamed Yusuf Mohamed Isak which are decisions of Single
Judge of this Court. The Division Bench while answering
the reference has upheld the opinion recorded in Suka
Ishram Chaudhari's case, which the later decision in
Abdul Gani's case (supra)had held is impliedly overruled
in view of the Supreme Court decision. The Division
Bench of our High Court in the case of Sitaram Maruti
Nagpure (supra) applying the observations of the Apex
Court in the case of Priya Ghosh & ors. Vs. Bajranglal
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10
Singhania 1993 Supp.(1) S.C.C. 24 has held that the
view taken by Bhole, J in Suka Ishram Chaudhari Vs.
Ranchhoddas Manakchand Shet Gujarathi was the correct
view whereas the view taken by Jahagirdar, J in Adbdul
Gani Dinalli Momin v/s. Mohamed Yusuf Mohamed Isak
reported in LXXXIV BLR 646 is overruled. The reference
was made in terms of order passed in Sitaram Maruti
Nagpure's case reported in 2001 (III) Bombay Case
Reporter 396 which came to be answered on the above
terms.
10.
Besides relying on the above said decisions,
reliance is also placed on the unreported decision of
our Court in Writ Petition No. 3227/1987 decided on
June 8, 2000 in the case of Madhukar Govind Vaidya v/s.
Narayan H. Surve as well as reported decision in the
case of Kamlabai B. Kabade v/s. Laxmibai Janardan
Jagtap-AIR 2000 Bombay 490.
11. Having considered the argument canvassed by the
Counsel for the Petitioner I would straightway advert to
the exposition of the Division Bench of our High Court
in the case of Sitaram Maruti Nagpure (supra) It will be
appropriate to reproduce Paragraph 14 to 17 of this
decision:
“14. After having heard the learned Counsel for
both sides in the above and after perusal of all
the aforesaid judgments, it is very clear that::: Downloaded on – 09/06/2013 14:22:46 :::
11section 12 makes it abundantly clear that if tenant
pays or ready or willing to pay standard rent or
permitted increases, then no ejectment will bemade. To put it in other words, the landlord will
be entitled to recover possession of the premises
only if the tenant fails to pay the standard rentand permitted increases. In fact the said section
12 clearly contemplates in a negative manner that
no suit for recovery of possession shall be
instituted by the landlord unless the landlord
satisfies that he tenant was not ready and willingto tender and had not paid the standard rent and
permitted increases for over a period of six months
and in the event, the tenant was not ready and
willing to tender standard rent and permitted
increases, and that he has been in arrears of over
a period of six months, then the landlord has toissue notice terminating the tenancy and demand the
standard rent and permitted increases within a
month after service of the notice. Even section12(3)(a) makes it clear that where the rent is
payable by the month and there is no dispute
regarding the amount of standard rent or permitted
increases, if such rent or increases are in arrearsfor a period of six months or more and the tenant
neglects to make payment thereof until the
expiration of period of one month after the notice
as referred in sub-section (2), the Court may pass
a decree for eviction in any such suit for recoveryof possession. By way of explanation, in the said
section, it is provided that in any case where
there is dispute as to the amount of standard rentor permitted increases recoverable under this Act
the tenant shall be deemed to be ready and willing
to pay such amount if, before the expiry of the
period of one month after notice referred to in
sub-section (2), he makes an application to theCourt under sub section (3) of Section 11 and
thereafter pays or tenders the amount of rent or
permitted increases specified in the order made by
the Court. To put it in other words, the
explanation is with regard tot he procedure,when
there is a dispute with regard to the standardrent. Where there is no dispute with regard to the
standard rent, the tenant has to show that he was
always ready and willing to tender rent and he must
not be in arrears for more than six months and in
the event, the tenant was in arrears for more than
six months, the landlord has the right to serve
notice of termination and demand rent and permitted
increases, and if the tenant does not pay the same
within one month, in such a case, the landlord will
be entitled for a decree of eviction.
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12
15. In view of the clear explanation of section
12, if the tenant raises a dispute with regard to
the standard rent and permitted increases, he hasto approach the Court within a period of one month
from the notice of termination and make deposit
within a period of one month in the Court. On thecontrary, if there is no dispute, the tenant must
show his readiness and willingness to pay rent and
permitted increases and must keep regularly
tendering the same, even by money order and no
landlord can take advantage, neither by refusing toaccept the same nor say that the tenant had not
paid the rent or tendered the rent. This fact has
been rightly pointed out by the Hon’ble Supreme
Court in the case of Priya Ghosh & ors. vs.
Bajranglal Singhania and anr. and it is held that
the landlord will be easily able to trap the tenantby refusing to accept and turn round and to file a
suit against the tenant. That is why, the Hon’ble
Supreme Court ig has clearly observed that the law has
to be construed in a fair manner and it is not
intended to trap the tenant into a situation so
that he landlord can evict the tenant.
16. Under the aforesaid facts and circumstances of
the case, we are clearly of the view that the view
taken by Bhole, J is correct and the view taken by
Jahagirdar, J is overruled and the same does not
lay down the correct law.
17. In the light of the above, both the above
petitions may be placed before the appropriate
bench for being heard on merits, since we have only
answered the question of law which was referred to
us."
12. Indeed, the above decision expounds that if there
is no dispute regarding the standard rent, the tenant
must show his readiness and willingness to pay rent and
permitted increases and must keep regularly tendering
the same even by money order and no landlord can take
advantage neither by refusing to accept the same nor say
that the tenant had not paid or tendered the rent. At
the end, the Division Bench has approved the opinion of
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13the Single Judge in Suka Ishram Chaudhary’s case
(supra). We shall, therefore, have to go back to the
opinion of Bhole, J in the case of Suka Ishram (supra).
Notably, in that case the Court went on to hold that the
tenant was ready and willing to pay the rent in the
facts of the case before it. It is held that the tenant
was not in arrears of rent voluntarily for the relevant
period and remained in arrears because of the conduct of
the landlord for a period of six months or more. The
opinion of Bhole, J was in the context of the fact that
tenant
period”
had
by
money
sent amountorder
towardsbut the
rent forlandlord
therefused
“relevantto
accept the same. The question was whether the tenant
was still in arrears of rent? In that context the Court
found that if the landlord had accepted the money order,
the tenant certainly would not have been in arrears for
a period of over six months and there could not have
been any cause of action for issuance of demand notice
to the tenant. It is held that because the landlord
refused to accept the rent for the relevant period, the
tenant was said to be in arrears for the relevant
period. In fact, no cause of action arose having regard
to the fact that the date of demand notice was within
six months from the date of refusal of money order by
the landlord. In other words, this observation has been
made in the context of the fact established by the
tenant that he had sent money order which indicated that
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14lumpsum amount remitted was for period beginning from
1-11-1964 to 1-5-1965 but the same was refused by the
landlord, whereas a Demand Notice was issued soon
thereafter on 1-6-1965. In other words, the Court
proceeded on the footing that having refused to accept
the money order covering the rent for the “relevant
period” from 1-11-1964 to 1-5-1965, the notice issued on
1-6-1965 was without accrual of cause of action. For,
the tenant was neither in arrears nor could be said to
be unwilling to pay the rent for the “relevant period”
due
taken
to
in the
the
ig conduct
unreported
of the
decision
landlord.
pressed
Similar
into
view
service
is
in
the case of Madhukar G. Vaidya(supra), following the
exposition in Suka Ishram Choudhary’s case. Even in
that case, just before the issuance of demand notice in
June 1980 the tenant had offered rent for the “relevant
period” on April 22, 1980, which was refused by the
landlord. Once again the Court proceeded on the premise
that intentional refusal by the landlord of money order
remitting rent for the “relevant period” would entail in
deemed acceptance of rent for that period thereby
depriving the landlord of resorting to action on the
ground of arrears of rent. Even in the reported
decision in Kamlabai B. Kabade (supra) it is noticed
that money order sent by the tenant towards rent was for
period from 1-1-1973 to 29-2-1976, whereas the demand
notice was issued on March 1, 1976- shortly after the
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15
money order was refused by the landlord. Therefore, the
Court took the view that the landlord cannot be
permitted to take advantage of his own wrong having
refused with oblique motive to accept the amount
remitted by the tenant towards monthly rent for the
“relevant period”. Even in this decision, reliance is
placed on the exposition in the case of Suka Ishram
Chaudhary (supra).
13. As aforesaid, the observation of the Division Bench
of
will
our
apply
High
to
ig Court
the fact
which is
situation
reproduced
of a case
herein
such
before,
as
obtaining in Suka Ishram Chaudhary and other two
decisions referred to above. The question is, whether
the view noted in the case of Suka Ishram Chaudhary
(supra) which has been approved by the Division Bench,
is applicable to the fact situation of the present case.
In the present case, as has been concurrently found, the
last of the money order sent by the tenant was on
31-12-1984 (Exhibit 31) in the sum of Rs. 120/- which
covered arrears of rent only for the period from
30-12-1983 to December 1984. Morever, it is not the
case of the Petitioner that the refusal of this money
order was within the proximity of six months from the
date of the demand notice. The fact remains that no
rent has been offered by the tenant at any time for the
period from 1-12-1982 till December 1983 and in any case
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16
for December 1984 till August 1985, whereas the Demand
Notice covered that period. The defence of the tenant
that he used to pay the rent regularly but no receipt
was issued has been concurrently rejected by the two
Courts below. Once that finding is held to be
unexceptionable, it necessarily follows that no rent has
been offered by the tenant for the said period from
December 1982 till December 1983 and again for the
period after December 1984 till August 1985.
14.
tenant, as
Thus understood, the money orders sent by the
has been rightly found by the two Courts
below, would be of no avail. For, the tenant showed no
willingness to pay the outstanding arrears of rent for
the period from “December 1982 till December 1983” and
again for the period “from December 1984 till August
1985” without any cause whatsoever. It necessarily
follows that readiness and willingness of the tenant to
pay the “entire arrears of rent” as demanded by the
landlord in the demand notice was lacking-rather absent.
15. A priori, the exposition in the case of Suka Ishram
Chaudhari (supra) would be of no avail to the fact
situation of the present case. For, it is not the case
of the tenant that just before issuance of the demand
notice on 23-8-1985 he had offered amount exceeding Rs.
170/- to the landlord, that too within the proximity of
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17
less than six months. It is only then the argument of
the Petitioner tenant that the cause of action for
proceeding against him on the ground of arrears of rent
had not accrued to the landlord having refused to accept
money order just prior to issuance of demand notice may
be available. Suffice it to observe that in the fact
situation of the present case, the exposition in the
case of Suka Ishram Chaudhary and other cases referred
to above will be of no avail.
16.
Petitioner
To get over this position, Counsel for the
submits that the Petitioner had offered
outstanding rent from time to time by money orders and
the aggregate amount of all these money orders, if
reckoned, was Rs.560/-, far exceeded the amount demanded
in the suit notice. It was argued that applying the
principle of deemed acceptance, it would mean that the
tenant had already offered the amount to the landlord
for the period even posterior to issuance of demand
notice and for that reason also, it will have to be held
that no cause of action had accrued to the landlord.
The argument deserves to be stated to be rejected. In
as much as, the tenant is extricated from the rigours of
Section 12(3)(a) only if he were to pay the entire
amount demanded in the suit notice within one month from
the receipt thereof. It would be a case of deemed
acceptance or payment if the landlord were to unjustly
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18
refuse to accept the money order sent by the tenant.
However, the principle of deemed acceptance so as to
extricate the tenant and disentitle the landlord to
initiate action on the ground of arrears of rent, cannot
be extended to a case where the tenant fails to comply
with his statutory obligation after the service of
notice and moreso when he is not in a position to
establish that he had infact remitted the amount as
demanded by the landlord in the notice shortly before
the date of demand notice but unjustly refused by the
landlord
before
within
issuance
ig of
the
such
proximity
demand
of less
notice.
than
Morever,
six
in
months
the
present case the argument that total amount sent by
money orders from time to time by the tenant and refused
by the landlord, if taken together would mean that the
tenant has already paid amount i.e. Rs. 560/-, which
far exceeds the amount demanded in the suit notice and
would cover rent even for the period far beyond the date
of suit notice, clearly overlooks the stand taken by the
defendant that the money order sent from time to time
were in respect of payment of arrears of rent for
specific period and the last such offer was for rent
only between December 1983 to December 1984 sent by
money order dated 31-12-1984 (Exhibit 31). In other
words, the remittance by money orders was for
overlapping period as the earlier money orders were
refused by the landlord. Be that as it may, the
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19
argument of deemed acceptance so as to disentitle the
landlord to institute action on the ground of arrears of
rent, could be invoked only if it were to be a case of
unjust refusal by the landlord to accept the money order
sent by the tenant covering the amount of rent for the
relevant period within the proximity of six months
before the date of issuance of the Demand Notice-so as
to hold that cause of action to proceed against the
tenant on the ground of default had not accrued to such
a landlord.
17.
It was also contended that the fact that the tenant
was remitting amount by money orders repeatedly would
indicate that he was always ready and willing to pay the
rent for which reason it was not open to pass decree for
eviction but at best decree for money claim of the
landlord could be considered. Firstly, the assumption
that the tenant was ready and willing to pay the entire
outstanding rent is unavailable in the facts of the
present case for the reasons already recorded hitherto.
Morever, this argument clearly overlooks the mandate of
Section 12(3)(a) of the Act, as was applicable at the
relevant time. The Apex Court while construing the said
provision has authoritatively held in catena of
decisions that if the tenant fails to comply with his
obligation under Section 12(3)(a) of the Act of paying
the arrears of rent as demanded in the notice within one
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20
month or to file standard rent application disputing the
quantum of rent demanded by the landlord within the same
time, the Court will have no option but to decree the
suit for possession against such defaulting tenant. It
is, therefore, not open to the Court to pass any other
order much less only restrict the decree to arrears of
rent claimed by the landlord, which relief will be only
incidental to the substantive relief of possession of
the suit premises on the ground of arrears of rent.
18.
Taking any view of the matter, the Petition is
devoid of merits. The same ought to fail.
19. Hence, it is dismissed with costs.
[A.M.KHANWILKAR,J.]
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