JUDGMENT
A.M. Khanwilkar, J.
1. This Writ Petition under Article 227 of the Constitution of India is directed against the judgment of the Additional District Judge, Solapur dated 18th April, 1987 in Civil Appeal No. 247 of 1984.
2. The Petitioner is the tenant in respect of the suit premises bearing Municipal House No. 563 C.T.S. No. 2039 situated in South Sadar Bazar, Solapur. The Respondent landlord gave demand notice to the Petitioner on 1.8. 1979, demanding arrears of rent for the period from 1.4.1977 to 30.8.1979 and towards permitted increases. The Petitioner denied that he was in arrears of the amount demanded in the suit notice. The Petitioner neither offered the demanded amount within one month nor raised any dispute for fixation of standard rent as required under the Act. Under the circumstances the Respondent instituted a suit for possession of the suit premises being RCS No. 890 of 1979 on the ground of default and for recovery of arrears on 7.9.1979. The Petitioner filed written statement in the said suit on 27.10.1980 and resisted the claim set up by the Respondent. Issues were framed in the said suit on 17.8.1982. Till framing of the issues the Petitioner had deposited only Rs. 375/- and not the demanded amount.
3. The Trial Court, after considering the rival pleadings and the evidence adduced by the parties, recorded that the Petitioner was in arrears and had failed to pay the rent as demanded by the Respondent. Consequently, the Trial Court decreed the suit for eviction by judgment and order dated 28.9.1983. This decree was taken exception before the Appellate Court by the Petitioner. The Appellate Court affirmed the findings of fact recorded by the Trial Court and concluded that the petitioner was defaulter within the meaning of Section 12(3)(a) of the Bombay Rent Act and accordingly dismissed the appeal with costs.
4. Against the aforesaid concurrent findings recorded by the Courts below the present writ petition has filed by the Petitioner. The main contention of the Petitioner is that the Petitioner has asserted that although rent was paid to the Respondent landlord, however, no receipts were issued by the Respondent any point of time. This assertion has been made by the Petitioner in the pleadings as well as in evidence. It is contended that though the Respondent was called upon to produce the counter foils of the receipts he failed to do so for which an adverse inference should be drawn against him that payment was made but no receipts were issued. I am afraid, this contention clearly over-looks the fact that the initial burden to prove that the amount was paid is primary on the defendant because it is he who asserts that payment has been made to the landlord. To establish the factum of payment having been made it was essential for the defendant to bring on record some contemporaneous evidence including by examining any other tenant of the same landlord who would have supported this assertion. Besides his oral statement, there is nothing on record that the landlord had the habit of or followed the practice of not issuing rent receipts to the tenant. It is, therefore, not possible to accept this contention and the same is therefore rejected.
5. Once the aforesaid contention is rejected, then there is no other argument available to the Petitioner so as to save him from the rigours of eviction under Section 12(3). The learned Counsel for the Petitioner fairly concedes that even if on the facts of the present case the decree under Section 12(3)(a) cannot be sustained, nevertheless the Court was entitled to decree the suit under Section 12(3)(b) of the Act if grounds to justify the decree on the said count was made out. In the present case, although the demand notice is a composite notice, the decision of the Division Bench of this Court in 1993 Mh.L.J. 254 has held that notice should not be construed strictly and it is open for the tenant to send such amount which according to him was due subject to the liability that if ultimately a larger amount was held to be due he cannot be said to have complied with the requirement of notice under Section 12(2) of the Act. In view of the said decision it is not open to the learned Counsel for the Petitioner to contend that although the Petitioner had failed to tender the demanded rent within one month from the date of receipt of the said notice or to raise a dispute for fixation of standard rent within the same period, yet tenant would not suffer consequences of eviction under Section 12(3) of the Act. It is held that the plaintiffs claim for eviction can be passed under the provisions of Section 12(3)(b) of the Act in such a situation. In my view, the Petitioner having failed to comply with the mandatory requirement of Section 12(3)(a) he has become liable to suffer eviction.
6. Besides the reasons indicated by two Courts below, in my view, the fact that the petitioner has failed to deposit the entire arrears before the first date of hearing itself has disentitled him to get protection of the provisions of Bombay Rent Act. It appears that the first deposit was made by the Petitioner in Court for a sum of Rs. 150/- only on 17.11.1980, the second deposit on 26.8.1981 being sum of Rs. 200/-, while the third deposit on 2.11.1981 for sum of Rs. 25/-. Taking all these 3 deposits together even then the Petitioner was in arrears and in default on the first date of hearing of the suit, when issues were framed. Even subsequently, the petitioner was not consistent and regular in depositing the amount towards rent in that he deposited a sum of Rs. 1.000/- on 11.3.1983 and another sum of Rs. 1500/- on 23.3.1983. Besides this amount, no other deposit has been made by the Petitioner. Taking any view of the matter, there is no infirmity in the findings recorded by the two Courts below and consequently the decree of eviction passed against the Petitioner.
7. Accordingly, writ petition is totally devoid of merits and deserves to be dismissed with costs. For the aforesaid reasons the writ petition is dismissed with costs. Rule stands discharged.
8. At this stage the learned Counsel for the Petitioner prays for time to vacate the premises. The learned Counsel for the Respondent has resisted the said request. Since the decree in the present case is only on the ground of default, I am inclined to grant time to vacate to the Petitioner till 30.6.2001 subject to the Petitioner filing an usual undertaking before this Court within 4 weeks from today. Further the Petitioner is restrained from creating any third party rights or inducting any other person until he vacates the premises before 30.6.2001. Needless to mention that if undertaking is not filed within the aforesaid period it will be open for the Respondent to proceed to execute the decree against the petitioner without further reference to the Court.
Certified copy expedited.
Parties to act on the copy of this order duly authenticated by the Sheristedar of the Court.