{"id":225644,"date":"2009-03-02T00:00:00","date_gmt":"2009-03-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dudhasingh-bala-chavan-vs-shri-murlidhar-gyanba-kudale-on-2-march-2009"},"modified":"2017-02-06T16:11:56","modified_gmt":"2017-02-06T10:41:56","slug":"dudhasingh-bala-chavan-vs-shri-murlidhar-gyanba-kudale-on-2-march-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dudhasingh-bala-chavan-vs-shri-murlidhar-gyanba-kudale-on-2-march-2009","title":{"rendered":"Dudhasingh Bala Chavan vs Shri Murlidhar Gyanba Kudale on 2 March, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Dudhasingh Bala Chavan vs Shri Murlidhar Gyanba Kudale on 2 March, 2009<\/div>\n
Bench: A.M. Khanwilkar<\/div>\n
Lsp\n                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                                CIVIL APPELLATE JURISDICTION\n\n\n\n\n                                                                                                                    \n                                      WRIT PETITION NO. 2682 of 1991\n\n\n\n\n                                                                                     \n       Dudhasingh Bala Chavan\n       Age-Adult, Occ.-Service,\n       R\/o.427 A\/1, Somwar Peth,\n       Pune-11.                                                                                        ...Petitioner\n                                                                                            (original Defendant)\n\n\n\n\n                                                                                    \n                               v\/s.\n\n       1. Shri Murlidhar Gyanba Kudale\n             (since deceased through his\n               legal heirs).\n\n\n\n\n                                                                  \n       1A. Smt. Kamal @ Prema Murlidhar\n             Kudale.\n             Occ. Housewife, R\/o.427 B,     \n             Somwar Peth, Pune-11.\n\n       1B. Mr. Milind M.Kudale.\n              Age: 35, Occupation Landlord,\n                                           \n              Address-do-.\n\n       1C. Mr. Mukund M. Kudale,\n              Age: 32, Occ. Landlord,\n              R\/o. 427 B, Somwar Peth,\n         \n\n              Pune-11.                                                                                  ...Respondents\n                                                                                            (original plaintiffs)\n      \n\n\n\n       Mr. P.S.Dani, Advocate for the Petitioner.\n       None for the Respondents.\n\n                                                  CORAM : A.M.KHANWILKAR,J.\n     \n\n\n\n\n                                                  DATED : MARCH 02, 2009\n\n\n       JUDGMENT\n<\/pre>\n
       .                This Writ Petition under Article 227 of the<\/p>\n
       Constitution                    of              India       takes          exception        to        the              Judgment<\/p>\n
       and              decree              passed       by        the       VI        Additional           District            Judge,<\/p>\n
       Pune            dated                8th        February,           1991       in           Civil            Appeal        No.<\/p>\n
       1048\/1988                      confirming         the       Judgment           and         decree           passed          by<\/p>\n
       the       7th            Additional             Judge,        Small           Causes             Court,         Pune      dated<\/p>\n
                                                                                     ::: Downloaded on – 09\/06\/2013 14:22:46 :::<\/span>
\n                                                                            2<\/span><\/p>\n
    17th               September,                     1986          in          Rent             Act              Suit                No.                              1756\/1985<\/p>\n
    whereby                  the             Respondent-landlord’s                                     suit                  for                     possession                   of<\/p>\n
    the        suit          premises            and           for              recovery                    of           rent             of              Rs.                  170\/-\n<\/p>\n
    for                the          period             from               1-12-1982                    to              30-9-1985                     is                     allowed.\n<\/p>\n
    Although                 the            suit                   for                 possession                  was                    filed                   by             the<\/p>\n
    Respondent-landlord                                 on                different                      grounds,                     however,                                   the<\/p>\n
    decree              confirmed                  by                the             two         Courts                below                    is                on             the<\/p>\n
    ground                    of        arrears               of           rent              within                    the           meaning                    of           Section<\/p>\n
    12(3)(a)                 of                 the          Bombay                   Rents,                Hotel            and               Lodging                        House<\/p>\n
    Rates Control Act, 1947 (hereinafter referred to as “the<\/p>\n
    Act”) only.\n<\/p>\n
    2.                The brief facts for considering the controversy in<\/p>\n
    the               present                   petition            are              that:                       the         suit                     property                    is<\/p>\n
    situated                 in      CTS              No.                      427\/A\/1                 at          Somwar                  Peth,                Pune-11          on<\/p>\n
    the               Ground               Floor             consisting                of          one             room              of                   two                 khans<\/p>\n
    admeasuring                10          feet               X                 10               feet.                              The                   plaintiff-respondent<\/p>\n
    Murlidhar            Kudale            is           the              owner               of              the             suit              premises.                        The<\/p>\n
    Petitioner-tenant                was                in                possession                          of                the                  said                   premises<\/p>\n
    on           monthly                 rent                 of          Rs.                    5\/-          plus           education                          cess            and<\/p>\n
    other                 municipal                taxes             etc.                          The                 tenancy                 starts                on         first<\/p>\n
    day           of         each       month            and             ends           at         the             end          of         same             month                 as<\/p>\n
    per               British                calender.                          It          is         the              case          of             the                    landlord<\/p>\n
    that                the          tenant             was              in            arrears                   from            1-12-1982                       for          which<\/p>\n
    reason                   the                 landlord                issued                  Demand                  Notice                on                       23-8-1985<\/p>\n
    calling               upon          the             tenant             to           pay              arrears               of          rent              for                 the<\/p>\n
    period                    from           1-12-1982                    to            30-9-1985,                       total              amount                     of        Rs.\n<\/p>\n
                                                                                                            ::: Downloaded on – 09\/06\/2013 14:22:46 :::<\/span>
\n                                                                               3<\/span><\/p>\n
    170\/-              at               the             rate          of          Rs.               5\/-      per          month.                    Since              the<\/p>\n
    tenant                  failed                   to          offer             the          said          amount              as        demanded                    in<\/p>\n
    the                 suit                   notice             or          to             file          standard                     rent                  application<\/p>\n
    disputing               the               amount               mentioned                        in            the            suit            notice             within<\/p>\n
    one                     month              from            service                  of          the            said          notice,            the           landlord<\/p>\n
    instituted                     suit                    for             possession                    against          the                   tenant                  on<\/p>\n
    different                  grounds                     including                         arrears                       of               rent.                     The<\/p>\n
    plaintiff                      as            well             as               defendants                 produced                  oral                      evidence<\/p>\n
    as          well              as            documentary                        evidence.                              The            plaintiff                produced<\/p>\n
    the                 office                copy          of              the           notice             dated              23-8-1985            which            was<\/p>\n
    sent<\/p>\n
    Plaintiff
\n                        by<\/p>\n
                               also<\/p>\n
                                               the         plaintiff<\/p>\n
                                                      produced
\n                                                                                   to<\/p>\n
                                                                                         postal
\n                                                                                                the          defendant<\/p>\n
                                                                                                                    acknowledgment
\n                                                                                                                                           (Exhibit                   26).\n<\/p>\n
                                                                                                                                                              evidencing<\/p>\n
    service                       of           the          said              notice                (Exhibit              27);                     counter            foils<\/p>\n
    of            the                  rent           receipts                     issued                          by             the              plaintiff            to<\/p>\n
    defendant-tenant                                 and                    other                           tenants                    (Exhibit                       23).\n<\/p>\n
    Defendant                            produced                 ration                 card               (Exhibit              45)             and             coupons<\/p>\n
    of        money             order            sent            by           him              from           time          to          time         (Exhibit           30<\/p>\n
    to             Exhibit                     40).                   Defendant                also          produced             copy                  of             the<\/p>\n
    letter         dated                8-7-1984                 (exhibit                42)              which            was             sent              by       one<\/p>\n
    Mahadu              Babu              Kadam;                       rent              receipt            for           the           month           of         August<\/p>\n
    1963 (Exhibit 43) and Receipt No. 33 dated 11-7-1982<\/p>\n
    for Rs. 10\/- (Exhibit 44).\n<\/p>\n
    3.                 According to plaintiff, he received rent in respect<\/p>\n
    of          suit           house             only             upto                  30-11-1982                 and           whenever                 rent        was<\/p>\n
    offered,                   receipts                     were             duly              issued          to          the           tenant.                       As<\/p>\n
    aforesaid,                     on           service                of           Demand                  Notice              on         the            tenant        as<\/p>\n
                                                                                                            ::: Downloaded on – 09\/06\/2013 14:22:46 :::<\/span>
\n                                                                            4<\/span><\/p>\n
    the              outstanding                 rent               was           not             offered           within             one                      month,<\/p>\n
    landlord            instituted               suit                for            possession.                             The                defence               of<\/p>\n
    the          tenant               was                    that              since                landlord                  did                  not            issue<\/p>\n
    receipts               inspite                      of           payment               made             towards             rent           paid                 by<\/p>\n
    him,        he         started               sending              the            rent            of         the             suit           premises             by<\/p>\n
    money                order         from             time           to          time.                  The         first            of          such         money<\/p>\n
    order               was          sent         on           13-12-1983                 (Exhibit            30)         for          a           sum               of<\/p>\n
    Rs.                       10\/-           and             the           last         is          dated           31-12-1985                 (Exhibit             31)<\/p>\n
    for           Rs.                       120\/-.                  The           tenant          has         produced                      money                 order<\/p>\n
    coupons          (Exhibit               30          to            40)            to            buttress           his           stand                that       he<\/p>\n
    was              always<\/p>\n
                                       ready<\/p>\n
    rent. The said coupons produced by the tenant were as
\n                                                         and              willing            to         pay         the          amount                         towards<\/p>\n
    follows:\n<\/p>\n
    —————————————————-\n<\/p>\n
    Date                   Rent period                                              Exhibit No.                                     Amount
\n                           mentioned in
\n                           the MO.\n<\/p>\n
    —————————————————-\n<\/p>\n
    13-12-83 December 1983                                                                         30                                       10\/-\n<\/p>\n
    22-12-83                         __                                                            32                                       10\/-\n\n\n\n\n\n    17-1-84 December 1983                                                                          40                                       20\/-\n                   to January 1984\n\n    21-1-84                          __                                                            33                                       20\/-\n\n\n\n\n\n    16-2-84 December 1983\n                   to February 1984                                                                39                                       30\/-\n\n    23-2-84                            __                                                          35                                       30\/-\n\n    23-4-84 December 1983\n                   to April 1984                                                                   36                                       50\/-\n\n    18-7-84                            __                                                          34                                       80\/-\n\n\n\n\n                                                                                                     ::: Downloaded on - 09\/06\/2013 14:22:46 :::<\/span>\n                                                                         5<\/span>\n\n\n\n\n<\/pre>\n
      —————————————————-
\n      Date                   Rent period                                            Exhibit No.                                     Amount<\/p>\n
                             mentioned in
\n                             the MO.\n<\/p>\n
      —————————————————-<\/p>\n
\n\n\n\n\n                                                                                                      \n    17-7-84 December 1983\n                           to July 1984                                                          37                                   70\/-\n\n    27-12-84 December 1983\n                   to December 1985                                                              38                                 120\/-\n\n\n\n\n                                                                                                     \n    31-12-84                        --                                                           31                                 120\/-\n<\/pre>\n
    —————————————————–\n<\/p>\n
    4.              Relying on the above said money orders, the tenant<\/p>\n
    asserts                that         he        was             always               ready               and          willing           to          pay      the<\/p>\n
    rent<\/p>\n
    cause
\n                    in<\/p>\n
                     of<\/p>\n
                                      respect<\/p>\n
                                       action      had
\n                                                       of         suit<\/p>\n
                                                                  arisen
\n                                                                                  premises<\/p>\n
                                                                                    so          as
\n                                                                                                       for<\/p>\n
                                                                                                           to
\n                                                                                                                   which<\/p>\n
                                                                                                                    invoke
\n                                                                                                                                           reason<\/p>\n
                                                                                                                                           ground
\n                                                                                                                                                               no<\/p>\n
                                                                                                                                                                of<\/p>\n
    arrears                of          rent.                 Besides,                  tenant              has           asserted              that            he<\/p>\n
    had              not            received       copy             of             the           Demand                 Notice        Exhibit                  26,<\/p>\n
    whereas                     he           received             blank                envelope                  (Exhibit           40)                     (which<\/p>\n
    did           not                 mention          the        name             of           the        sender)           and                that           the<\/p>\n
    said                    envelope              instead                   contained                  a            letter           dated              8-7-1984<\/p>\n
    sent by one Mahadu Babu Kadam (Exhibit 42) for which<\/p>\n
    reason also the suit cannot proceed against the tenant.\n<\/p>\n
    5.              The trial Court as well as the Appellate Court<\/p>\n
    addressed                  the               plea         taken               by          both              sides        with          regard               to<\/p>\n
    ground                     of            arrears               of                         rent                and              after               elaborately<\/p>\n
    analysing                   the                relevant                 documentary                     and                    oral                  evidence<\/p>\n
    have                          concurrently               found                     that                the               plaintiff-landlord                has<\/p>\n
    established                 the              fact        that             no          rent             was          offered                  by            the<\/p>\n
    tenant                in                 respect         of             the          suit          premises              for          the               period<\/p>\n
                                                                                                      ::: Downloaded on – 09\/06\/2013 14:22:46 :::<\/span>
\n                                                                                6<\/span><\/p>\n
    from             “1-12-1982”                            and                that            the         suit                   notice                  was               duly<\/p>\n
    served                      on           the             tenant                inspite            of               which             the            tenant             failed<\/p>\n
    and              neglected                   to          pay             the          amount              as            demanded                 in          the         suit<\/p>\n
    notice         within                   one               month                  nor              raised                any                dispute                regarding<\/p>\n
    standard rent. As a consequence of that finding decree<\/p>\n
    under Section 12(3)(a) of the Act was inevitable.\n<\/p>\n
    6.             In so far as the defence of the tenant is<\/p>\n
    concerned,                         both             the               Courts               below               have                 rejected               the          same<\/p>\n
    as             not                       substantiated.                           The                              Courts                    below                      have<\/p>\n
    concurrently<\/p>\n
    demand         notice
\n                                        found<\/p>\n
                                            on
\n                                               ig       the
\n                                                                       that<\/p>\n
                                                                         tenant
\n                                                                                         presumption<\/p>\n
                                                                                              sent          by
\n                                                                                                                       of<\/p>\n
                                                                                                                            the
\n                                                                                                                                    service<\/p>\n
                                                                                                                                          landlord
\n                                                                                                                                                          of<\/p>\n
                                                                                                                                                                 has
\n                                                                                                                                                                              the<\/p>\n
                                                                                                                                                                              not<\/p>\n
    been           rebutted                        by                  the          tenant.                 The             Courts                   below                  have<\/p>\n
    found                       as           of             fact             that              envelope                 containing                   demand                notice<\/p>\n
    was               duly                  received                by             the           tenant,               was              indisputable.                        The<\/p>\n
    Courts            below                        have                   found               that      the                   tenant                  has                  raised<\/p>\n
    frivolous                        contention                    that             the              envelope                did               not                        contain<\/p>\n
    the               Demand                          Notice                  but                     some                   other                 letter                 without<\/p>\n
    substantiating                     the                    said            fact.                   The              Courts                    below                      have<\/p>\n
    discarded                    the                    said            stand             of          the          tenant                       regarding                     the<\/p>\n
    non-service                        of             demand               notice               and           have                held           that            even          if<\/p>\n
    the       envelope                 did            not              mention                the           name              and           address                  of       the<\/p>\n
    sender,          even               then                 the              acknowledgment                           which               has             been             duly<\/p>\n
    signed           by                 the                 tenant                 by          way                of              acceptance                    of            the<\/p>\n
    envelope                    would                   indicate                        the          name              of         the                sender,                  for<\/p>\n
    which                  it          can             be           inferred              that          the             tenant             had                       knowledge<\/p>\n
    about            the                name                      of         the         sender.                  Inspite                  of               that              the<\/p>\n
                                                                                                            ::: Downloaded on – 09\/06\/2013 14:22:46 :::<\/span>
\n                                                                                      7<\/span><\/p>\n
    tenant             did                 not                      bother            to            make             any                enquiry                  with                the<\/p>\n
    landlord                  nor                       made                   any             complaint                   to           the        landlord                        about<\/p>\n
    the             purported                  letter                   dated                  8-7-1984                    received                   in             the            said<\/p>\n
    envelope.                          The                         Courts             below                have            also          noted                  that                 the<\/p>\n
    tenant              made                     no                     enquiries               with            the                said                 Mahadu                     Babu<\/p>\n
    Kadam,                        whose                     address                  was                 available                 in           the           stated               letter<\/p>\n
    to              clarify                    the          doubt,              if         any.                      The           Courts                   below                   have<\/p>\n
    also            found             that              the                landlord                      had            good                  cause          for                refusing<\/p>\n
    to                accept           the              amount                   sent               by            money                 orders.                  Besides,              it<\/p>\n
    has                    been                found                    that             money                   orders                 pertained               to              different<\/p>\n
    periods<\/p>\n
    from
\n                            but<\/p>\n
                            “1-12-1982
\n                                                 ig  did<\/p>\n
                                                            till
\n                                                                    not<\/p>\n
                                                                          December
\n                                                                                     cover               the<\/p>\n
                                                                                                          1983”\n<\/p>\n
                                                                                                                      entire<\/p>\n
                                                                                                                             at
\n                                                                                                                                        arrears<\/p>\n
                                                                                                                                          the           agreed
\n                                                                                                                                                                 of                 rent<\/p>\n
                                                                                                                                                                                    rent<\/p>\n
    of Rs.5\/- per month towards monthly rent excluding<\/p>\n
    permitted increases.\n<\/p><\/blockquote>\n
    7.                Taking over all view of the matter both the Courts<\/p>\n
    below                   have               concluded                    that               in          the             fact              situation          of                   the<\/p>\n
    present                 case,                       decree                 for             possession                  on           the                 ground                    of<\/p>\n
    arrears                   of               rent                within                the              meaning                  of           Section                         12(3)(a)<\/p>\n
    of        the          Act         was                  inevitable.                             In          so           far          as          finding              of        fact<\/p>\n
    recorded                     by            the             two             Courts                    below             on           the           factual                     matrix<\/p>\n
    is               concerned,                         the              same              is             unexceptionable.                                   The                    said<\/p>\n
    finding           of           fact               cannot                be             said                 to           be           manifestly                 wrong            or<\/p>\n
    perverse.                             It           is           not              open                for          this          Court              in        exercise             of<\/p>\n
    writ                jurisdiction                               to          take             a              different            view              even            if               it<\/p>\n
    was                possible                to            hold              that            another                view              on        the         basis                   of<\/p>\n
    same evidence could be taken. That is not the scope to<\/p>\n
                                                                                                                     ::: Downloaded on – 09\/06\/2013 14:22:46 :::<\/span>
\n                                                                                   8<\/span><\/p>\n
    exercise writ jurisdiction.\n<\/p>\n
    8.                To get over this position, the argument of the<\/p>\n
    Petitioner,                       is                 that,                        the           landlord                    having                        refused                     to<\/p>\n
    accept             the                   money                     orders            sent             from             time                  to                time                 was<\/p>\n
    precluded                    from                   invoking                        the                    ground                       of                default                   and<\/p>\n
    arrears                      of           rent             against                 the            tenant                    who              was                          continually<\/p>\n
    remitting                        the           amount                  towards                 rent             by                money              orders                        from<\/p>\n
    time              to                   time.                           It         was          argued                 that         refusal                     to                accept<\/p>\n
    money                   orders             sent            by               the          tenant             from                  time          to         time                     will<\/p>\n
    have<\/p>\n
    landlord
\n                to              be<\/p>\n
                                       and<\/p>\n
                                             treated             as<\/p>\n
                                                         considering
\n                                                                                due<\/p>\n
                                                                                         the
\n                                                                                               acceptance<\/p>\n
                                                                                                           aggregate
\n                                                                                                                                 of          that<\/p>\n
                                                                                                                                             amount
\n                                                                                                                                                            rent              by         the<\/p>\n
                                                                                                                                                                                    remitted<\/p>\n
    by         the              tenant             on            different                   dates,                 the               same            is            almost              Rs.\n<\/p>\n
    560\/-             which                       far               exceeds                  the         amount                        demanded                         by               the<\/p>\n
    landlord                     towards                         outstanding                       rent              in           the                      suit                       notice<\/p>\n
    which             is                   only         Rs.                 170\/-.                  If         it          is         so,        there                  was              no<\/p>\n
    cause                  of                 action             to             proceed             against                 the             tenant                  on                   the<\/p>\n
    ground                       of           arrears                 of              rent           under                  Section                 12(3)(a)                  of         the<\/p>\n
    Act.               It             was          also           argued                that              even              if          the           Court              may            find<\/p>\n
    that               the                 amount              towards                  monthly                     rent              was             payable                 by         the<\/p>\n
    tenant                      even              then           no               decree                 for              possession                  can               be           passed<\/p>\n
    in          the                   fact               situation                     of          the                present                       case                 as              the<\/p>\n
    landlord                      has              refused                 to           accept                 the               money                orders                 sent        by<\/p>\n
    the               tenant.                           For,           the             fact           of             remitting                   amount                 by           money<\/p>\n
    order                   from                        time           to             time            evidences                       factum             of                     readiness<\/p>\n
    and                    willingness                   of            the              tenant                 and,               therefore,                  in             such         a<\/p>\n
    case, the question of proceeding under Section 12(3)(a)<\/p>\n
                                                                                                                 ::: Downloaded on – 09\/06\/2013 14:22:46 :::<\/span>
\n                                                                                 9<\/span><\/p>\n
    of the Act would not arise.\n<\/p>\n
    9.                To buttress the above argument, Counsel for the<\/p>\n
    Petitioner                 has                       relied                     on           the           latest          decision                       of              the<\/p>\n
    Division             Bench                      reported                    in                       2008                   (I)               Bombay                   Cases<\/p>\n
    Reporter                 687                    in          the       case             of          Sitaram             Maruti                     Nagpure                  &<\/p>\n
    anr.               Vs.                     Fakirchand                 Purushottam                     Dhase                &           ors.                    which       is<\/p>\n
    the          opinion                      recorded                    by                  the         Division                     Bench                   on             the<\/p>\n
    reference                in                 the                   present                      petition                    which                   was                  heard<\/p>\n
    alongwith                        Writ                 Petition               No.                           935\/1994.                                       Significantly,<\/p>\n
    the<\/p>\n
    withdrawn.\n<\/p>\n
                      said<\/p>\n
                                    Be<\/p>\n
                                              Writ<\/p>\n
                                                    that
\n                                                             Petition<\/p>\n
                                                                   as           it
\n                                                                                     No.<\/p>\n
\n\n                                                                                              may,\n                                                                                                           935\/1994\n\n                                                                                                               in         the\n                                                                                                                                      has\n\n                                                                                                                                           said\n                                                                                                                                                  lateron\n\n                                                                                                                                                         Writ\n                                                                                                                                                                            been\n\n                                                                                                                                                                         Petition\n                                              \n    No.                       935\/1994,                   this          Court              had            referred              the             matter         to              a\n\n    larger        Bench                  in          view                of           the              conflict                of           decisions               in        the\n\n    case                of                Suka                   Ishram                            Chaudhari                    V\/s.                           Ranchhoddas\n      \n\n\n    Manakchand                            Shet             Gujarathi                     74            B.L.R.                          220            (also              reported\n   \n\n\n\n    in           AIR          1972             Bombay                 273)            and           80          Bombay                Law          Reporter                  646\n\n    in          the               case               of                 the         Abdul                 Gani                  Dinalli                Momin                 v\/s.\n\n    Mohamed              Yusuf                 Mohamed                        Isak              which               are               decisions               of           Single\n\n\n\n\n\n    Judge         of              this           Court.                              The            Division                   Bench              while              answering\n\n    the               reference                          has            upheld                the          opinion                  recorded             in                 Suka\n\n    Ishram                   Chaudhari's                              case,              which            the             later                    decision                    in\n\n\n\n\n\n    Abdul              Gani's                  case                   (supra)had                       held               is               impliedly                 overruled\n\n    in           view                     of         the           Supreme                 Court           decision.                              The                    Division\n\n    Bench               of                    our          High           Court               in         the        case              of         Sitaram                   Maruti\n\n    Nagpure                    (supra)                            applying                 the           observations                      of         the                   Apex\n\n    Court        in          the          case             of           Priya            Ghosh                &         ors.                    Vs.                  Bajranglal\n\n\n\n\n                                                                                                               ::: Downloaded on - 09\/06\/2013 14:22:46 :::<\/span>\n                                                                             10<\/span>\n\n\n\n\n    Singhania                 1993                   Supp.(1)            S.C.C.                           24       has           held              that                the\n\n    view              taken               by                 Bhole,              J        in         Suka          Ishram                  Chaudhari                   Vs.\n\n\n\n\n                                                                                                                                                 \n    Ranchhoddas                      Manakchand                                  Shet                Gujarathi                 was          the                     correct\n\n\n\n\n                                                                                                          \n    view                whereas            the             view             taken              by              Jahagirdar,             J      in                    Adbdul\n\n    Gani              Dinalli              Momin                       v\/s.                   Mohamed               Yusuf                  Mohamed                    Isak\n\n    reported                  in      LXXXIV                      BLR                646             is          overruled.                       The           reference\n\n\n\n\n                                                                                                         \n    was               made            in                   terms            of           order            passed          in               Sitaram                  Maruti\n\n    Nagpure's                 case                  reported                  in                    2001                 (III)              Bombay                    Case\n\n<\/pre>\n
    Reporter 396 which came to be answered on the above<\/p>\n
    terms.\n<\/p>\n
    10.<\/p>\n
                     Besides relying on the above said decisions,<\/p>\n
    reliance                  is                    also          placed                 on           the          unreported               decision                    of<\/p>\n
    our               Court               in             Writ         Petition             No.                    3227\/1987                   decided                   on<\/p>\n
    June                8,         2000             in          the         case               of         Madhukar                Govind            Vaidya             v\/s.\n<\/p>\n
    Narayan                  H.                          Surve         as            well            as          reported            decision           in             the<\/p>\n
    case of Kamlabai B. Kabade v\/s. Laxmibai Janardan<\/p>\n
    Jagtap-AIR 2000 Bombay 490.\n<\/p>\n
    11.              Having considered the argument canvassed by the<\/p>\n
    Counsel             for          the                  Petitioner                 I               would               straightway                 advert              to<\/p>\n
    the                exposition              of          the         Division                     Bench           of           our        High                     Court<\/p>\n
    in         the       case             of             Sitaram              Maruti                 Nagpure               (supra)            It             will       be<\/p>\n
    appropriate to reproduce Paragraph 14 to 17 of this<\/p>\n
    decision:\n<\/p>\n
                       “14. After having heard the learned Counsel for
\n                both sides in the above and after perusal of all
\n                the aforesaid judgments, it is very clear that<\/p>\n
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\n                                           11<\/span><\/p>\n
     section 12 makes it abundantly clear that if tenant
\n     pays or ready or willing to pay standard rent or
\n     permitted increases, then no ejectment will be<\/p>\n
     made. To put it in other words, the landlord will
\n     be entitled to recover possession of the premises
\n     only if the tenant fails to pay the standard rent<\/p>\n
     and permitted increases. In fact the said section
\n     12 clearly contemplates in a negative manner that
\n     no suit for recovery of possession shall be
\n     instituted by the landlord unless the landlord
\n     satisfies that he tenant was not ready and willing<\/p>\n
     to tender and had not paid the standard rent and
\n     permitted increases for over a period of six months
\n     and in the event, the tenant was not ready and
\n     willing to tender standard rent and permitted
\n     increases, and that he has been in arrears of over
\n     a period of six months, then the landlord has to<\/p>\n
     issue notice terminating the tenancy and demand the
\n     standard rent and permitted increases within a
\n     month after service of the notice. Even section<\/p>\n
     12(3)(a) makes it clear that where the rent is
\n     payable by the month and there is no dispute
\n     regarding the amount of standard rent or permitted
\n     increases, if such rent or increases are in arrears<\/p>\n
     for a period of six months or more and the tenant
\n     neglects to make payment thereof until the
\n     expiration of period of one month after the notice
\n     as referred in sub-section (2), the Court may pass
\n     a decree for eviction in any such suit for recovery<\/p>\n
     of possession. By way of explanation, in the said
\n     section, it is provided that in any case where
\n     there is dispute as to the amount of standard rent<\/p>\n
     or permitted increases recoverable under this Act
\n     the tenant shall be deemed to be ready and willing
\n     to pay such amount if, before the expiry of the
\n     period of one month after notice referred to in
\n     sub-section (2), he makes an application to the<\/p>\n
     Court under sub section (3) of Section 11 and
\n     thereafter pays or tenders the amount of rent or
\n     permitted increases specified in the order made by
\n     the Court. To put it in other words, the
\n     explanation is with regard tot he procedure,when
\n     there is a dispute with regard to the standard<\/p>\n
     rent. Where there is no dispute with regard to the
\n     standard rent, the tenant has to show that he was
\n     always ready and willing to tender rent and he must
\n     not be in arrears for more than six months and in
\n     the event, the tenant was in arrears for more than
\n     six months, the landlord has the right to serve
\n     notice of termination and demand rent and permitted
\n     increases, and if the tenant does not pay the same
\n     within one month, in such a case, the landlord will
\n     be entitled for a decree of eviction.\n<\/p><\/blockquote>\n
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\n                                                                   12<\/span><\/p>\n
                        15.                   In           view      of     the       clear      explanation           of           section
\n                12,            if         the        tenant       raises       a       dispute          with         regard                to
\n                the               standard            rent       and         permitted          increases,             he                 has<\/p>\n
                to            approach            the       Court        within         a      period          of         one        month
\n                from             the                notice      of       termination         and               make                 deposit
\n                within             a       period        of     one       month         in      the        Court.               On        the<\/p>\n
                contrary,                if        there       is       no         dispute,         the         tenant                  must
\n                show                 his         readiness         and        willingness            to        pay          rent         and
\n                permitted                    increases             and                  must             keep                     regularly
\n                tendering             the             same,           even       by       money         order              and             no
\n                landlord           can            take         advantage,             neither            by            refusing            to<\/p>\n
                accept            the              same       nor      say       that      the       tenant              had              not
\n                paid            the          rent        or      tendered         the       rent.                This         fact        has
\n                been            rightly                 pointed       out      by        the              Hon’ble                 Supreme
\n                Court         in            the          case         of Priya Ghosh                       &           ors.               vs.
\n                Bajranglal                 Singhania          and<\/a>        anr.               and         it        is        held         that
\n                the       landlord             will        be        easily         able        to          trap          the         tenant<\/p>\n
                by            refusing           to       accept       and        turn       round          and         to       file       a
\n                suit            against            the       tenant.               That        is        why,           the        Hon’ble
\n                Supreme           Court   ig       has        clearly         observed           that          the          law           has
\n                to          be             construed              in     a      fair      manner         and        it           is       not
\n                intended               to              trap     the       tenant        into       a              situation                so
\n                that            he                  landlord               can               evict                the                tenant.<\/p><\/blockquote>\n
\n                                        \n                       16.                    Under      the             aforesaid              facts         and       circumstances                   of\n                the         case,               we    are            clearly      of             the         view       that    the                  view\n                taken         by               Bhole,     J           is      correct             and         the      view     taken                   by\n                Jahagirdar,                   J           is           overruled               and          the      same       does                   not\n                lay                           down                           the                               correct                                law.\n      \n\n\n                        17.          In       the                      light    of the above, both                                   the       above\n                petitions          may           be                          placed     before        the                                 appropriate\n   \n\n\n\n                bench       for     being      heard                      on      merits,      since   we                              have     only\n                answered        the      question                      of       law       which      was                             referred      to\n                us.\"\n\n\n\n\n\n<\/pre>\n
    12.           Indeed, the above decision expounds that if there<\/p>\n
    is              no               dispute            regarding              the          standard             rent,         the                  tenant<\/p>\n
    must                 show           his          readiness          and               willingness            to       pay           rent          and<\/p>\n
    permitted                   increases                      and          must               keep          regularly                           tendering<\/p>\n
    the            same              even        by        money            order           and       no          landlord           can              take<\/p>\n
    advantage            neither          by           refusing           to              accept           the           same              nor        say<\/p>\n
    that             the       tenant          had       not         paid            or       tendered            the      rent.                       At<\/p>\n
    the               end,         the         Division           Bench               has          approved              the          opinion           of<\/p>\n
                                                                                             ::: Downloaded on – 09\/06\/2013 14:22:46 :::<\/span>
\n                                                                                         13<\/span><\/p>\n
    the          Single                       Judge                     in                             Suka                    Ishram                     Chaudhary’s                      case<\/p>\n
    (supra).                           We                    shall,                 therefore,                    have             to         go           back             to               the<\/p>\n
    opinion                   of              Bhole,                J              in             the             case             of          Suka                  Ishram             (supra).\n<\/p><\/blockquote>\n
    Notably,           in             that            case               the                 Court                went              on             to           hold             that        the<\/p>\n
    tenant             was                     ready                         and             willing              to          pay        the             rent                in              the<\/p>\n
    facts      of            the              case            before                     it.                      It          is         held              that             the           tenant<\/p>\n
    was                     not              in           arrears                       of             rent              voluntarily                     for           the              relevant<\/p>\n
    period          and                remained                     in                  arrears                   because                of              the               conduct            of<\/p>\n
    the           landlord                         for          a            period               of          six             months               or          more.                        The<\/p>\n
    opinion                  of              Bhole,             J             was                 in          the             context               of           the             fact       that<\/p>\n
    tenant<\/p>\n
    period”\n<\/p>\n
                            had<\/p>\n
                            by<\/p>\n
                                                  money
\n                                                       sent                  amount<\/p>\n
                                                                               order
\n                                                                                                    towards<\/p>\n
                                                                                                   but            the
\n                                                                                                                              rent            for<\/p>\n
                                                                                                                                        landlord
\n                                                                                                                                                               the<\/p>\n
                                                                                                                                                                      refused
\n                                                                                                                                                                                     “relevant<\/p>\n
                                                                                                                                                                                              to<\/p>\n
    accept                  the                    same.                           The              question                  was             whether                the                  tenant<\/p>\n
    was        still             in           arrears                   of              rent?                           In           that               context             the           Court<\/p>\n
    found           that               if           the                 landlord                       had               accepted                   the              money                order,<\/p>\n
    the                 tenant                 certainly                     would                  not                have              been              in              arrears           for<\/p>\n
    a          period                        of        over              six             months               and             there           could                    not                 have<\/p>\n
    been                any                 cause            of               action                for                issuance               of          demand                          notice<\/p>\n
    to           the                        tenant.                     It          is            held             that            because                       the                    landlord<\/p>\n
    refused                       to              accept                 the                 rent             for              the             relevant                    period,           the<\/p>\n
    tenant             was                     said                     to                   be         in             arrears                 for                   the                relevant<\/p>\n
    period.                      In            fact,              no                cause                    of              action            arose                 having              regard<\/p>\n
    to           the                        fact         that                the             date            of          demand                notice                was                 within<\/p>\n
    six             months                         from             the             date               of          refusal              of          money              order                 by<\/p>\n
    the        landlord.                               In                other                    words,                  this               observation                    has            been<\/p>\n
    made               in                   the                 context                  of            the         fact                  established                        by               the<\/p>\n
    tenant          that               he             had                    sent              money                     order                which                  indicated              that<\/p>\n
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\n                                                                            14<\/span><\/p>\n
    lumpsum                    amount                          remitted               was              for              period           beginning                         from<\/p>\n
    1-11-1964                  to                  1-5-1965               but             the          same              was          refused             by                the<\/p>\n
    landlord,                whereas                  a              Demand                           Notice                    was                issued                  soon<\/p>\n
    thereafter               on               1-6-1965.                                   In         other                    words,                    the               Court<\/p>\n
    proceeded                     on            the            footing                that             having                 refused              to                    accept<\/p>\n
    the            money                     order                   covering                   the          rent          for                 the                     “relevant<\/p>\n
    period”         from                1-11-1964                    to               1-5-1965,                     the            notice                 issued             on<\/p>\n
    1-6-1965                   was           without                accrual                of              cause           of           action.                            For,<\/p>\n
    the            tenant              was            neither             in          arrears                nor           could              be         said                 to<\/p>\n
    be             unwilling                 to           pay          the                rent             for           the          “relevant                         period”\n<\/p><\/blockquote>\n
    due<\/p>\n
    taken
\n                   to<\/p>\n
                   in             the
\n                                     the
\n                                             ig   conduct<\/p>\n
                                                   unreported
\n                                                                     of             the<\/p>\n
                                                                                    decision
\n                                                                                                 landlord.\n<\/p>\n
                                                                                                              pressed
\n                                                                                                                                Similar<\/p>\n
                                                                                                                                      into
\n                                                                                                                                                          view<\/p>\n
                                                                                                                                                         service
\n                                                                                                                                                                              is<\/p>\n
                                                                                                                                                                              in<\/p>\n
    the             case                     of           Madhukar                   G.                      Vaidya(supra),                   following                     the<\/p>\n
    exposition                 in                  Suka             Ishram                Choudhary’s                    case.                           Even                 in<\/p>\n
    that                case,            just             before               the              issuance                 of           demand                   notice         in<\/p>\n
    June                 1980               the           tenant               had               offered                rent            for             the            “relevant<\/p>\n
    period”              on                 April                22,           1980,             which              was           refused                     by            the<\/p>\n
    landlord.                     Once              again             the                 Court               proceeded                  on              the            premise<\/p>\n
    that                 intentional                  refusal              by                  the            landlord                of             money                order<\/p>\n
    remitting            rent               for            the                 “relevant                     period”                would                     entail          in<\/p>\n
    deemed               acceptance                       of                rent                      for                 that                period                    thereby<\/p>\n
    depriving                  the                    landlord             of             resorting                to           action                    on                the<\/p>\n
    ground              of             arrears                 of               rent.                         Even                 in              the                 reported<\/p>\n
    decision                 in                   Kamlabai             B.                       Kabade                  (supra)          it         is                  noticed<\/p>\n
    that         money              order           sent            by               the             tenant              towards               rent             was          for<\/p>\n
    period                   from                     1-1-1973                 to              29-2-1976,                 whereas              the                      demand<\/p>\n
    notice               was                  issued             on             March                 1,         1976-            shortly               after               the<\/p>\n
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\n                                                                                    15<\/span><\/p>\n
    money             order              was              refused                  by             the              landlord.                              Therefore,           the<\/p>\n
    Court             took                the               view                    that                      the                landlord                    cannot            be<\/p>\n
    permitted                 to                 take                    advantage                of          his            own                    wrong                   having<\/p>\n
    refused                with                 oblique                   motive                       to                accept                     the                    amount<\/p>\n
    remitted                 by                  the                  tenant               towards                monthly                 rent                for              the<\/p>\n
    “relevant                      period”.                          Even                  in           this             decision,                   reliance                   is<\/p>\n
    placed on the exposition in the case of Suka Ishram<\/p>\n
    Chaudhary (supra).\n<\/p>\n
    13.          As aforesaid, the observation of the Division Bench<\/p>\n
    of<\/p>\n
    will
\n                     our<\/p>\n
                     apply
\n                                          High<\/p>\n
                                           to
\n                                                ig        Court<\/p>\n
                                                            the           fact
\n                                                                               which             is<\/p>\n
                                                                                         situation
\n                                                                                                              reproduced<\/p>\n
                                                                                                              of         a                 case
\n                                                                                                                                                    herein<\/p>\n
                                                                                                                                                              such
\n                                                                                                                                                                           before,<\/p>\n
                                                                                                                                                                                as<\/p>\n
    obtaining                in                Suka                Ishram                              Chaudhary                          and                other            two<\/p>\n
    decisions                      referred               to             above.                         The               question                  is,                    whether<\/p>\n
    the              view                 noted                 in            the          case          of         Suka                       Ishram                Chaudhary<\/p>\n
    (supra)                   which              has            been                approved                  by              the              Division                    Bench,<\/p>\n
    is         applicable                 to              the             fact                 situation                 of               the             present            case.\n<\/p>\n
    In         the           present                 case,               as              has                been               concurrently                   found,           the<\/p>\n
    last         of                the               money                     order            sent         by         the                tenant               was            on<\/p>\n
    31-12-1984                     (Exhibit               31)            in         the           sum              of           Rs.                  120\/-                  which<\/p>\n
    covered                arrears                   of              rent                  only                   for                    the              period             from<\/p>\n
    30-12-1983                     to                December                  1984.                        Morever,                it         is             not              the<\/p>\n
    case               of                      the         Petitioner                   that           the          refusal                of         this                  money<\/p>\n
    order                  was                  within            the              proximity                 of          six             months            from                the<\/p>\n
    date              of                 the         demand               notice.                      The          fact            remains                   that             no<\/p>\n
    rent               has          been              offered                 by         the            tenant             at             any         time           for       the<\/p>\n
    period           from               1-12-1982                 till              December                      1983               and             in         any           case<\/p>\n
                                                                                                              ::: Downloaded on – 09\/06\/2013 14:22:46 :::<\/span>
\n                                                                            16<\/span><\/p>\n
    for             December                  1984            till          August               1985,               whereas                the                     Demand<\/p>\n
    Notice                covered                that         period.                          The            defence             of             the                 tenant<\/p>\n
    that            he                  used            to       pay             the           rent           regularly            but            no                 receipt<\/p>\n
    was             issued                       has         been           concurrently                  rejected              by                      the             two<\/p>\n
    Courts          below.                        Once               that               finding                       is               held              to              be<\/p>\n
    unexceptionable,                  it                necessarily                     follows                    that                no                rent           has<\/p>\n
    been            offered                      by              the         tenant             for           the          said                  period                from<\/p>\n
    December 1982 till December 1983 and again for the<\/p>\n
    period after December 1984 till August 1985.\n<\/p>\n
    14.<\/p>\n
    tenant,              as<\/p>\n
                  Thus understood, the money orders sent by the<\/p>\n
                                           has               been           rightly             found            by         the                   two                Courts<\/p>\n
    below,               would             be           of       no              avail.                   For,            the          tenant            showed          no<\/p>\n
    willingness                    to             pay            the             outstanding                  arrears              of             rent                  for<\/p>\n
    the             period              from             “December                  1982               till          December                    1983”                  and<\/p>\n
    again             for                   the          period            “from               December               1984                       till               August<\/p>\n
    1985”                without                       any                  cause              whatsoever.                                  It                  necessarily<\/p>\n
    follows                    that              readiness                 and             willingness                     of            the              tenant         to<\/p>\n
    pay            the                “entire                 arrears              of          rent”          as           demanded                       by            the<\/p>\n
    landlord in the demand notice was lacking-rather absent.\n<\/p>\n
    15.           A priori, the exposition in the case of Suka Ishram<\/p>\n
    Chaudhari                 (supra)                  would                 be           of         no        avail                   to                the            fact<\/p>\n
    situation                 of           the          present             case.                      For,           it          is           not            the      case<\/p>\n
    of             the                  tenant            that            just          before             issuance               of           the                  demand<\/p>\n
    notice                    on           23-8-1985                 he            had            offered                  amount                exceeding              Rs.\n<\/p>\n
    170\/-                 to            the             landlord,                that           too            within              the               proximity           of<\/p>\n
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\n                                                                               17<\/span><\/p>\n
    less               than          six       months.                         It            is           only             then          the          argument                     of<\/p>\n
    the            Petitioner                      tenant                     that             the             cause                    of                  action                 for<\/p>\n
    proceeding                       against             him             on                  the               ground              of           arrears                 of        rent<\/p>\n
    had          not           accrued                to           the                   landlord                    having               refused                  to          accept<\/p>\n
    money                     order           just              prior           to                 issuance                of           demand                   notice          may<\/p>\n
    be             available.                               Suffice                it           to             observe             that          in             the               fact<\/p>\n
    situation                  of                  the            present                 case,                the          exposition                           in               the<\/p>\n
    case of Suka Ishram Chaudhary and other cases referred<\/p>\n
    to above will be of no avail.\n<\/p>\n
    16.<\/p>\n
    Petitioner<\/p>\n
                  To get over this position, Counsel for the<\/p>\n
                                submits                         that                      the                        Petitioner                       had                     offered<\/p>\n
    outstanding                     rent           from            time                 to           time             by           money               orders                     and<\/p>\n
    the           aggregate                    amount                         of             all          these                   money                         orders,             if<\/p>\n
    reckoned,                was             Rs.560\/-,                   far                   exceeded                      the               amount                     demanded<\/p>\n
    in            the                 suit         notice.                     It            was            argued              that                  applying                    the<\/p>\n
    principle                   of           deemed                acceptance,                       it              would              mean                that                  the<\/p>\n
    tenant                  had                    already              offered                    the           amount                 to         the                       landlord<\/p>\n
    for            the                    period                  even               posterior                  to         issuance                        of                 demand<\/p>\n
    notice        and             for         that              reason                  also,             it          will              have           to               be       held<\/p>\n
    that               no                  cause           of          action                had           accrued                to                  the                    landlord.\n<\/p>\n
    The                argument              deserves              to              be              stated             to          be           rejected.                           In<\/p>\n
    as        much             as,           the            tenant                  is             extricated                   from            the               rigours          of<\/p>\n
    Section                 12(3)(a)                 only                 if             he          were             to                pay                     the             entire<\/p>\n
    amount             demanded               in            the               suit                 notice              within                one                month            from<\/p>\n
    the           receipt                  thereof.                       It             would             be         a                case                 of                deemed<\/p>\n
    acceptance                       or        payment                   if              the              landlord                 were               to                     unjustly<\/p>\n
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\n                                                                                 18<\/span><\/p>\n
    refuse                  to                  accept            the         money            order               sent            by                   the                   tenant.\n<\/p>\n
    However,                       the                 principle              of         deemed                 acceptance                  so                     as              to<\/p>\n
    extricate                     the                  tenant                        and           disentitle              the                         landlord                    to<\/p>\n
    initiate            action               on             the               ground               of              arrears                 of               rent,             cannot<\/p>\n
    be                 extended              to        a           case            where            the            tenant                fails          to                    comply<\/p>\n
    with                his                     statutory                     obligation                after                   the                      service                   of<\/p>\n
    notice              and                 moreso                 when                 he         is        not          in               a                position               to<\/p>\n
    establish                    that                 he                  had           infact             remitted                the                   amount                    as<\/p>\n
    demanded                           by                  the           landlord             in             the          notice                 shortly                      before<\/p>\n
    the                date                     of         demand               notice             but            unjustly               refused               by                 the<\/p>\n
    landlord<\/p>\n
    before
\n                                  within<\/p>\n
                                 issuance
\n                                                 ig   of
\n                                                             the<\/p>\n
                                                                   such
\n                                                                           proximity<\/p>\n
                                                                                     demand
\n                                                                                                      of           less<\/p>\n
                                                                                                             notice.\n<\/p>\n
                                                                                                                                    than<\/p>\n
                                                                                                                                            Morever,
\n                                                                                                                                                      six<\/p>\n
                                                                                                                                                                         in
\n                                                                                                                                                                              months<\/p>\n
                                                                                                                                                                                  the<\/p>\n
    present                  case                    the                 argument              that             total          amount                          sent               by<\/p>\n
    money              orders               from           time            to           time               by           the              tenant              and              refused<\/p>\n
    by                 the             landlord,             if          taken              together               would                 mean               that                  the<\/p>\n
    tenant                  has             already           paid             amount              i.e.                   Rs.                         560\/-,                   which<\/p>\n
    far                exceeds               the            amount              demanded                   in           the           suit             notice                    and<\/p>\n
    would          cover                 rent          even              for            the             period             far              beyond                  the          date<\/p>\n
    of          suit              notice,             clearly                 overlooks                   the             stand                  taken              by            the<\/p>\n
    defendant                      that                the              money           order               sent          from              time             to                 time<\/p>\n
    were               in                respect                  of               payment              of         arrears                     of                 rent            for<\/p>\n
    specific                  period                       and          the          last          such            offer            was                      for                 rent<\/p>\n
    only               between                       December                      1983          to          December                    1984                  sent               by<\/p>\n
    money                    order                    dated             31-12-1984                 (Exhibit               31).                               In                 other<\/p>\n
    words,                       the                  remittance                   by                      money                   orders                   was                   for<\/p>\n
    overlapping                        period                     as                 the           earlier           money                             orders                   were<\/p>\n
    refused              by                 the             landlord.                         Be           that               as                 it            may,               the<\/p>\n
                                                                                                             ::: Downloaded on – 09\/06\/2013 14:22:46 :::<\/span>
\n                                                                                  19<\/span><\/p>\n
    argument                       of                    deemed               acceptance                   so              as              to          disentitle                      the<\/p>\n
    landlord            to              institute                action                 on               the              ground                      of              arrears           of<\/p>\n
    rent,              could             be            invoked             only          if         it         were              to             be          a         case              of<\/p>\n
    unjust            refusal                by            the              landlord                 to               accept                    the              money               order<\/p>\n
    sent               by           the            tenant             covering                the              amount                 of             rent             for              the<\/p>\n
    relevant                  period                      within                   the           proximity                             of                       six                months<\/p>\n
    before                   the           date            of            issuance              of              the           Demand                    Notice-so                        as<\/p>\n
    to            hold                   that                    cause            of          action             to         proceed                             against                the<\/p>\n
    tenant on the ground of default had not accrued to such<\/p>\n
    a landlord.\n<\/p>\n
    17.<\/p>\n
                  It was also contended that the fact that the tenant<\/p>\n
    was                 remitting                          amount                 by            money                  orders                   repeatedly                          would<\/p>\n
    indicate           that             he             was            always                  ready                 and           willing                   to              pay        the<\/p>\n
    rent        for           which               reason              it          was            not                open              to              pass             decree          for<\/p>\n
    eviction              but                     at                best         decree          for             money                          claim                   of             the<\/p>\n
    landlord                        could                 be             considered.                                 Firstly,                   the                           assumption<\/p>\n
    that                the             tenant             was              ready              and              willing                to              pay              the         entire<\/p>\n
    outstanding                     rent                   is                    unavailable                   in          the             facts                       of              the<\/p>\n
    present                         case                  for              the                reasons                     already                     recorded                    hitherto.\n<\/p>\n
    Morever,                            this              argument                     clearly                 overlooks                        the               mandate               of<\/p>\n
    Section                   12(3)(a)                         of          the          Act,              as           was             applicable                      at              the<\/p>\n
    relevant           time.                            The              Apex                 Court                 while                  construing                       the       said<\/p>\n
    provision                           has                authoritatively                          held                              in                   catena                       of<\/p>\n
    decisions                   that                      if          the          tenant                fails             to          comply                    with                  his<\/p>\n
    obligation                      under                 Section                12(3)(a)                 of           the                 Act              of                     paying<\/p>\n
    the        arrears              of             rent             as           demanded                      in           the                 notice                within           one<\/p>\n
                                                                                                               ::: Downloaded on – 09\/06\/2013 14:22:46 :::<\/span>
\n                                                                20<\/span><\/p>\n
    month         or          to            file           standard           rent            application               disputing        the<\/p>\n
    quantum        of         rent           demanded             by         the        landlord               within          the     same<\/p>\n
    time,          the               Court          will      have       no          option          but        to       decree          the<\/p>\n
    suit                for          possession             against          such           defaulting               tenant.              It<\/p>\n
    is,          therefore,          not           open      to        the         Court        to            pass      any            other<\/p>\n
    order              much          less          only       restrict        the          decree             to        arrears          of<\/p>\n
    rent               claimed         by           the       landlord,            which             relief          will         be   only<\/p>\n
    incidental to the substantive relief of possession of<\/p>\n
    the suit premises on the ground of arrears of rent.\n<\/p>\n
    18.<\/p>\n
               Taking any view of the matter, the Petition is<\/p>\n
    devoid of merits. The same ought to fail.\n<\/p>\n
    19.        Hence, it is dismissed with costs.\n<\/p>\n
                                                                                           [A.M.KHANWILKAR,J.]<\/p>\n
                                                                                      ::: Downloaded on – 09\/06\/2013 14:22:46 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Dudhasingh Bala Chavan vs Shri Murlidhar Gyanba Kudale on 2 March, 2009 Bench: A.M. Khanwilkar Lsp 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-225644","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nDudhasingh Bala Chavan vs Shri Murlidhar Gyanba Kudale on 2 March, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dudhasingh-bala-chavan-vs-shri-murlidhar-gyanba-kudale-on-2-march-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dudhasingh Bala Chavan vs Shri Murlidhar Gyanba Kudale on 2 March, 2009 - 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