At, High Court of Judicature at Bombay
By, THE HONOURABLE MR. JUSTICE D.G. KARNIK
For the Petitioner: Deshpande i/b B.P. Apte, Advocates. For the Respondent: M.D. Angal, Advocate.
1. By this petition, the petitioner challenges the judgment and order dated 5th September 1980 passed by the Addl. District Judge, Sangli reversing the judgment and order passed by the Civil Judge, Jr. Division, Sangli and regular Civil Suit No.1171 of 1981.
2. The petitioner is the owner and landlord of the premises which consists of a godown in City Survey No.75, Shivaji Nagar, Sangli. The only ground on which the suit for possession was filed was default in payment of the rent. According to the petitioner, the respondent had agreed to pay rent of Rs.431/- for every Samvat year and respondent had not paid rent for the Samvat year 2036. The petitioner therefore, by a notice dated 13th November 1981 demanded the arrears of rent amounting to Rs.545.99. The rent, was claimed on the basis that agreed rent was Rs.431/- and the balance sum was represented permitted increases.
As the respondent failed and neglected to pay the rent within a period of one month, the petitioner filed a suit for possession. In the trial Court, it was contended by the respondent that the respondent could not be regarded as monthly tenant as the rent was payable yearly. It was further contended that the case fell under section 12(3)(b) of the Bombay Rents Hotel and Lodging House Rates Control Act (for short “Bombay Rent Act”) and therefore, the petitioner was not entitled to a decree for possession as the tenant had deposited the rent in the Court regularly. The trial Court decreed the suit holding that the respondent was a monthly tenant and was in arrears of rent for a period of more than six months and had failed to pay the arrears of rent within a period of one month.
3. In appeal, the appellate court confirmed the finding that the respondent was a monthly tenant had held that the mere fact that the rent was paid yearly could not make the respondent a yearly tenant but he would continue to be a monthly tenant. The appellate Court also held that whether the respondent was a monthly tenant or yearly was an issue which was not of much relevance because admittedly rent was paid yearly and therefore, case did not fall under clause (a) of sub section (3) of section 12 of the Bombay Rent Act as it stood at the relevant time. It was also the case of the petitioner that the rent was payable yearly at the rate of Rs.431/- for every Samvat year. As the rent was payable yearly, the case clearly did not fall u/s. 12(3)(a) and the first appellate Court was right in holding that the case fell u/s. 12(3)(b) of the Bombay Rent Act. The appellate Court referred to the decision of the Apex Court in Mrinalini B. Shah Vs. Bapalal Mohanlal, reported in AIR 1980 S.C. 954 and held that it was obligatory on the respondent to prove that he had deposited the rent regularly in the Court at intervals at which it fell due. The appellate Court thereafter held that as rent was payable yearly, it was not necessary for the tenant to deposit the rent monthly but the respondent tenant was required to deposit the rent only on the day on which the yearly rent fell due. This reasoning of the appellate Court is correct. The first appellate Court thereafter considered the dates of deposit and came to the conclusion that the respondent had deposited the rent regularly in the Co
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urt. The learned Counsel is unable to show any error in the finding that the rent was deposited regularly. 4. In view of the finding of the fact recorded by the first appellate Court that the respondent had deposited the rent regularly, no decree for eviction could be passed. Hence, Writ Petition is dismissed. Rule discharged with costs.