O CHHAGNABHAI GOKULBHAI BHOI v. HEIRS OF PARSANBEN P BHATT

CORAM : MR.JUSTICE Y.B.BHATT Date of decision: 18/02/2000 ORAL JUDGEMENT

1.(cid:9)This is a revision u/s 29[2] of the Bombay Rent Act at the instance of the tenants - original defendants in the suit filed by the respondent - landlord.

2.(cid:9)The landlord had filed a suit for recovery of possession of the suit premises from the petitioners - tenants on the ground that the tenant was in arrears of rent for more than six months and had not cared to pay up the rent within 30 days of the suit notice [although the tenants were statutory tenants] and also on the ground that she required the premises for her personal bonafide requirement. The trial Court dismissed the suit on both grounds. The landlord therefore filed an appeal which came to be allowed by the lower appellate Court. This revision is therefore filed by the tenants challenging the lower appellate Court's judgement and decree.

3.(cid:9)Considering the judgement of the trial Court, even on a casual glance, it would appear that the same is perverse and is contrary to all principles of civil law. The trial Court has dismissed the suit of the plaintiff simply by disbelieving the evidence of Balvantrai, who had deposed on behalf of the plaintiff. (cid:9)It is obvious from the record that Balvantrai had examined himself at exh. 71, and has deposed in a dual capacity, as the son of the plaintiff [who is above 80 years old], and also as the power of attorney holder of the plaintiff, the said power of attorney being at exh.

The trial Court has chosen to disbelieve the entire evidence of the said Balvantrai simply on his admission that, during the relevant period of 1973-74, her mother was looking after the accounts of the tenants. The trial Court has therefore drawn an adverse inference only from the fact that the landlord herself [who is admittedly above 80 years of age] has not stepped into the witness box, and that her son Balvantrai could not possibly have any personal knowledge of the affairs of his mother. It requires to be particularly noted that no admission has been elucidated from the said Balvantrai that he had no personal knowledge about the tenants accounts. The trial court has also chosen not to believe the explanation of said witness Balvantrai exh.71 that his mother has been widowed recently, that is to say only a few months prior to the date of deposition and that therefore, both because of her old age and on account of custom, a recent widow could not leave the house for a few months and for this reason, she could not depose. The trial Court's dismissal of the suit on this over simplistic approach, without looking into the other facts and circumstances of the case, is in my opinion, a perversity. (cid:9)The lower appellate Court has examined the entire evidence on record and has interpreted the same in the light of the proved facts and circumstances of the case.

4.(cid:9)It must firstly be noted that the defendant first filed a written statement at exh.22. At that point of time, some of the tenants were minors, and on attaining majority, they filed their separate written statement in the year 1979 which is at exh.51. The lower appellate Court has, in my opinion, rightly observed that the subsequent written statement at exh.51 is nothing but a fabrication.

5.(cid:9)It is also required to be noted that the defendants have not stepped into the witness box, have not deposed nor have they led any other oral evidence through any other witness to contradict the plaintiff's case. (cid:9)The plaintiff's case is that the tenants were in arrears of rent from 6th September 1971 to 5th December

1973. These arrears of rent amount to Rs.310=50. Out of this amount, the defendants made part payment towards the rent on different dates, the aggregate of such part payment comes to Rs.120=00. Thus, on the date of the suit notice issued u/s 12 of the said Act, a sum of Rs.190=50 were still due and payable by the defendants towards the rent due upto 5th December 1973. This is specifically set out in the suit notice. When the admitted monthly rent is Rs.11=50, obviously this arrears of Rs.190=50 amounts to arrears of more than six months of rent. (cid:9)The plaintiff had served the statutory notice upon the defendants at exh.63, proved by postal acknowledgment exh.74. The same notice contains the details of rent due, the period in respect of which it is due, the part payment made by the defendants, and the net amount due, at Rs.190=50 on the date of notice. Para 4 of the said notice reiterates a clear unambiguous demand of the arrears of rent.

(cid:9)It is also pertinent to note that the suit notice had not been replied to by the defendants. Balvantrai at exh.71 clearly asserts that the defendants had not sent any reply to this notice. This has not been disproved by the defendants by producing copy of the reply, or even by making an oral assertion in respect thereof by examining themselves on oath. The defendants have not even testified [in support of their contention raised in their written statement exh.22] that, after receiving the notice, they had sent any amount whatsoever towards the arrears of rent claimed in the suit notice. The lower appellate Court was therefore justified in holding that there is absolutely no proof and no evidence to indicate that the defendants have remitted any amount whatsoever towards the arrears of rent claimed in the suit notice. (cid:9)There is also no dispute about the standard rent. (cid:9)Thus, the lower appellate court was completely justified in holding that all the conditions precedent for the application of section 12[3][a] of the Rent Act have been satisfied, namely, that the rent is payable by the month, that there is no dispute as to the standard rent, and that the tenant is found to be in arrears of rent for more than six months, and the said arrears have not been paid or tendered to the landlord within one month from the date of notice served upon him by the landlord. (cid:9)In the premises aforesaid, the lower appellate Court was totally justified in passing the decree of eviction on the ground of arrears of rent u/s 12[3][a] of the Rent Act.

6.(cid:9)I therefore find that there is no substance in the present revision and the same is therefore liable to be rejected. Accordingly, rule is discharged with costs. Interim relief stands vacated.

7.(cid:9)At this stage, learned counsel for the petitioners seeks time to vacate the premises. However, at the commencement of the hearing of the present petition, he had made a statement that he has received the information that the tenant is no longer in possession, although he made it clear that he is not in a position to say who had dispossessed the petitioners - tenants. (cid:9)In the premises aforesaid, I see no useful purpose by granting time. If the petitioners - tenants are not in possession, obviously the landlord would have to take appropriate steps to recover the possession from the party who is in fact in possession. The said request is therefore rejected. (cid:9) (cid:9)***** parmar* (cid:9)