Kisan Narayan Pandit vs Tukaram Shankar Kalebare (Deceased) through L.R.s and Another

Bhimrao N. Naik, J.—This is a petition filed by the tenant under Article 227 of the Constitution of India challenging the decree for possession passed by the District Judge, Satara on 31st March, 1982, in Regular Civil Suit No. 259 of 1980 on the ground of non-payment of rent.

Few facts which are relevant for the purpose of this petition are that the deceased petitioner was admittedly the tenant of House No. 162, old House No. 170 situated at Ravivar Peth and respondent was the landlord. The notice of demand was sent by registered post A. D. and on 16th August 1975 the said notice was refused by the tenant. As the possession was not delivered as per the notice on 2nd January, 1976 the respondent filed suit for possession on several grounds, one of the grounds being non-payment of rent. The arrears claimed in the said notice were from 29th February 1975 to 28th July, 1975.

The defendant denied the suit of the plaintiff. The fact regarding receipt of notice was not denied by the tenant. The tenant on the other hand contended that he was required to pay the municipal tax and therefore he was entitled to deduct the amount paid towards the municipal taxes. It was then contended that if the amount of municipal taxes was taken into consideration along with the amount that was sent to the landlord, then it cannot be held that the tenant is a defaulter.

On these rival contentions the trial proceeded. The learned Trial Judge recorded a finding that it is admitted that the defendant is not in arrears, that the defendant deposited the arrears of rent in Court even after the filing of the suit. On the basis of this the trial Court recorded a finding that the issue really does not survive. Hence the trial Court dismissed the suit on other grounds also.

Being aggrieved and dissatisfied by the said judgment and decree respondent-landlord filed Civil Appeal No. 259 of 1980. The learned District Judge rightly held that contention of the Plaintiffs advocate only related to the deposits and the arrears not being there. However, whether the tenant would be a defaulter in view of the provisions of the Rent Act was still required to be decided by the trial Court, which it did not record. Hence the learned District Judge considered the case of the respondent tenant. The learned District Judge, inter alia, held that it is a fact that on 15th August, 1975 notice was sent under Registered Post and the notice was refused by the tenant. In order to prove the proper service the postman was examined by the plaintiff and the trial Court rightly recorded a finding that the notice is properly served upon the tenant. The learned District Judge also held that the defendant had taken up a plea that after the receipt of the notice money order was sent for the amount that was due and payable, as per the notice of demand after deducting the Municipal taxes paid by the tenant. However, the learned District Judge noticed that the tenant failed to establish this fact. The learned District Judge held that even if one accepts that payment is made by the tenant towards municipal taxes and the credit to given to such an amount, it was still incumbent upon the tenant to show that within one month of the receipt of the notice he paid the amount demanded. Reliance was placed on money order coupons that was sent by the tenant which the landlord refused to accept because there was insufficient amount. Therefore the learned District Judge called upon the tenant to produce the said money order coupons. It was noticed by the learned Judge that no attempt was made to produce such money order coupons before the Court. Even before the appellate Court, opportunity was given to the tenant to produce the money order coupons. Notwithstanding this money order coupons were not filed and therefore the learned District Judge drew an adverse inference and passed a decree for possession holding that the case is covered by Section 12(3)(a).

Being aggrieved and dissatisfied by the aforesaid judgment and decree passed by the learned District Judge, the tenant filed the present writ petition under Article 227 of the Constitution of India.

It appears that the original petitioner died and his heirs are brought on record and the amendment was carried as per the Court''s order, dated 28th July, 1989. Shri Page appears for all the petitioners in this matter. It appears that Kisan Narayan Pandit, died during the pendency of the petition. Shri. Page filed an application for bringing the heirs of the petitioner on record which I have granted today, and I have condoned the delay and permitted Kantilal Kisan Pandit prosecute the petition who happens to be the son of deceased tenant. Shri Page is representing the present petitioner. Today when the petition is called out Shri Kantilal Kisan Pandit has filed an affidavit and he has taken up a contention that the alleged notice dated 16.8. 1975 was not served on his father and the same was not posted on the suit premises. It was also contended in the said affidavit that municipal taxes were paid by the deceased tenant from time to time, and thus he was entitled to claim adjustment. It was also contended that his father has paid advance rent of Rs. 56 being the advance rent of two months and also paid Municipal Taxes for and on behalf of the respondent. The fact of the sending of the money order is admitted by the landlord in the cross-examination and hence if these facts are taken into consideration it is just and proper that this Court should give time again to get the duplicate copies of the money order coupons and necessary opportunity should be given. Since this application is filed only today and the affidavit is also filed today the respondents strongly objected for such affidavit being taken on record. Even otherwise I am not inclined to consider the affidavit filed to day by the petitioner because initially when opportunity was given td produce the money order coupons in the trial Court they were not produced. Even during the pendency of the appeal the learned District Judge has dealt with'' this aspect in his judgment. Therefore, no useful purpose would be served after 10 years after the admission of the petition, which the petitioner''s father failed to produced either in the trial Court or in the appeal Court, if the time as requested is granted. The other contentions regarding the service of notice was dealt with by the Courts below and finding was recorded against the petitioner. The learned District Judge has given credit to the amount of taxes paid by the tenant. Notwithstanding such payments made by the tenant being taken into consideration, still the tenant has failed to establish that he complied with the requirements of notice of demant.

Shri Page tried to place reliance upon the decision in the case of Suka Ishram Chaudhari Vs. Jamnabai Ranchodas Gujarathi and Others, , by Bhole J. and contended that refusal by landlord to accept rent sent by money order by the tenant cannot be said to be in arrears of rent nor can be said to be not ready and willing to pay rent. However, the facts of that case is distinguishable. In this case it is not shown that as per demand the money order was sent and it was refused to be accepted by the landlord. Hence the ratio of Suka Ishram Chaudhari Vs. Jamnabai Ranchodas Gujarathi and Others, may not apply to this case. Hence it is proved that the notice of demand was duly served, it was refused to be accepted by the landlord and tenant and the refusal is proved by examining the postman and hence the two Courts below were justified in recording a finding that there is proper service of notice and after service of notice it is not shown by the tenant that within one month of the service he has complied with the requirements of the notice. Reliance upon the admission given by the landlord in the cross examination regarding the receipt of some money order which were refused because they were insufficient amount was justified and if the tenant was interested in proving it to the contrary it was obligatory upon him to have shown that. Thus I agree with the reasoning and conclusion reached by the Courts below. I see no error apparent on the face of the record and in view of this I am not inclined to accept the submissions and contentions raised by Shri Page, including the contention regarding the validity of the notice. Hence petition dismissed, rule discharged and there will be no order as to costs in the facts and circumstances of the case.