Judgment:
D.K. Deshmukh, J.
1. By this petition filed under Article 227 of the Constitution of India, the petitioners, who are the heirs and legal representatives of the original petitioner Sadashiv, challenge the judgment and order dated 12th August 1982 passed by the Assistant Judge, Satara, in Civil Appeal No. 125/1981. By that judgment, the Appellate Court under the Bombay Rent Act allowed the appeal filed by the landlady Anandibai and set aside the order passed by the Civil Judge, Junior Division, Satara, dated 26.2.1981 in Civil Suit No. 205/1977, dismissing the suit for possession of the suit premises filed by the landlady Anandibai. The Appellate Court has decreed the suit by his judgment impugned in the petition.
2. The facts giving rise to the present petition are that the original petitioner Sadashiv was tenant of 4 khans of House No. 72A/1, MalharPeth, Satara, of which the original landlady Anandibai was the owner. Anandibai purchased the suit house by registered sale deed dated 25.5.1971. On 25.4.1977, she issued a notice to the tenant Sadashiv demanding arrears of rent for the period from 1.3.1973 to May 1977. Admittedly, this notice was received by Sadashiv on 26.4.1977. It is also an admitted position that Sadashiv did not send any reply to this notice; did not make payment of arrears of rent to the landlady; he also did not make an application to the Court for fixation of standard rent within one month of receiving the notice. The landlady filed the civil suit seeking a decree of possession against the tenant Sadashiv on two grounds, namely, (i) default committed by the tenant in payment of rent and (ii) bona fide need of the landlady of the suit premises. The trial Court recorded a finding on the question of default against the landlady. The trial Court, however, held that the landlady had established that she bona fide needs the premises for her own occupation. However, the trial Court recorded a finding against the landlady on the question of comparative hardship. In the result, the suit for possession filed by the landlady was dismissed. The landlady carried appeal to the Appellate Court. The Appellate Court found on both the questions in favour of the landlady and allowed the appeal. It is this judgment of the Appellate Court which is impugned in this petition.
3. Learned Counsel appearing for the petitioners urged before me that the tenant Sadashiv had sent a money order of Rs. 40/- on 25.8.1973 which represented rent due till the month of July 1973 and thereafter a money order of Rs. 60/- which represented rent due till the month of September 1973. Learned Counsel further submitted that both these money orders were refused by the landlady. In the submission of the learned Counsel, the fact that the tenant had sent money orders and that the landlady had refused to accept them would show that the tenant was not a defaulter and that he was ready and willing to pay the rent and therefore the finding recorded by the Appellate Court that the tenant is a defaulter is erroneous.
4. Learned Counsel appearing for the respondents urged that even if it is assumed that two money orders were sent in the year 1973 and the landlady had refused to accept the amounts sent by money orders and that there was no justification for doing so, still for showing that the tenant is not liable for a decree of eviction against him under Section 12(2) of the Bombay Rent Act, the tenant, after receiving notice issued by the landlady demanding rent, has either to pay rent or dispute his liability or make an application for fixation of standard rent within a period of one month. In the submission of Shri Bhosale, admittedly, the tenant has done none of these things and therefore the landlady becomes entitled to a decree of eviction against the tenant under Section 12(3)(a) of the Act, Shri Bhosale further urged that even if it is assumed that because the tenant had sent money orders in the year 1973 and therefore the case is not covered by Section 12(3)(a) of the Act, in order to wriggle out of the provisions of Section 12(3)(b), the tenant must show that after he received the suit summons, he deposited the arrears of rent promptly and thereafter went on regularly depositing the amount of rent. In the submission of Shri Bhosale, the tenant has made deposits before the trial court only twice, i.e. on 9.2.1979 and 10.2.1981. Therefore, relying on a Judgment of this Court in the case of Kalandarali v. Shaikh Gulam : 1997(2)BomCR472 he urged that this Court has held that the court under the Bombay Rent Act has no discretion in the matter and that, the tenant has to make deposits on regular basis.
5. Now, the admitted positions on record are that a notice was sent by the landlady on 25.4.1977 demanding rent for the period from 1.3.1973 to May 1977; that the notice was received by the tenant on 26.4.1977; that after receiving the notice within a period of one month, he neither sent a reply to the notice disputing his liability to make the payment nor did he make the payment; and that he also did not make an application for fixation of standard rent as contemplated by Sub-section (3) of Section 11 of the Act so as to be entitled to a statutory presumption under Explanation I appearing in Section 12 of the Act. In the face of these admitted facts, in my opinion, the tenant would be liable to a decree of eviction under the provisions of Section 12(3)(a) of the Act. It is to be noted that it is clear from the scheme of Section 12 of the Act that the tenant not paying rent gives cause of action to the landlord to issue notice contemplated by Sub-section (2) of Section 12 of the Act and once such a notice is issued, the tenant has to take steps contemplated by the provisions of Section 12. If the tenant fails to take those steps, he incurs liability of a decree of eviction against him under Section 12(3)(a) of the Act and the court has no discretion in the matter. In my opinion, therefore, Shri Bhosale is right in submitting that even if it is assumed that the case is not covered by Section 12(3)(a), a decree of eviction passed against the tenant Sadashiv can be justified under Section 12(3)(b) because he has not deposited the arrears due from him to the landlady immediately after receiving the suit summons, because the suit has been instituted in the year 1977 whereas the first deposit has been made on 9.2,1979. Thereafter, again, the tenant has not made deposit of the monthly rent regularly but has made the second deposit only on 10.2.1981. Considering the ratio of the Judgment of this Court in Kalandarali's case referred to above, in my opinion, the Appellate Court was perfectly justified in passing a decree of eviction against the tenant Sadashiv.
5. In view of the above finding recorded by me, it is not necessary for me to go into the validity of the finding recorded by the Appellate Court on the question of bona fide need. Shri Bhosale appearing for the respondents also urged that in view of the finding on the question of default, it is not necessary for this Court to go into the validity of the finding recorded by the Appellate Court on the question of bona fide need. Therefore, though the learned Counsel appearing for the petitioners insisted on urging that the finding recorded by the Appellate Court on the question of bona fide need is not proper, in my opinion, once having found that one of the two grounds on which the decree of eviction against the tenant is passed is valid, it is not necessary for me to go into the validity of the finding on the other ground.
6. In the result, therefore, the petition fails and is dismissed. Rule discharged with no order as to costs.
7. At this stage, the learned Counsel for the petitioners requests that considering that the tenant was occupying the suit premises for the last 50 years, reasonable time should be given to the petitioners to vacate the suit premises. In the submission of the learned Counsel, time upto 31st December 1997 would be a reasonable time. Learned Counsel for the respondents does not oppose this request but submits that the petitioners should be required to submit an undertaking to this Court in the usual form. In view of this, therefore, it is directed that the decree of eviction passed against the petitioners shall not be executed for the period ending with 31st December 1997 subject to the condition that within a period of four weeks from today the petitioners submit an undertaking to this Court in the usual form. Failure of the petitioners to submit the undertaking within the aforesaid period will entitle the respondents to execute the decree forthwith.