2011(3) ALL MR 282
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

S.S. SHINDE, J.

Shri. Lotan Tryambak Khairnar Vs. Narayan Hari Shinde (Since Deceased By L.Rs.)

Writ Petition No.1957 of 1992

8th March, 2011

Petitioner Counsel: Mr. L. V. SANGIT,Mr. V. J. DIXIT

(A) Bombay Rents, Hotel and Lodging House Rates (Control) Act (1947), S.12 - Suit for eviction - Arrears of rent - Burden of proof is on landlord and not on tenant to prove that he has paid rent regularly. (Paras 4 to 6)

(B) Bombay Rents, Hotel and Lodging House Rates (Control) Act (1947), S.12(2) - Notice terminating tenancy - There should be time gap of minimum one month from the date of service of notice upon the tenant. (Para 6)

JUDGMENT

JUDGMENT:- Heard learned Counsel for the petitioner. Though served, none appears for the respondents. The respondents herein are original plaintiffs. The case of the respondent before the Court below was that the defendant i.e. the petitioner herein is tenant in respect of suit premises at Rs. 9.45 ps. p.m. Original defendant i.e. the petitioner herein was in arrears of rent since 30.04.1978. Hence, on 01.01.1980, the plaintiff given notice to the defendant terminating tenancy w.e.f. 31.01.1980. By the said notice the plaintiff demanded payment of Rs.189/- towards arrears of rent and notice charges of Rs.18.50 ps., in all Rs.207.50 ps.. The defendant failed to comply with notice. Hence, the plaintiff filed suit for ejectment.

2. The petitioner herein/original defendant filed written statement at Exh.12. It was stated in the said written statement that defendant paid Rs. 207.50 ps. to the plaintiffs in compliance of notice dated 01.01.1980. However, the plaintiffs adjusted this amount towards other sums due to the plaintiffs from the defendant. He has denied that he is in arrears of rent and has prayed for dismissal of the suit.

3. The Trial Court framed necessary issues for determination of the suit. The first issue was framed - Whether defendant proves that he has paid rent regularly to the plaintiff but the plaintiff has not issued receipts? Said issued was answered in negative.

4. The Counsel appearing for the petitioner submits that the plaintiffs filed the suit and the burden was on the plaintiffs to prove their case that the defendant was in arrears of the rent. Therefore, the Counsel for the petitioner submits that the burden of proving arrears of rent should not have been on the defendant, rather it was plaintiffs' case. Therefore, the Trial Court should have asked the plaintiffs to prove their case. Therefore, the Counsel would submit that the said issue was not properly framed by the Trial Court.

5. I find considerable substance in the arguments of the Counsel for the petitioner. The suit was filed by the plaintiffs and the Trial Court should have framed such issue and should have asked the plaintiffs to prove their case, rather framing the issue and casting burden on the defendant, that he should prove that he has paid rent regularly.

6. Upon perusal of the judgment of IInd Jt. Civil Judge, J.D., Jalgaon and also the judgment of Lower Appellate Court, it appears that the Courts below have not considered the submissions of the petitioner that the notice which was issued by the plaintiffs to the defendant asking him to deposit arrears towards rent was on 01.01.1980 and on 31.01.1980 the plaintiffs terminated tenancy of the defendant/petitioner. Upon perusal of Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, it is abundantly clear that there should be time gap of minimum one month from the date of service of notice upon the tenant. However, admittedly, in the present case, the notice was issued by the plaintiff on 01.01.1980 and the tenancy came to be terminated on 31.01.1980 and therefore there was no compliance of Section 12(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Therefore, the statement of the Counsel for the petitioner is required to be accepted. That apart, the very ground which is raised by the petitioner is that there was composite notice given by the plaintiffs for arrears of rent and also for tax to be paid on yearly basis. However, the petitioner should succeed on two grounds that the issue framed by the Trial Court asking the defendant to prove that he has paid rent regularly was not proper and secondly both the Courts below have not appreciated the contentions of the petitioner that the provisions of Section 12(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, have not been followed while terminating tenancy. Therefore, in my opinion, it is not necessary to go to the third aspect.

7. Therefore, the Writ Petition is allowed. The impugned judgment and order is set aside. Rule is made absolute to above extent. The petition stands disposed of.

Petition allowed.