Zopadi Ramdeomandir Trust & Anr vs Laxminarayan R.Mundada
2017 Latest Caselaw 8367 Bom

              Zopadi Ramdeo Mandir Trust & Anr v Laxminarayan Mundada
                              217-WP4358-1996.DOC




Santosh



       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CIVIL APPELLATE JURISDICTION
                      WRIT PETITION NO. 4358 OF 1996

1      Shri Zopadi Ramdeo Mandir
       Trust
       at 1160-61 Raviwar Peth, Pune 411 002
2      Ramesh Vegaram Sharma
       Authorised Trustee of Shri Zopadi
       Ramdeo Mandir Trust, at 1160-61
       Raviwar Peth, Pune 411 002                                 ...Petitioners

                ~ versus ~

1      Laxminarayan Ramchandra
       Mundada, age: 42 years, Occupation:
       Business, Residing at: 1161 Raviwar Peth,
       Pune 411 002                                              ...Respondent

A PPEARANCES FOR THE PETITIONERS Mr SB Deshmukh, Advocate FOR THE RESPONDENT Mr DB Khaire, Advocate

CORAM: G.S. PATEL, J DATED: 2nd November 2017 ORAL JUDGMENT:-

2nd November 2017

Zopadi Ramdeo Mandir Trust & Anr v Laxminarayan Mundada 217-WP4358-1996.DOC

1. Heard.

2. This is a companion Writ Petition No.5645 of 1996 which I have disposed of by a separate order today. The conspectus of the present matter is narrower. The question of authorisation of PW-1 Pande to file the suit was incorrectly decided by the Appellate Court but, for the reasons set out in my judgment in Writ Petition No.5645 of 1996, I do not think it was necessary to elaborate further on this aspect of the matter.

3. The limited ambit of this Writ Petition is in regard to the question of arrears of rent.

4. The Writ Petition is directed against an order dated 9th February 1998 of t1he Additional District Judge at Pune in Civil Appeal No.932 of 1985. That Appeal was filed by the Petitioners, who are the landlord owners of the property, against a judgment of the 2nd Additional Small Causes Judge, Pune in their Civil Suit No.1617 of 1980. On 18th August 1984, the Trial Court dismissed that suit.

5. The 1st Plaintiff is a trust and Plaintiffs Nos.2 to 4 are its trustees. Defendants Nos. 2 and 3 were also trustees, and joined as formal parties, with no reliefs sought against them.

6. The Appeal Court framed five points for determination. Leaving aside the question of authority to file the suit and its maintainability, the point of significance is point No.3 i.e. whether the Plaintiffs proved that the 1st Defendant was in arrears of rent for more than six months

2nd November 2017

Zopadi Ramdeo Mandir Trust & Anr v Laxminarayan Mundada 217-WP4358-1996.DOC

from 7th June 1974 to 31st January 1979; was not ready and willing to pay standard rent; and was a wilful defaulter. On this aspect of the matter, the Plaintiffs said that the suit notice dated 24th February 1979 was served on Defendant No.1. There was considerable amount of controversy before the Appeal Court about service of this notice. First, it was not effected at the residence but at the godown premises and was not accepted by the 1st Defendant but by his brother, with whom the 1st Defendant apparently had strained relations. But even assuming that the notice was property served, the question would then arise as to whether the 1st Defendant was a wilful defaulter and was in arrears of rent. Here, as in the companion Writ Petition, the 1st Defendant said that it had paid rent to one Sitaram Mundada, admittedly an erstwhile trustee of the 1st Plaintiff trust, under the bona fide belief and impression that he was a trustee and was authorised to collect the rent. The 1st Defendant did not know that Sitaram Mundada was removed as a trustee on 7th June 1974. Mr Deshmukh's argument that this removal having been registered with the Charity Commissioner it must be deemed to have been to the knowledge of the 1st Defendant is one that I am not persuaded to accept.

7. The next question is whether the 1st Defendant was ready and willing to make payment. It is now trite law, and this in fact what the statute provides, that to establish ready and willingness, a noticed tenant must deposit the arrears if any within one month of the notice or on the first date of hearing. The Trial Court itself noted as a matter of fact that after receipt of the summons of the Suit on the very first date of hearing, the 1st Defendant deposited the arrears of rent amounting to Rs.500/- in Court. This is noted at page 37 of the

2nd November 2017

Zopadi Ramdeo Mandir Trust & Anr v Laxminarayan Mundada 217-WP4358-1996.DOC

Petition. To my mind, the second issue ends there and clearly nothing further remains for enquiry.

8. In my view, there is no call for interference. Rule is discharged. There will be no order as to costs.

(G. S. PATEL, J.)

2nd November 2017