(1) THE appellants are the landlords of commercial premises being Room No. 9, 1st Floor, Vadekar Mansion, Lamington Road, Bombay. The respondents are the tenants of the said premises, being the heirs of the original tenant. On 18-5-1982 a notice was issued by the landlord demanding the arrears of rent and intimating about the termination of the tenancy on the ground that the tenant was a habitual defaulter. This notice was not responded to nor did the tenant file any application in the Small Cause Court for fixation of standard rent within the stipulated period of one month from the date of receipt of the above notice under Section 12(3)(a) of the Bombay Rent Act. The landlords on 24-9-1982 instituted a civil suit in the Court of Small Causes, Bombay praying for eviction of the tenant and recovery of arrears of rent. Since the tenant after entering appearance through the counsel did not appear the trial court on 5-10-1984 passed an ex parte decree. On the tenants application, the ex parte decree was set aside on 13-3-1985. The tenant filed the written statement and after issues were framed, parties led evidence. On 9-2-1988 the trial court decreed the suit. The trial court found, as a fact, that the tenant was in arrears of rent for more than six months and was therefore liable to be evicted being a wilful defaulter. The trial court also found that the tenant had neglected to pay the arrears of rent within one month from the date of receipt of the notice and had not paid the same even on the first day of the hearing of the suit. The aggrieved tenant filed an appeal before the Division Bench of the Court of Small Causes. The learned first appellate court reappreciated the entire evidence and independently came to the conclusion that the tenant was in arrears of rent for more than six months and was as such a habitual defaulter. The first appellate court confirmed the findings recorded by the trial court and dismissed the appeal filed by the tenant on 17-11-1989. The tenant was granted four months time by the appellate court to vacate and hand over the vacant portion of the premises and to furnish an undertaking to that Court that they would not part with possession of the suit premises in favour of anybody in the meanwhile. The tenant after furnishing the undertaking, filed a writ petition under Article 227 of the Constitution putting in issue the judgment and order of the first appellate court, dated 17-11-1989. The learned Single Judge of the High Court on 23-11-1995, after reappreciating the evidence set aside concurrent findings of fact recorded by the trial court and the first appellate court and by a laboured judgment allowed the writ petition setting aside the judgment of the appellate court and consequently the suit for eviction filed by the landlord. By special leave the landlord is before us. We have heard learned counsel for the parties and examined the record.

(2) THE entire case centres around the question whether the sum of Rs 5000 which had been taken by the landlord from the tenant as loan was adjustable towards the rent payable, as in that event the High Court would be right in saying that since the rent had been received in advance, there was no question of any default. At this stage it would therefore be necessary to examine the promissory note dated 28-8-1969. It reads thus:

"I have borrowed a sum of Rs 5000 (Rupees five thousand) from you and have executed a demand promissory note for the said amount. The said sum will carry interest at the rate of 1-1/28 per mensem. The said loan will be repaid to you within three months. In case if the loan is not repaid within that period and if mutually agreed by and between the parties, the same may be treated as an advance towards the rent payable in respect of the premises in your occupation and will be adjusted accordingly."

The receipt of the amount of Rs 5000 on the previous date, i.e., 27-8-1969 reads thus:

"On demand I, (Dr) Jayant Ramc