( 1 ) RULE. The respondents waive service. By consent of the parties, taken up for final hearing.

( 2 ) THE petitioner is the original defendant in Civil Suit No. 1758 of 1989 filed by the respondents (original plaintiffs) in the small Causes Court at Pune. The suit was filed for possession of the suit premises on the grounds of default in payment of rent, bonafide requirement, acquisition of alternate accommodation, non user and change of user of the suit premises.

( 3 ) THE case of the plaintiffs is that the property being House No. 347 situate at rasta Peth, was owned by the mother of plaintiff 1. Plaintiff 2 is her husband. The defendant is the monthly tenant of two rooms on the first floor of the said house. The agreed rent was Rs. 35/- per month inclusive of education cess and permitted increases. The tenancy month commenced from first of every english Calender month. According to the plaintiffs, the defendant was in arrears of rent from 01-10-1986. The plaintiffs gave a notice demanding arrears of rent on 18-03-1989. According to the plaintiffs, the said notice was replied by the defendant raising false contentions. The defendant remitted Rs. 48/- by money order. However, the money order was refused by the plaintiffs. The defendant had made some reference to a demand draft in the reply. However, in fact, no demand draft was sent. The plaintiffs claim that they were entitled to recover the arrears of rent, permitted increases and education cess. The plaintiffs also alleged that the defendant had acquired alternate accommodation and had shifted there keeping the suit premises under lock. The defendant had not used the suit premises for more than six months. The plaintiffs also alleged that the defendant had caused damage to the suit premises and he had changed the user of the suit premises.

( 4 ) THE defendant filed his written statement and denied all the allegations. He contended that he had been paying the rent regularly. Earlier a suit being Suit No. 2814 of 1979 was filed in which he had deposited the rent upto September, 1986. He had sent rent for the months of October and November, 1988, which was refused by the plaintiffs. According to him, thereafter, he sent money order for October, 1986 to December, 1986, which was also refused. He had received notice dated 18-03-1989 on 27-03-1989. He had sent demand draft of Rs. 1,412/- with the reply notice for the period from 01-10-1986 to 30-04-1989. The plaintiffs, however, did not encash the said demand draft. According to the defendant, he had deposited the rent upto September, 1990. He contended that the suit is barred by resjudicata. All other allegations as regards nuisance, construction of permanent nature without permission from the landlord, acquisition of alternate accommodation, change of user and non-user were denied by him.

( 5 ) IN support of his case, the plaintiffs examined plaintiff 2. The defendant examined himself. After perusing the oral and documentary evidence, the trial court by its judgment and decree dated 03-08-2001 dismissed the suit. The trial court held that the plaintiffs had not proved any of the grounds urged by them.

( 6 ) BEING aggrieved by this judgment and decree, the plaintiffs filed an appeal being Appeal No. 772 of 2001 in the district Court at Pune. The District Court confirmed the finding of the trial court on all grounds except the ground of default in payment of rent. The District Court held that the plaintiffs had proved that the defendant is a defaulter. This judgment and decree is impugned in this appeal.

( 7 ) I have heard, at some length, Mr. Godbole, the learned counsel appearing for the petitioner. Mr. Godbole contended that the District Court erred in setting aside the finding of fact recorded by the trial court that the defendant was not a defaulter. I am unable to agree with the learned counsel. The suit notice is dated 18-03-1989. By the said notice, the plaintiffs had demanded arrears of rent from 01-10-1986. T