ORAL JUDGMENT:

1. Heard the learned counsel appearing on behalf of the Petitioner and the Respondents.

2. The Petitioner is the original tenant and the Respondents are the original landlords (for the sake of convenience, the parties shall be referred to as “the landlords and the tenant).

3. A notice of demand was sent by the landlords to the tenant dated 24.1.1981 claiming arrears of rent for the period from 1st January, 1980 to 30th April, 1981 at the rate of Rs.19.34 per month. No payment was made within one month from the date of service of notice of demand, nor any dispute was raised in respect of the standard rent by filing an application for fixation of standard rent claimed by the landlords by their notice of demand dated 24.1.1981, the landlords filed a eviction suit on the following grounds:

(i) arrears of rent for more than six months;

(ii) unlawful sub-letting, and;

(iii) nuisance and annoyance.

The Trial Court held that the landlords had proved that the tenant had not paid the amount demanded by the demand notice within one month and, therefore, was liable to be evicted from the suit premises. The Trial Court further held that the landlords had established that the tenant had sub-let the premises and, therefore, on these two grounds, decree of eviction was passed. It was held that the landlords had not established nuisance. Against the said judgment and order, the tenant preferred an appeal before the Division Bench before the Appellate Bench of Small Causes Court. However, the appeal was dismissed and the judgment ad order passed by the Trial Court was confirmed.

4. The learned counsel appearing on behalf of the Petitioner-tenant submitted that though it was an admitted position that the tenant had not paid rent within one month from the date of service of notice nor had filed any application for fixing the standard rent, yet the tenant had deposited the entire amount, after an order of scrutiny was passed by the Trial Court. It was submitted that, therefore, there was substantial compliance made by the tenant and, therefore, he was entitled to get protection under section 31(b) of the Rent Act. He submitted that though the tenant had committed some defaults, and had not continued to deposit the rent in the Court from 1990, he had filed an application in this Court seeking leave of the Court to deposit the said amount and that this Court had permitted the tenant to deposit the said amount in this Court including arrears which were not deposited in the Trial Court. It was then submitted that so far as the second ground of sub-letting is concerned, the landlords had not added the said sub-tenant as party defendant in the suit. It was then submitted that so called subtenant was, in fact, the niece of the tenant and she had continued to stay in the premises even after the death of the tenant and, therefore, she cannot be treated as the sub-tenant. It was further submitted that mere occupation by third party in the suit premises, was not sufficient for proving sub-letting and that it was necessary to prove that possession was handed over and secondly, that any amount was received as a result of the said sub-letting by the original tenant. Reliance was placed on a judgment of the Apex Court in the case of Shama Prashant Raje vs. Ganpath and Others [(2000) 7 Supreme Court Cases 522] and judgment of the Learned Single Judge of this Court in the case of C.C.YI (Dr.), Medical Practitioner, Bhiwandi vs. Smt. Jankidevi Anantlal Gupta and Ors. [2001(4) Mh. L.J.]. It was also submitted that these facts were not taken into consideration by both the Lower Courts and, therefore, they had committed an error of law which is apparent on the face of record. It is submitted that, therefore, on both the counts, finding arrived at by the Lower Courts was liable to be set aside.

5. On the other hand, the learned counsel appearing on behalf of the Respondents-landlords submitted that so far as the question of arrears of rent a