IMPORTANT POINT
A tenant must adjust overpayments within six months to avoid eviction for non-payment of rent; failure to do so constitutes neglect under the Bombay Rent Act.

JUDGMENT :

Vaibhavi D. Nanavati, J.

1. The applicant/tenant has preferred the present Civil Revision Application under Section 115 of the Code of Civil Procedure, 1908 challenging the judgment and order dated 30.04.1998 passed by the Joint District Judge, Rajkot in Regular Civil Appeal No.31 of 1991.

2. The brief facts leading to the filing of the present Civil Revision Application read thus:

2.1 The applicant is a tenant of the respondent for suit premises located at Rajkot and, in a previous suit, Civil Suit No. 38 of 1982, standard rent of the suit premises is fixed at Rs.125/- per month, certified copy of the decree is produced at Ex.26 and therein, it is ordered that the applicant has, in addition to Rs.125/- per month, to pay electric bill and water charges. During the pendency of the suit, as per receipts, the applicant deposited, by Exh. 35 to 45, Rs. 5,950/- in all the rent claimed in this suit, from date 14.02.1981 and in view of the deposits, no decree for any amount of rent was passed while passing decree below Ex.26, on date 24.01.1984 in that suit and according to the respondent/plaintiff-landlord, he had not withdrawn amount thus deposited in the earlier suit.

2.2 It is further the case of the applicant/tenant that despite the aforesaid fact, the respondent issued demand notice upon the applicant on 14.12.1984, demanding rent from date 14.01.1984 to date 13.12.1984 and electric charges and water charges and then filed suit for possession, alleging non- payment of rent for more than six months, claiming decree under section 12(3)(a) of the Bombay Rent Act, stating therein that standard rent is fixed at Rs.125/- per month, plus electric charges and water charges payable by the applicant, and also prayed for decree for possession under Sections 13(1)(g) and 13(1)(1) of The Bombay Rent Act and claimed decree for rent and mesne profits.

3. Mr. Henil M. Shah, learned advocate for the applicant has raised following contentions:

(a) The suit was filed on 24.04.1985 and before the filing of the suit the applicant/tenant had already deposited Rs. 5,950/- in the Court. As per receipts, the applicant had deposited, by Exh. 35 to 45, Rs. 5,950/- in all, rent claimed in this suit, from date 14.02.1981 to 26.01.1985 and in view of the deposits, no decree for any amount of rent was passed while passing decree below Ex.26.

(b) The applicant/tenant had disputed the arrears of rent and the arrears were wrongly claimed by the respondent/plaintiff vide demand notice dated 14.12.1984 despite the fact the amount deposited by the applicant/tenant were adjusted by the respondent/plaintiff.

(c) Reliance was placed on the findings of both; the Trial Court and appellate Court that the applicant/tenant was not in arrears of rent and the Trial court has further gone to the extent holding that the demand notice was invalid as the applicant/tenant was not in arrears of rent.

(d) Mr Henil Shah, learned advocate relied on the finding of the appellate Court in para 7 and contended that the appellate court has come to the finding that the applicant/tenant were not in arrears of rent and that the applicant/tenant had paid the rent in excess which was adjusted by the respondent/plaintiff.

(e) Mr Henil Shah, learned advocate further contended that the appellate Court erroneously applied Section 20 of the Bombay Rent Act and thereby relying on the judgment of the Hon’ble Supreme Court in the case of Maganlal Chhotalal Desai Vs Chandrakant Motilal reported in (1969) 10 GLR 175, the appellate Court erred in coming to the conclusion that the rent paid by the applicant/tenant in Civil Suit No. 38 of 82 had become over-payment on passing of decree Exh.26 on 24.01.1984 and from 24.01.1984 till date of issuance of suit notice dated 14.12.1984, the period of six months had already expired and the applicant/tenant has not deducted the rent, nor filed any suit for recovery of the excess payment of rent and therefore the applicant’s right to recover of excess payment can b