P.S. Shah, J.
1. This petition under Article 227 of the Constitution arises out of a suit field by the respondent-landlord against the petitioner for possession of the suit premises under the Bombay Rent Act. The suit premises consist of a two room tenant on the 1st floor in a building known as Auryavilas' in Pune. The contractual rent is Rs. 8.50 p. per month together with 16 paise per month towards educations cess. By a notice dated October 30, 1974, the respondent terminated the petitioner's tenancy on the ground that the petitioner had failed to pay rent of the premises since March 1, 1973 and thus he was a defaulter for more than six months. By this notices, the tenancy was sought to be terminated by the end of November 1974. The petitioner sent a reply dated November 7, 1974 denying that he was a defaulter in payment of rent. He contended that the respondent had refused to accepter which was sent by the petitioner by various money orders. It is also stated in his reply that all the arrears then due, 1 viz., Rs. 181.86 p. were being sent separately by a money order to the petitioner. The reply was sent to the respondent's Advocate wherein it is also clearly stated that he should advise the petitioner to accept the money order. It appears that, accordingly, the petitioner had sent the amount to the petitioner by a money order. However, it was returned with an endorsement 'not known', i.e., the addresses was 'not known'. The suit was filed on January 10, 1975. The trial Court decreed the suit. The appeal preferred by the petitioner challenging the decision of the trial Court dismissed. The petitioner, therefore, has filed this petition.
2. It was urged by Shri Agarwal, the learned Counsel appearing for the petitioner, that there is abundant evidence on record which shows that the respondent had deliberately refused to accept the money order which was sent by the petitioner within one month of the receipt of the notice dated October 30, 1974. He submitted that the courts below have failed to consider the important circumstances on record which clearly support the contention of the petitioner. He drew my attention to various money order coupons which show that the respondent refused to accept the money orders in the past. He also pointed out that even in the reply, it was noticed that the petitioner had specifically requested the respondent's Advocate that the respondent should be advised to accept the money order which was being separately sent. He submitted that these circumstances have been totally ignored by the courts below. According to the learned Counsel, the petitioner has all along been ready and willing to pay the rent and thus also deposited the entire arrears and costs in the trial Court. The Counsel submitted that the respondent was not entitled to possession of the suit premises.
3. The petitioner has produced five money order coupons which are at Exh. 31/1 Exh. 31/2 is dated October 27, 1971. It shows that the petitioner had sent a money order for Rs. 25.50 p. being the rent for August to October, 1971. Exh. 31/4 is dated October 15, 1971 and shows that the petitioner had sent the money order of Rs. 43.40 p. for the period August to December 1971. Exhs. 31/4 and 31/5 are two other money order coupons for Rs. 34.72 p. and Rs. 17.36 p. respectively. All these five money orders are admittedly refused by the respondent. Bearing in mind the circumstances that the respondent was in the habit of refusing to accept the money orders and also the fact that in the reply to the notice, it was specifically stated that the money order of Rs. 181.86 p. was being separately sent to the respondent, it is difficult to accept the contention of the respondent that the address of the respondent must not have been correctly mentioned in the money order of Rs 181.86 p. It is true that the money order has been returned with an endorsement 'not known', i.e., the addressee was not known. It is significant that till the filing of the suit, no complaint was made by the respondent that a false statement was made in the reply to his notice, nor was a grievance made that although in the reply it was stated that a money order was being separately sent, in fact no such money order was sent by the petitioner. It is true that the petitioner has not examined the postman. It is also true that the money order coupon Exh. 21/10 for Rs. 185.60 p., does not bear a date, but these two circumstances cannot be considered in isolation. There was absolutely no reason for the petitioner to mention a wrong address of the respondent on the money order form. As pointed out earlier he has sent several money orders earlier at the proper address. He had even taken care to tell the respondent's advocate that he may ask his client to accept the amount sent by money order by the petitioner. It is impossible, in the circumstances of the case, to agree that the view taken by the courts below that there was no valid tender in one month of the receipt of the notice. It is obvious that the respondent had unjustifiably refused to accept the money order. The courts below have erred in not taking into consideration the most important aspects of the case mentioned above. Omission to consider the material evidence has clearly resulted in total miscarriage of justice and wrong conclusions. In view of the fact that the entire amount of arrears was tendered by the money order within one month of the receipt of the notice the, case cannot fall under section 12(3)(a). The case would obviously be governed by the provisions of section 12(1) of the Rent Act. As the petitioner has shown that he is all along ready and willing to pay the rent, he is not liable to be evicted from the premises. All the arrears up-to-date have also been deposited by him in Court. It also appears that the petitioner had paid certain bills for water rent as issued by the Cantonment Board which the respondent was liable to pay.
4. The trial Court has passed a decree for the rent of Rs. 192.62 p. being the amount of arrears till date of suit. The evidence shows that the petitioner has paid water charges of Rs. 72.80 p. as is evidenced by the two receipts dated February 10,1973 and December 27,1974 produced by the petitioner in the trial Court. There is no dispute that the liability to pay water charges was on the landlord. The petitioner, therefore, would be entitled to deduction of these amounts towards the rent payable by him. The money decree passed against the petitioner will also, therefore, have to be modified to that extent and the decree for Rs. 117.72 p. in place of Rs. 192.52 p. will have to be passed against the petitioner.
5. In the result, the petition succeeds. The judgments and decrees passed by the lower courts are set aside. The respondent's suit for possession stands dismissed. However, a decree for Rs. 117.72 p. for the arrears upto the end of December, 1974 shall be passed against the petitioner. In the circumstances of the case, the parties shall bear their respective costs throughout.
6. The respondent is permitted to withdraw all the amounts that are deposited by the petitioner in the trial Court as well as in the Appellate Court towards arrears of rent, subject to accounting. Whatever excess is paid by the petitioner will be adjusted towards future rent.