JUDGMENT - S.D. GUNDEWAR, J.:---Since both these writ petitions, under Articles 226 227 of the Constitution of India, are directed against one and the same order dated 31-12-1990 passed by the Resident Deputy Collector, Amravati. In Rent Control Appeal No. 159/71(2)/88-89. I propose to dispose them of by this common judgment. 2.Writ Petition No. 1011 of 1991 is filed by the petitioner-tenant for setting aside the impugned order, whereby the Resident Deputy Collector has granted permission to the respondent landlord for termination of tenancy of the petitioner tenant on the ground of habitual default under Clause 13(3)(ii) of the C.P. Berar Letting of Premises and Rent Control Order, 1949, (hereinafter referred to as Rent Control Order), whereas Writ Petition No. 2196 of 1991 is filed by the petitioner landlord for modification of the impugned order passed by the Resident Deputy Collector since the Resident Deputy Collector refused to grant permission to him for termination of tenancy of the tenant under Clause 13(3)(v) for non user of the suit premises. 3.A few facts leading to the present petitions, in brief, may be summarised as below : A two storied building situated in Ward No. 54. Shrikrishna Peth, Amravati, is owned by the respondent in Writ Petition No. 1099 (sic 1011) of 1991 and the petitioner in Writ Petition No. 2196 of 1991 (hereinafter referred as the landlord) and the petitioner in Writ Petition No. 1011 of 1991 and respondent in W.P. No. 2196 of 1991 (hereinafter referred to as the tenant) is in occupation of suit premises consisting of two rooms, situated on the ground floor of the said building at monthly rent of Rs. 100/- inclusive of Municipal taxes and exclusive of Electricity charges. The tenancy month commences from the 1st day of each English Calender month and the agreed rent of suit premises was to be paid at the end of tenancy month regularly. The tenant did not pay the rent regularly as agreed and was in arrears of rent from 1-9-1987 to 31-3-1988. So also he was not using the suit premises continuously for a period of four months and, therefore, the landlord approached the Rent Controller, Amravati, by filing an application for permission to terminate the tenancy of the tenant under Clause 13(3)(i), (ii) (v) of the Rent Control Order. So also he was not using the suit premises continuously for a period of four months and, therefore, the landlord approached the Rent Controller, Amravati, by filing an application for permission to terminate the tenancy of the tenant under Clause 13(3)(i), (ii) (v) of the Rent Control Order. The Rent Controller after considering the evidence led by the parties, granted permission to the landlord for termination of tenancy only under Clause 13(3)(i) of Rent Control Order. Being dissatisfied with the said order passed by the Rent Controller, the landlord preferred an appeal bearing Revenue Appeal No. 159/71(2)/88-89 before the Resident Deputy Collector, Amravati, who has partly allowed the said appeal and granted permission to the landlord for termination of tenancy only under Clause 13(3)(ii) of the Rent Control Order and dismissed his application for permission under Clause 13(3)(v) of the Rent Control Order vide impugned order dated 31-12-1990 and hence these petitions. 4.Heard Shri Bhattad, learned Counsel for the petitioner in Writ Petition No. 1011 of 1991 and for the respondent in Writ Petition No. 2196 of 1991 and Shri P.Y. Deshpande, learned Counsel for the petitioner in Writ Petition No. 2196 of 1991 and for the respondent in Writ Petition No. 1011 of 1991. 5.It is submitted by Shri Bhattad, learned Counsel for the petitioner in Writ Petition No. 1011 of 1991 that the Resident Deputy Collector, Amravati, in exercise of appellate powers erred in granting permission to the respondent landlord for the termination of tenancy of the petitioner tenant under Clause 13(3)(ii) of the Rent Control Order on the ground of habitual default. According to him, though the tenant is under an obligation to pay monthly rent regularly, there arises a contract to the contrary, if the landlord accepts the rent paid at irregular intervals and in such case the conduct in payment of rent at irregular interval does not constitute habitual default, liable to ejectment of tenant under Clause 13(3)(ii) of the Rent Control Order. It is further contended by Shri Bhattad that in the case at hand, the petitioner tenant had paid rent at irregular intervals and the respondent landlord accepted the same without raising any objection and without intimating the tenant for making the payment of rent regularly and, therefore, the petitioner tenant cannot be branded as habitual defaulter. It is further contended by Shri Bhattad that in the case at hand, the petitioner tenant had paid rent at irregular intervals and the respondent landlord accepted the same without raising any objection and without intimating the tenant for making the payment of rent regularly and, therefore, the petitioner tenant cannot be branded as habitual defaulter. For this, he placed reliance on the decisions in the case of (Swami Ratanbabu v. Wamanrao)1, reported in 1995(2) Mh.L.J. 241 ; in the case of (Rashik Lal v. Shah Gokuldas)2, reported in 1989(1) Bom.C.R. 610 in the case of (Mangalbhai v. Radhyshyam)3, reported in 1993(1) Bom.C.R. 2 in the case of (M. Naresh Kumar v. B. Nagalaxmi)4, reported in 1998(5) S.C.C. 331 and in the case of (Girijanandan Singh Parashram v. New Cotton Ginning Pressing Co.)5, reported in 1999(1) Bom.C.R. (S.C.)61 6.As against this, Shri Deshpande, learned Counsel for the respondent landlord by inviting my attention to the schedule annexed to the application filed before the Rent Controller, submitted that a perusal of the said schedule would indicate that the petitioner-tenant was not making up to date payment but allowing the rent of some months to be in arrears and, therefore, the petitioner tenant can very well be said to be a habitual defaulter. For this, he placed the reliance on the decision in the case of (Pandurang Tukaram Rajkondwar v. Balram Madhorao Chavan)6, reported in 1985 Mh.L.J. 109. 7.In order to appreciate the aforesaid contentions raised by the learned Counsel for the parties, it would be appropriate to reproduce the schedule annexed to the application filed by the respondent-landlord before the Rent Controller, which is as below : SCHEDULE OF PAYMENT OF RENT RentDueAmountPaid on FromTo 1-02-8031-03-81980.0023-06-81 1-04-8231-12-82620.0015-01-83 1-01-8330-11-83770.0020-12-83 1-12-8320-02-84210.0027-03-84 1-03-8431-03-8470.0006-09-84 1-04-8431-08-84500.0012-09-84 1-09-8430-09-84100.0001-02-85 1-10-8431-03-85600.0030-04-85 1-04-8531-07-85800.0015-04-86 1-04-8631-12-86900.0016-12-86 1-01-8731-08-87800.0021-08-87 Rent from 1-9-1987 not paid 8.A perusal of the aforesaid schedule of payment of rent, which is not disputed by the petitioner tenant, clearly indicates that on four occasions i.e. on 23-6-81, 6-9-84, 1-2-85 and 15-4-86, the petitioner tenant, while making payment on account of arrears of rent, did not pay the rent upto date and allowed the rent of some months to be in arrears. This clearly indicates that the petitioner-tenant though used to make payment of rent at irregular intervals and the respondent landlord used to accept the same, the petitioner tenant was not making the payment of arrears of rent upto date and used to allow the rent of some months to be in arrears, therefore, applying the ratio laid down by this Court in the case of Pandurang Tukaram Rajkondwar v. Balram Madhorao Chavan, reported in 1985 Mh.L.J. 109, (cited supra) it can very well be said that the petitioner tenant is a habitual defaulter. 9.The decisions cited (supra) on behalf of the petitioner tenant in my opinion, do not help him in showing that he is not a habitual defaulter. I have carefully gone through all those decisions. In all the aforesaid cases, it has been held by this Court as well as by the Apex Court that if the tenant makes payment of rent even at irregular intervals and the landlord accepts the same without raising any objection, it cannot be said that the tenant is habitual defaulter. However, in none of the said cases, though the tenant made irregular payment of rent, he did not allow the rent of some months to be in arrears and, therefore, it has been held by the courts that though there was irregular payment of rent by the tenant, the landlord accepted the same and, therefore, the tenant cannot be branded as habitual defaulter. Here it is not so. In the case at hand as I have discussed above, the petitioner-tenant though made irregular payment of rent, did not pay the rent upto date and allowed the rent of few months to be in arrears, for which no satisfactory explanation has been put forth by him. 10.In view of this and considering the ratio laid down by this Court in the case of Pandurang Tukaram Rajkondwar v. Balram Madhorao Chavan, 1985 Mh.L.J. 109, (cited supra), in my view, the appellate authority i.e. Resident Deputy Collector, Amravati, was perfectly justified in arriving at the conclusion that the petitioner-tenant is a habitual defaulter and has rightly granted permission to the respondent-landlord for termination of tenancy under Clause 13(3)(ii) of the Rent Control Order. 11.Nextly, it is contended by Shri Deshpande, learned Counsel for the petitioner in Writ Petition No. 2196 of 1991 that the Resident Deputy Collector, Amravati, erred in not granting permission to the landlord for termination of tenancy of the tenant under Clause 13(3)(v) of the Rent Control Order on the ground of non user of suit premises by the tenant. According to Shri Deshpande, the evidence of Chandrashekhar Daga, the son of landlord, clearly goes to show that the suit premises are not in use of the tenant continuously for more than four months prior to the filing of the application before the Rent Controller, but this fact has not been considered either by the Rent Controller or by the Resident Deputy Collector. According to him, the Rent Controller as well as the Resident Deputy Collector erred in treating the evidence of Chandrashekhar Daga to the effect that the wife and sons of Mohanlal were staying in suit premises and they stayed there for about 15 years as an admission of the fact that they are still residing in suit premises. According to Shri Deshpande, in fact this witness has in very clear terms stated before the Rent Controller that neither the tenant nor his wife and sons reside in the suit premises though they stayed there for a period of 15 years and therefore, both the courts below grossly erred in treating the aforesaid version of the witness Chandrashekhar Daga as admission of the fact that Mohanlal's wife and sons still reside in suit premises and, therefore, the impugned order passed by the Resident Deputy Collector, Amravati, in not granting permission for termination of tenancy under Clause 13(3)(v) of the Rent Collector Order, needs to be modified to this effect. 12.As against this, Shri Bhattad, learned Counsel for the respondent in Writ Petition No. 2196 of 1991 submitted that the respondent tenant, in his deposition has in unequivocal terms told the Rent Controller that his son Satish, who is studying in college at Amravati, still resides in the suit premises and has denied the allegation of the landlord that the suit premises are not in use continuously for a period of four months preceding the filing of application by landlord. 13.I have considered the evidence of witness Chandrashekhar Daga carefully. 13.I have considered the evidence of witness Chandrashekhar Daga carefully. Now even assuming for the sake of argument that Chandrashekhar Daga has not made any admission as regards the stay of tenant in the suit premises as held by the courts below and that according to him presently the suit premises are not in the use of the tenant then in that case it seems that there is a word against a word as the tenant has denied the fact that he has left the suit premises as alleged. 14.In view of this, it was necessary for the landlord, who had come to the Rent Controller, seeking permission for termination of tenancy on the ground of non user of suit premises, to adduce independent, cogent and convincing evidence in this regard besides his own evidence, but unfortunately, he has not done so. Besides the interested words of the landlord's son Chandrashekhar, there is nothing on record to show that the suit premises are in fact not in use of the tenant and he has left the same long back. I, therefore find that the Rent Controller as well as the Resident Deputy Collector, Amravati, have rightly rejected the permission to the landlord for termination of tenancy under Clause 13(3)(v) of the Rent Control Order. 15.For the reasons stated hereinabove, in my opinion, the impugned order dated 31-12-1990, passed by the Resident Deputy Collector, is just and proper and it calls for no interference at the hands of this Court. 16.In the result both the Writ Petitions bearing No. 1011 of 1991 and No. 2196 of 1991 are dismissed. However, in the circumstances of the case, there shall be no order as to costs. Rule discharged. Writ petitions dismissed. -----