JUDGMENT - KHARCHE S.T., J.:---Heard Mr. S.R. Deshpande, the learned Counsel for the petitioners and Mr. Kothari, the learned A.G.P. for respondent Nos. 2 and 3. None for respondent No. 1. 2. Invoking the writ jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, the petitioners-tenants challenges the order dated 26th September, 1988 passed by the Additional District Magistrate. Nagpur in R.C. Appeal No. 22/A-71(2)/87-88, who confirmed the findings of the Rent Controller granting permission to the respondent landlord to serve quit notice for termination of tenancy under sections 13(3)(ii) and (iii) of the C.P. Berar Lettering of Premises and Rent Control Order, 1949 (In short, the Rent Control Order). 3. Brief facts are as under : Originally, father of the respondent No. 1 Bholanath Pande (since deceased) inducted the husband of the petitioner No. 1 Fulchand Patel as a tenant on the monthly rent of Rs. 25/- per month. The shop of denatured spirit was being run in the suit premises by obtaining the necessary licence. Bholanath Pande died on 18-10-1968 and after his death, his three sons including the respondent No. 1 inherited the suit property and there was oral partition between them and the shop premises in occupation of Fulchand Patel was allotted to the share of Surajnarayan Pande, the respondent No. 1. Similarly, Fulchand Patel also died on 24-1-1982 and petitioner No. 1 Parwatabai, who is widow had inherited the tenancy of the shop premiss and the licence of the shop was transferred in her name. She had no male issue, and therefore, petitioner No. 2 was assisting her in the said business. 4. Surajnarayan Pande had filed an application in the Court of Rent Controller which was registered as Revenue Case No. 236-A (71)(2)/ 83-84 wherein it was contended that the petitioner No. 1 had sub-letted the suit premises to the petitioner No. 2, and therefore, alongwith other grounds, the landlord sought permission to determine the tenancy. 5. The parties relied on oral as well as documentary evidence adduced before the Rent Controller. The learned Rent Controller on considering the evidence and on hearing the learned Counsel for the parties, had rejected the said application filed by the landlord. Being aggrieved by that order, the land lord had carried the appeal in the Court of the Additional District Magistrate. The learned Rent Controller on considering the evidence and on hearing the learned Counsel for the parties, had rejected the said application filed by the landlord. Being aggrieved by that order, the land lord had carried the appeal in the Court of the Additional District Magistrate. The learned Additional District Magistrate by his order dated 26-9-1988 reversed the findings of the Rent Controller and allowed the appeal. The Additional District Magistrate recorded the findings that the landlord is entitled to serve quit notice for determination of the tenancy under Clause 13(3)(ii) and (iii) of the Rent Control Order. 6. Mr. Deshpande, the learned Counsel for the petitioners-tenants vehemently argued that tenant was ready and willing to pay the rent and it cannot be said that he is a habitual defaulter. He contended that the practice was being followed by the landlord to accept the rent intermittently and the said practice was established through the evidence of the parties. He contended that the tenant had sent the money-order in the year 1982 for Rs. 300/- which covered the period of rent from 1-5-1981 to 30-4-1982 and the landlord had refused to accept the same, and therefore, thereafter though the money order was not sent, it cannot be said that the tenant is a habitual defaulter. He contended that in such circumstance, the impugned order passed by the learned Additional District Magistrate is not sustainable in law and in support of this submission, he relied on the decision of the honourable Supreme Court in the case of (Mangalbhai v. Dr. Radheyshyam)1, 1993(1) Bom.C.R. 2 . 7. Mr. Deshpande further contended that Surajnarayan, who is the land lord has not examined himself and instead his brother Satyanarayan who is holding power of attorney has been examined. He contended that Fulchand Patel died on 24-1-1982 and the tenancy rights were inherited by his widow, the petitioner No. 1 Parvatabai. Due to old age, she was unable to carry on the business of denatured spirit in the suit premises, and therefore, her grand son, petitioner No. 2 Ramkisan was assisting her in the said business. He contended that the licence of the shop was also transferred in the name of the widow as well as in the name of her grandson, and therefore, by no stretch of imagination, it can be said that the widow has subletted the suit premises. He contended that the licence of the shop was also transferred in the name of the widow as well as in the name of her grandson, and therefore, by no stretch of imagination, it can be said that the widow has subletted the suit premises. He contended that the leaned she Appellate Court has committed an error in granting permission to determine the tenancy on the ground mentioned in Clauses 13(3)(ii) and (iii) of the Rent Control Order. 8. Only the points arise for determination in this petition, those are; (1) whether the suit premises has been subletted to the petitioner No. 2 and; (2) whether the petitioners-tenants are habitual defaulters? 9. As to point No. 1:—I have given thoughtful consideration to the contentions canvassed by the learned Counsel for the tenants. It is not in dispute that Fulchand Patel was inducted as a tenant in the suit premiss for running the shop of denatured spirit and after his death, his widow Parvatabai inherited the tenancy rights. It is also in dispute that due to old age, Parvatabai was unable to look after the business and such she took the assistance of her grandson, petitioner No. 2 for conducting the said business. It is also not in dispute that the licence which was obtained by Fulchand Patel for running the business of denatured spirit was also transferred in the name of his widow and the petitioner No. 2 and the latter is said to have entered into the partnership with the widow. 10. Sub-section (5) of section 2 of the Rent Control Order defines the tenant. "Tenant" means any person by whom or on whose account rent is payable for a house and includes a sub-tenant and a person continuing in possession after the term of his tenancy has expired. In the present case, there is no evidence to show that the petitioner No. 2 was inducted as a sub-tenant in the suit premiss though it is admitted position that the petitioners are in joint possession of the premises after the death of original tenant Fulchand Patel. In the present case, there is no evidence to show that the petitioner No. 2 was inducted as a sub-tenant in the suit premiss though it is admitted position that the petitioners are in joint possession of the premises after the death of original tenant Fulchand Patel. In situation like this, it is apparent that there is merit in the argument of the learned Counsel for the petitioners that the appellate Court has committed an error in granting permission to the landlord for determination of the tenancy in accordance with Clause 13(3)(iii) of the Rent Control Order and thus the impugned order so far as this ground is concerned, cannot be sustained in law and thus impugned order is set aside to this extent. 11. As to point No. 2:—Satyanarayan Pande is brother of landlord Surajnarayan Pande and his evidence would reveal that the tenant is in arrears of rent for the period 1-5-1981 to 31-12-1983 for about 32 months which would worked out to Rs. 800/- @ Rs. 25/- per month. His evidence clearly indicate that the rent is outstanding since 1-5-81 and he had prepared the rent schedule (Exh. A-3) which was prepared on the basis of the rent receipts issued. It is not in dispute that the original tenant Fulchand Patel died on 24-1-1982, and therefore, the petitioner tenants claims that they had sent the rent for the period of one year, i.e. from 1-5-1981 to 30-4-1982 amounting to Rs. 300/- by money order sometimes in the year 1982 and the landlord had refused to accept that money order. It is also not in dispute that petitioner-tenants did not care to deposit any amount of arrears of rent which is due since 1-5-1981 in this Court. It is true that this witness Satyanaryan admitted in his cross-examination that he do not have knowledge about the agreement in between Surajnarayan and the tenant and the houses were owned by three brothers only. Bholanath Pande expired on 18-10-1968 and oral partition was effected on 24-1-1969, after the death of their father and till the partition, it is Satyanaryan who used to collect the rent. After the partition, Surajnarayan collected the rent and they used to accept the rent in a way tenant used to tender it. The money order which was sent was not accepted. After the partition, Surajnarayan collected the rent and they used to accept the rent in a way tenant used to tender it. The money order which was sent was not accepted. On the basis of this evidence, it is not possible to accept that the tenants were ready and willing to pay the rent. Though the landlord used to accept the rent on intermittent period, it cannot be said that the tenants were ready and willing to pay the rent. The tenants did not care to send the rent again by money order after the year 1982 nor they made any attempt to pay the rent for the period 1-5-1981 to 31-12-1983 for about 32 months prior to filing of the application before the Rent Controller. 12. It is not in dispute that application was filed before the Rent Controller on 20-1-1984 and one of the ground in the application was that the tenant was habitual defaulter. It is obvious that the landlord was issuing rent receipts whenever the rent was tendered. The rent was in arrears for the period 1-5-81 to 31-12-1983 for about 32 months amounting to Rs. 800/@ Rs. 25/- per month before the date of filing of the said application before the Rent Controller. The burden is on the tenant to prove that she was ready and willing to pay the rent. 13. Mr. Deshpande relied on the decision of the Supreme Court in the case of Mangalbhai v. Dr. Radheyshyam, 1993 Mh.L.J. 567, and the honourable Supreme Court while considering the earlier decision in the case of (Rasik Lal v. Shah Gokuldas)2, 1989(1) Bom.C.R. 610 , observed that ; "We do not see any reason for holding that unless the rent was paid and accepted at a fixed period or interval, no such implied agreement can be inferred. In the (S.P. Deshmukh v. Shah Nihalchand Waghjibhai)3, A.I.R. 1977 S.C. 1985, the rent had been paid at the varying interval of 3 to 4 months. The crucial test appears to be the conduct of the landlord in receiving the rent offered belatedly. If he receives the same under protest and warns the tenant to be regular in payment in the future, he cannot be assumed to have agreed to a modified agreement in this regard. The crucial test appears to be the conduct of the landlord in receiving the rent offered belatedly. If he receives the same under protest and warns the tenant to be regular in payment in the future, he cannot be assumed to have agreed to a modified agreement in this regard. But if he, without any objection and without letting the tenant know his thought process, continues to receive rent at intervals of several months, he cannot be allowed to scoring a surprise on the tenant by suddenly starting a proceeding for eviction. Having lulled the tenant in the belief that thing were all right, the landlord was under a duty to serve him with a notice demanding regular payment, if he wished to insist upon it. In the case before us there was no objection whatsoever, raised on behalf of the landlord against the delayed payments. We, therefore, hold that the High Court was not right in reserving the concurrent finding of the two courts below". The ratio of the above decision fully applies to the fact of the case before us". 14. The aforesaid decision of the Supreme Court cannot be made applicable to the present case. In that case the tenants were even paying the rent in advance and there was an established practice to pay the rent to Raghoji Munim, who used to come to collect the same as per his convenience. Thus, it was proved beyond any manner of doubt that the parties had adopted the practice of payment of rent in lump sum and not month by month and which continued from 1-1-1972 to the date of filing the application under Clause 13 of the Rent Control order. Such is not the present case. In this case at hand, it has been established that the tenant used to go the house of the landlord for making payment of rent and landlord used to issue the rent receipts though intermittently. It is also a proved fact that the rent was in arrears for about 32 months for the period 1-5-1981 to 31-12-1983 @ Rs. 25/- per month which would worked out to Rs. 800/-. It is also a proved fact that the rent was in arrears for about 32 months for the period 1-5-1981 to 31-12-1983 @ Rs. 25/- per month which would worked out to Rs. 800/-. When this rent fell in arrears, there was an attempt on the part of the tenant to send the rent by money order, but the money order was sent in the year 1982 for 300/- only which covered the period 1-5-1981 to 30-4-1982. Thereafter there was absolutely no attempt on the part of the tenant to pay the rent to the landlord and though the landlord had refused to accept the said money order, it cannot be said that the tenant was ready and willing to pay the rent especially when no attempt has been made by the tenant even to pay the said rent during the pendency of the present proceedings before the Rent Controller. It is apparent that despite institution of rent control proceedings, no full rent was tendered even thereafter till December, 1985 and therefore, the landlord was required to file suit for recovery of arrears of rent of Rs. 900/- which was due for the period from 1-1-1983 to 31-12-1985 in the Court of Small Causes, on 23-1-1986 and the said suit was decreed on 11-8-1987 with costs. This would show that the tenant was not ready and willing to pay the rent and therefore, in such circumstance, the tenant cannot be allowed to enjoy the possession of the premises at gratis. 15. It may be noted that the provision as regards default in payment of rent is contained in Clause 13(3)(ii) of the Rent Control Order which provides that in order to seek permission to send the notice of ejectment on this ground it must be proved by the landlord that the tenant was "habitually in arrears with the rent". Now, according to the landlord, the rent was in arrears for about 32 months, and therefore, he had filed application before the Rent Controller on 20-1-1984 but the Rent Controller rejected the same. The landlord being aggrieved by that decision had carried the appeal which ultimately came to be allowed. Now, according to the landlord, the rent was in arrears for about 32 months, and therefore, he had filed application before the Rent Controller on 20-1-1984 but the Rent Controller rejected the same. The landlord being aggrieved by that decision had carried the appeal which ultimately came to be allowed. The Appellate Authority considered this aspect of the matter in the judgment in detail and there is no reason for this Court to take a different view of the matter, and therefore, the finding recorded by the Appellate Court that the tenants are habitual defaulters, cannot be said to be not based on the evidence adduced by the parties. Therefore, the finding of the Appellate Court, so far as the point No. 2 is concerned, deserves to be confirmed. 16. In the result, the writ petition stands dismissed with no costs. Rule discharged. Petition dismissed. -----