1 WP6687.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 6687 OF 2015
PETITIONER : Smt. Salma W/o Abdul Salim,
Aged 55 years, Occu. Household,
R/o House No. 905/E-3, Raja ka Badha,
Chhaoni, Nagpur, Tq. And Dist. Nagpur.
VERSUS
RESPONDENT : Shri Abdul Hafiz Khan S/o Abdul Aziz Khan,
Aged about 76 years, Occu. Retired,
R/o Plot No. 18-B, Rathod layout,
Anant Nagar, Near Noori Masjid,
Nagpur, Taq. and Distt. Nagpur.
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Mr. S. A. Mohta, Advocate for the petitioner.
Mr. H. D. Dangre, Advocate for the respondent.
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CORAM : PRASANNA B. VARALE, J.
DATE : MARCH 03, 2017. ORAL JUDGMENT
Rule. Rule returnable forthwith. With the consent of the learned counsel for the parties, the petition is heard finally and taken up for final disposal at the stage of admission itself. 2] By this petition, the petitioner challenges the order passed by the learned District Judge-10, Nagpur, dated 21.11.2015 ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 00:49:37 ::: 2 WP6687.15.odt in Regular Civil Appeal No. 305 of 2013, thereby rejecting the application (Exh.25) filed by the petitioner/appellant seeking permission to raise additional ground in the memo of appeal. 3] The learned counsel for the petitioner submitted that on the backdrop of peculiar circumstances, the petitioner was required to submit application (Exh.25) for raising additional grounds in the memo of appeal. It was the submission of the learned counsel for the petitioner that for some fault of the counsel, the party ought not to have put to prejudice.
4] Few facts giving rise to the present petition can be summarized as follows :
The petitioner is the original defendant/tenant in Regular Civil Suit No. 395/2006 instituted by the respondent/original plaintiff/landlord. The suit was filed for eviction on the ground of arrears of rent and possession. The suit was decreed by the judgment and order dated 30.01.2013. Being aggrieved by the said judgment and decree, the appeal was preferred by the petitioner/defendant, which was filed on 02.04.2013. ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 00:49:37 :::
3 WP6687.15.odt 5] On 20.10.2015, application (Exh.25) was filed. It was
submitted in the application that the petitioner/ applicant had opposed the suit by filing written statement. Prior to filing written statement, two applications were filed by her, one for rejection of plaint under Order 7 Rule 11(a) and (d) of the Code of Civil Procedure ; and another for depositing the amount of rent in the Court under Section 15(3) of the Maharashtra Rent control Act, 1999. It was submitted by the petitioner/ defendant in the application (Exh.25) that she had handed over the amount to be deposited in the Court under protest to the counsel representing her. It was further submitted in the application that the applicant was under an impression that some order would be passed on the applications and if the Court passes the order permitting the applicant to deposit the rent amount, the counsel would deposit the same and obtain the receipt. It was submitted that the applicant is an illiterate poor lady and had no doubt about the credibility of her lawyer. It was submitted in the application that no order was passed on the application for deposit of the amount and suit was decreed. It was submitted in the application (Exh.25) that after filing of the appeal when the counsel was preparing the matter and had gone through the entire brief, he came to know about some more facts ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 00:49:37 ::: 4 WP6687.15.odt and as such application (Exh.25) was filed. It was submitted in the application that the appellant/applicant cannot be allowed to suffer for the fault of her lawyer. It was lastly submitted that on the backdrop of these facts, the decree passed by the trial Court needs to be set aside.
6] The application was opposed by the respondent/ plaintiff by filing say. It was submitted in the say that filing of application is clearly an afterthought attempt and the appellant/ applicant only wanted to protract the proceeding. The learned District Judge, on hearing the parties and on a perusal of the material placed on record, rejected the application. 7] Mr. Mohta, the learned counsel for the petitioner submitted that the petitioner is an illiterate poor lady, not conversant with the legal niceties. The learned counsel then submitted that as the application under Section 15(3) of the Act of 1999 was filed through the counsel seeking permission to deposit the arrears of rent, the petitioner/applicant was under an impression that some orders would be passed on the application. He further submitted that the petitioner had handed over the amount of arrears of rent to ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 00:49:37 ::: 5 WP6687.15.odt be deposited in the Court to the counsel representing her. He further submitted that the petitioner was under an impression that the counsel would take necessary steps so as to deposit the amount. The learned counsel then submitted that only after the judgment and decree was passed, the appeal was preferred by the petitioner and when she subsequently changed the counsel and when another counsel was studying the brief, the fact of not depositing the amount in the Court by the counsel came to the knowledge of the petitioner. The learned counsel vehemently submitted that the petitioner was fully dependent on the counsel representing her and was under bona fide impression that the counsel would intimate her about the orders passed on the application. The learned counsel for the petitioner then submitted that the learned District Judge failed to consider the relevant provisions of Section 15 of the Act of 1999. He submitted that the petitioner was ready and willing to pay the standard rent and permitted increases and as such, neither any order of ejectment could have been passed nor the learned trial Court could have decreed the suit. The learned counsel then submitted that the learned District Judge could have allowed the application and could have assessed the ground raised by the applicant by permitting the parties to lead evidence, more particularly, would have assessed the ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 00:49:37 ::: 6 WP6687.15.odt ground on the backdrop of the petitioner establishing her case by substantial material. He submitted that no prejudice could have been caused to the respondent, if the application was allowed by the learned District Judge.
8] Per contra, Mr. Dangre, the learned counsel for the respondent vehemently opposed the petition. The learned counsel submitted that the respondent instituted the suit raising the grounds that the petitioner was occupying the premises as a tenant since 1979, the petitioner failed to pay rent from January, 1980, she was in arrears of rent for long period though, the rent was a paltry amount. He submitted that notice was issued by the respondent demanding rent and in spite of issuance of notice, the petitioner failed to pay the rent and as such the respondent was left with choice but to approach the Court. The learned counsel for the respondent then submitted that the application filed by the petitioner seeking permission to deposit arrears of rent with simple interest @ 15% per annum was firstly an eyewash as the application was not in consonance with the provisions of the Act of 1999, more particularly Section 15(3). The learned counsel submitted that the petitioner had also not placed on record the true facts. He submitted that the ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 00:49:37 ::: 7 WP6687.15.odt application for amendment in the memo of appeal was also on misrepresentation of the facts. The learned counsel submitted that though, in the application (Exh.25) the petitioner submitted that no orders were passed on the application seeking permission to deposit arrears of rent, in fact the order was passed on the said application on 23.07.2009. The learned counsel for the respondent placed on record a copy of said order for perusal of this Court. The copy of order is taken on record and marked as "X" for identification. The learned counsel then submitted that while allowing the application by order dated 23.07.2009, the trial Court permitted the petitioner /applicant to deposit the amount within stipulated period of one month. The learned counsel submitted that in spite of the directons of the trial Court, the petitioner failed to deposit the amount.
9] Mr. Dangre, the learned counsel for the respondent then submitted that the petitioner filed the appeal along with an application for condonation of delay. He submitted that while allowing the application for condonation of delay, the appellate Court observed that the appeal would be decided on or before 31.03.2015. He submitted that the petitioner sought certain ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 00:49:37 ::: 8 WP6687.15.odt adjournments in the appeal and on 28.10.2015 filed application for raising additional grounds in the memo of appeal. Thus, it is the submission of the learned counsel for the respondent that the petitioner was only interested in protracting the appeal proceeding and as such, the conduct of a party interested in protracting the proceedings is an additional ground for dismissing the petition. The learned counsel then submitted that even if application (Exh.25) could have been allowed by the learned District Judge, the petitioner cannot be benefited as the petitioner has failed to comply the requirement of provisions of Section 15(3) of the Act of 1999. 10] On the backdrop of the submissions of the learned counsel appearing for the parties, I have gone through the material placed on record. It would be useful for our purposes to refer to the relevant provision of the Act namely Section 15(3) of the Maharashtra Rent Control Act, 1999, as the petitioner had filed application seeking permission to deposit arrears of rent, which reads thus -
15. No ejectment ordinarily to be made if tenant pays or is ready and willing to pay standard rent with permitted increases - 1) .......... (2) .......::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 00:49:37 :::
9 WP6687.15.odt (3) No decree for eviction shall be passed by the Court in any suit for recovery of possession on the ground of arrears of standard rent and permitted increases if, within a period of ninety days from the date of service of the summons of the suit, the tenant pays or tenders in court the standard rent and permitted increases then due together with simple interest on the amount of arrears of fifteen per cent per annum; and thereafter continues to pay or tenders in court regularly such standard rent and permitted increases till the suit is finally decided and also pays cost of the suit as directed by the Court."
11] On a perusal of the above referred provision, I find considerable merit in the submission of the learned counsel for the respondent. There was also merit in the submission of the learned counsel for the respondent that mere willingness of a party to deposit arrears of rent is not the compliance of Section 15(3) of the Act. He submitted that application filed by the petitioner was with a qualifying statement for depositing the rent. He submitted that as per Section 15(3), the party is required to continue to pay or tender in the Court regularly standard rent and permitted increased till the suit is finally decided. If the application filed by the petitioner is perused, it reveals that the petitioner had submitted in the ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 00:49:37 ::: 10 WP6687.15.odt application that she is ready and willing to pay arrears of rent for a period of 36 months only. The submission of the learned counsel for the respondent is Section 15 of the Act does not prohibit the landlord to claim arrears for the period more than 36 months. There is no such stipulation of the period in the said provision is the submission of the learned counsel. He then submitted that as the statement in the application was a qualifying statement, the petitioner cannot submit that the petitioner was ready and willing to pay arrears of rent.
12] I also find considerable merit in the submission of the learned counsel for the respondent that the petitioner has suppressed certain material facts. From a perusal of the copy of order dated 23.07.2009 placed on record, it clearly reveals that the application filed by the petitioner was allowed by the trial Court and the petitioner was directed to deposit the amount within one month period subject to its legal consequences. There is also merit in the submission of the learned counsel that the petitioner had made attempts to protract the appeal proceedings. As stated above, the suit was decreed on 30.01.2013 and the appeal was filed on 02.04.2013, whereas the application for raising additional grounds ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 00:49:37 ::: 11 WP6687.15.odt in the memo of appeal was filed on 28.10.2015. It was brought to the notice of the learned District Judge that the Court had observed that the appeal would be decided before March, 2015 and the appellant is protracting the proceedings on one or the other ground. Perusal of the material further shows that though, it was the specific case of the petitioner that she handed over the amount of arrears of rent to her counsel for depositing in the Court and the counsel failed to deposit the same, the petitioner, who was subjected to the oral evidence nowhere stated before the Court about the factum of handing over the amount to the counsel for depositing the same in the Court and the counsel failed to deposit the same. The trial Court observed in respect of examination of the petitioner at paragraph 8 of the judgment, thus -
8] ........... This apart, it also clear from the record that defendant neither paid rent after receipt of suit summons nor deposited rent in the Court during the trial. She has admitted in her cross-examination that she is in arrears of rent since 01.01.1980. She has also admitted that plaintiff has demanded rent by his notice from 01.01.80. She has admitted further that she has received the notice and she has also deposited some amount in the Court, however, there is no documentary evidence filed on record. The court ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 00:49:37 ::: 12 WP6687.15.odt record also show that defendant after her appearance never deposited anyr ent in the court during the trial. As such it is established on record that defendant is in arrears of rent since 01.01.80. Hence, I answer point no.2 in affirmative."
13] Considering all the above referred facts, the grounds raised in the present petition in challenge to the order impugned hold no water. The order impugned in the petition neither suffers from any illegality nor from any irregularity. The petition thus being wholly meritless, deserves to be dismissed and the same is accordingly dismissed.
Rule stands discharged. No order as to costs.
JUDGE Diwale ::: Uploaded on - 06/03/2017 ::: Downloaded on - 07/03/2017 00:49:37 :::