Dinesh Sherla 214-wp-3211-97
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3211 OF 1997
Smt. Satyabhamabai J. Shelar
through her L.Rs.
Chandrakant J. Shelar and anr. .. Petitioners
vs.
Shantaram K. Mhatre and anr. .. Respondents
Mr. S.S. Patwardhan a/w. Mr. Bhushan V. Mandlik for the
Petitioners.
None for the Respondents.
CORAM : M. S. SONAK, J.
DATE : 13 OCTOBER 2017.
ORAL JUDGEMNT :-
1] Heard Mr. S.S. Patwardhan and Mr. Bhushan V. Mandlik,
learned counsel for the petitioner.
2] The petitioner - landlord challenges the orders dated 10 th
January 1992 and 17th February 1997, by which, the Trial Court and Appeal Court have declined the landlord decree of eviction in R.C.S Suit No. 9 of 1986.
3] The petitioner had applied for eviction on the ground that respondent No.1 had unlawfully sublet the suit premises to respondent No.2 and further, the respondents, failed to use the suit premises in a responsible manner and caused nuisance or annoyance 1/4 ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:45:25 ::: Dinesh Sherla 214-wp-3211-97 to the neighboring or adjoining occupants. In short, the landlord, had invoked, the grounds in Section 13(1)(e) and 13(1)(c) of the Bombay Rent Act, 1947 (said Act).
4] The learned counsel for the petitioner submits that the two courts misdirected themselves in law by holding that the ground of subletting was not proved because, the petitioner, in the notice issued to the respondents prior to the institution of the suit had not raised such a ground. Learned counsel points out that the said Act does not require any notice to be issued to the tenants before instituting suit on the grounds contemplated by Section 13(1)(e) or Section 13(1)(c) of the said Act. Learned counsel points out that the respondent No.1 had in fact made a complaint to the police authorities that respondent No.2 was in illegal occupation of the suit premises. This aspect has also not been considered by the two courts.
5] The learned counsel for the petitioner further submits that there was overwhelming evidence on record to establish that the respondents were using the suit premises irresponsibly. In fact, one portion of the suit premises caved in, thereby, causing nuisance and 2/4 ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:45:25 ::: Dinesh Sherla 214-wp-3211-97 annoyance to the tenant leaving on the ground floor. The learned counsel submits that this was a fit case for making an eviction decree under Section 13(1)(c) of the said Act.
6] Having considering the submissions of learned counsel for the petitioner and perused the materials on record, there is no case made out to interfere with the concurrent findings of fact recorded by the two courts. The petitioner has not demonstrated any perversity. There is really no evidence on record to order eviction on the grounds raised. The jurisdiction under Article 227 of the Constitution of India is not appellate and no interference is warranted, unless, a case of perversity is made out. 7] Learned counsel for the petitioner is entirely right in his submission that there is no requirement of landlord issuing any notice prior to the institution of a suit seeking eviction under Section 13(1)(e) and Section 13(1)(c) of the said Act. Therefore, the mere fact that there was no reference to allegation of subletting in the notice issued, could not be a valid ground for denying relief. However, relief is denied by the two courts mainly on the basis that there is no evidence to establish any subletting by respondent No.1 3/4 ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:45:25 ::: Dinesh Sherla 214-wp-3211-97 in favour of his own son, respondent No.2. The failure to refer to this aspect in the notice issued by the petitioner before the institution of the suit, is only an additional circumstance. 8] Admittedly, respondent No.2 is the son of respondent No.1. Both the respondents have deposed to the fact that there was no subletting involved and respondent No.2 was always residing in the suit premises as a member of the family of respondent No.1, i.e., his son. The circumstances of the police complaint have also been explained. There is no perversity in the record of concurrent findings of fact.
9] On the aspect of nuisance, there are hardly any pleadings or proof to make out a case for eviction under Section 13(1)(c) of the said Act. The two courts, have appreciated the evidence on record and found the same totally insufficient to make out a case for eviction under Section 13(1)(c) of the said Act. Again, no perversity is demonstrated.
10] For the aforesaid reasons, there is no merit in this petition. The petition is therefore, dismissed. There shall, however, be no order as to costs.
(M. S. SONAK, J.) 4/4 ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:45:25 :::