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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
Writ Petition No. 1066 of 2020
PETITIONERS: 1. Bhagwandas Timappa Puthran
(since deceased through his LRs)
1-a] Sandeep son of Bhagwandas Puthran,
Aged about 48 years,
Occupation : Business,
1-b] Yadesh son of Bhagwandas Puthran,
Aged about 49 years,
Occupation : Business,
Both R/o Shalimar Restaurant and Bar,
Buty Marg, Sitabuldi, Nagpur.
Vs.
RESPONDENTS : Jayant Ganpatrao Buty
(since deceased through his LRs)
1-a) Bhagyashree wd/o Jayant Buty,
Aged about 70 years,
Occupation-Household,
1-b) Yashodhan / Madan son of Jayant Buty,
Aged about 47 years,
Occupation : Business,
1-c) Umesh / Onkar son of Jayant Buty,
Aged about 40 years,
Occupation - Business,
All R/o 306, RT Road, Civil Lines, Nagpur.
Mr. S.V. Bhutada, Advocate for petitioners.
Mr. P. N. Kothari, Advocate for respondents.
CORAM : MANISH PITALE, J.
RESERVED ON : 16.12.2020
PRONOUNCED ON : 06.01.2021
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JUDGMENT
Rule. Rule is made returnable forthwith. Heard finally with the consent of learned counsel appearing for rival parties.
2. By this Writ Petition, the petitioners, who are the legal representatives of the original tenant, have approached this Court, challenging judgment and order dated 19/10/2019, passed by the District Court at Nagpur, whereby an appeal filed by them stood dismissed, as a consequence of which, decree passed by the Small Causes Court evicting them from the suit property stood confirmed.
3. The litigation between the parties has been travelling through the process of the Court since the year 2004. For the sake of convenience, the petitioners are being referred to as "tenant" and the respondents are referred to as "landlord". Initially, the proceedings stood initiated by the landlord against the tenant by filing of a Regular Civil Suit, seeking possession from the tenant. It was dismissed and against the same, the landlord moved an appeal. The appeal stood allowed in favour of the landlord, against which the tenant approached this Court in Second Appeal in the year 2011. The said Second ::: Uploaded on - 06/01/2021 ::: Downloaded on - 06/02/2021 22:05:34 ::: 3 wp 1066-2020 Appeal was disposed of on 05/09/2012, when the landlord conceded that considering the nature of the suit, the jurisdiction would actually be with the Small Causes Court. As a consequence, the matter stood relegated to the Small Causes Court and it was re-registered in the year 2013. It was the case of the landlord that an open piece of land was given on rent to the tenant and that the tenant had initially put up a temporary structure to run a restaurant and thereafter, the tenant had illegally converted it into a permanent structure, running a bar and restaurant therein. Although written statement was filed on behalf of the tenant, thereafter, there was no further participation in the proceedings. The landlord led evidence in support of his pleadings and the suit was decreed on 19/12/2014.
4. The tenant filed an appeal before the District Court at Nagpur and by judgment and order dated 04/10/2017, the appeal was partly allowed, the judgment and decree of the Small Causes Court was set aside and the matter was remitted to the said Court for fresh consideration. The landlord approached this Court by filing a Writ Petition, challenging the remand order. By judgment and order dated 27/06/2019, this Court allowed the Writ Petition, setting aside the remand order ::: Uploaded on - 06/01/2021 ::: Downloaded on - 06/02/2021 22:05:34 ::: 4 wp 1066-2020 of the District Court and directed that the District Court shall decide the appeal of the tenant considering the material and evidence on record. While passing the aforesaid order, this Court specifically observed that it would be a travesty of justice if dilatory tactics adopted by parties like the tenant herein were permitted and matters stood remitted to give opportunities to such parties, who of their own volition opted to remain away from the proceedings. The said order passed by this Court was challenged before the Hon'ble Supreme Court, but, the Special Leave Petition was dismissed on 23/08/2019, thereby confirming the order passed by this Court.
5. Thereupon, the District Court took up the appeal for consideration, in terms of the directions given by this Court and the impugned order was passed dismissing the appeal of the tenant. It is relevant that even after remand of the proceedings before the District Court, the tenant filed an application for permission to amend the written statement ostensibly to bring on record subsequent events. The said application was rejected by the District Court and the parties were directed to advance their final arguments. The District Court in the impugned judgment and order formulated points on the question of validity of the notice of termination of ::: Uploaded on - 06/01/2021 ::: Downloaded on - 06/02/2021 22:05:34 ::: 5 wp 1066-2020 tenancy issued by the landlord, whether the findings of the Trial Court on the question of changing nature of the temporary structure to permanent by the tenant was correct and whether the aspect of bona-fide and reasonable requirement of the landlord, as also the aspect of comparative hardship were correctly decided. The District Court in the impugned judgment and order rendered findings on the said points in favour of the landlord and dismissed the appeal.
6. In support of the present Writ Petition, Mr. S.V. Bhutada, learned counsel appearing for the petitioner - tenant submitted that when the structure on the plot rented out to the tenant was constructed with full consent of the landlord and when there was already a temporary structure existing, whether it could be said that the plot given to the tenant was covered under the expression "premises" under Section 7(9) of the Maharashtra Rent Control Act, 1999. It was further argued that in any case, when the litigation was instituted by the landlord for the first time in the year 2004, the structure was already existing on the plot and, therefore, the tenant was entitled for protection under the provisions of the aforesaid Rent Act. It was emphasized that the relevant date was not when the possession of the plot was handed over to the tenant, ::: Uploaded on - 06/01/2021 ::: Downloaded on - 06/02/2021 22:05:34 ::: 6 wp 1066-2020 but, the relevant date in the facts and circumstances of the present case in the context of availability of the protection of the aforesaid Act, was the date on which the landlord initiated the proceedings to seek possession of the premises. According to the learned counsel for the tenant, the Courts below failed to appreciate this aspect of the matter while holding against the tenant. The learned counsel for the tenant relied upon judgments of the Hon'ble Supreme Court in the cases of Mrs. Dossibai N.B. Jeejeebhoy Vs. Khemchand Gourmal AIR 1966 SC 1939 and Puwada Venkateswara Rao Vs. Chidamana Venkata Ramana AIR 1976 SC 869 and judgment of this Court in the case of Meghji Kanji Patel Vs. Kundanmal Chamanlal Mehtani AIR 1968, BOMBAY 387. It was further claimed that the correct position of law was stated in the judgment of this Court in the case of Govindram bros. Pvt. Ltd. and others Vs. Alexander Benedict Joseph Pereira 1995 (1) Mh.L.J. 115 and that perhaps the said position was erroneously applied in a recent judgment in the case of Narendra Harilal Jethwa Vs. Shri Bholadasji Mandir, Nashik and others 2019 (6) Mh.L.J.
885. On this basis, it was submitted that the Writ Petition of the petitioner - tenant deserved to be allowed by following the dictum laid down in the case of Govindram bros. Pvt. Ltd. and others Vs. Alexander Benedict Joseph Pereira (supra). ::: Uploaded on - 06/01/2021 ::: Downloaded on - 06/02/2021 22:05:34 :::
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7. On the other hand, Mr. P. N. Kothari, learned counsel appearing for the respondent - landlord, submitted that in the first place, the arguments sought to be raised before this Court were never raised before the courts below. It was submitted that in any case, there were concurrent orders against the petitioner - tenant and that there was very limited scope to interfere with the findings rendered by the two Courts below under Article 227 of the Constitution of India. It was submitted that the evidence led by the respondent - landlord had remained uncontroverted and that, therefore, there was no substance in the contentions sought to be raised on behalf of the petitioner - tenant. It was further submitted that the position of law laid down in the aforesaid judgment of this Court in the case of Narendra Harilal Jethwa Vs. Shri Bholadasji Mandir, Nashik and others (supra), was correct and the judgment of this Court in the case of Govindram bros. Pvt. Ltd. and others Vs. Alexander Benedict Joseph Pereira (supra), was considered when the said subsequent judgment was rendered. It was submitted that the position of law clearly applied in favour of the respondent - landlord, in the facts and circumstances of the present case. It was submitted that the petitioner - tenant was not entitled to claim protection of the said Rent Control ::: Uploaded on - 06/01/2021 ::: Downloaded on - 06/02/2021 22:05:34 ::: 8 wp 1066-2020 Act and that the decree passed in favour of the respondent - landlord deserved to be confirmed.
8. The learned counsel for the respondent - landlord relied upon judgments of this Court in the cases of Shantabai Tukaram Choudhary Vs. A.K. Builders 2019 (5) Mh.L.J. 297 and Orbit Super Market Pvt. Ltd., Nagpur Vs. Mukta Arvind Bobde and others 2019 (6) Mh.L.J. 614.
9. Before considering the rival contentions raised on behalf of the parties, it is necessary to emphasize that this Court in the present proceedings is considering the correctness or otherwise of the conclusions rendered by the two Courts below concurrently, while exercising jurisdiction under Article 227 of the Constitution of India. In the aforesaid judgments, on which reliance is placed on behalf of the respondent - landlord i.e. Shantabai Tukaram Choudhary VS. A.K. Builders (supra) and Orbit Super Market Pvt. Ltd., Nagpur Vs. Mukta Arvind Bobde and others (supra), this Court has specifically held that interference in orders passed by the Courts below can be made under Article 227 of the Constitution of India only in exceptional cases where patent perversity is found in such findings rendered by the Courts below. The said findings can ::: Uploaded on - 06/01/2021 ::: Downloaded on - 06/02/2021 22:05:34 ::: 9 wp 1066-2020 be interfered with only if this Court concludes that they are rendered upon manifest misreading of the evidence, thereby rendering them perverse and unsustainable. Thus, it is evident that the petitioner - tenant has to satisfy a tough test to succeed in the present Writ Petition to overturn the concurrent findings rendered against the petitioner - tenant.
10. Applying the said test to the material available on record, it is found that in the present case evidence of the landlord is available on record to the effect that when the petitioner - tenant was inducted in the premises in question it was an open piece of land. The pleadings as well as evidence of the respondent - landlord on this point has remained uncontroverted and unchallenged throughout. Therefore, the findings of the two Courts below are on the said factual basis and the other finding is concerned with the validity of the notice issued by the respondent - landlord to evict the petitioner - tenant. On facts, the two Courts below have concurrently found in favour of the respondent - landlord. In fact, a feeble attempt was made on behalf of the petitioner - tenant to claim that in the present case, there was lack of evidence to prove service of notice on the petitioner - tenant in accordance with law and that, therefore, the decree deserved ::: Uploaded on - 06/01/2021 ::: Downloaded on - 06/02/2021 22:05:34 ::: 10 wp 1066-2020 to be set aside. But, this Court has perused the evidence on record as also the analysis of the same by the two Courts below and it is found that there is absolutely no substance in the said contention sought to be raised on behalf of the petitioner - tenant. Therefore, on facts, there is no scope to come to any conclusion that the findings rendered by the two Courts below concurrently are based on any misreading of the evidence and material on record or that they are perverse in any manner.
11. It is perhaps for this reason that the learned counsel appearing for the petitioner - tenant sought to principally argue the aforesaid question of law as to the availability of the protection of the said Rent Control Act, to contend that the decree passed against the petitioner - tenant deserved to be set aside. Much emphasis was placed on the judgment of this Court in the case of Govindram bros. Pvt. Ltd. and others Vs. Alexander Benedict Joseph Pereira (supra), to contend that the Courts below ought to have thrown out the suit filed by the respondent - landlord on the ground that the protection of the said Rent Control Act was available to the petitioner - tenant. It is for this reason that the learned counsel appearing for the petitioner - tenant has sought to indicate that the recent subsequent judgment in the case of Narendra Harilal Jethwa Vs. ::: Uploaded on - 06/01/2021 ::: Downloaded on - 06/02/2021 22:05:34 ::: 11 wp 1066-2020 Shri Bholadasji Mandir, Nashik and others (supra), lays down a very wide proposition and that it may need reconsideration. The learned counsel for the petitioner - tenant has referred to other judgments also, only to further support the aforesaid contention regarding alleged availability of protection of the Rent Control Act.
12. This Court has considered the contentions raised by the learned counsel for the rival parties on the aforesaid specific question. A perusal of the recent judgment in the case of Narendra Harilal Jethwa Vs. Shri Bholadasji Mandir, Nashik and others (supra), would show that the earlier judgment in the case of Govindram bros. Pvt. Ltd. and others Vs. Alexander Benedict Joseph Pereira (supra), has been referred to, taken into consideration and then conclusions have been rendered.
13. It has been held in the said recent judgment in the case of Narendra Harilal Jethwa Vs. Shri Bholadasji Mandir, Nashik and others (supra) that upon determination of a lease, subject to contract to the contrary, the lessee is under a statutory obligation to hand over the property to the lessor in the state in which he received it. It has been categorically held that when the lease was of an open plot, the lessee was under an ::: Uploaded on - 06/01/2021 ::: Downloaded on - 06/02/2021 22:05:34 ::: 12 wp 1066-2020 obligation to hand over the suit property in the state in which he received it and that even if the lessee was permitted to raise construction in the suit property and he did not remove it, it cannot be held that the suit property assumes the character of "premises" under Section 7(9) of the aforesaid Rent Control Act. On this basis, it was held that the protection of the Rent Control Act was not available to the petitioner - tenant.
14. In the case of Govindram bros. Pvt. Ltd. and others Vs. Alexander Benedict Joseph Pereira (supra), this Court referred to the object of the Rent Control Act, 1947 and, inter-alia, held that when the petitioners before this Court therein raised construction on the property after obtaining non-agricultural permission, the protection under the Act of 1947, became available. In the present case, the pleadings and evidence of the respondent - landlord, which remained uncontroverted, categorically proved the fact that open piece of land was given to the petitioner - tenant. In this context, it becomes relevant to refer to the definition of "premises" under Section 7(9) of the said Rent Act, 1999. It defines a premises as any building or part of a building let or given on license, including gardens, garages, etc. appurtenant to such building and any fittings affixed to such building. In the present case, the ::: Uploaded on - 06/01/2021 ::: Downloaded on - 06/02/2021 22:05:34 ::: 13 wp 1066-2020 uncontroverted evidence on record shows that an open piece of land was let out to the petitioner - tenant. Therefore, there is no question of the petitioner - tenant claiming advantage of the definition of "premises" in the aforesaid Rent Control Act to claim that when the proceedings were initiated in the year 2004, he became eligible for protection under the said Rent Act. The evidence on record shows that after the open piece of land was let out to the petitioner - tenant, initially he constructed a temporary tin structure to run a Restaurant and then constructed permanent structure to run a bar and restaurant. This was in defiance of the applicable laws and now the petitioner - tenant cannot be permitted to turn around and claim that he was entitled to protection under the aforesaid Rent Act.
15. Viewed from that angle, there is substance in the contention raised on behalf of the respondent - landlord that the ratio of the judgment of this Court in the case of Govindram bros. Pvt. Ltd. and others Vs. Alexander Benedict Joseph Pereira (supra), does not apply and that the petitioner - tenant cannot take any advantage of the same. It was correctly submitted that the law laid down in the recent judgment of this Court in the case of Narendra Harilal Jethwa Vs. Shri Bholadasji Mandir, ::: Uploaded on - 06/01/2021 ::: Downloaded on - 06/02/2021 22:05:34 ::: 14 wp 1066-2020 Nashik and others (supra), after taking into consideration the judgment in the case of Govindram bros. Pvt. Ltd. and others Vs. Alexander Benedict Joseph Pereira (supra), was correct in law and there was no question of reconsideration of the same.
16. As noted above, the pleadings and evidence on record clearly show that the respondent - landlord successfully made out a case for eviction of the petitioner - tenant. On facts, the findings rendered by the two Courts below concurrently cannot be said to be erroneous at all. The concurrent findings of the two Courts below do not deserve interference from this Court under Article 227 of the Constitution of India. The question of law sought to be raised on behalf of the petitioner - tenant was one more desperate attempt to somehow cling on to the property, but, there is no substance in the said contention.
17. Therefore, this Court finds that there is no merit in the present Writ Petition. Accordingly, it is dismissed. There shall be no order as to costs. Rule is discharged.
JUDGE MP Deshpande ::: Uploaded on - 06/01/2021 ::: Downloaded on - 06/02/2021 22:05:34 :::