Sukhdeo S/O Hiraman Dahihande, ... vs Laxman S/O Bhaurao Shinde, ...
2007 Latest Caselaw 824 Bom

JUDGMENT

S.B. Deshmukh, J.

1. This petition takes an exception to the judgment and order passed by the learned Additional District Judge, Ahmednagar, in Regular Civil Appeal No. 107/1986 dismissing the appeal and upholding the judgment and eviction decree passed by the trial court.

2. The petitioner, was the defendant in Regular Civil Suit No. 240/1980, filed by the present respondents, against the present petitioner. Parties hereinafter are referred to their status as plaintiffs and defendant in R.C.S. No. 240/1980. Defendant Sukdeo died during the pendency of this writ petition and his legal heirs have been brought on record.

3. The plaintiffs filed R.C.S. No. 240/1980 for possession of the suit property and arrears of rent on several grounds. One of the ground raised, was regarding default in payment of rent from May 01, 1978 to January 31, 1979 i.e. for eight months amounting to Rs. 320/-. According to the plaintiffs, the suit property, was let out to the defendant at the monthly rent of Rs. 40/-and tenancy month is as per English Calender. The defendant after appearance, filed written statement. Issues were framed at Exhibit-12. The trial court, after considering evidence on record, recorded a finding on Issue No. 2 i.e. wilful default against the defendant. On this ground, decree came to be passed by the trial court on January 28, 1986, of eviction and arrears of rent to the tune of Rs. 220/-. This judgment and decree was the subject matter of the Regular Civil Appeal No. 107/1986 filed by the defendant in the court of learned District Judge, Ahmednagar, which after hearing the parties, came to be dismissed by the learned 3rd Additional District Judge, Ahmednagar, on July 20, 1990. This judgment and decree, is brought in question, in this writ petition filed under Article 227 of the Constitution of India.

4. Learned Counsel Mr. Bedre, for the petitioner, principally, made threefold submissions. Firstly, according to him, notice alleged to have been issued to the defendant, is not legal for the decree of eviction under Section 12(3)(a) of the Bombay Rents, Hotel, and Lodging House Rates Control Act, 1947 (hereinafter referred to as "Act, 1947" for short). Secondly, according to learned Counsel for the petitioner, two applications were filed during the pendency of first appeal i.e. Regular Civil Appeal No. 107/1986. The First Appellate Court did not consider these applications in its proper perspective. Thirdly, superstructure, was constructed by erstwhile tenant Mr. Pundlik Sonar and the defendant, while entering in to the suit property as tenant, purchased the said superstructure for amount of Rs. 250/-. According to him, this aspect is not considered by the courts below.

Mr. Korhalkar, learned Counsel for the plaintiffs, has invited my attention to the pleadings of the parties. According to him, court at the first instance, has considered pleadings and framed issues. The trial court has considered issuance of notice. There is no denial in written statement filed on behalf of the defendant. Both learned Counsel relied on various judicial pronouncements.

5. The record and proceedings have been called. From the copy of the plaint in R.C.S. No. 240/1980, it appears, that the suit property is recorded as C.T.S. No. 4299/A corresponding to Municipal House No. 4523. It is further described as open plot in vernacular. Thereafter, boundaries of the suit property have been described. From Paragraph 2 of the plaint, it appears, that the plaintiffs have asserted monthly rent of Rs. 40/-and payment of rent month by month. In paragraph 4, plaintiffs have averred that the suit property was let out to the defendant for tethering the cattles. It was oral agreement. However, the defendant instead of tethering the cattles, used to inclose them in the suit property. She-buffalows have damaged walls of the suit property. It is also alleged in Paragraph 4 that the defendant had carried out unauthorised construction in the suit property. Apart from these allegations, in Paragraph 5, it is alleged, that the defendant was in arrears of rent w.e.f. May 01, 1978 till January 31, 1979 for the period of eight months. This arrears of rent, was at the rate of Rs. 40/- per month, total Rs. 320/-. Notice alleged to have been issued by the plaintiffs to the defendant on February 20, 1979 and tenancy of the defendant was terminated from March 31, 1979.

Written Statement filed by the defendant is at Exhibit-11. In paragraph-7 of the written statement, it is denied that the defendant was in arrears of rent from May 01, 1978 till January 31, 1979. The rent of Rs. 40/- per month is also denied. In relation to the notice, it is pleaded by the defendant that notice with false allegations have been sent by the plaintiffs, however, the said notice is replied on behalf of the defendant. In paragraph-12 of the written statement, it is pleaded that prior to defendant, one Mr. Pundlik Sonar was tenant of the plaintiffs. Said Sonar had with the permission of the plaintiffs put up a room of tin sheets and wood and at the time of vacating the suit property by Mr. Sonar and taking the suit property on rent by the defendant, with the consent of plaintiffs, the defendant had paid amount of Rs. 250/-to Sonar, erstwhile tenant, towards the cost of the said superstructure on the suit property. Since 1964, the defendant is residing in the suit property and also tethering his cattles in the suit property. Initially, rent was Rs. 20/-per month, which was increased to Rs. 30/- per month illegally by the plaintiffs. Rent was not accepted by the plaintiffs, therefore, the defendant had sent amount of rent by money order which was not accepted by the plaintiffs. The defendant had filed application for fixation of standard rent in the Civil Court bearing Misc. Civil Application No. 164/1979.

6. The trial court, considering the pleadings, had framed as many as five issues in this suit, at Exhibit-12, on September 23, 1983. Since there was no specific denial to notice and or legality of notice, no issue, in relation to eviction notice dated February 20, 1979 was framed by the trial court. It appears, that the defendant did not move the trial court during the pendency of the suit for such issue. It is also apparent from the record that no such plea, was raised even before the First Appellate Court when the judgment and decree passed in R.C.S. No. 240/1980 was under challenge. Apart from this, I have examined pleadings on behalf of the parties. In paragraph-4 of the written statement as noted above in foregoing paragraphs, the defendant has referred to receipt of the notice dated February 20, 1979. According to the defendant, said notice contains false allegations. He has further clarified that the said notice is duly replied. In my view, such contentions, therefore, cannot be permitted to be raised for the first time in this writ petition. However, I have examined the contention in relation to notice dated February 20, 1979. This notice is duly exhibited as Exhibit-23. This notice referred to alleged default on the part of the defendant. The defendant was informed apart from other grounds, that he has committed a default in payment of rent. Exact terminology, used in this notice, is that "you have committed default of eight months rent to the tune of Rs. 320/-". The date of default is given upto January 31, 1979. Further it is averred that the defendant has committed default in payment of rent for more than six months and therefore, status of the defendant is defaulter. In this notice, it is also alleged that the suit property, open plot, was given on monthly rental basis to the defendant and monthly rent asserted, is to the tune of Rs. 40/-per month. According to learned Counsel for plaintiffs, this notice, is under Section 12(2) of the Act, 1947. Notice contemplated under Section 12(2), for seeking a decree of eviction on non payment of the standard rent or permitted increases, has to be served upon the tenant in the manner provided under Section 106 of the Transfer of Property Act, 1882. Section 12(3)(a), provides that, if the rent is payable by month to month and there is no dispute regarding amount of standard rent or permitted increases, if such rent or permitted increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until expiration of period of one month after notice referred to in Sub section 2, Court shall pass a decree for eviction in such suit for recovery of possession. Notice Exhibit-23 as noted above, makes assertion that the defendant is in arrears of rent for the period of eight months. This arrears of eight months is claimed in this notice uptill January 31, 1979. In my view, this brief assertion made by the plaintiffs in this notice dated February 20, 1979, is sufficient compliance of Section 12(2) of the Act, 1947. This notice, was thus, served to the defendant under Section 12(2) of the Act, 1947. In the written statement itself, at the cost of repetition, it is noted that receipt of this notice is admitted by the defendant. Thus, notice issued on behalf of the plaintiffs, in my view, is legal and proper.

7. The description of the property from the plaint, as referred to in foregoing paragraphs of this judgment, is the said description given by the plaintiffs in notice Exhibit-23 dated February 20, 1979. From the material on record, it appears, that the superstructure was put up by the erstwhile tenant Mr. Sonar. The expression "premises" is defined under Section 5(8) of the Act, 1947, which reads thus:

Section 5(8) "Premises" means

(a) any land not being used for agricultural purposes,

(b) any building or part of a building let or given on licence separately other than a farm building, including

(i) the garden, grounds, garages, and out-houses, if any, appurtenant to such building are part of a building,

(ii) any furniture supplied by the landlord for use in such building or part of a building,

(iii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof; but does not include a room or other accommodation in a hotel or lodging house. It is apparent from Section 5(8)(a) that any land not being used for agricultural purposes, can be said to be premises within meaning of Section 5(8)(a) of the Act, 1947. Suit property is situated within limits of Ahmednagar Municipal Council, which now converted to Ahmednagar Municipal Corporation. It is nobodys case that the suit property was/is agricultural land. Thus, in my view, suit property can be said to be premises within meaning of Section 5(8)(a) of the Act, 1947.

8. As noted above, during the pendency of Regular Civil Appeal No. 107/1986, two applications were given on behalf of the defendant. Application Exhibit-21, seems to have been filed on 05-07-1990. By this application, the defendant, has sought leave of the Court for producing the documents. Application Exhibit-21, explains that the documents annexed with the said application were received recently by the appellant, and therefore, the request was made for allowing production of these documents. Learned Judge, passed order, that the application may be considered at the time of judgment. In Paragraph-14 of the judgment, the first appellate court has referred to the provision laid down under Order 41 Rule 27 of the Code of Civil Procedure. Learned first appellate court, considered the grounds raised in this application Exhibit-21 and ultimately, rejected the said prayer. The First Appellate Court was of the opinion that no case under Sub clause (a) (aa) or (b) of Sub rule 1 of Rule 27, Order 41 of the Code of Civil Procedure is established. I feel that the order passed by learned First Appellate Court, is legal, proper and inconsonance with the provisions laid down under Order 41 Rule 27 of the Code of Civil Procedure.

Learned Counsel for the defendant has also invited my attention to another application Exhibit-23, filed on behalf of the defendant. This application also seems to have been filed during the pendency of Regular Civil Appeal No. 107/1986 and more specifically on July 20, 1990. The First Appellate Court passed an order "Otherside to say" on July 20, 1990. By this application, witness summons was sought to the Superintendent of Post Offices Ahmednagar, General Post Office, Ahmednagar. In this application, prayer was made seeking summons as well as liberty to adduce additional evidence was sought for. Earlier application Exhibit-21, was for production of documents under Order 41 Rule 27 of the Code of Civil Procedure. This application Exhibit-23, at the most, can be considered to be an application under Order 41 Rule 28 of the Code of Civil Procedure. It reads thus:

Order 41 Rule 28 of Code of Civil Procedure:

Mode of taking additional evidence.-Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court.

This provision opens with reference to the additional evidence if permitted by the appellate court. It is provided wherever additional evidence is allowed to be produced, the appellate court may either take such evidence itself or can direct the court from whose decree the appeal is preferred, to record such evidence. The appellate court also can direct any other subordinate court to take such evidence and send it to the appellate court. This provision, comes into play, in case additional evidence is permitted by the appellate court, exercising power under Order 41 Rule 27 of the Code of Civil Procedure. In a given case, if some document is allowed to be produced by the appellate court during the pendency of the appeal, question of formal proof of such document may arise and in that circumstances party concerned may pray for such additional evidence under Order 41 Rule 28 of the Code of Civil Procedure. This application seems to have been given by the defendant since the application Exhibit-21 was filed seeking production of additional evidence. Application Exhibit-21, was filed alongwith list of the documents. On this application, Exhibit-23 except "Otherside to say", no other order is passed. However, in paragraph-14 of the judgment, First Appellate Court, without quoting Exhibit-21 and 23, purportedly under Order 41 Rule 27 and Order 41 Rule 28 of the Code of Civil Procedure, respectively, rejected these applications.

9. Plaintiffs, averred in the plaint as noted above, that rent of the suit premises was to the tune of Rs. 40/-per month. Same is figure mentioned in the notice addressed to the defendant. The trial court, after appreciating evidence, recorded finding that the rent of the suit property was to the tune of Rs. 30/-per month. This finding is not disputed by the defendant before the appellate court. It is also not in dispute that the defendant had filed Misc. Civil Application No. 164/1979. The said application was dismissed in default. There is no dispute that the alleged amount of arrears of rent for eight months was not deposited by the defendant, in accordance with the scheme of Act, 1947 in the court. Learned Counsel Mr. Bedre, relied on a judgment of learned Single Bench of this Court, in the matter of Ramchandra Appaji Manjare, since deceased by L.Rs. v. Mahavir Gajanan Mug reported in 1992 Mh. L.J. 436. Learned Single Bench of this Court, in the facts and circumstances of the case, held that notice under Section 12(2) was invalid. There in that case, this Court has recorded a finding that excessive amount not legally due and payable on the date of the notice was claimed by the landlord. In the present case, facts are altogether different. Misc. Civil Application No. 164/1979 filed by the defendant, seeking fixation of standard rent, came to be dismissed in default. No further proceeding have been taken by the defendant. Therefore, it can be said that there was no dispute regarding rent. There is no denial in the written statement as noted above on behalf of the defendant, disputing legality of the notice. No such contention was raised before the First Appellate Court. Therefore, in my view, ratio of this judgment is not applicable to the facts obtaining in the case on hand.

10. Courts below have passed a decree of eviction on account of non payment of rent for more than six months under Section 12(3)(a) of the Act, 1947. Learned Counsel for the plaintiffs, relied on judgment of the Apex Court in the matter of Jaywant S. Kulkarni and Ors. v. Minochar Dosabai Shroff and Ors. reported in 1988(2) R.C.J. 312 (SC). The Apex Court, noted amendment to Section 12(3)(a) and held that in such fact situation, Court shall pass a decree and no discretion is left with the Court. In case on hand, in my view, default for eight months as claimed by the plaintiffs, has been proved on material brought on record by the plaintiffs. Decree passed by the trial court and upheld by first appellate court under Section 12(3)(a) of the Code of Civil Procedure, therefore, is legal and proper.

11. I see no reason, to interfere with the judgment of the first appellate court confirming the decree of eviction passed by the trial court. Superstructure, was not claimed by the plaintiffs since in notice itself, and plaintiffs are seeking possession of open plot as described in paragraph-1 of the suit. In the fact situation, Civil Court has passed a decree, for possession of the open plot. Thus, Writ Petition stands dismissed. The judgment and decree passed by the trial court, and upheld by the First Appellate Court, is hereby confirmed with further direction that after removal of superstructure from the suit property, possession of the suit property be handed over to the plaintiffs. No costs. Mr. Bedre, learned Counsel seeks six months time to vacate the suit property. After hearing learned Counsel Mr. Korhalkar, in my view such time can be granted in favour of the defendant. This judgment shall stand suspended for the period of six months, on condition that the defendant shall file undertaking in this Court that he would not create third party interest and or shall vacate the property after six months, by the end of March 31, 2008. Undertaking to be filed within four weeks. It is made clear that in case of failure on the part of the defendant to file undertaking, such suspension of this order, shall stand cancelled automatically.

Record and proceedings be sent back to the Court concerned.