Bombay High Court
Hanmant vs Chandrashekhar Malikarjunappa ... on 7 December, 2010
Bench: S. S. Shinde
wp1104.90
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
WRIT PETITION NO. 1104 OF 1990
Hanmant s/o vitthalrao Ghodke
Age 47 years, Occ. Tailor
R/o. Lokhand Galli, Latur,
Tq. and District Latur ...Petitioner
Versus
Chandrashekhar Malikarjunappa Bidwe,
Age 42 years, Occ. Agriculture,
R/o. Lokhand Galli, Latur
District Latur ...Respondent
.....
None for the petitioner as well as the respondent.
.....
CORAM: S. S. SHINDE, J.
DATED: 7TH DECEMBER, 2010
JUDGMENT :-
1 This petition is filed challenging the judgment and order dated
9.3.1990, passed by the learned District Judge, Latur in Rent Appeal
No. 12 of 1989. By the said judgment, the leaned District Judge has
confirmed the order passed by the Rent Controller in File No.
1987/RCA/0/24 dated 8.8.1989.
2 The petitioner herein is tenant and the respondent herein is the
wp1104.90
original landlord, who filed eviction petition for eviction of the petitioner
herein on the ground of willful default in making payment for the suit
premises of Municipal house No. 172/2 situated at Lokhand Galli,
Latur. Since the eviction was sought only on the ground of willful
default, the Rent Controller Latur framed only one issue i.e. Does the
petitioner proves that respondent-tenant is willful defaulter? The said
issue is answered by the Rent Controller in affirmative.
Being aggrieved by the order of the Rent Controller, the
petitioner herein filed Rent Appeal No. 12 of 1989 before the learned
District Court, at Latur. However, the learned District Judge, Latur has
dismissed the appeal. Hence, this writ petition.
4 This matter was listed for final hearing from time to time. It
appears that on 23.8.2006, when the matter was called out for final
hearing, none appeared for the petitioner, the matter was dismissed in
default. It further appears that the application was filed by the
petitioner for restoration of writ petition. Taking lenient view in the
matter, this Court restored the petition at its original file. Again the
matter was listed for final hearing on 21.4.2008, on the said date also
none appeared for the petitioner. Again the writ petition was
dismissed for non prosecution. Thereafter, another civil application
was filed by the petitioner for restoration of the petition. Accordingly,
wp1104.90
this Court, for the second time taking lenient view in the matter has
restored the writ petition at its original position. It appears that though
the matter is listed for final hearing from time to time, the counsel for
the petitioner has not taken steps to appear in the matter and argued
the matter on merits.
The matter was again listed on 3.5.2010, none was present for
the petitioner and therefore, the petition was dismissed for non
prosecution. Again counsel for the petitioner, for the third time, filed
application for restoration of writ petition. This Court taking a lenient
view in the matter has restored the petition to its original file subject to
payment of costs of Rs.2000/-. This matter was heard on 2.12.2010
and at the specific request of the counsel for the petitioner, it was
adjourned to 6.12.2010 to enable him to argue the matter. However,
when the matter was called out on 6.12.2010, the court time was over
and therefore, the matter is posted for final hearing today as part
heard. However, even after waiting for 15 minutes, none appears for
the petitioner.
5 On perusal of the order passed by the Rent Controller, it
appears that the landlord who is respondent herein examined himself
and one witness viz. Rawan Irrappa Chakore and also some receipts
were filed by the landlord on record. On the basis of the statement of
wp1104.90
witnesses and documentary evidence in the form of receipts, the Court
recorded certain findings and arrived at the conclusion that the rent
which was agreed between the parties was Rs.700/- per year. The
Rent controller, after appreciation of evidence bought on record held
that the petitioner is willful defaulter. The learned District Judge in
appeal has once again appreciated the rival contentions and recorded
certain findings that the decree for arrears of rent has been passed by
the Civil Court through Small Cause Suit No. 119 of 1987 and so also
there is another suit bearing Small Cause Suit No. 33 of 1989 again
for recovery of further arrears of rent. The learned District Judge has
taken a note of the decree for arrears in Small Cause Suit No. 119 of
1987. The District Court has considered the documentary evidence
placed on record and observed that the petitioner herein who is
original tenant allowed a full decree to be passed and has not taken
any steps to deposit the rent amount.
6 The learned District Judge taking over all view of the matter has
recorded the correct findings that the default on the part of the
petitioner original tenant is willful default. The learned District Judge
has observed that there is no payment till the decree was executed.
The long period of non payment has also considered by the learned
District Judge. There are concurrent findings recorded by the courts
below that the petitioner herein is willful defaulter. On perusal of the
wp1104.90
findings recorded by the Rent Controller as well as the learned District
Judge, in my opinion, no perversity is shown. Even on independent
scrutiny and after going through the grounds taken in the petition, I am
of the opinion that the findings recorded by the Rent Controller as well
as the learned District Judge, are consistent with the evidence brought
on record by the parties. The courts below have taken possible view.
Hence, no interference is warranted. Petition is dismissed. Rule stands
discharged. Interim relief, if any stands vacated.
ig Record and
proceeding, if any, be sent back to the concerned Court.
*****
