Bombay High Court
Wasudeo Arjun Ramekar Amravati ... vs Pawankumar Shivnarayan Sarraiya ... on 28 September, 2012
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 1376 OF 2002
PETITIONER :- 1. Wasudeo Arjun Ramekar,
aged 70 years, Occ.: Agriculturist,
r/o Rahatgaon,
District Amravati.
2. Murlidhar Yeshwant Raut,
aged 56 years, Occ.: Service,
r/o Near Marimata Mandir,
Lalaji Wada, Gopal Talkies Road,
Amravati.
...VERSUS...
RESPONDENTS :- 1. Pawankumar Shivnarayan Saraiyya -
DEAD
Through L.Rs.
(a) Smt. Sudha Pawamkumar Saraiya, ,
aged about 50 years,
(b) Rajesh Pawankumar Saraiya
aged 32 years,
(c) Pankaj Pawankumar Saraiya,
aged 30 years,
(d) Niraj Pawankumar Saraiya,
aged 29 years
(e) Vishali Pawankumar Saraiya
aged about 25 yearsagate,
2. Vijaykumar s/o Shivnarayan Sarraiya
aged about 45 years,
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Occ.: Agriculturist
3. Rajendra s/o Shivnarayan Sarraiya,
aged 38 years, Occ.: Doctor,
All r/o Lalaji's Chawl,
Near Rly. Station Amravati.
4. The Rent Controller,
Amravati.
5. The Additional Collector,
Amravati.
-------------------------------------------------------------
Mr. V.A. Kothale Advocate for Petitioners.
Mr. M.R. Kalar Advocate for Respondents 1 to 3.
Mr. T.R. Kankale, AGP, for Respondents 4 & 5.
-------------------------------------------------------------
CORAM : B.P. Dharmadhikari, J.
DATED : 28.09.2012
ORAL JUDGMENT
Heard learned counsel for respective parties.
2. Respondents 1 to 3 filed Rent Control Case No.
203/71[2]/92-93 before Rent Controller, Amravati, and sought permission
to terminate tenancy of petitioner no.1 under clause 13(3)(i) (ii) & (iii) of
C.P. & Berar Letting of Houses and Rent Control Order, 1949 (hereinafter
referred to as Rent Control Order, 1949). The application was opposed
by the present petitioners pointing out that petitioner no.1 was not
concerned in any way and petitioner no. 2 was the real tenant. It was
also pleaded that rent was paid regularly but receipts were not issued.
The Rent Controller after appreciation of evidence found that arrears
were proved and, therefore, granted permission under clause 13(3)(i) and
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(ii). As sub-tenancy was found established permission under clause
13(3)(iii) has also been granted. This order of Rent Controller dated
27.9.1995 was then questioned by petitioner no. 1 Wasudeo in Rent
Control Appeal No. 46/71[2]/97-98 before Additional Collector under
clause 21 of Rent Control Order and by Murlidhar in Rent Control Appeal
No. 45/71[2] of 1997-98. Both these appeals have been dismissed by a
common order dated 29.9.2001 by the Additional Collector, Amravati.
Shri Kothale states that thereafter review of the appellate order was also
sought unsuccessfully.
3. Submission of Shri Kothale is that petitioner no.1 was
residing at Rahatgaon which is within municipal limits and as such there
was no question of his occupying any other residential accommodation.
The accommodation in question was let out to petitioner no.2 Murlidhar
by Shri Shivnarayan, i.e. father of respondents 1 to 3 and accordingly
petitioner no.2 has continued in undisturbed possession since 1960. He
further states that rent was being paid regularly but Shivnarayan never
issued receipts regularly. Because of cordial relations between parties,
this was never seriously objected to. Taking advantage of this state of
affairs, a false claim of rent for the period from 1.1.1979 to 31.12.1980 at
the rate of Rs. 11/- per month, for the period from 1.1.1981 to 28.2.1993 at
the rate of Rs.22/- per month has been made. Claim of Rs.910/- made
on account of municipal taxes is also denied. It is urged that on
23.11.1996 when petitioner no.2 insisted for issuing rent receipts
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Shivnarayan gave a cheat that Rs.900/- were received by way of rent.
Advocate Kothale states that all these facts are duly proved on record
and impugned order of Rent Controller does not look into these facts and
erroneous finding has been reached. He, therefore, prays for allowing
the writ petition.
4. Advocate Kalar for respondents 1 to 3 submits that the Rent
Controller has found petitioner no.1 in arrears of payment of rent and
considering the defence that rent was being paid irregularly, and as that
defence is found not to be substantiated, petitioner no.1 is rightly held to
be habitual defaulter also. He further submits that the rent receipts were
issued in the name of petitioner no.1 and were never objected to either by
petitioner no.1 or by petitioner no.2. Dispute about rent receipts being
raised before this Court in arguments was never raised before the lower
authorities and those receipts conclusively establish that rent was
received from petitioner no.1. Petitioner no. 1 was never in possession
and his premises were occupied by petitioner no.2, the petitioner no.2 is
rightly found to be a sub-tenant. The learned counsel, therefore, prays
for dismissal of petition.
5. Perusal of the order passed by the Rent Controller shows
that receipts of rent issued to petitioner no.1 have been proved on record.
Those receipts are Ex. A-1 to A-5. These receipts show that the rent was
initially Rs.11/- per month and later on it was increased to Rs.22/- per
month. All these receipts are in the name of petitioner no.1 who was non
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applicant before Rent Controller. The non-applicants had opportunity to
cross-examine the landlord and to tender their explanation in relation to
those receipts. Rent Controller has found that there is no explanation why
the receipts issued in the name of petitioner no.1 were accepted by the
petitioners. The petitioners admitted that since inception of tenancy rent
receipts were issued in the name of petitioner no.1 and they never
objected to it. This has been found sufficient by Rent Controller to hold
that petitioner no.1 Wasudeo is the tenant of the suit premises. No fault
can be found with this reasoning and application of mind. If petitioner no.
1 was residing at Rahatnagar and had no connection with the suit
premises and with the alleged direct tenancy of petitioner no.2 Murlidhar,
the petitioner no.2 Murlidhar could not have permitted landlords to insert
the name of some third person/stranger as tenant in rent receipts. If
there was no name of Wasudeo and Murlidhar was claiming to be the
original tenant, the burden was upon Wausdeo and Murlidhar to prove the
circumstances in which the name of Wasudeo was mentioned and
continued to be mentioned in the rent receipts.
6. Shri Kothale has submitted that from 1960 till 2000 there are
only five such rent receipts. It is not the case of the petitioners that there
are other rent receipts which are issued directly in the name of Murlidhar.
From the defence in the written statement taken by the petitioners it is
apparent that they have claimed that rent has been paid regularly but rent
receipts were not issued. One rent receipt which reveals payment or
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receipt of rent Rs.900/- does not mention the name of anybody as tenant
and even does not carry name of the person paying it. This document
also does not help the petitioners. I, therefore, do not find anything
wrong with the concurrent findings recorded by the authorities below in
this connection.
7. The plea in the written statement that rent was paid
regularly but receipts were not issued is considered and evaluated in the
background of a finding that the amount of Rs.900/- was paid as rent as
is evident from the receipt dated 23.11.1996. The Rent Controller's finding
that tenant was in arrears of rent under clause 13(3)(i) cannot be faulted.
The Rent Controller has also found that the payment of rent and taxes
since 1.10.1983 to 28.2.1993 which works out to Rs.3336/- has not been
established. These findings cannot be said to be either erroneous or
perverse.
8. During arguments, Advocate Kothale has attempted to show
that rent was not to be paid every month. However, the landlords in
paragraphs 2 and 3 of their application stated that the rent was being
paid irregularly and for the period from 1.10.1983 till 28.2.1993 rent of
Rs.2426/- was due. The petitioners have filed written statement and in it
they have nowhere expressly accepted that rent was Rs.22/- per month.
In paragraph 6 they have stated that except three receipts, no rent receipt
was given by the landlords for the rent paid regularly by petitioner no.2
Murlidhar. Thus defence is of regular payment and either of non-
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issuance or irregular issuance of receipts. Burden to prove this was
definitely upon the petitioners. They have failed to discharge that burden.
Hence the finding on grounds of arrears and default concurrently
reached cannot be faulted with.
9. Thus, no case is made out warranting interference in writ
jurisdiction. Petition is accordingly dismissed. Rule discharged. No
costs.
ig JUDGE
/TA/
