Bombay High Court
Mukesh S/O Ganesh Gohar vs Mrs. Alaukika W/O Shrirang ... on 13 April, 2016
Bench: S.B. Shukre
wp159.16.odt 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 159 OF 2016
Mukesh s/o Ganesh Gohar
aged about 52 yrs., Occp. Service,
r/o Plot No.17, Manav Nagar,
Behind Prem Furnitures, Nari Road,
Post-Uppalwadi,
Nagpur-440026. :: PETITIONER
.. Versus
..
Mrs. Alaukika w/o Shrirang Deogade,
aged 65 yrs., Occp. Household,
r/o Plot No.17, Manav Nagar,
Behind Prem Furnitures, Nari Road,
Post-Uppalwadi,
Nagpur-440026. :: RESPONDENT
...................................................................................................................................
Shri N. G. Jetha, Advocate for the petitioner.
Shri D. N. Dani, Advocate for the respondent.
...................................................................................................................................
CORAM : S. B. SHUKRE, J.
DATED : 13th APRIL, 2016.
O R A L J U D G M E N T
O R A L J U D G M E N T
1. Heard.
2. Rule. Rule made returnable forthwith. Heard finally by
consent.
3. The submission is that even though the petitioner is not a
tenant of the respondent and it is the wife and legal representative,
who is tenant of the respondent, the learned Judge of the Small
wp159.16.odt 2/6
Causes Court has erroneously found that the petitioner is tenant and
fastened liability for payment of arrears of rent as well as payment of
future rent @ Rs. 5,000/- per month.
4. It is submitted by learned Counsel for the petitioner that
there is no rent agreement and the practice has been that no receipt
acknowledging payment of rent used to be issued by the respondent
and, therefore, in such a case, the learned Judge ought to have
considered all the facts properly so as to record a prima facie finding
regarding quantum of rent and the arrears of rent due and payable. He
also submits that the learned Judge has recorded a contradictory
finding regarding the person who is not the tenant of the respondent.
5. Learned Counsel for the respondent-landlord submits that
on the basis of admission given by the petitioner in 'Samzotanama',
police statement of wife of the defendant together with the contention
of the respondent raised in notice dated 15/9/2015 issued to the
petitioner, the learned Additional Judge has correctly found that the
rent that was payable was of Rs.5,000/- and has also rightly
determined the quantum of arrears of rent. He also submits that these
documents such as 'Samzotanama', police statement and the notice
also go to establish prima facie the fact that it were the petitioner, who
was the tenant and not his wife. Therefore, he submits that there is no
substance in the present petition.
wp159.16.odt 3/6
6. Learned Counsel for the respondent further submits that in
the order passed below Exh.5 on 28/10/2015 in Regular Civil Suit No.
212 of 2015 filed by the wife of the petitioner against the present
respondent, the wife of the petitioner has been held to be a deemed
tenant by virtue of being a member of the family of the original tenant
i.e. the petitioner by invoking definition of the "tenant" contained in
Clause 15(d) of Section 7 of the Maharashtra Rent Control Act, 1999.
On this ground also, he submits, that no error could be found in the
impugned order.
7. On going through the order dated 04/12/2015 as well as
the order passed below Exh.5 on 28/10/2015 by one and the same
Judge, I find that the subsequent order dated 04/12/2015, which has
been impugned herein, to some extent, is not consistent with the
findings recorded in the earlier order passed by the same Judge. In
the earlier order, learned Judge has found, by invoking the provision
of Clause 15(d) of Section 7 of the Maharashtra Rent Control Act, that
the wife of the petitioner is tenant of the respondent. In the order,
which is impugned herein, however, the learned Judge while prima
facie finding that the petitioner is tenant of the respondent, has
nowhere made any reference to the wife of the petitioner also being
the tenant by virtue of Clause 15(d) of Section 7of the said Act. In
fact, the learned Judge, while passing the said order, had considered
the issue as to who amongst the petitioner and his wife, was the
wp159.16.odt 4/6
tenant of the respondent and while discussing this issue, the learned
Judge observed that the petitioner is in occupation of the suit premises
as a tenant of the respondent. Obviously, such a finding cannot be
said to be consistent with the finding recorded in the earlier order.
8. Learned Counsel for the petitioner has also submitted that
even though it was specifically stated before the learned Additional
Judge that wife of the petitioner was depositing rent @ Rs.4,000/- per
month, same has not been considered by the learned Additional
Judge.
9. On perusal of the impugned order, I find that learned
Counsel for the petitioner is right in his said submission. There is no
categorical finding recorded by the Additional Judge regarding the
said contention of the petitioner.
10. It is further seen from the impugned order that the
quantum of rent has been prima facie determined to be at Rs.5,000/-
per month and this was against the background of some of the
admitted facts, which indicated that there was no rent agreement and
no rent receipt used to be issued by the respondent regarding payment
of rent.
11. According to the learned Counsel for the respondent, the
finding regarding fixation of quantum of rent is based upon the
admissions appearing on record in some of the documents such as;
'Samzotanama', police statement dated 01/6/2014 and also notice
wp159.16.odt 5/6
dated 15/9/2014. If these documents were to be considered by the
learned Additional Judge, then the learned Judge should also have
considered the submission of the petitioner that an amount of
Rs.4,000/- was already being deposited by the petitioner in the Court
and then learned Judge should have issued appropriate directions.
That has not been done by the learned Additional Judge.
12. As regards the fixation of arrears of rent for the period from
January, 2014 to September, 2015, although it has been the
submission of the learned Counsel for the respondent that its basis
could be seen in such documents as 'Samzotanama' and police
statement, I could not see it to be there in these documents. From
these documents, prima facie, it cannot be understood that there has
been a clearcut admission given either by the petitioner regarding the
petitioner falling in arrears of rent w.e.f. January, 2014. This aspect of
the case, which is very material for deciding the period of arrears of
rent has also not been dealt with by the learned Additional Judge.
Although the trial Court has only considered some part of the
submission by observing in paragraph-9 of the impugned order dated
4/12/2015 that the defendant has filed copy of the receipt in
connection with deposit of rent amount of Rs.12,000/- before the
Court. In my view, it is not sufficient and the trial Court must consider
the whole issue appropriately. In the circumstances, I find that the
impugned order cannot be sustained in the eye of law and it deserves
wp159.16.odt 6/6
to be quashed and set aside.
I. The writ petition is allowed.
II. The impugned order is quashed and set aside.
III. The matter is remanded back to the trial Court for deciding
application (Exh.12) afresh, in accordance with law.
IV. The parties shall appear before the trial Court on the date
already fixed in the matter.
V. The application shall be decided in accordance with law
within two months from the next date already fixed in the
matter.
Rule is made absolute in the above terms. No costs.
JUDGE
wwl
