Shri Vinayak Aba Sawant vs Vijay Keru Yelave
2016 Latest Caselaw 2520 Bom

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                                                                 204.cra.383-07.doc


            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION




                                                                                
              Civil Revision Application NO. 383 OF 2007




                                                        
    Vinayak Aba Sawant
    (Since deceased), through L.Rs.
    Shewantibai Vinayak Sawant
    and others.                                                ...Applicants




                                                       
             Versus
    Vijay Keru Yelave                                          ...Respondent

                                     ....




                                            
    Mr. C.G. Gavnekar, Advocate for the Applicants.
    Mr. Tejpal S. Ingale, Advocate for the Respondent.
                                   
                                     ....

                     CORAM :   R. G. KETKAR, J.

                     DATE     :  06th June, 2016
                               
    ORAL JUDGMENT :

1. Heard Mr. C.G. Gavnekar, learned Counsel for the

applicants and Mr. T.S.Ingale, learned Counsel for the

respondent, at length.

2. By this application under Section 115 of Code of Civil

Procedure, 1908 (for short, CPC), the applicants have challenged

the judgment and decree dated 2.7.2002 passed by learned Civil

Judge, Junior Division, Shriwardhan in Regular Civil Suit

No.39/1997 in as well as judgment and decree dated 2.2.2007

passed by learned Adhoc District Judge-1, Raigad-Alibag in Civil

Appeal No.160/2002. By these orders, the Courts below

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dismissed the suit instituted by Vinayak Aba Sawant,

hereinafter referred to as the 'original plaintiff'.

3. Original plaintiff had instituted a suit against the

respondent, hereinafter referred to as 'defendant', for recovery of

possession of two rooms on the ground floor from southern side

of house No.2742/1695 situate at village Shriwardhan, Taluka-

Sriwardhan, District-Raigad (for short, 'suit premises'). It is the

case of original plaintiff that the defendant is a monthly tenant

and monthly rent is Rs.50/-. The tenancy commences as per the

English calender. Defendant has paid rent upto April, 1996. The

defendant has not paid education cess of Rs.59.70, Rs.48,

Rs.81/-, Rs.81/-, Rs.81/-, Rs.73/-, Rs.73/- + Rs.73/- from

1987-88 to 1996-97. Defendant has also not paid rent of

Rs.100/-. As the defendant did not pay the rent of Rs.100/- and

education cess to the tune of Rs.635.50/-, he became defaulter.

4. Original plaintiff further alleged that in the open space

abutting the suit premises, the defendant has fixed plywood

partition and had made encroachment. Original plaintiff

requires the suit premises bonafide for the business purpose of

his son. Defendant has also acquired suitable alternate

residence by purchasing house No.2677/1693 standing in

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Survey No.164 Hissa No.4B. On these amongst other grounds,

original plaintiff terminated the tenancy by issuing notice dated

26.7.1995 and demanded rent as also education cess and called

upon the defendant to hand over possession. As the defendant

did not comply with the notice, original plaintiff instituted the

suit for recovery of possession as also for damages, rent and

education cess.

5. The defendant resisted the suit by filing written

statement at Exhibit-10. He admitted that monthly rent is

Rs.50/-. He denied that he has to pay education cess separately.

According to him, rent so fixed includes education cess. It was

not agreed between the parties that the tenant has to pay

education cess separately to the plaintiff. The defendant

therefore contended that he is not liable to pay education cess

of Rs.635/-. It was further contended that in the notice dated

21.1.1991 sent by original plaintiff and in the plaint in R.C.S.

No.18/1992, original plaintiff did not mention anything about

payment of education cess by tenant.

6. As far as contention about construction of plywood

partition in the open space, the defendant denied the same. The

defendant contended that he had fixed the same after obtaining

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permission of the plaintiff. He admitted that he has purchased

house No.2677/1692. He contended that said house is not

suitable for residence as it is in a dilapidated condition and due

to bad financial condition, he is unable to repair it.

7. On the basis of rival contentions of the parties, learned

trial Judge framed issues at Exhibit-15. To prove the claim,

original plaintiff examined his son Mr.Manohar Sawant as PW-1

at Exhibit-65, Mr.Maruti Vichare as PW-2 at Exhibit-145,

Mr.Ramesh Pawar as PW-3 at Exhibit-146, Mr.Vikas Sawant as

PW-4 at Exhibit-149 and Mr.Vijay Posture as PW-5 at Exhibit-

152 and closed his evidence. The defendant examined himself

as DW-1 at Exhibit-162, Mr.Manohar Dalvi as DW-2 at Exhibit-

193, Mr.Khemchand Himje as DW-3 at Exhibit-196, Mr.Bhojraj

Aawale as DW-4 at Exhibit-198 and Mr.Satish Gandre as DW-5

at Exhibit-200 and closed his evidence.

8. After considering the material on record, learned trial

Judge dismissed the suit. Aggrieved by that decision, original

plaintiff preferred Civil Appeal No.160/2002. Learned District

Judge dismissed the appeal. It is against these decisions,

original plaintiff has instituted above Civil Revision Application.

During pendency of this Civil Revision Application, original

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plaintiff expired. Civil Application No.583/2015 was taken out

for bringing the present applicants being legal representatives of

original plaintiff on record. By order dated 24.11.2015, said

application was allowed.

9. In support of this Civil Revision Application,

Mr.Gavnekar, raised following contentions :

i. Both the Courts below committed serious error in

holding that education cess is not included in the rent;

ii. Both the Courts below committed serious error in

holding that the defendant did not acquire the suitable alternate

residence.

10. Elaborating the first submission, Mr.Gavnekar invited

my attention to the definitions of (i) "permitted increase" in

section 5(7), (ii) "standard rent" in Section 5(10)(b)(iii), as also

Section 10 of the Bombay Rents, Hotel and Lodging House Rates

Control Act, 1947 (for short, 'Act'). He has also taken me

through the evidence of the witnesses.

11. As far as the second contention based on acquisition of

suitable residence by the tenant is concerned, he submitted that

the defendant admitted that he has purchased house

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No.2677/1692. Once the defendant admits acquisition of

alternate residence, burden is on the defendant to establish that

it is not suitable. In the facts and circumstances of the present

case, it cannot be said that said burden has been discharged by

the defendant. He submitted that the Courts below ought to

have decreed the suit on the ground that the defendant has

acquired suitable alternate residence.

12. On the other hand, Mr. Ingale supported the impugned

orders. He submitted that the Courts below have considered the

evidence on record and in particular the evidence of PW-1

Manohar Sawant, son of original plaintiff. The Courts below

have appreciated the evidence on record and have concurrently

held that no material is produced on record by the plaintiff as

regards payment of education cess as also proportionate

education cess liable to be paid by the defendant. As far as

acquisition of alternate suitable residence is concerned, after

appreciated the evidence on record, the Courts below

concurrently held that the premises acquired by the defendant

are in a dilapidated condition and are not suitable for residence.

He, therefore, submitted that no case is made out for invocation

of powers under Section 115 of CPC.

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13. I have considered rival submissions advanced by

learned Counsel appearing for the parties. I have also perused

the material on record. The first question that requires to be

decided is whether the defendant is liable to pay education cess

and whether that is included in the rent or not. Section 5(7)

defines the expression "permitted increase". Section 5(10)

defines the expression "standard rent" and insofar as the

present controversy is concerned, relevant provision is Section

5(10)(b)(iii). Said provisions insofar as they are relevant read

thus :

"5. Definitions.- In this Act unless there is anything repugnant to the subject or context,-

.........

.........

(7) "permitted increase" means an increase in rent permitted under the provisions of this Act;

.........

.........

10) "standard rent" in relation to any premises

means,-

(a) .........

(b) when the standard rent is not so fixed, - subject to the provisions of section 11,

(i) .........

(ii).........

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(iii) where they were first let after the first day of September 1940, the rent at which

they were first let,"

14. Section 10 of the Act reads thus :

"10 - Increase in rent on account of payment of

rates, etc., (1) On and after the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Act, 1986, where a landlord is required to pay to Government or to any local

authority or statutory authority, in respect of any premises any fresh rate, cess, charges, tax, land

assessment, ground rent of land or any other levy on lands and buildings, or increase in rate, cess, charges, tax, land assessment, ground rent of land or any other

levy on lands and buildings, he shall, notwithstanding anything contained in any other provisions of this Act but save as otherwise expressly provided in any other law for the time being in force, be entitled to make an increase in the rent of such premises.

Provided ,that, the increase in rent shall not exceed the amount of any such rate, cess, charges, tax,

land assessment, ground rent of land or any other levy on lands and buildings, as the case may be.

(2) Where the rent is inclusive of charges for electricity and water and the landlord is required to

pay any increase in these charges in respect of any premises, he shall be entitled to make an increase in the rent of such premises by an amount not exceeding the additional amount payable by him in respect of such premises on account of such increase.

(3) The amount of the increase in rent recoverable from each tenant under sub-sections (1) and (2) shall bear the same proportion as the rent payable by him in respect of his premises bears to the total amount of any such rate, cess, charges, tax, land assessment, ground rent of land or any other levy on lands and buildings, or increase in electricity or water charges, as the case may be.]"

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15. As far as trial Court is concerned, this aspect is

considered from paragraphs-9 to 20. In paragraph-10, learned

trial Judge has considered evidence of PW-1 Manohar. After

considering his evidence, learned trial Judge held that PW-1

Manohar has no knowledge of yearly education cess of the

entire property. PW-1 Manohar has no knowledge of how much

education cess has to be paid by each tenant. The plaintiff has

also not produced documentary evidence that he has deposited

education cess to the local authority. In the notice dated

25.12.1990, the plaintiff did not mention about education cess.

Even in the plaint filed in RCS. No.18/1992, it was not stated

that the defendant has to pay education cess separately. In

paragraph-12, learned trial Judge has considered Section 10 of

the Act. In paragraph-13, learned trial Judge noted that in the

building where the suit premises is situate other tenant was in

possession of two blocks situate on the first floor. As per Section

10(3), the landlord has to recover education cess from each

tenant proportionately as per the rent of the premises. The

landlord has to increase the rent and permitted increases i.e.

education cess and other taxes proportionately as per the rent

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and for that purpose it is necessary to bring on record entire

education cess of the house property. However, there is no

evidence to that effect. Learned trial Judge also recorded a

categorical finding that the evidence of PW-1 Manohar reveals

that he has no knowledge about the entire education cess in

respect of the house where the suit property is situate. He was

unable to tell share of education cess payable by each tenant.

Considering this, learned trial Judge held that he has no

knowledge of education cess of entire property. It is not,

therefore, clear as to on what basis the plaintiff has calculated

the share of the defendant of education cess to the tune of

Rs.635.50/- from the years 1987-88.

16. In paragraph-14, learned trial Judge also held that the

plaintiff has not explained about difference in figures of

education cess mentioned in the notice dated 26.7.1995 at

Exhibit-68. After considering the evidence on record, in

paragraph-20, learned trial Judge held that the plaintiff has not

proved that he has charged the amount of education cess

proportionately on the defendant and that no specific oral

evidence about payment of education cess by the defendant is

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brought on record. Further the plaintiff has also not proved

that he has paid the education cess to the Government.

17. As far as the Appellate Court is concerned, this aspect

is dealt in paragraph-16. Learned District Judge held that the

evidence does not disclose that there was any contract between

the parties as regards payment of education cess. As there are

other tenants in the building, it was necessary for the landlord

to charge education cess proportionately as per the amount of

monthly rent. However, there is nothing on record to indicate

that such calculation was prepared and education cess is

proportionately taken from all the tenants. Learned District

Judge further held that the receipts at Exhibit-80 to Exhibit-117

did not mention anything about the education cess. The

plaintiff did not give the particulars in respect of total education

cess and the education cess payable by each tenant. The

plaintiff also did not produce the receipts of education cess paid

by him to Municipal Council, Shriwardhan. The learned District

Judge observed that the learned trial Judge, therefore, rightly

held that the education cess was not payable by the defendant.

After considering the evidence on record, I do not find that the

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Courts below have committed any error in arriving at this

conclusion.

18. This brings me to the next question, namely,

acquisition of suitable alternate residence by the defendant. As

far as this ground is concerned, the learned trial Judge has

considered this aspect from paragraphs-26 to 28. In paragraph-

27, learned trial Judge considered commission report at Exhibit-

205 as also evidence of Commissioner Mr. M.V. Thosar at

Exhibit-201. Learned trial Judge also considered the

photographs of the property produced by the plaintiff at Exhibit-

74. After considering the material on record, learned trial Judge

held that the house acquired by the defendant is in a

dilapidated condition and is not suitable for residence. As far as

Appellate Court is concerned, said aspect is considered in

paragraphs-20, 22 and 28. Learned District Judge also came to

the conclusion that the house purchased by the defendant is in

a dilapidated condition and is not suitable for residence. The

question whether the premises acquired by the defendant are

suitable or not is a pure question of fact. The Courts below after

appreciating the evidence on record have concurrently held that

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the premises acquired by the defendant are not suitable. After

considering the material on record, I do not find that the Courts

below have committed any error in holding that the defendant

did not acquire suitable residence. No other contention was

advanced.

19. After considering the submissions advanced by the

parties as also after considering the material on record, I do not

find that any case is made out for invocation of power under

Section 115 of CPC. The plaintiff was not in a position to

demonstrate that no reasonable person would have arrived at

the conclusions other than arrived by the Courts below. Hence,

Civil Revision Application is dismissed. Rule is discharged. In

the circumstances of the case, there shall be no order as to

costs.

( R. G. KETKAR, J.)

Deshmane (PS)

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