Bombay High Court
Zainab Bee Wd/O Mohd Ismail vs Prabhakar Rajaram Kharwade on 30 June, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.211 OF 2015
PETITIONER: Zainab Bee Wd/o Mohd Ismail, aged
about - 70 years, Occupation:
Household, R/o Near Peeli Haveli
Chowk, Kamptee, Dist: Nagpur.
-VERSUS-
RESPONDENT: Prabhakar Rajaram Kharwade, aged
about 60 years, Occupation: Business,
ig R/o Near Peeli Haveli Chowk,
Kamptee, Distt. Nagpur.
Shri R. I. Agrawal, Advocate for the petitioner.
Shri M. M. Agnihotri, Advocate for the respondent.
----------------------------------------------------------------------------------------------------
WITH
WRIT PETITION NO.211 OF 2015
PETITIONER: Prabhakar Rajaram Kharwade, Aged
about 59 years, Occ. Business, R/o
Pili Haveli Chowk, Kamptee, Distt:
Nagpur.
-VERSUS-
RESPONDENT: Zainab Bee Wd/o Mohd Ismail, Aged
about - 60 years, Occu-Household,
R/o Pili Haveli Chowk, Kamptee,
District- Nagpur.
Shri M. M. Agnihotri, Advocate for the petitioner.
Shri R. I. Agrawal, Advocate for the respondent.
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CORAM: A.S. CHANDURKAR, J.
DATE ON WHICH SUBMISSIONS WERE HEARD: 22-06-2016.
DATE ON WHICH JUDGMENT IS PRONOUNCED: 30-06-2016.
ORAL JUDGMENT :
1. Since both these writ petitions raised challenge to the
judgment of the appellate Court between the same parties, they
are being decided by this common judgment by issuing Rule and
making the same returnable forthwith. Respective Counsel waive
notice.
2. Writ Petition No.211 of 2015 has been filed by the
original plaintiff - landlady who had filed suit for eviction of the
respondent - original defendant under provisions of Section 15,
16(1)(a),(g),(h) and (i) of the Maharashtra Rent Control Act,1999
(for short, the said Act). The suit was decreed by the trial Court
while the appellate Court allowed the appeal filed by the
respondent partly and set aside the decree for eviction. The
landlady being aggrieved by setting aside of the decree for eviction
has filed the said writ petition. Writ Petition No.6734/2015 is
filed by the tenant challenging the judgment of the appellate Court
to the extent of determination of standard rent @ Rs.5000/- per
month. For the sake of convenience, the parties would be referred
to as landlady and tenant.
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3. The premises in question admeasuring about 610
square feet area at House No.839 is situated at Kamptee, District
Nagpur. These premises including House No.840 were initially
owned by one Kishanlal Algare and Chotelal Algare. On
10-12-1981 said Kishanlal entered into an agreement for selling
the suit property to the tenant who was already occupying the
same. The tenant had filed suit for specific performance of
aforesaid agreement against Kishanlal. The tenant was
unsuccessful in obtaining the decree for specific performance and a
direction to refund earnest money was issued. The decree for
refund of earnest amount attained finality on 8-10-2003 when
Second Appeal No.232 of 2005 filed by the tenant came to be
dismissed.
On 28-2-2008, the son of Kishanlal executed a sale
deed of the aforesaid property in favour of the landlady. The
tenant was in possession of House No.839. On 28-11-2008, an
intimation was given to the tenant by the landlady's vendor
regarding aforesaid sale. At that point of time, the tenant was
paying rent of Rs.200/-per month. As the tenant did not pay rent
to the landlady, a notice of demand came to be issued on
28-9-2010. As the tenant did not comply with the said notice, the
landlady filed Regular Civil Suit No.57/2010 for eviction of the
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tenant.
4. The tenant contested the aforesaid suit and denied the
ownership of the landlady. According to the tenant, he was living
in the said premises as owner thereof and not as a tenant. The
landlady examined herself below Exhibit-29. The tenant examined
himself and two other witnesses. After issue No.1 was recasted,
her son was examined. During pendency of the suit, the landlady
filed an application for determination of standard rent @
Rs.25000/- per month. The trial Court after considering the
evidence on record decreed the suit and directed eviction of the
tenant under provisions of Sections 15 and 16(1)(g) of the said
Act. The trial Court also fixed the standard rent @ Rs.5000/- per
month from 1 -3-2008 onwards with interest @ 9% per annum.
The tenant being aggrieved by the aforesaid decree
filed an appeal under Section 34 of the said Act. The appellate
Court held that though the tenant was in arrears of rent, the
default on his part was not willful. It further held that bonafide
need of the landlady had not been proved. The appellate Court,
therefore, set aside the decree for eviction but maintained the
determination of the amount of standard rent at @ Rs.5000/- per
month. This judgment has been thus challenged by both the
parties.
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5. Shri R. I. Agrawal, the learned Counsel for the
landlady submitted that the appellate Court was not justified in
reversing the decree for eviction. According to him after the
tenant failed in the suit for specific performance, his status as
tenant of the premises stood established and, therefore, he was
bound to accept the status of the plaintiff as his landlady.
According to him, merely because the tenant had filed a counter
claim for setting aside the sale deed dated 28-2-2008, the same
would not result in wiping out the status of the defendant as a
tenant of the suit premises. On the aspect of arrears of rent, he
submitted that initially the vendor had given an intimation to the
tenant on 28-11-2008. Thereafter, notice under Section 15(2) of
the said Act was issued on 28-9-2010. However, the demand
made therein was not complied with. The trial Court, therefore,
had rightly decreed the suit on the ground of the tenant being in
arrears of rent. The appellate Court despite recording a finding
that the tenant had not paid any rent since the year 2008,
erroneously observed that the default on his part was not willful.
He, therefore, submitted that the decree passed by the trial Court
in that regard could not have been disturbed.
6. On the aspect of bonafide need of the landlady, he
submitted that the landlady, her son and his family members were
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residing in one premises which was insufficient for their needs.
The landlady's son desired to run a computer institute and hence,
there was need for additional premises. The trial Court had rightly
held in favour of the landlady. However, the appellate Court did
not consider material evidence on record and reversed this finding
with regards to bonafide need. He submitted that the tenant was
owning other premises and hence, no hardship would be caused to
him if the decree for eviction was passed. He, therefore, submitted
that the bonafide need of the landlady was made out and greater
hardship would be caused to her.
On the aspect of the change of user of the premises,
it was submitted that while the premises was let out only for
residential purpose, the tenant was doing gold business in the suit
premises. On this count, a decree on the ground of change of user
ought to have been passed.
On the aspect of determination of standard rent, it was
submitted that the same had been rightly determined at Rs.5000/-
per month. It was submitted that the premises were located in the
heart of the city and near the main road. Therefore, both the
Courts rightly held that the standard rent payable was Rs.5000/-
per month. He thus submitted that the decree for eviction as
passed by the trial Court ought to be restored. In support of his
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submissions, he relied upon the following judgments:
[1] Vilaschand S/o Deochand Khedikar Vs. Bhimchand s/o
Pannasao Jain, 2011(4) Mh.L.J. 864.
[2] Jugalkishore Kanhayyalal Khandelwal vs. Radheshyam
s/o Biharilal Khandelwal, 2012(2) Mh.L.J. 737.
[3] Rasiklal s/o Revchand Shah and others vs. Paraskumar
s/o Balchand Thole and others 2015(1) Mh.L.J. 382.
[4] Haribhauji Mahajan vs. Rajendra Shankar Dawknor and
others 2009(6) Mh.L.J. 483.
[5] Bhaskar Bhagwant Shinde vs. Sou. Vasudha Madhukar
Kadam and another, 2005(3) Mh.L.J.428.
[6] Chandiram Dariyanumal Ahuja vs. Akola Zilla Shram
Wahtuk Sahakari Sanstha Akola 2013(1)Mh.L.J. 28.
[7] Rameshwar Nanakram Prajapal Vs. Sundrabai Keru
igGhadage 2013(2) Mh.L.J. 178.
[8] Madhukar Punjaram Sonwane and another vs. Gajanan
Vithal Khandekar 2009(3) Mh.L.J. 694.
[9] Sharadabai Anandrao Durgule vs. Ramchandra Manku
Pol and others 2009(2) Mh.L.J. 225.
[10] Balwant P. Doshi vs. Shantaben Dhirajlal Shah and
another 2002(4) Mh.l.J. 473.
[11] Prabhakar Venkobaji Manekar vs. Surendra Dinanath
Sharma 2015(4) Mh.L.J. 351.
[12] Narendra Vyankatesh Tambat vs. Pravinkumar
Khushalchand Tated 2016(1) Mh.L.J. 215.
[13] Dr. Ambica Prasad v. Md. Alam and another AIR 2015
SC 2459.
[14] Ganesh Kisandas Lashkare vs. Mahabirprasad Chaurasia
2016(3) Mh.L.J. 862.
7. Shri M. M. Agnihotri, the learned Counsel for the
tenant on the other hand submitted that the appellate Court had
rightly held against the landlady while setting aside the decree for
eviction. He submitted that even though the tenant had not
succeeded in obtaining a decree for specific performance against
the erstwhile landlord, the title of the landlady had not been
finally established. The sale deed executed in favour of the
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landlady was under challenge by filing a counter claim and even
though the trial Court had dismissed the counter claim, a
challenge to the same was still pending. On this count he
submitted that the tenant could not be treated to be a willful
defaulter. If the title of the landlady was not established and there
was a cloud on the same, failure on the part of the tenant to pay
rent could not be lablled as willful default.
8. On the aspect of bonafide need, he submitted that the
evidence of the landlady did not inspire confidence as she had
clearly admitted that the premises in her occupation were
sufficient for her family. He submitted that the landlady had not
given any details about extent of the need of her son and that she
had also not stated about number of her family members. After
issue No.1 was recasted by the trial Court, the son of the landlady
had been examined. Though he ought to have led evidence only on
the recasted issue, he led evidence on all the issues and it was on
the basis of his evidence that the trial Court had decreed the suit.
According to the learned Counsel, the evidence of the son of the
landlady on the aspect of bonafide need could not have been taken
into consideration. The appellate Court, therefore, rightly held
against the landlady. He also submitted that there was no change
of user of the premises inasmuch as the same were in use for
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residence as well as for business.
As regards the determination of standard rent, it was
submitted that there was no evidence whatsoever that the suit
premises could fetch rent of Rs.5000/- per month. According to
him, rent of Rs.200/- per month had been increased to Rs.5000/-
per month which was on a higher side. He submitted that under
Section 11 of the said Act, an increase to the extent of 4% per
annum only was permissible. He further submitted that the
standard rent as determined could not have been directed to be
paid at 9% per annum as decreed. He, therefore, submitted that
the judgment passed by the appellate Court to that extent deserves
to be modified.
9. I have given due consideration to the respective
submissions and I have gone through the documents filed on
record. On the relationship of landlady and tenant, the facts on
record indicate that though the tenant had filed suit for specific
performance of agreement dated 10-12-1981 that was entered into
with Kishanlal Algare, he could succeed only in obtaining a decree
for refund of earnest amount. After said decree attained finality,
the landlady purchased the suit property on 28-2-2008. A notice
of attornment and an intimation to that effect was given to the
tenant. Though it is true that the tenant had filed a counter claim
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for cancellation of the aforesaid sale deed which was executed in
favour of the landlady and the proceedings in that regard were still
pending, the same would not have the effect of effacing the
relationship of landlady or tenant or of clothing the tenant with
title as legal owner of the suit premises. As observed by the
Hon'ble Supreme Court in Dr. Ambica Prasad (supra), a transferee
from a landlord would step into the shoes of the landlord with all
rights and liabilities.
ig Even if the sale deed dated 28-2-2008 is cancelled, the
title of the property would revert back to the vendor - Prabhakar
who was the son of Kishanlal. The status of Prabhakar would
continue to be that of a tenant. It would only be a case of a change
of landlord/landlady. Hence, the contention that as the
proceedings with regard to challenge to the sale deed dated
28-2-2008 were pending, said Prabhakar could not be treated as a
tenant cannot be accepted. Both the Courts have rightly held the
plaintiff to be the landlady pursuant to the sale deed in her favour
and the subsequent intimation dated 28-11-2008 as per Exhibit-44.
10. In so far as the aspect of arrears of rent is concerned,
rent of Rs.200/- per month was being paid by the tenant to the
erstwhile landlord. Notice under Section 15(2) of the said Act
dated 28-9-2010 (Exhibit-46) was received by the tenant on
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29-9-2010. The tenant sent his reply dated 13-10-2010 (Exhibit-
49), but did not pay any arrears of rent as demanded. Admittedly,
after receiving the suit summons, the arrears of rent were not
deposited in terms of provisions of Section 15(3) of the said Act.
Moreover, in the written statement filed by the tenant he took a
specific stand in para 29 thereof that he was residing in the suit
house as owner of the same and not as a tenant. It is in this
background and admitted position that the trial Court held that
the tenant was in arrears of rent and hence, liable to be evicted on
that count. The appellate Court upheld the finding of the trial
Court that the tenant had not paid rent since the time the landlady
had purchased the suit house. Said finding has been recorded in
para 26 of the judgment of the appellate Court, however, by
observing that the default on his part was not willful. The
appellate Court refused to uphold the decree for eviction on that
count. The finding recorded by the appellate Court cannot stand
to the scrutiny of law. On the admitted position that the arrears of
rent had not been paid after receipt of notice under Section 15 (3)
of the said Act, there was no other option but to pass a decree for
eviction on the ground of arrears of rent.
Even assuming that the tenant intended to dispute the
relationship between the parties, he ought to have complied with
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provisions of Section 15(3) of the said Act without prejudice to his
defence. Having failed to do so and the title of the landlady
having been established, the only conclusion that can be drawn is
that the defendant was the tenant of the landlady and was liable to
pay her rent. This conclusion is supported by the ratio of the
decisions in Chandiram Ahuja and Prabhakar Manekar (supra).
Moreover, there is also no deposit of rent during pendency of the
suit or the appeal. This non-deposit is also fatal to the case of the
tenant as observed in Bhaskar Shinde and Hari Mahajan (supra).
The finding of the appellate Court in that regard is liable to be set
aside.
11. On the aspect of bonafide need of the suit premises,
it is to be noted that in the plaint it had been pleaded that the
premises in occupation of the landlady was insufficient for herself
and her family members. Her son wanted to start his own business
in the premises as he was running his computer institute in a
rented premises. In support of his pleadings, the plaintiff
examined herself below Exhibit-29. In her cross-examination, she
stated that in the front portion of her house, her son had opened a
shop which she admitted was sufficient for said purpose. She then
stated that the house occupied by her was sufficient for the need of
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her family. The trial Court while recording her evidence has then
observed that the landlady after stating the aforesaid then took a
pause and stated that the space of the house occupied by her was
not sufficient. The landlady was cross examined on 27-3-2012.
It appears that the landlady closed her side of her evidence after
which the tenant examined himself and two other witnesses. The
suit was then fixed for final arguments. At that stage, the trial
Court on 2-5-2013 recasted issue No.1. Originally issue No.1
related to the ownership of the suit house and after it was
recasted, the same was on the question whether the plaintiff was
the landlady of the premises. The case was then again fixed for
leading evidence on the recasted issue. Thereafter, the son of the
plaintiff filed his affidavit in lieu of evidence and he was then
cross-examined below Exhibit-127. It appears that he led evidence
on all the issues though the direction was only to lead evidence on
recasted issue No.1. The landlady's son then deposed about his
bonafide need. In view of the fact that the landlady had closed her
evidence after examining herself and after recasting of issue No.1,
the trial Court had permitted leading of evidence only on the
recasted issue, it would not be permissible to rely upon the
deposition of landlady's son on the aspects other than his
deposition as to the relationship between the parties. Both the
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Courts failed to take into consideration this vital aspect. The
question of bonafide need would, therefore, have to be examined
by excluding the deposition of the landlady's son who was
examined only to prove the recasted issue.
12. As noted above, in the evidence of the landlady on the
aspect of bonafide need she stated in general terms that the
premises in her occupation were insufficient for her family
members. In view of her admissions in her cross-examination that
her son had started computer business in the front portion of the
premises which was sufficient for doing said business and the
further admission that the house occupied by her was sufficient for
the need of the family which statement she then sought to
contradict cannot be treated as sufficient evidence to hold in
favour of the landlady. The trial Court after a brief discussion and
by observing that her son was running computer institute in a
tenanted premises recorded a finding in favour of the landlady.
The appellate Court, however, reversed this finding on the ground
that there were no details given about her bonafide requirement.
Considering the aforesaid facts, the view taken by the appellate
Court of holding against the landlady on the question of bonafide
need is a possible view of the matter on the basis of evidence on
record not requiring interference in writ jurisdiction.
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The decisions in Rameshwar Prajapal, Madhukar
Sonwane, Shardabai Durgule, Balwant Doshi and Narendra Tambat
(supra) hold that the landlord is the best judge of this need and
that genuineness of the requirement cannot be at par with dire
need. However, if the evidence in that regard is found short of
making out a case for bonafide need, such finding cannot be
recorded in favour of the landlady. The aspect of hardship
therefore loses its significance as the bonafide need has not been
proved. Hence, the ratio of the decision in Vilaschand Khedikar
(supra) cannot be applied to the facts of the present case.
13. In so far as the question of change of user of the suit
premises is concerned, there was no issue framed by the trial Court
in that regard. The landlady also did not make any grievance in
that regard after the issues were framed. The eviction on that
count was considered by the appellate Court and it held that as
part of the premises were being used for residential purpose and
other part of the premises were used for business purposes not
amounting to change of user, the said finding does not call for any
interference.
In view of aforesaid discussion, I find that the landlady
would be entitled for a decree for eviction only on the ground of
arrears of rent. The appellate Court while refusing to pass a
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decree on the said count despite holding the tenant to be in arrears
completely misdirected itself. As the conclusion recorded by the
appellate Court in that regard is contrary to the material on record
and results in grave miscarriage of justice to the landlady, a case
for interference in writ jurisdiction has been made out.
14. On the aspect of fixation of standard rent, it is to be
noted that the trial Court after considering the documents at
Exhibits 36 and 38 which were exhibited in the evidence of the
landlady and after taking into account the area of the suit
premises, the locality and the tax assessed by the Municipal
Council came to the conclusion that the standard rent would be
Rs.5000/- per month. The appellate Court after re-examining this
evidence confirmed the aforesaid finding of the trial Court. As both
the Courts have determined the standard of rent on the basis of
material available on record, said finding cannot be said to be so
perverse so as to warrant interference in writ jurisdiction.
However, it is to be noted that the direction to pay
standard rent has been given from the date of execution of the
sale deed in favour of the landlady. The standard rent has been
directed to be paid from 1-3-2008 till filing of the suit. This finding
has again been confirmed by the appellate Court. It is, however, to
be noted that the landlady had sought determination of standard
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rent by filing an application in that regard alongwith the suit for
eviction. The suit in question was filed in October 2010 and in the
application for fixation of standard rent, a prayer was made to fix
the same from 1-11-2010 onwards. When an application is moved
for fixing standard rent under Section 8(1) of the said Act, on such
standard rent being fixed, it would be ideal for the same to be
directed to be paid from the date of the application. The reason for
the landlady to seek determination of standard rent is because she
found the same to be on a lower side. She therefore sought the
same to be fixed by moving an application under Section 8(1) of
the said Act. There could not have been a direction to pay the
same retrospectively. Reference in this regard can be made to the
decision of the Nagpur High Court in Kewalchand Kastoorchand v.
Samirmal Jaini and another 1953 NLJ 294. It has been held by the
Division Bench that once fair rent is determined, the same would
have prospective operation and such fair rent can be directed to be
paid from the date such application is moved.
15. In the present case, the trial Court as well as the
appellate Court proceeded to direct the tenant to pay standard rent
from 1-3-2008 onwards which was not even the prayer of the
landlady. The application for determination of standard rent
having been filed in October 2010, there could not have been any
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direction to pay the same from an earlier date even prior to such
an application being made. Similarly, under provisions of Section
8 of the said Act, a further direction to pay standard rent at 15%
per annum is also without jurisdiction. The trial Court by
observing that the amount of standard rent was liable to be paid
with interest @15% per annum acted beyond its jurisdiction. The
appellate Court has reduced the rate of interest to 9% per annum
which direction is also without jurisdiction. The decree to that
extent is, therefore, liable to be modified. It would have to be held
that the standard rent of the premises of Rs.5000/- per month
would be liable paid from 1-11-2010 onwards. The amounts
deposited by the tenant during pendency of the appeal would have
to be adjusted accordingly.
16. In view of aforesaid discussion, then following order is
passed:
(a) It is held that the landlady is entitled for a decree of
eviction of the tenant only on the ground of arrears of rent under
Section 15 of the said Act.
(b) The finding as regards standard rent of the premises
being Rs.5000/- per month is upheld subject to same being
payable from 1-11-2010 onwards. The direction to pay interest on
the amount of standard rent is set aside.
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(c) The judgment passed by the appellate Court in R.C.A.
No.345/2013 is modified to the aforesaid extent.
(d) Rule in both the writ petitions is disposed of in
aforesaid terms with no order as to costs.
17. At this stage, Shri M. M. Agnihotri, the learned counsel
for the petitioner in Writ Petition No.6734/2015 seeks stay to the
operation of this judgment. The request is opposed by the learned
Counsel for the respondent. In the facts of the case, the decree for
eviction shall not be executed for a period of six weeks from today.
JUDGE
//MULEY//
